Master Services, Products, and License Agreement
Updated April 2023
This Master Services, Products, and License Agreement (the “Agreement“) is by and between CBTS Technology Solutions LLC (“Company“) and you (“Customer“) covering: (i) the provision of a variety of information technology/IT and telecommunications services (“Technological Services“) and related staff augmentation or other professional services (“Professional Services” and together with Technological Services, collectively “Services“), (ii) the purchase of IT or telecommunications equipment (“Products“), and/or (iii) the licensing of software, including the purchase of maintenance and support services(“Software“) set forth in separate documents attached hereto or executed from time to time pursuant hereto (the “Related Agreements“), including, without limitation, Statements of Engagement, Statements of Work, Service Schedules, Service Agreements, Right to Engage, Hardware Quotes, Contract Change Requests, Purchase Orders and Bills of Materials. Customer agrees that it shall be bound by this Agreement with CBTS, unless the parties enter into a separate written agreement.
1. Scope of Agreement.
The terms of this Agreement will prevail over any contrary provision in a Related Agreement unless the Related Agreement explicitly states that it prevails over this Agreement.
Subsidiaries and affiliates of Company (together with Company, the “Affiliated Legal Entities“) may transact business under this Agreement in their own names, and this Agreement, including all rights, benefits and obligations, shall extend and inure to the benefit of each such Affiliated Legal Entity. To the extent an Affiliated Legal Entity other than Company executes a Related Agreement with Customer, this Agreement shall be construed and interpreted with respect to the Services covered therein as if the Agreement had been executed directly between such Affiliated Legal Entity and Customer. For purposes of clarity, no Affiliated Legal Entity shall be responsible for, or assume any liability of, any other legal entity transacting business under this Agreement.
2. Term.
2.2 Each Related Agreement will set forth an initial term of service. Unless explicitly stated otherwise in a Related Agreement, after the initial term, the Related Agreement will automatically renew on a month-to-month basis until terminated by either party upon thirty (30) days written notice to the other party except that Company may adjust pricing and fees at any time and from time to time.
3. Change Request; Change Authorization.
3.2 If Customer owes Company a past due undisputed amount for Services, Products, and/or Software, Company may, in its discretion, cease to accept or process any Contract Change Requests. Alternatively, Company may, in its sole discretion, require pre-payment from Customer to cover the cost of performing any Contract Change Request. These rights are in addition to all other rights and remedies provided for in this Agreement or the Related Agreement or at law or in equity.
4. Purchase Orders, Acceptance, and Cancellation.
4.2 Customer warrants and represents that the Services, Products and/or Software purchased from Company are not for resale purposes but are purchased for Customer’s own use. If during the Term of this Agreement Customer resells any Services, Products and/or Software purchased from Company, Company may at its election immediately suspend service to Customer and terminate this Agreement or any Related Agreement.
4.3 Company will notify Customer promptly if Customer’s Purchase Order contains inaccuracies or if Products and/or Software are unavailable, or available but at a different price. Once a Purchase Order is accepted by Company, and, where applicable, the Related Agreement is signed, Company will process the Purchase Order. All Products and Software are subject to availability at the time of order acceptance. Customer acknowledges and understands that (i) Product backorders are not uncommon for Products in high demand; (ii) manufacturers periodically discontinue Products and Software and introduce new models or versions; and (iii) Company has no control over the timing of any Product or Software obsolescence, discontinued availability, or price changes.
4.4 The parties agree that any terms or conditions in Customer’s Purchase Order or other document issued by Customer which are additional to or different than the terms and conditions in this Agreement or in a Related Agreement are not binding on Company, whether or not the additional or different terms would materially alter this Agreement.
4.5 Customer may cancel an order, in whole or in part, only with the written consent of Company. If Company so consents, Customer acknowledges that it will be responsible for any actual out-of-pocket expenses incurred by Company as a result of Customer’s cancellation (including but not limited to fees for restocking, cancellation, and shipping) which Company will pass through to Customer without any markup.
5. Delivery, Inspection, Acceptance and Returns.
5.2 Customer shall inspect Products upon delivery and must notify Company of any damaged Products received within fifteen (15) days of delivery. Company will exchange or replace damaged Products in accordance with the Company Returns Policy, a copy of which is available from Company upon request, as such policy may from time to time be modified at the sole discretion of Company, and/or the then current return policy of the applicable manufacturer (collectively, the “Return Policies“). Company will accept return of new, unopened, non-configured Product in accordance with the Returns Policies. Custom-made Products, special order items and cables cannot be returned unless defective. In the event of a conflict in terms, the applicable manufacturer return policy will supersede the Company Returns Policy.
6. Invoices; Taxes; Payment.
6.2 For Product or Software purchases, Company will send an invoice to Customer when Products or Software licenses are shipped to Customer. The charges for Company-performed configuration (if any), shipping, or other specified charges will be added to the Company invoice.
6.3 Customer will pay all applicable taxes, regulatory fees, interexchange carrier charges, and surcharges relating to the Services, Products, and Software (including but not limited to sales, use, value added, personal property, and universal service fund or USF) other than taxes based on Company’s net income. If Customer is tax exempt, Customer shall provide Company with a copy of its tax exemption certificate before Company begins invoicing.
6.4 Invoices are due and payable in U.S. dollars within thirty (30) days of the date on the invoice, unless the parties otherwise agree in writing. Payments not received by the due date are considered past due. Company reserves the right to impose a late charge of one and one-half percent (1½%) per month (18% per annum) (but not more than the maximum rate permitted by law) on all undisputed past due amounts. Company reserves the right to suspend performance of Services and/or suspend delivery of Products or Software if Customer owes an undisputed past due amount to Company, and to pursue any other right or remedy that Company may have in law or equity. Customer acknowledges and agrees that restrictive endorsements or other statements on checks will not be binding on Company.
6.5 If Customer in good faith disputes any portion of a Company invoice, Customer shall, within thirty (30) days following the invoice date, remit to Company full payment of the undisputed portion of the invoice and notify Company in writing of such dispute in sufficient detail to identify and substantiate the disputed amount. If Customer does not report a billing dispute within sixty (60) days following the invoice date, Customer shall have waived its right to dispute that invoice. Company and Customer agree to use their respective commercially reasonable efforts to resolve any billing dispute within thirty (30) days after Company receives written notice of the dispute from Customer. Any disputed amounts subsequently resolved in favor of Customer shall be credited to Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Company will be due within fourteen (14) days of the resolution of the dispute.
6.6 In the event Customer purchases applicable Services, Products and/or Software through a cloud marketplace, the financial terms (including but not limited to this Section 6) shall not apply, and any financial terms shall instead be governed by the cloud marketplace terms and conditions for purchase.
7. Security Interest.
8. Export Control.
9. Software Licenses.
10. Product and Software Warranties and Exclusions; Assumption of Risk.
10.2 Unless otherwise expressly provided in this Agreement or in an applicable Related Agreement, Company is not the manufacturer or developer of any Product or Software, and Company makes no warranties, express or implied, with respect to any Product or Software. SPECIFICALLY, BUT WITHOUT LIMITATION, COMPANY DISCLAIMS AND MAKES NO WARRANTY TO CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FREEDOM FROM INFRINGEMENT CLAIMS OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PRODUCT OR SOFTWARE.
10.3 In the event that Company (or an applicable third-party manufacturer or publisher in the case of Products or Software) chooses to end of life any of the Products or Software provided to Customer, Company will provide Customer with reasonable notice of such intention and will work with the Customer to migrate to a comparable alternative Product or Software. If Customer chooses not to so migrate, then the applicable Related Agreement shall be terminated effective as of the end-of-life date (or such other date as Company and the Customer may reasonably agree on) without the requirement for Customer to pay any early termination fees.
10.4 All material, equipment, or software required for Customer to use the Services, Products or Software and made available to Customer by Company (“Company Provided Equipment“) shall at all times be and remain the exclusive property of Company (or its third-party providers). Upon termination or expiration of the applicable Related Agreement, Customer shall return the Company Provided Equipment to Company in good working condition at Customer’s expense, normal wear and tear excepted. The Company Provided Equipment does not include the Products or Software purchased pursuant to this Agreement or the CPE. Customer shall be responsible for the loss of or damage to the Company Provided Equipment except if caused by the negligence or willful misconduct of Company or its third-party providers.
10.5 In addition, unless explicitly provided therein, the warranties in Section 10.1 do not cover and Customer is liable for the cost of services required to repair damages, malfunctions, or failures caused by: (i) Customer’s failure to follow Company’s or the manufacturers’ written operation or maintenance instructions as applicable and provided to Customer or published on the manufacturer’s website; (ii) Customer’s unauthorized repair, modifications, or relocation of Company Provided Equipment or the attachment of any non-Company Provided Equipment; and (iii) Customer’s abuse, misuse or negligent acts.
10.6 Customer is responsible for: (i) use of the Products or Software by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Products or Software in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Products or Software.
10.7 Company is not responsible for its inability to provide the Products or Software to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.
11. Service Warranties and Exclusions; Assumptions of Risk.
11.2 If Company fails to perform any Professional Services as warranted, Customer shall notify Company promptly of such (and in no event later than fifteen (15) days after the date such nonconforming Professional Services were rendered) with a reasonably detailed description of the nature of the nonconformity. Within thirty (30) days after receipt of such written notification, as Customer’s sole remedy, Company will re-perform such nonconforming Professional Services at no additional charge to Customer or, if such re-performance fails to provide Professional Services as warranted, Company will refund any fees paid to Company to the extent attributable to such nonconforming Professional Services.
11.3 EXCEPT AS STATED ELSEWHERE IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT OR IN ANY RELATED AGREEMENT, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO THE EXTENT THAT A SERVICE BREACH RESULTS FROM ANY ACT OR OMISSION OF CUSTOMER, ITS EMPLOYEES, OR AGENTS.
11.4 Customer shall cooperate with and assist Company by providing to Company such information and access to Customer’s facilities, equipment, databases, software (collectively, “CPE“), personnel and other resources as may be required and/or described in the applicable Related Agreement, or as Company may reasonably request that is required for Company to implement and/or perform the Services. Company will comply with Customer’s physical security and safety regulations at Customer’s site as provided to Company in advance. Unless provided as part of the Service pursuant to a Related Agreement, Customer shall solely be responsible for the supply (including obtaining necessary licenses and authorizations), installation and maintenance of any CPE that is necessary to receive the Services. Customer is solely responsible for ensuring that all CPE is compatible with Company’s equipment where required to provide the Services. Company is not responsible for any changes to the Services that render CPE incompatible or necessitate an update or upgrade to the CPE.
11.5 Customer is responsible for: (i) use of the Services by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Services in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Services.
11.6 Company is not responsible for its inability to provide the Services to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.
12. Limitation of Liability.
12.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY UNDER ANY CLAIM OR CIRCUMSTANCE (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR INTERRUPTION OR LOSS OF USE, LOSS OF DATA, LOST PROFITS OR REVENUES, OR LOST GOODWILL) ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 Notwithstanding anything contained herein or elsewhere, with respect to any claims or causes of action arising from any actual or alleged breach by Company of this Agreement or any Related Agreement or in any way related to any Services, Products, or Software, the recovery and damages available to Customer shall be limited to, and Company’s maximum exposure shall not exceed, the following: (i) for Technological Services, an amount equal to the monthly recurring charges paid by Customer during the preceding six (6) months for the Technological Services at issue, (ii) for Professional Services, an amount equal to the fees paid by Customer for the Professional Services at issue, and (iii) for Products or Software, an amount equal to the purchase price or license fees paid by Customer for the Products or Software at issue. This limitation of liability is cumulative and not per incident.
13. Indemnification.
13.2 If Customer is, or in Company’s reasonable judgment may be, the subject of a valid third-party claim of infringement against Customer which relates to any Technological Service provided by Company then Company shall, in its sole discretion, do any of the following as Customer’s sole and exclusive remedy: (i) provide substantially similar substitute Technological Service(s); (ii) obtain, at Company’s expense, rights as required to continue to provide the Technological Service(s); or (iii) terminate Customer’s right to receive the Technological Service(s) and refund to Customer the monthly recurring charges paid for the infringing Technological Service(s) under the affected Related Agreement, pro-rated over the number of months which have elapsed since the effective date of the Related Agreement.
13.3 Customer shall indemnify, defend and hold harmless Company, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors (each a “Company Indemnified Party“), from and against, and Company shall have no obligation to perform any remedies enumerated in Section 13.2 for, any claims, damages or expenses (including reasonable attorneys’ fees) resulting from the improper use or modification by Customer of any Product, Software or other material supplied by Company, which use or modification results in a claim of infringement of any third party patent, copyright, trade secret, or trademark. Customer shall also indemnify, defend and hold each Company Indemnified Party harmless from and against any claims arising out of, resulting from, or relating to: (i) Customer Data (defined in Section 17.1.2), (ii) any CPE, or (iii) any Service to the extent the claim is based on instructions, design or specifications provided by the Customer.
13.4 Each party shall also indemnify, defend, and hold harmless the other party, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors from and against any third-party claims for damages or expenses (including reasonable attorneys’ fees) relating to death, personal injury or damage to tangible personal property resulting from the indemnifying party’s willful misconduct or grossly negligent acts or omissions, to the extent such damages do not result from or are not caused by the willful misconduct or gross negligence of the indemnified party, its employees or agents.
13.5 A party’s obligation to indemnify and defend the other with respect to any claim will be subject to: (i) the indemnified party providing the indemnifying party with prompt written notice of such claim; (ii) the indemnified party, at its expense, having the right to participate in the defense and settlement thereof; and (iii) the indemnified party providing the indemnifying party with the information and assistance necessary to defend or settle such claim as reasonably requested by the indemnifying party. The indemnifying party may settle such claim or proceeding with the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed provided that where the indemnified party is a named defendant or respondent, the indemnified party shall have the right to reject settlement or other disposition of the claim involving or requiring admission or acknowledgement of wrongdoing by or liability on the part of the indemnified party.
14. Independent Contractor.
15. Non-Solicitation.
16. Confidential Information.
17. Customer Data; Personal Information; Consent to Use.
17.1 Definitions. Capitalized terms used in this Section 17 shall have the meanings set forth in this Section 17.1.
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- 17.1.1 “Authorized Persons” means Company’s employees, contractors, agents, and auditors who have a need to know or otherwise access Customer Data or Personal Information to enable Company to perform its obligations under this Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Customer Data or Personal Information in accordance with the terms and conditions of this Agreement.
- 17.1.2 “Customer Data” means the contents of data provided or transmitted by Customer or its users to Company in connection with the Services or which is created by Company on behalf of Customer.
- 17.1.3 “Data Breach” means a breach of security leading to the unlawful or unauthorized access to or disclosure or acquisition of Customer Data or Personal Information.
- 17.1.4 “Personal Information” means information that Customer provides or for which Customer provides access to Company, or information which Company creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual. Customer’s business contact information is not by itself Personal Information.
17.2 Company Obligations. Company will: (i) comply with the terms and conditions set forth in this Section 17; (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Customer Data or Personal Information under its control or in its possession by all Authorized Persons; and (iii) use and disclose Customer Data or Personal Information only for the purposes for which Customer provides the Customer Data or Personal Information, or access to it, pursuant to the terms and conditions of this Agreement, and not use or otherwise disclose or make available Customer Data or Personal Information for Company’s own purposes without Customer’s prior written consent.
17.3 Customer Obligations. Customer will: (i) comply with the terms and conditions set forth in this Section 17; (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Customer Data or Personal Information under its control or in its possession; (iii) comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Customer Data or Personal Information to Company; and (iv) treat Company’s Cyber Incident Response Plan(defined in Section 17.5) as Confidential Information under this Agreement.
17.4 Information Security. Company will comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Customer Data or Personal Information. Company will employ reasonable security measures to protect Customer Data or Personal Data in accordance with the National Institute of Standards and Technology (NIST) 800-53 Cybersecurity Framework. If, in the course of its performance under this Agreement, Company has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information on Customer’s behalf, Company will comply with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, as applicable.
17.5 Data Breach Procedures. Company maintains a cyber-incident breach response plan in accordance with Company’s Information Security Policy (“Cyber Incident Response Plan“) and will implement such plan on the occurrence of a Data Breach. Unless prohibited by law enforcement activities, Company will notify Customer of a Data Breach as soon as reasonably practicable, after Company becomes aware of it. Immediately following Company’s notification to Customer of a Data Breach, the parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with Company’s current Cyber Incident Response Plan.
17.6 Controls Review or Audit. At least once per year, Company will obtain a security controls review or audit performed by an independent third party based on recognized industry standards. Company will make results of such controls review or audit (“Audit Materials”) available to Customer upon request and will timely address noted exceptions. Any such Audit Materials are Confidential Information of Company and shall be subject to the confidentiality requirements and obligations in Section 16.
17.7 Return or Disposal of Customer Data or Personal Information. Upon termination or expiration of this Agreement, Company will promptly return to Customer or securely dispose of all Customer Data or Personal Information in its possession or in the possession of Authorized Persons. If Company is not reasonably able to return or securely dispose of Customer Data or Personal Information, including, but not limited to, Customer Data or Personal Information stored on backup media, Company will continue to protect such Customer Data or Personal Information in accordance with the terms of this Agreement until such time that it can reasonably return or securely dispose of such Customer Data or Personal Information.
18. Offsite Storage of Customer Data.
19. Customer Proprietary Network Information (CPNI).
20. Regulatory Service Agreements and Tariffs.
- 20.1 Robocalling And Traceback Efforts. As required by the Federal Communications Commission (“FCC”) statutes, rules, regulations and orders (“FCC Rules”), Customer agrees to:
- 20.1.1 Not to engage in unwanted calls – including illegal and spoofed robocalls;
- 20.1.2 Cooperate in all traceback investigations in a timely manner (i.e., first response within 24-hours after request), for the purpose of identifying the upstream provider from which a suspected unwanted call entered Company’s network; and/or identifying Customer’s own end user if the unwanted call originated in Customer’s network.
- 20.2 Company has the right to comply with all FCC Rules, which may include blocking calls, early termination of the Service or other remedial action, without liability to Customer. Although Company will endeavor to give notice when practicable, advance notice of remedial action is not required.
21. Injunctive Relief.
22. Intellectual Property; License.
23. Trademarks; Service Marks; Name and Advertising.
24. Assignment.
25. Subcontracting; Multi-Jurisdictional Service Delivery.
26. Notices.
27. Dispute Resolution; Binding Arbitration.
28. Termination.
28.2 Either party shall have the right to terminate this Agreement or any Related Agreement immediately, without further obligation or liability, if: the other party becomes insolvent or ceases its normal business operations; voluntary or involuntary proceedings are commenced under any bankruptcy, reorganization, or other similar laws of any jurisdiction by or against the other party; any order is made or any resolution is passed for the winding up, liquidation, or dissolution of the other party; a receiver is appointed for it or its property; any of its goods or properties are taken in execution; or, it makes a general assignment for the benefit of creditors.
28.3 Customer may terminate this Agreement or any Related Agreement for convenience at any time upon thirty (30) days written notice to Company. Unless otherwise expressly provided in an applicable Related Agreement, if Customer terminates this Agreement or a Related Agreement for convenience prior to the end of the Term, Customer is responsible for: (i) one hundred percent (100%) of all deferred payments and a pro-rata portion of any charges previously waived by Company to be paid at a later time; (ii) one hundred percent (100%) of all non-cancellable or non-refundable third party charges incurred as a result of the termination; (iii) all incurred or outstanding expenses for Services performed or Products or Software delivered or up to the effective date of cancellation or termination; and (iv) an early termination fee equal to fifty percent (50%) of its monthly recurring charges identified in the terminated Related Agreement(s) multiplied by the number of months remaining in the term of the terminated Related Agreement(s) for Technological Services. Customer will pay such amounts owed and termination fees within thirty (30) days after the termination date. Customer acknowledges that these termination fees are a genuine pre-estimate of the damages Company will incur as a result of the termination.
28.4 If Company reasonably deems it necessary as a result of a substantiated concern relating to Company’s networks or its provision of services to other customers, Company may at any time and without notice restrict or suspend Customer’s access to the Services.
29. Survival.
30. Governing Law and Jurisdiction; Limitations.
31. Entire Agreement; Amendments.
31.1 This Agreement, and any Related Agreement(s) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all proposals, oral or written, all negotiations, discussions, and all past dealings between the parties relating to the subject matter hereof. Each party acknowledges and agrees that no employee, officer, agent, or representative of the other party has the authority to make any representations, statements, or promises in addition to or different than those contained in this Agreement and any Related Agreement, and that it is not entering into this Agreement or any Related Agreement in reliance upon any representation, statement, or promise of the other party not expressly stated in this Agreement or any Related Agreement.
31.2 This Agreement may be amended only in writing, executed by an authorized representative of each party.
32. Force Majeure.
33. Legality; Enforceability.
34. Request for Information.
35. Publicity.
36. No Third-Party Beneficiaries.
37. Waiver.
38. Election of Remedies.
39. Counterparts.
40. Headings.
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