This Master Services Agreement (this “Agreement”) is entered into on (the “Effective Date”) by and between BTBIZ LLC. (together with its affiliates providing the Services defined below, “BTBIZ LLC” or “Carrier”), a NY Corporation with its principal place of business located at1942 Broadway St. STE 314C, Boulder, CO 80302 and with its principal place of business located at (together with its affiliates, “Customer”). For purposes of this Agreement, BTBIZ LLC and Customer are referred to individually as “Party” and collectively as the “Parties”. Customer is responsible for the usage of its affiliates.
Background:
A.BTBIZ LLC provides various types of communications services as part of its suite of voice solutions. Customer can be end user and or a provider of various types of communication services.
B.The Parties desire that BTBIZ LLC provide Customer with the Voice Services/Schedules more specifically described below.
Agreement: Intending to be legally bound, the Parties agree as follows:
Pursuant to the terms herein, BTBIZ LLC will provide and Customer will receive those services (“Services”) set forth in and pursuant to any service schedule, exhibitor addendum (each, a “Service Schedule”) attached hereto or subsequently added to this Agreement and incorporated herein. The Service(s) provided may be used only as expressly authorized under the applicable Service Schedule(s) by Customer, or any affiliate of Customer or any customer of Customer. The Parties agree that in the event of any conflict or inconsistency, the terms and conditions set forth in the Service Schedule(s) will prevail over the terms and conditions of this Agreement
The term of this Agreement will commence on the Effective Date and remain in full force and effect for one year. Upon expiration of the term of a Service Schedule(s), the Service Schedule(s) will automatically continue on a month-to-month basis under the terms and conditions (including rates) then in effect,during which time either Party may terminate the Service Schedule(s) upon thirty (30) calendar days’ prior written notice to the other Party. BTBIZ LLC may also change the rates on 5 days’ notice during any month-to-month term, unless a shorter period is set forth in the Service Schedule.
3.1 BTBIZ LLC may, without notice, discontinue Services, cancel an application for Services or terminate this Agreement or any Service Schedule without any liability for any of the following reasons: (a) Customer fails to pay any amount by the Due Date (defined below) and does not correct such failure within five days of receiving written notice; (b) Customer fails to comply with any other material term or condition of this Agreement that is not corrected within 30 days of receiving written notice; (c) a violation by Customer of any law, rule or regulation of any governing authority having jurisdiction over the Services; (d) prohibition against BTBIZ LLC furnishing the Services by any competent court or government authority;
(e) for usage by Customer beyond the credit limit set by BTBIZ LLC, if any, and Customer fails to provide within two days of receipt of written notice a security deposit in an amount requested by BTBIZ LLC in its sole discretion; (f) Customer provides false or misleading credit information; or (g) Customer uses any Service(s) in such a manner as to interfere unreasonably with the use of Service(s) by other BTBIZ LLC customers or authorized users.
3.2 Upon termination of this Agreement, all documentation, software, data and other materials of any kind belonging to BTBIZ LLC in the Customer’s possession and any copies thereof will be returned to BTBIZ LLC or destroyed and certificated as such by an officer of the Customer.
4.1 BTBIZ LLC will provide, maintain and support the Service(s) at the price and terms set forth in the Service Schedule(s) related thereto. Customer will (i) pay all charges for the Service(s) set forth in the individual Service Schedule(s); (ii) provide documentation and information reasonably requested by BTBIZ LLC necessary for the provision or use of the Service(s); (iii) provide reasonable cooperation to BTBIZ LLC regarding the installation of any components as may be required for BTBIZ LLC to interface to Customer’s (or its third party customers’) facilities, and any related modification to Customer’s (or its third party customers’) facilities or operations; (iv) obtain from any third party any authorizations, access to premises and other cooperation reasonably required by BTBIZ LLC for the provision of the Service(s); and (v) report malfunctions of the Service(s) to BTBIZ LLCas soon as reasonably practicable. If a certificated telecom carrier purchases Local Transit Services, such service may not be resold without BTBIZ LLC’s consent.
4.2 Interconnection points for the Services are currently available using IP Trunking or Virtual IP Trunking (public Internet access). Customer is responsible for obtaining and paying for the transport facility to interconnect with Carrier (e.g., from Customer’s switch to Carrier’s switch or the Carrier designated Point of Interconnect). Carrier has no responsibility for any service problems related to the Customer provided transport facility.
5.1 Customer will pay as per prepaid or postpaid arrangement/agreement mentioned herewith.If its prepaid customer needs to have sufficient balance in their account to be able to avail the agreed services with agreed terms and conditions. If its postpaid arrangement Customer will make all payments due to BTBIZ LLC within three calendar days of the date of BTBIZ LLC’s invoice (the “Due Date”). Customer is responsible for all fees related to making payment (such as bank wiring fees or fees related to currency conversion). If BTBIZ LLC incurs any expenses in collecting payments due under this Agreement, including but not limited to reasonable attorney’s fee or fees associated with a collection agency, Customer acknowledges and agrees that Customer is responsible for payment of such expenses. Fraud does not excuse Customer’s payment obligations.
5.2 From time to time, BTBIZ LLC may establish a monthly credit limit. BTBIZ LLC, at its election, will not provide Services in excess of the monthly credit limit.
5.3 If any undisputed amount due under this Agreement is not received by the applicable Due Date, in addition to its other remedies available hereunder, BTBIZ LLC may in its sole discretion (i) impose a late payment charge of the lower of 1.5% per month or the highest rate legally permissible (such late charge will be payable upon demand by BTBIZ LLC); and/or (ii) require the delivery of a security deposit, as a condition of the continued availability of the Services.Customer hereby authorizes BTBIZ LLC to make any investigations of credit worthiness of Customer that BTBIZ LLC deems necessary. BTBIZ LLC may require a security deposit prior to commencing the provision of any Services. BTBIZ LLC may apply the security deposit against any outstanding amounts and require that Customer replenish the security deposit if so applied The charges set forth herein do not include any surcharges, fees, taxes or governmental charges and Customer will pay all these additional amounts, except to the extent a valid exemption certificate is provided to BTBIZ LLC. Customer acknowledges and agrees that the treatment of some Services may change, and as a result, additional amounts, such as universal service fund charges, that may not apply on the Effective Date may subsequently apply.
5.4 If Customer wishes to dispute any charges due under this Agreement, Customer must do the following: (i) all disputes must be in writing and specifically identify the invoice and the amounts disputed; (ii) such written notice must be received by BTBIZ LLC no later than 60 days after the applicable Due Date for the invoice that includes the disputed charges otherwise such invoice shall be deemed to be correct and binding upon Customer; and (iii) Customer may not withhold any amountsin dispute. Any amounts unpaid by Customer, including disputed amounts, are subject to any other remedies available to BTBIZ LLC.
5.5 Surcharges on Conversational routes are applicable as follows: If 20% or more calls are 6 seconds or less than 6 seconds(short duration call threshold) and if more than 25% customer call attempts fail/do not complete(incomplete call threshold) BTBIZ LLC/Carrier may bill and customer will pay a surcharge of .018 usd per call which is more than 20% short duration call threshold and per call more than complete call threshold. This surcharge is in addition to the original call cost as agreed.In addition Carrier can suspend services with 24 hour notice to conform to the threshold or terminate the agreement with 1 week notice.
All right and title to, and interest in, any intellectual property, including all modifications, enhancements, improvements, alterations or updates, utilized by BTBIZ LLC or licensed to Customer by BTBIZ LLC to provide the Service(s) pursuant to this Agreement, belong to BTBIZ LLC or the third party from whom BTBIZ LLC procures such intellectual property. Unless specifically stated in this Agreement or related Service Schedule(s), no licenses, expressed or implied, under any patents, copyrights, trademarks, or other tangible or intellectual property rights are granted by BTBIZ LLC to Customer under this Agreement.
Customer acknowledges and agrees that the services offered by BTBIZ LLC In care subject to: (i) compliance with all applicable laws and regulations; (ii) BTBIZ LLC’s filed and effective tariffs (“Tariff”), the general terms of which will also apply to all services provided under this Agreement; and (iii) any regulatory authorizations.
If Customer terminates this Agreement (or any Service Schedule) for its convenience or if BTBIZ LLC terminates this Agreement (or any Service Schedule) pursuant to Section 3.1(a), the Parties acknowledge that BTBIZ LLC’s damages will be difficult to ascertain. Therefore, Customer agrees that as liquidated damages, and not as a penalty, the measure of BTBIZ LLC’s damages will be an amount equal to the average of all monthly amounts paid under the Service Schedule(s) being terminated in the six months (or the average of all monthly periods the Service Schedule has been in effect if less than six-months) before the termination became effective multiplied by the number of months remaining in the term of the applicable Service Schedule(s). Customer will promptly pay BTBIZ LLC Inc after receiving an invoice identifying the applicable amount.
9.1 EXCLUDING PAYMENT AND INDEMNITY OBLIGATIONS, NEITHER PARTY NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS, WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY, INCLUDING ANY CUSTOMERS OR END USERS, FOR
ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF BUSINESS OR ANY OTHER PECUNIARY LOSS, ARISING IN ANY WAY OUT OF OR UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 IF BTBIZ LLCIS EVER HELD LIABLE IN RELATION TO THIS AGREEMENT AND WHETHER THE CLAIM IS UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, BTBIZ LLC’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES AND WILL NOT EXCEED THE GREATER OF (i) THE TOTAL AMOUNT PAID BY CUSTOMER TO BTBIZ LLCIN THE THREE MONTHS PRIOR TO THE EVENT OR EVENTS IN QUESTION; OR (ii) $50,000.
10.1 Each party warrants that it complies with all applicable laws, rules and regulations applicable to it in connection with this Agreement.
10.2 EXCEPT FOR THE FOREGOING, BTBIZ LLCMAKES NO WARRANTY TO CUSTOMER, OR ITS CUSTOMERS, END USERS, OR ANY OTHER PERSON, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACYOR COMPLETENESS OF RESPONSES OR RESULTS, TITLE, NONINFRINGEMENT, QUIET ENJOYMENT OR QUIET POSSESSION AND ANYTHING PROVIDED OR USED HEREUNDER, AS A RESULT OF THIS AGREEMENT.
11.1 Except as provided below, the Parties will not, directly or indirectly, disclose any information concerning the other’s business methods, customersorfinances, or any other information which is disclosed to it by the other Party in connection with this Agreement, whether or not in writing and whether or not designated as confidential, without the prior written permission of the disclosing Party (“Confidential Information”). The terms and conditions of this Agreement are deemed to constitutenon public Confidential Information subject to the terms of this Section. BTBIZ LLC will only use personal information disclosed to it hereunder in order to provide the Services. Each Party acknowledges that any breach of its obligations under this Section will cause irreparable harm to the other for which its remedies at law will be inadequate and that, in the event of any such breach, the offended Party will be entitled to injunctive or comparable equitable relief (including without limitation,injunctive reliefand specific performance) in additionto other remedies provided hereunder or otherwise available.
11.2 The receiving Party will only disclose Confidential Information received from the other Party to its employees and contractors who have a need to know and who are bound by confidentiality obligations at least as strict as those contained in this Section.
11.3 The obligations of the Parties under this Section 11 do not apply to any information that (i) as shown by reasonably documented proof, was in the other’s lawful possession without restriction on use or disclosure prior to receipt thereof from the disclosing Party; or (ii) as shown by reasonably documented proof, was received by one Party in good faith from a third party not subject to a confidential obligation to the other Party and without breach of this Agreement; or (iii) now is or later becomes part of the public domain through no breach of a confidential obligation by the receiving Party; or (iv) was developed by the receiving Party independently from and without the developing person(s) having access to any of the information received from the other Party.
11.4 The receiving Party may disclose Confidential Information pursuant to a lawful requirement or request from a court or governmental agency (including by way of stock market rule or regulation);
provided that prior to making any disclosure, the receiving Party will (a) give the disclosing Party written notice, to the extent commercially practicable and not otherwise prohibited by law, sufficient to allow the disclosing Party to seek a protective order or other appropriate remedy and (b) disclose only that portion of the Confidential Information it is required to disclose, in the opinion of its counsel, to comply with such legal requirement, and will use commercially reasonable efforts to obtain confidential treatment for any of the Confidential Information so disclosed.
11.5 In addition:
(i) neither Party will announce the execution of this Agreement without the consent of the other Party to this Agreement;
(ii) neither Party will include the other Party’s name in any advertising, sales promotion, or other publicity materials without prior written approval; except that
(iii) BTBIZ LLC may include and publish Customer’s name on BTBIZ LLC’s customer list without Customer’s prior written approval.
Customer agrees to defend, at its own expense, and indemnify and hold harmless BTBIZ LLC and its subcontractors (collectively the “BTBIZ LLC indemnities”), from and against any third party claims, suits, damages and expenses asserted against or incurred by any of the BTBIZ LLC Indemnities arising out of or relating to: (i) Customer’s use of any Services or related products, data and documentation provided to Customer hereunder, including where the same results in a violation of any law or regulation (e.g., the Telephone Consumer Protection Act); and (ii) Customer’s connection of any BTBIZ LLC product or service to any third party service or network, including without limitation, damages resulting from unauthorized use of, or access to, BTBIZ LLC’s network and (iii) Customer’s Equipment (as defined below) or Tools and Applications (as defined below). Notwithstanding any other provision of this Agreement, Customer will pay all damages, settlements, expenses and costs, including costs of investigation, court costs and reasonable attorneys’ fees and costs (including allocable costs of in-house counsel) incurred by BTBIZ LLC indemnities as set forth in this Section, including, without limitation, reasonable attorneys’ fees and costs (including allocable costs of in-house counsel) incurred in successfully enforcing the terms of this Agreement.
13.1 If BTBIZ LLC grantsCustomer access, either byonline access, byAPI or accessby any other means, to a service ordering/management system and/or any other tools and applications or computer software in connection with the Service(s) or the use of any Service(s) (collectively, the “Tools and Applications”), the following apply:
(i) Subject to Customer’s compliance with this Agreement, BTBIZ LLC grants Customer a non-exclusive, non-transferable license to use such Tools and Applications solely in connection with Customer’s use of the Service(s) during the term Customer will not, directly or indirectly: (A) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Tools and Applications; (B) modify, translate or create derivative works based on the Tools and Applications; (C) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the Tools and Applications or make the Tools and Applications available to any third party; (D) use the Tools and Applications for timesharing or service bureau purposes or otherwise for the benefit of a third party; (E) remove anyproprietarynotices or labels on any Tools and Applications; or (F) copy, reproduce, post or transmit any Tools and Applications in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means.
(ii) The Tools and Applications are BTBIZ LLC’s (or its licensor’s intellectual property). Nothing in this Agreement gives Customer any right or license to any BTBIZ LLC intellectual property.
(iii) Customer is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through or with such Tools and Applications. Customer is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Tools and Applications, and to only allow authorized use of the Tools and Applications to persons that Customer designates. Customer retains full andsoleresponsibility for all charges for the Service(s) even if incurred in connection with fraud or unauthorized access.
Neither this Agreement nor any right or obligation hereunder may be assigned, delegated or otherwise transferred, in whole or part, by either Party without the prior express written consent of the other Party, except that either Party may /assign this Agreement without consent to any affiliateor to any party acquiring substantially all of the assets to which this
Agreement relates. Notwithstanding the foregoing, Customer’s attempted assignment to an affiliate or a purchaser will be void if such party is not creditworthy.
All notices required under this Agreement will be given in writing and either (i) hand delivered, (ii) sent by email, or (iii) delivered by a nationally recognized next business day courier, postage paid, in all cases to the addresses listed in the signature blocks below. If Customer’s address is a post-office box, BTBIZ LLC may send any written notice by U.S. mail. Notices will be deemed received on the date of delivery or when delivery is refused; provided, however, that if notice is sent by email and received after 5:00 p.m. in the time zone of the recipient or on a non-business day, the notice will be deemed received on the next business day. A Party may change its notice address using the notice procedures described in this Section.
Other than payment, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, to the extent that the same is caused by any cause beyond that Party’s reasonable control (a “force majeure event”). The Party experiencing the force majeure event shall use reasonable efforts under the circumstances to avoid, limit and remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease. Notwithstanding the foregoing, if a force majeure event results in an interruption of the Services for more than 30 consecutive days, the requesting Party may immediately thereafter terminate the affected Services by notice to the other Party and without liability for any early termination fee or charge, so long as such termination occurs prior to the cessation of the force majeure event.
17.1. Independent Contractors: The Parties are separate and independent legal entities, and independent contractors as to each other and under this Agreement.
17.2 Severability: If any provision of this Agreement is invalid or unenforceable under applicable law, that provision will be ineffective only to the extent of such invalidity, without affecting the remaining parts of the provision or the remaining provisions of this Agreement. The Parties agree to negotiate any such invalid or unenforceable provision to the extent necessary to render such part valid and enforceable.
17.3 Applicability of Tariffs and AUP: Except as may be set forth herein, nothing modifies any BTBIZ LLCtariff in any manner, which tariffs are incorporated herein to the extent required by law. Any AUP (Acceptable use Policy) that may be posted to Carrier’s website applies to the Services.
17.4 No Waiver: The failure of either Party to give notice of default or to enforce or insist upon compliance with any term or condition of this Agreement does not constitute a waiver of the default of any term or condition of this Agreement.
17.5 Survival: The Parties agree that those provisions of this Agreement that should survive its termination or expiration in order to effectuate the intentions of the Parties do extend beyond its expiration or termination.
17.6 Choice of Law: The Parties agree that this Agreement will be governed by, interpreted, and construed in accordance with the laws of the State of New York without regard to choice of law principles. Exclusive venue for any and all actions arising out of or related to this Agreement will be in the federal or state courts located in Cook County, Illinois.
17.7 Changes: No changes or modifications to these terms and conditions will be effective unless in writing signed by the Party against which enforcement is sought.
17.8 Disclosure of Customer Proprietary Network Information (“CPNI”) and Other Information: The Parties acknowledge and agree that as between BTBIZ LLC and Customer, BTBIZ LLC will not have information related to the identity of the end users using any telephone numbers (“TNs”) assigned to Customer under this Agreement
If BTBIZ LLC receives complaints or information requests from governmental agencies or third parties regarding TNs assigned to Customer or Customer’s use of the Services, Customer acknowledges and agrees that BTBIZ LLC Inc can reveal Customer’s CPNI and other information so as to allow the complaining party to directly contact Customer to resolve any such matters.
17.9 Change in Law: If any federal, state or local statute, rule, order, regulation or order by a court of law or regulatory authority, ILEC tariff change, or anything similar to the foregoing effects a change (a “Change in Law”) which has a material adverse impact upon either Party under this Agreement, then the Parties will use reasonable efforts to revise this Agreement so that such Party is no longer impacted in a material adverse fashion and preserves, to the maximum extent possible, the respective positions of the Parties. If the Parties are unable to agree upon revisions to this Agreement in accordance with the above, then the Party impacted in a material adverse manner shall have the right, at its sole discretion, to cease performance of the obligation(s) that is materially and adversely affected upon prior written notice.
This Agreement is the complete agreement of the Parties and supersedes any prior agreements or representations, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may be executed in counterparts, each of which when executed and delivered will be an original, but all of which will constitute one and the same instrument. Facsimile or electronically reproduced signatures will be treated as original ink signatures for all purposes.
BTBIZ LLC Wholesale Master Services Agreement
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the Effective Date.