SECTION 1 -Services Provided
This Master Services Agreement (this “Agreement”) is between
CC&N provides communications technology and cabling infrastructure solutions and products as defined below and in Statement of Work (“SOW”) documents executed by the parties from time to time. Customer desires to engage CC&N to provide such services and products on its behalf < and on behalf of its affiliates>.
NOW, THEREFORE, in consideration of the mutual covenants and promises recited below, the parties, intending to be legally bound, agree as follows:
1.1. Statement of Work. CC&N will perform the services described in the applicable Statement of Work (“SOW”) executed by the parties from time to time and which become part of this Agreement (“Services”). This Agreement may contain more than one SOW. Customer will pay CC&N for Services as provided herein and the applicable SOW. The parties agree that this is not an exclusive Agreement between the parties and that Customer is free to use other vendors or consultants to provide services similar to those provided herein by CC&N. In the event of any conflict or inconsistency between this Agreement and a SOW, the SOW shall control. The parties acknowledge that the Services may be delivered to one or more of Customer’s affiliates or locations.
1.2 Term: This Agreement is entered into as of the date of the last party to sign below (the “Effective Date”) shall be in effect for 36 months (“the Initial Term”) unless otherwise renewed, extended or sooner terminated by either party in accordance with the provisions of this Agreement. This Agreement will renew automatically for successive one (1) year terms commencing upon the initial expiration date and shall continue under the same terms and conditions as provided herein unless otherwise notified by CC&N in writing 30 days prior.
SECTION 2 -Invoicing and Payment
2.1. Payment. Payment on invoices is due within thirty (30) days from receipt by Customer of an invoice properly prepared in accordance with this Agreement and the applicable SOW.
Payments received by CC&N after the respective due dates on undisputed amounts shall be subject to interest at the rate of one and one-half percent (1.5%) per month but in no case more than the maximum amount allowed by law. The prevailing party in any action commenced pursuant to this Agreement shall be entitled to payment for all reasonable costs including, without limitation, reasonable attorneys’ fees incurred in such action. Customer shall pay CC&N all costs including, without limitation, reasonable attorneys’ fees, the fees of any collection agency and any other costs incurred by CC&N to collect amounts due under this Agreement.
2.2. Taxes. All federal, state and/or local taxes based upon the provision of Services and Products under this Agreement, including privilege or excise taxes based on gross revenue and any taxes paid or payable by CC&N in respect of the foregoing, shall be the responsibility of Customer, except taxes associated with or attributable to the income of CC&N. CC&N shall bill, and Customer shall pay CC&N for all such taxes.
SECTION 3 – Rights and Obligations of Customer
3.1. License. CC&N grants Customer and its affiliated entities, a nonexclusive, nontransferable license to use the Services provided hereunder. Title, property rights, equipment, software licenses and hardware licenses and agreements, including all intellectual property rights, to or used in connection with such Services are and shall remain with CC&N, whether or not they are embedded in any Service. The Customer shall not attempt in any way to copy, examine, alter, reengineer, tamper with or otherwise misuse such Services.
SECTION 4 – Termination
4.1. Default. Either party may terminate this Agreement for cause upon the failure to remedy a Default as provided in Section 5.
4.2. Force Majeure. In accordance with Section 9, a non-defaulting party may terminate this Agreement for cause in the event that an excusable delay continues for more than Thirty (30) days.
4.3. Convenience. Either party may terminate this Agreement at any time, whether during the Initial Term or thereafter, without cause, by the other party with thirty (30) days prior written notice.
SECTION 5 – Default
5.1. CC&N Default. For the purposes of this Agreement, a default shall have occurred with respect to CC&N if:
(a) CC&N materially fails to perform or comply with or materially violates any material warranty, term, condition or obligation of this Agreement or the Attachments to this Agreement or any SOW and such default is not cured within 30 calendar days following notice; or
(b) CC&N repeatedly fails to perform to the Service Level Standards as set forth or incorporated by reference in the SOW to this agreement.
5.2. Customer Default. For the purposes of this Agreement, a default shall have occurred with respect to Customer if:
(a) Customer shall fail to make any undisputed payment required under this Agreement within thirty (30) days of notice of nonpayment of any amount due; or (b) Customer materially fails to perform or comply with or materially violates any material warranty, term, condition or obligation of this Agreement or the Attachments to this Agreement.
5.3. Default by Either Party. For the purposes of this Agreement, a default shall have occurred with respect to either party if such party:
(a) Makes a general assignment for the benefit of creditors; or
(b) Is insolvent, bankrupt or the subject of receivership; or
(c) Authorizes, applies for, or consents to the appointment of a trustee or liquidator of all or a substantial part of its assets or has proceedings seeking such appointment commenced against it which are not terminated within thirty (30) days of such commencement.
5.4. Default Notice. Upon the occurrence of a default as defined in this Section 5, the non-defaulting party shall issue a Notice of Default to the other party. Other than with respect to Section 5.2, for which termination of this Agreement may be immediate, the non-defaulting party may terminate this Agreement upon default Thirty (30) days after issuance of the Notice of Default unless the default is cured within such thirty (30) day period.
SECTION 6 -Representations and Warranties
CC&N represents and warrants to Customer as follows:
6.1. Professional Performance. Any Services rendered to Customer in accordance with the terms of this Agreement will be performed in a professional manner by qualified and properly trained personnel.
6.2. Performance Levels. CC&N will provide Services in accordance with the performance levels; applicable specifications and documentation (“the Service Level Standards”) set forth or incorporated by reference in SOW to this Agreement.
6.3. No Conflict. This Agreement and the transactions contemplated herein do not conflict in any material respect with any other agreements or transactions to which CC&N is a party or by which it may be bound.
6.4. Proprietary Rights. The Services and any other services provided or licensed to Customer under this Agreement will not infringe upon the proprietary rights of any third party.
6.5. Binding Agreement. This Agreement constitutes a valid and binding Agreement of CC&N enforceable against CC&N in accordance with its terms.
6.6. No Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 7 – Indemnities and Limitation of Liability
7.1. Limitation. CC&N’s total liability for the performance or nonperformance of its obligations, whether by negligence, intended conduct or otherwise shall be limited to general money damages in an amount not to exceed the monthly charges paid by Customer during the months in which the damages are alleged to have occurred (which in no event shall exceed (12) months of charges), except that CC&N’s liability shall not be limited: (a) in tort, for its intentional misconduct or that of its agents, subcontractors or employees; (b) for bodily injury or death, or damage to real or personal property, approximately caused by CC&N’s negligence or misconduct, or that of its agents, subcontractors or employees; (c) for CC&N’s patent, copyright, trademark and trade secret indemnity, in accordance with Section 7.5 of this Agreement or (d) any violation by CC&N of its confidentiality obligations set forth in Section 8 or in any nondisclosure agreement between the parties.
7.2. No Consequential Damages. Except for (i) damages arising out of claims made under sections 7.3 through 7.5, below, (ii) violations by CC&N of its confidentiality obligations set forth in Section 8 or in any nondisclosure agreement between the parties, and (iii) claims arising out of the gross negligence or intentional misconduct of CC&N, in no event shall either party be liable to the other in connection with the provision or use of Services or any other obligation under this Agreement for indirect, incidental, consequential reliance or special damages, including, without limitation, damages for lost profits or punitive damages, regardless of the form of action, whether in contract,
indemnity, warranty, strict liability or tort even if such party had been advised of the possibility of such damages.
7.3. Third-Party Vendors. CC&N shall not be liable for damages caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement. Nor shall CC&N be liable for damages to the Installation Sites resulting from the furnishing of Services, including the installation and removal of equipment and associated cabling, unless the damage is caused by CC&N’s negligence or willful misconduct or that of its agents, subcontractors or employees. Installation sites are all customer locations where CC&N has completed installation services of hardware or software to facilitate delivery of services.
7.4. Indemnification. Subject to the provisions of Section 10, CC&N and Customer shall indemnify each other against all liability,
loss, damage and expense (including but not limited to, reasonable attorneys’ fees and costs) incurred as a result of a third party claim and
which results from injury or death of any person, or loss of or damage to real or personal property, to the proportionate extent that such
liability, loss, damage or expense was proximately caused by the indemnifying party’s negligent act or omission, or willful act or omission, or those of its agents, employees or subcontractors, in connection with the provision or use of the Services. The indemnifying party shall be notified as soon as practicable of any such claim provided that, if such party fails to provide notice of such third party claim within thirty (30) days of such party’s actual knowledge of the claim against such party, the claim shall be deemed waived. The indemnifying party shall have the right to control the defense of all such claims, related lawsuits or proceedings with consultation with the
indemnified party. In no event shall the indemnified party settle any such claim, lawsuit or proceeding without the indemnifying party’s prior
7.5. Intellectual Property Indemnity. CC&N will indemnify, defend and hold the Customer, its affiliated entities and their respective
officers, directors, shareholders, employees and agents, harmless from any and all claims, actions, liabilities, damages, costs and expenses,
including reasonable attorneys’ fees and expenses, arising out of any third-party claims of infringement of any patents, copyrights, licenses, trademarks, service marks or any other property right, provided that CC&N is notified as soon as practicable of such claim and related to services provided by CC&N to the Customer under this agreement. CC&N shall have the right to control the defense of all such claims, lawsuits or other proceedings with consultation with the Customer. In no event shall CC&N or the Customer settle any such claim, lawsuit or proceeding without the written consent of the other party.
SECTION 8 – Confidential Information
8.1. Confidential Information. “Confidential Information” shall include but not be limited to the pricing methods, processes, financial
data, rate data, reports, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their clients and suppliers, concerning past, present, or future business activities of said entities. Customer shall retain exclusively, all right, title and interest (including copyright and other intellectual property rights, or informational rights) in its Confidential Information. CC&N shall have no rights to or interest in Customer’s Confidential Information or any of the intellectual property or content contained therein. No license, right or interest in any trademark, trade name, service mark, company name, company logo, special program logo, product name, service name, or any other proprietary mark of Customer or any of its affiliates, or any third party from whom Customer may have acquired any such rights, is conveyed under this Agreement.
8.2. Confidentiality. Except as otherwise provided in this Agreement, the parties agree that during the term of this Agreement and for a period of three (3) years from the date of its termination, Confidential Information shall be maintained in strict confidence; shall be used only for purpose of this Agreement; and that no such Confidential Information shall be disclosed by the recipient party, its agents or employees without the prior written consent of the other party. Each party agrees to take all reasonable precautions to prevent the disclosure of Confidential Information.
8.3. Permissive Disclosures. Nothing contained in this
Agreement shall be construed as prohibiting either party’s disclosure of
Confidential Information (other than to known actual competitors of the
other party) to: (a) Its employees or employees of its parent, CC&N and subsidiaries, and contractors and affiliates on a need-to-know basis and provided that such parties have agreed in writing to be bound by the confidentiality provisions contained herein.
8.4. Return upon Request. The parties agree that upon the request of the party having proprietary rights to Confidential Information, the party in possession of such information will promptly return it (including any copies, extracts or summaries) to the requesting party, or, with the other party’s written consent, will promptly destroy it (and any copies, extracts and summaries thereof) and will provide the other party with written certification of same.
8.5. Information Rightly Received. (a) Neither party shall have any obligation or liability with respect to the other’s Confidential Information to the extent that such Confidential Information (i) is already rightfully known by the receiving party at the time it is obtained by said party, free from any obligation to keep such Confidential Information confidential; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of this Agreement; or (iv) must be disclosed pursuant to a court order or as required by any governmental or administrative authority or
authorized regulatory agency. (b) A party ordered to disclose the other party’s Confidential Information shall notify the other party in advance of any such disclosure and use its reasonable efforts to resist and to assist the other party in resisting such disclosure. (c) Information developed independently by either party without use of or access to any of the other’s Confidential Information (as proven by documentation in such party’s possession) shall not be considered confidential for purposes of this Section 8.
8.6. Irreparable Harm. The parties acknowledge that any disclosure or misappropriation of Confidential Information in violation of
this Agreement would cause irreparable harm, the amount of which may be extremely difficult to estimate, thus making any remedy at law
or in damages inadequate. Each party therefore agrees that the other party shall have the right to apply to any court of competent jurisdiction
for an order restraining any breach or threatened breach of this Section 8 and for any other relief as such other party deems appropriate. This right shall be in addition to any other remedy available in law or equity.
SECTION 9 – Force Majeure
9.1. Excusable Delay. Neither party shall be liable to the other for any delay or failure to perform, which delay or failure is due to: (a) The other party’s delay in supplying or failing to supply information, materials or services called for under the terms of this Agreement; or (b) Causes or circumstances beyond its control including acts of civil or military authority, national emergencies, labor difficulties, fire, flood or catastrophe, acts of God, insurrection, war, riots or failure of transportation, heat or air conditioning, communication or power supply.
9.2. Mitigation. Each party shall exercise its best efforts to mitigate the extent of the aforesaid excusable delay or failure and their adverse consequences, provided however, that should any such delay or failure continue for more than thirty (30) days, the Agreement may be terminated without liability by the non-delaying party.
SECTION 10 – Arbitration
(a) Except for injunctive relief requested by a party or any lawsuit seeking indemnification for bodily injury, any controversy, claim or dispute between the parties related to or arising out of this Agreement shall be finally settled by arbitration, conducted on a confidential basis, under the U.S. Arbitration Act, if applicable, and the then current rules of the American Arbitration Association (“Association”) strictly in accordance with the terms of this Agreement and the laws of the State of Wisconsin, excluding its principles of conflicts of laws. (b) All arbitration hearings shall be held in Milwaukee or Waukesha County, Wisconsin. Each party shall have the right to choose one arbiter, and the selected arbiters shall choose a third arbiter. Each party shall bear its own costs of the arbitration and one-half of the arbiter’s costs. Judgment upon the arbitration proceeding must be submitted to the other party at least thirty (30) days prior to the filing of such action. (c) Neither party shall be excluded from seeking provisional remedies in the courts of any jurisdiction including but not limited to, temporary restraining orders and preliminary injunctions, but such remedies shall not be sought as a means to avoid or stay arbitration.
SECTION 11 – Miscellaneous Provisions
11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin,excluding its principles of conflicts of laws.
11.2 Relationship of Parties. The parties are independent contractors and nothing in this Agreement shall create or imply an agency relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties. Except as provided in this Agreement, neither party shall have authority to bind or otherwise obligate the other in any manner whatsoever.
11.3. Non-assignment. Except as specifically provided in this Section, neither party may assign this Agreement, or any of its rights or
obligations, whether by operation of law or otherwise, without the prior written consent of the other party which the other party may grant or
withhold in its sole discretion. Notwithstanding the foregoing, each party may assign this Agreement or any of its rights and obligations, without the prior written consent of the other, to its corporate parent or to any of its affiliates or subsidiaries. For purposes of this assignment, all future affiliates and subsidiaries shall be deemed to be affiliates and subsidiaries as of the date of the acquisition of same. All former affiliates and subsidiaries shall continue to be allowed to use the Services herein for a period not to exceed 6 months following such divestiture.
11.4. Amendments. Modifications, amendments, supplements to or waivers to this Agreement shall be in writing and be duly executed
by the parties hereto.
11.5. No-Waiver. A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to exercise any of its options shall in no way be construed to be a waiver of such provisions of this Agreement.
11.6. Severability. In the event that any of the provisions of this Agreement shall be declared or held invalid, illegal or unenforceable,
the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. The parties shall negotiate in good faith
to substitute for such invalid, illegal or unenforceable provisions a mutually acceptable provision consistent with the original intent of the
parties, which is not so affected.
11.7 Attachments. The terms and conditions of any and all Attachments to this Agreement, as amended from time to time by mutual agreement of the parties, are incorporated into the Agreement by this reference and shall constitute a part of this Agreement as if fully
11.8 Employee Recruiting. Unless otherwise agreed to by customer and CC&N in writing, the Customer and CC&N agree that, during the term of this Agreement, or any subsequent Agreement between CC&N and Customer, and for a period of one (1) year after expiration or other termination of any Agreement between CC&N and Customer, neither party will hire, engage, or otherwise contract for services with, either directly or indirectly, (i) any employee of the other party, (ii) any former employee of the other party whose employment
ceased less than ninety (90) days prior to the date of such hiring, engagement or contracting. If such hiring does occur, the hiring party will pay to the other a training fee equal to the compensation paid to the employee during the last six- (6) month’s employment with the Customer or CC&N. The foregoing restrictions are not intended to prevent or apply to, general solicitations or responses thereto, for employment not targeted at the specific individual. This section shall survive the expiration or other termination of this Agreement.
11.9 Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if sent by first-class certified, or overnight delivery mail, postage prepaid, or by facsimile, to the Customer at the address set forth on the signature page hereof or to:
3325 Gateway Road
Brookfield, WI 53045
Fax No. (262) 523-0393
Phone: (262) 523-0299
or to such other address or addresses as either party may from time to time designate to the other by written notice. Any such notice or
communication shall be deemed given upon receipt.
11.10. Entire Agreement. This Agreement, together with all Attachments, constitutes the entire agreement of the parties and supersedes all previous agreements, promises, representations, understandings and negotiations between the parties, whether written or oral, with respect to the subject matter hereof.
11.11 Headings. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.