Master Service Agreement
This Master Services Agreement (“Agreement” or “MSA”) sets forth the terms of your agreement to purchase Services (“Service”) provided by MANAGEDWAY COMPANY (“MW”) subject to the prices, quantities, terms and conditions set forth in your Order Form (“Order Form”) and governed by the terms and conditions contained in this Agreement. As used herein, (“You”) or (“Your”) refers to the customer.
Property Rights. MW owns all rights, title and interest in MW trade names, service marks, trademarks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide the individual Service elements of which they consist. This Agreement does not constitute a license to you to use MW’s trade names or Service marks. Notwithstanding the foregoing, You hereby consent to MW’s non-exclusive use of your trademark and/or logo, for the purpose of displaying Your status as a customer of MW.
Taxes. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, You will be responsible for Service charges for both Service locations until terminated as provided for each Service. You will be solely responsible, where applicable, for paying local and state personal property taxes associated with your equipment stored in a facility rented or owned by MW. In the event that MW is required by a governmental authority to pay property taxes on your behalf, MW will have the right to be reimbursed by you for such amount. You must reimburse MW within 30 days of written notice that a tax has been paid on your behalf by MW.
Term and Termination. MW may reject any Order Form at its discretion. This Agreement will remain in full force and effect for the term as specified on your Order Form, beginning from the date of MW’s acceptance, and will apply to all future Services you purchase from MW. At the end of Initial Term as set forth in your Order Form, your Service will automatically renew for successive periods equal in length to the Initial Term, unless this Agreement is properly terminated as set forth herein (“Renewal Term”). You may cancel any Renewal Term by sending written notice to Provider of your intent to not renew the Service at least ninety (90) days prior to the expiration of the current term (excluding Month to Month contracts). Month to Month contracts must be cancelled a minimum of 30 days in advance by sending written notice to Provider. Once an Order Form is accepted by You, You may not cancel Service and MW is not liable to You for any damages resulting from a delay in Service installation.
Billing and Collection of Charges. You will be billed by MW pursuant to the terms of your Order Form. Subject to the terms of your Order Form, MW reserves the right to increase your MRC for service in the event of a rule, regulation, law, or tariff change or increase which increases the cost of providing service to You. By way of example, in the event that an applicable electric utility provider raises or changes the tariff rate under which MW purchases power for Service provided to you, MW reserves the right to increase your MRC based upon that increase. All invoices are due and payable by the invoice due date. When billing is based on customer usage, charges will be billed monthly for the preceding billing periods. When Service does not begin on the first day of the month, or end on the last day of the month, the charge for the fraction of the month in which Service was furnished will be calculated on a pro rata basis. Billing by MW will begin on the Service Commencement Date. Billing accrues through and includes the day that the Service is discontinued. Past due balances may be charged a minimum service fee of $35 plus 1.5% of the total outstanding amount. Declined credit cards will be charged a $10.00 declination fee. Accounts that are more than 10 days past due may have service discontinued for nonpayment. Accounts that have been discontinued for nonpayment are subject to a $100 reconnection fee. If your account has been turned over by MW Incorporated to an outside agent for collection, you agree to pay MW a "Processing and Collection" fee of not less than $50.
Billing Disputes. ALL PAYMENTS TO MW ARE NON-REFUNDABLE. If you dispute a term or amount on an invoice, you must do so in writing within 60 days from the invoice date. Disputes must be sent by registered mail at the address provided for herein. You must pay an amount equal to the part of the bill that is not in dispute. Payment of the amount of the invoice not in dispute will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. If you report a disputed charge to your credit card company, and MW later determines that it is a valid charge, you agree to pay MW a "Processing Fee".
Credit Allowances for Interruptions in Service. Interruptions in Service that are not caused by you, or during which MW does not provide a replacement Service, may be credited to you for that part of the Service that the interruption affects. Credit allowances will only be made when an interruption occurs because of a failure of any component furnished by MW. An interruption period begins from the time your Service is reported or is found to be out of Service. An interruption period ends when the Service or facility is operative. If you report a Service, Equipment, or facility to be inoperative but decline to release it for testing and repair, it is considered to be impaired, but not interrupted. For calculating credit allowances, every month is considered to have 30 days. A credit allowance for fixed recurring fees only is applied on a pro rata basis against the rates specified hereunder and is dependent upon the length of the interruption. Credit allowances will only be given for interruptions of Twenty-Four (24) hours or more.
Limitations on Credit Allowances. No credit allowance will be made for: (a) interruptions due to the cause of, negligence of, or noncompliance with this Agreement or any posted policy of MW by, you or your Users; (b) interruptions of Service during any period in which MW is not given full and free access by you to your facilities and equipment for the purpose of investigating and correcting interruptions;(c) interruptions of Service during a period in which you continue to use the Service on an impaired basis; (d) interruptions of Service during any period when you have released Service to MW for maintenance purposes or for implementation of an Order Form placed by you for a change in Service arrangements; (e) interruptions which occur where MW is not the last-mile provider, or (f) interruptions of Service during a time period in which MW provides a satisfactory replacement Service.
Cancellation for Service Interruption. Cancellation or termination of your Service due to Service interruption is permitted only if you experience a single continuous outage of Service for no less than 7 days or more or cumulatively for 14 days within a continuous 3-month period. The right to cancel Service under this provision only applies to the single Service or equipment that has been subject to the outage.
Termination of Service. If you cancel an Order Form or terminate Services before the completion of the Service term (“Early Termination”) for any reason whatsoever other than a Service interruption (as defined above), you agree to pay charges to MW, as defined below. These charges will become due and owing as of the effective date of the cancellation or termination. For month to month contracts, Your liability for Early Termination will be equal to: (i) all unpaid Non-Recurring charges reasonably expended by MW to establish Service to you; plus (ii) any disconnection, early cancellation or termination charges reasonably incurred and paid to suppliers or third parties by MW on your behalf or to enable your Service, including but not limited to any and all waived or discounted installation charges; supplier or wholesaler termination charges incurred by MW; plus (iii) all Recurring Charges incurred prior to disconnection, cancellation or termination plus (iv) any waived or promotional credits applied on earlier invoices; minus (v) reasonable allowance for costs avoided by MW as a direct result of the your Early Termination. For contracts for a term, your liability for Early Termination will be equal to your Monthly Recurring Charge (“MRC”) times One Hundred Percent (100%) of the remaining months of Your Service Term. You agree that the Early Termination Fees defined herein are reasonable and do not constitute a penalty. All cancellations or terminations must be received in writing according to the above deadlines by certified mail, or email. Upon cancellation or Early Termination, You are responsible to remove your equipment, data, information, systems and property of any kind from the Service and to return all equipment provided to you by MW to: 600 Executive Dr. Troy, MI 48083. If you fail to redeem your equipment within 14 days following the termination or cancellation of this Agreement, you agree that your equipment, data, information, systems and property of any kind will be deemed abandoned and will become the sole property of MW.
Transfers and Assignments. You may not assign or transfer your rights, passwords or duties in connection with the Services provided by MW without the prior written consent of MW. All transfers of rights or duties herein, without the advanced permission in writing of MW, shall be void and unenforceable as a matter of law.
Redundant Power. Redundant power must be accompanied by Primary power service. To be considered Redundant power and not Primary power, a Redundant power circuit and its accompanying Primary power circuit must maintain a combined utilization of less than 40%. If it is determined by MW that a Redundant power circuit is being utilized by You as a Primary power circuit, the respective Redundant power circuit shall be rerated as a Primary power circuit and You may be back-billed to the point of installation of the respective circuit for the difference between the cost of a Redundant power circuit and a Primary power circuit.
Limitation of Liability. MW SHALL NOT BE LIABLE FOR ANY AND ALL: DIRECT OR INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO CUSTOMER FOR A BREACH OF THESE POLICIES, OR AN ORDER FORM OR TERM AND CONDITION OF MW. IN THE EVENT OF A BREACH OF AN OBLIGATION BY MW, CUSTOMER’S DAMAGES SHALL BE LIMITED TO $500. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU AGREE TO ACCEPT THE SERVICE ON AN “AS-IS” NON-WARRANTABLE BASIS. MW EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PROVIDING OF GOODS AND SERVICES TO YOU. YOU RECOGNIZE THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO MW’S CONTROL. YOU AGREE THAT MW SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO MW’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF YOUR INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. MW SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). MW IS NOT LIABLE FOR ANY BREACH OF SECURITY ON YOUR NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT YOU WILL NOT HOLD MW RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM MW MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, MW IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT YOU WILL NOT HOLD MW RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE MW NETWORK. YOU AGREE TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST MW, AND WAIVE ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
Notices and Communications. You must designate on your Order Form a mailing address and e-mail address to which MW may mail or deliver notices and other communications. All notices you send to MW must be in writing, by registered mail, sent to:
600 EXECUTIVE DR.
TROY, MI 48083
Acceptable Use Policy. You agree to abide by MW’s Acceptable Use Policy, as may be amended from time to time, and which is incorporated by reference and made a part of this Agreement.
Domain Name Terms and Conditions. You agree to abide by MW’s Domain Name Terms and Conditions, which may be subject to change, as found on www.MW.com, and which is incorporated by reference and made a part of this Agreement.
Applicable Law. Venue and Jurisdiction. Dispute Resolution. This Agreement shall be subject to and governed by the laws of the State of Michigan. Any claim under this Agreement may be arbitrated in Oakland County Michigan if MW gives advanced written consent to you to arbitrate. Notwithstanding the foregoing, venue for any legal action arising out of this Agreement shall be exclusively within the State of Michigan, Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan
Third-Party Services. MW allows access to advertisers and third-party merchant sites (“Merchants”) on www.MW.com from which you may purchase certain goods or services. You understand that MW does not operate or control the products or services offered by Merchants and that MW is not responsible for information provided to you by the Merchants. Merchants are responsible for all aspects of order processing, truth in advertising, fulfillment, billing, and customer service relating to the services and offers advertised and sold by Merchants. MW is not a party to the transactions entered into between you and the Merchant and you agree that MW will not be liable to you for any contract, promise, obligation, pledge, or other agreement entered into between you and the Merchants. MW’s site contains links to other Web sites. MW is not responsible for the content, accuracy or opinions express in such Web sites, and such Web sites are not investigated, monitored or checked for accuracy or completeness by MW. Inclusion of any linked website on our MW’s site does not imply approval or endorsement of the linked website by MW. If you decide to leave MW’s website and access these third-party sites, you do so at your own risk.
Partial Invalidity. Waiver. Conflict of Terms. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In addition, should a term of the MSA and any other posted policy of MW be in conflict with one another, the MSA shall control.
Statute of Limitations. YOU AGREE THAT ANY CLAIM AGAINST MW, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, MUST BE BROUGHT WITHIN 6 MONTHS OF THE DATE GIVING RISE TO THE CLAIM.
Entire Agreement; Modifications. This Agreement and your Order Form set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.
Risk of Loss. At all times, you will bear the risk of any loss, damage or destruction of your assets, equipment or property provided or maintained by MW, from: fire, water damage, theft or other casualty. You will be solely responsible for insuring your property and filing insurance claims for losses associated therewith. If MW is aware of loss or casualty to your property, MW will immediately notify you, stating the extent of loss or damage incurred and the cause, if known.
Indemnification. You agree to indemnify, defend, and hold MW harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third- party Web site provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys' fees, resulting from your violation of this Agreement, misuse or abuse of the Service, violation of State or Federal law, or infringement thereof by you or Users of your account. MW reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of MW.
Attorneys’ Fees. If legal proceedings are instituted to enforce any or the terms and conditions of your Order Form or this Agreement, you agree to pay all costs of MW in connection therewith, including actual attorneys’ fees.