1stel® Master Service Agreement

Master Service Agreement for Communication Services

STATEMENT OF AGREEMENT

  1. Purpose of this Master Service Agreement; Provision of Services and Equipment.

This Master Service Agreement sets out the general terms and conditions under which 1stel will provide Customer with telecommunication services (the “Services”) and equipment (the “Equipment”). The specific Services and Equipment to be provided, the term over which they will be provided, and other details will be set out in one or more supplemental 1stel Service Orders(s). From time to time, 1stel and Customer may elect to execute additional or amended Service Orders as circumstances may dictate. However, the terms and conditions of this Agreement shall apply to ALL 1stel Service Orders, new or previously existing, executed between the parties unless the parties affirmatively indicate, on the face of such 1stel Service Order, that the terms and conditions of this Agreement do not apply to that particular 1stel Service Order.

  1. Obligations of Customer.

Customer shall use the Services and Equipment only for lawful purposes and only in accordance with all tariffs and the 1stel Acceptable Usage Policy (a copy of which is maintained at http://www.1stel.com/aup.html). Customer shall be solely responsible for ensuring the compatibility of any equipment not acquired from 1stel which is added to, or which is otherwise used in conjunction with the Services and Equipment provided by 1stel.

  1. Term.

Each particular Service Order shall set out the term relating to the Services or Equipment at issue in that Service Order. The term set out in the Service Order may be earlier terminated as provided herein, or extended in writing in an additional Service Order. Unless specifically renewed at the end of the initial term, any Services provided following the expiration of Service Order’s term shall be on a month-to-month basis.

  1. Payment.

(a) Unless otherwise specified in this Agreement, usage-based Services shall be invoiced monthly in arrears, and all other Services shall be invoiced monthly thirty (30) days in advance. Customer shall pay all amounts owed hereunder within thirty (30) days after the invoice date. If any amount due under this Agreement is not received by the due date, in addition to its other remedies available hereunder, 1stel may, in its sole and absolute discretion: (i) impose a one time charge of 5% of the late balance; and/or (ii) require the prepayment of up to two (2) months of recurring charges as a condition of the continued availability of the Services.

(b) Notwithstanding anything to the contrary herein, in the event of nonpayment by Customer for Services and/or Equipment for a period exceeding thirty (30) days after the invoice therefore, 1stel may, in its sole and absolute discretion, suspend providing all Services to Customer and pursue all legal remedies available to 1stel for such breach.

(c) In addition to charges for Services and Equipment, Customer shall pay 1stel for all excise, sales, use or other taxes, fees, charges, and surcharges applicable to 1stel’s provision of Services and Equipment to Customer, including charges for design changes, maintenance, special construction and expedites.

  1. Termination.

(a) If a Customer cancels a Service Order or terminates Services before the completion of the initial or any renewal term stated in the Service Order, Customer agrees to pay 1stel the following sums (collectively the “Early Termination Fee”) which shall become due and owing as of the effective date of the cancellation or termination and be payable within the period as set forth in this Agreement including all costs, fees and expenses reasonably incurred in connection with: (i) all non-recurring charges reasonably expended by 1stel to establish Services to the Customer under the applicable Service Order(s); (ii) any disconnection, early cancellation or termination charges reasonably incurred by 1stel on behalf of the Customer; and, (iii) the sum of all recurring charges specified in the applicable Service Order(s) for the balance of the then current term, (iv) any previously discounted installation charges. This provision does not apply to a situation where 1stel defaults on a major obligation under the service agreement, is notified by Customer of the default in writing, and the default remains uncured thirty (30) days after the written notice and opportunity to cure is given to 1stel by Customer. This provision also does not apply in a situation where 1stel elects to terminate this Agreement or a Service Order pursuant its Meet or Release Guarantee.

(b) 1stel may terminate this Agreement, in whole or in part, or suspend the Services at any time upon written notice of: (i) any failure of Customer to pay undisputed amounts due hereunder, (ii) any material breach by Customer of any provision of this Agreement, (iii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or a receiver or similar event with respect to Customer, (iv) 1stel’s determination, at its sole discretion, that the provision of Services and Equipment hereunder is or will be harmful, hazardous, or capable of causing interference or interruption to the 1stel network, service or equipment, including, without limitation, economic and/or safety requirements; or (v) any governmental prohibition concerning the provision of, or any required alteration of, the Services and Equipment provided hereunder or any violation of applicable law, rule or regulation resulting from the Services and Equipment. No such termination shall relieve Customer of its obligations under this Agreement for Services rendered through the effective date of such termination. In the event that this Agreement or a Service Order is terminated pursuant to either clause (i), (ii), or (iii), Customer agrees to pay 1stel the Early Termination Fee.

  1. Disclaimer of Warranties and Limitation of Liability.

1STEL MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL 1STEL OR ANY OF ITS AFFILIATIES BE LIABLE TO CUSTOMER, OR ANY OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR: (i) ANY LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF SERVICES, EQUIPMENT, FACILITIES, PERFORMANCE, NONPERFORMANCE, TERMINATION, BREACH OR OTHER ACTION OR INACTION BY 1STEL UNDER THIS AGREEMENT, OR FOR ANY OTHER REASON EVEN IF 1STEL HAS BEEN ADVISED OF THE POSSIBLITY OF SAME; OR (ii) FOR ANY OUTAGE OR INCORRECT OR DEFECTIVE TRANSMISSIONS, OR ANY DIRECT OR INDIRECT CONSEQUENCES THEREOF NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR THE EXHIBITS TO THE CONTRARY. IN NO EVENT SHALL CUMULATIVE LIABILITY OF 1STEL TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE TOTAL PAYMENTS PAID BY CUSTOMER TO 1STEL HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO 1STEL’S LIABILITY.

  1. Indemnification.

Each party shall indemnify and hold the other harmless from and against bodily injury (including death) or damage to tangible property caused by the negligence or willful misconduct of the indemnifying party and its employees, agents and invitees in connection with this Agreement. Further, Customer shall indemnify and hold 1stel harmless from and against any claim or suit against 1stel arising out of or resulting from: (i) any willful misconduct or reckless act, activity, or omission of Customer in connection with this agreement; (ii) Customer’s breach of its obligations pursuant to this Agreement, including but not limited to those set forth or referenced in Section 2 hereof; (iii) Customer’s combination of third-party equipment with the Services or Equipment that does or is alleged to infringe on the intellectual property rights of a third-party to this Agreement; or, (iv) Customer’s actual or alleged violation of any law, statute, ordinance or any administrative order, rule or regulation in connection with this agreement.

  1. Equipment and Location.

Customer will not allow or cause any of 1stel’s facilities or equipment to be rearranged, moved, modified, repaired or relocated without 1stel’s written consent. Customer will not create or allow any liens or encumbrances to be placed on any such facilities or equipment owned by 1stel. If Customer relocates or changes the place of delivery of the Services or moves or relocates the Equipment provided under this Agreement, Customer will pay all additional installation and related charges associated with such change or relocation. Customer shall return all 1stel equipment to 1stel upon expiration or termination of this Agreement.

  1. Provision of Service and Equipment.

(a) 1stel shall use all commercially reasonable efforts to provide Customer with timely delivery, installation and provision of Services and Equipment during the term of the applicable Service Order(s). It is expressly understood between the Parties hereto, however, that all stated delivery and/or installation dates are approximations only. Under no circumstances shall 1stel be liable for damages, consequential or otherwise, for delays in delivery or installation.

(b) Customer shall: (i) Allow employees or agents of 1stel free access to the premises and facilities where the Equipment and/or Services are located or are to be installed, during Customer’s regular business hours or such time as mutually agreed to by the Parties, to allow 1stel to fulfill its obligations with regard to the Services and Equipment installation and operation (ii) Provide necessary openings and ducts for cable and conductors in floors and walls, and floor plans and/or prints showing the location of such (iii) Be responsible for and provide or arrange for separate/isolated electric ground sources, circuits and power with suitable outlets at its own expense, suitable space meeting operating environment requirements; and heat, air conditioning, light and security and other operating environment requirements for the Equipment (iv) Obtain any necessary approvals, licenses, and permits for installation of the Services and Equipment on the premises where the Services and Equipment are to be installed. Customer shall defend, indemnify and hold harmless 1stel, together with its officers, agents and employees, against all damages, claims, liabilities of expenses (including attorneys’ fees) arising out of or resulting in any way from Customer’s failure to obtain such permits, licenses, consents, or the like.

(c) 1stel shall not be responsible for damages to the premises unless such damages result solely from 1stel’s, its agent’s or subcontractor’s gross negligence or willful misconduct. (d) 1stel maintains specified time periods during which it may perform necessary network maintenance and/or upgrades. Customer agrees and acknowledges that 1stel has the right, at its sole discretion, without advance notice to Customer, to interrupt Services to perform emergency maintenance as needed to preserve the overall integrity of the Services offered.

(e) 1stel guarantees availability of its Services in accordance with the 1stel Service Level Agreement (“SLA”), copy maintained at http://www.1stel.com/sla.html.

(f) The 1stel Service Date is teh date 1stel completes installation or connection of all necessary facilities and/or Equipment and provides all ordered Services specified in the applicable 1stel Service Order(s).

  1. Title to Equipment.

Except as specifically outlined on a Service Order as purchased by Customer, Customer expressly disclaims any right, title, perpetual right of use or other interest in or to any 1stel equipment or property used or supplied by 1stel under this Agreement.

  1. IP Addresses.

Internet Protocol Addresses (“IP Addresses”) are assigned by the American Registry for Internet Numbers (ARIN) to service providers. ARIN rules require that any IP Addresses assigned to Customer by 1stel in connection with the Services shall be used only in connection with the Services. In the event Customer discontinues use of Services for any reason, or this Agreement expires or is terminated for any reason, Customer’s right to use the IP Addresses shall terminate.

  1. Non-Disclosure and Publicity.

Customer shall not disclose to any third party the terms and conditions of this Agreement or any 1stel Service Order(s) without the prior written consent of 1stel. Customer shall not use 1stel’s name in publicity or press releases without first obtaining 1stel’s prior written approval. Notwithstanding the above, and upon request, 1stel and Customer agree to jointly develop a public notice of this Agreement, to be distributed by either party. Proprietary and Confidential – 1stel, Inc. 1stel MSA REV2015.09.004 Customer Initials: TC

  1. Assignment.

Customer may not assign this Agreement without the prior written consent of 1stel.

  1. Governing Law and Exclusive Venue.

This Agreement shall be construed under the laws of the State of Texas without regard to choice of law principles. Customer further agrees that exclusive venue with respect to any dispute between the parties shall be in the state and federal courts of Johnson County, Texas.

  1. Severability.

If any part of any provision of this Agreement shall be invalid or unenforceable under applicable law said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement, and Customer and 1stel agree to negotiate with respect to any such invalid or unenforceable part to the extent necessary to render such part valid and enforceable.

  1. Notices.

All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be given by first-class registered or certified mail with postage prepaid, at the addresses evidenced below. The notice address may be changed by written notice.

  1. 1stel Assurance Guarantee

In conjunction with a 1stel Service Order with a 3+2 Plan (a term of at least 60 months), 1stel offers the 1stel Assurance Guarantee. Provided that Customer is not in default under the applicable Service Order(s) or the Master Service Agreement between Customer and 1stel, the following guarantees apply:

a) Locked In Savings Price Guarantee. An applicable 1stel 3+2 Plan offers not only the guaranteed price savings of the initial 3 years and the additional 2 years, it further allows the customer to instrument an additional 3+2 Plan after the completion of the initial 3+2 Plan at the same price point. To qualify for renewal at the same price, the then current 1stel 3+2 Plan must still be available.

b) Meet or Release Guarantee. If after the initial 3 years and during the remainder of the 2 year term of a 3+2 Plan Customer finds an offer of the same Services priced lower than 1stel, 1stel will either meet the price, or terminate the applicable Service Order(s) without further obligation by Customer (apart from paying for services already rendered), at 1stel’s election. In order to qualify for this Guarantee, the competing offer must (1) be of ‘sames nature of service’, providing the same type and quantity or volume of Service and include a Service Level Agreement at least as high as that provided by 1stel, (2) be presented to Customer’s 1stel Account Manager for review prior to Customer acceptance of the competing offer. The offer must include all sales documents, contracts, etc., and must be for advertised or tariff rates.1stel shall make its election as to whether to meet the price or terminate the applicable Service Order(s) within thirty (30) days of its receipt of the documentation requested. In the event that 1stel elects to meet the offer, Customer and 1stel shall implement a new 3+2 Plan Service Order(s) to adjust the charges for services to be rendered on a go forward basis under the applicable Service Order(s) beginning with the next regular billing cycle after 1stel makes its election. In the event 1stel elects to terminate the applicable Service Order(s), Customer agrees to return all 1stel Equipment to 1stel upon such termination.

c) Flexible Configuration Guarantee. If at any time Customer determines the services being offered on a Service Order are not meeting their needs, Customer may request termination of their then current Service Order(s) by implementing a new 3+2 Plan Service Order(s) with 1stel, each Service Order being replaced by a new 3+2 Plan Service Order.

  1. Customer Proprietary Network Information.

Federal and State law require the safeguarding of Customer Proprietary Network Information (CPNI). CPNI includes information about telephone lines, features and other telecommunications services you purchase, as well as the usage associated with those services, including call detail information appearing in your bill. 1stel is better able to serve Customer if it has automatic access to CPNI. By providing automatic access to CPNI, 1stel is able to routinely review the services provided Customer to assist in offering new or other services as may come available, as well as to offer cost savings that 1stel identifies by such review. Customer hereby grants automatic access of Customer CPNI to 1stel, it’s designated agents and subsidiary organizations. Customer may at any time alter its election to provide automatic access of Customer CPNI to 1stel by sending such notice in writing to the corporate address of 1stel listed below. If the election to remove automatic access to CPNI is made, it will not effect the quality of service we provide you related to the products and services you currently subscribe to. In either case, the then current standing election remains in force unless reversed in writing.

  1. Guaranty.

The undersigned hereby (i) personally guarantees all obligations of Customer regarding payment for Services and all other amounts owed hereunder, and (ii) agrees to be bound by the governing law and exclusive venue provision in Section 14 hereof.

  1. Entire Agreement.

This Agreement (together with all Exhibits and Service Orders hereto) comprises the complete and exclusive statement of the agreement of the Parties concerning the matter hereof, and supersedes all previous statements, representations, and agreements, written or oral concerning the matter hereof.

1stel® Inc.
205 E. Henderson Street
Cleburne, TX 76031