Network Partner MSA Service Agreement

Network Partner MSA Service Agreement

This Network Partner Master Services Agreement (the Agreement) is entered into as of , (Effective Date), by and between Network Partner Name: , an entity (Entity Type: Corporation LLC Other), with principal place of business at , and Service Provider Name: , an entity (Entity Type: Corporation LLC Other), with principal place of business at .

Recitals

WHEREAS, Network Partner operates and manages network infrastructure, distribution channels and/or end-customer relationships and desires to engage the Service Provider to perform certain services related to network connectivity, provisioning, monitoring and related professional services; and

WHEREAS, Service Provider possesses the technical expertise, personnel and systems necessary to provide such services and is willing to provide the Services upon the terms and conditions set forth in this Agreement; and

WHEREAS, the parties desire to set forth the terms and conditions under which Services will be provided, and to define the responsibilities, remedies and allocation of risks between the parties.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. Definitions

1.1 "Agreement" means this Network Partner MSA Service Agreement and all Statements of Work executed hereunder.
1.2 "Services" means the services described in one or more Statements of Work executed under this Agreement.
1.3 "Statement of Work" or "SOW" means a written document executed by both parties that describes specific Services, Deliverables, schedules, fees and Service Levels applicable to such Services.
1.4 "Confidential Information" means non-public information disclosed by one party to the other that is identified as confidential or that a reasonable person would understand to be confidential under the circumstances.

2. Scope of Services

2.1 Service Provider shall perform Services as described in each applicable SOW. Each SOW shall be governed by the terms of this Agreement and shall incorporate by reference the terms herein. The parties acknowledge that Services may include, without limitation, provisioning, configuration, monitoring, escalation and maintenance of network elements.

3. Service Levels and Performance

3.1 Service Provider will meet the Service Levels described in the applicable SOW. Failure to meet Service Levels gives Network Partner the remedies set forth in the SOW, which may include service credits, escalation rights and termination for material breach if failures are not cured within the cure period.

4. Term and Termination

4.1 Term. This Agreement commences on the Effective Date and continues for an initial term of months unless earlier terminated in accordance with this Section. Thereafter the Agreement will .

4.2 Termination for Cause. Either party may terminate a SOW or this Agreement for material breach by the other party if the breach remains uncured thirty (30) days after written notice, except that material breaches that cannot reasonably be cured within thirty (30) days will be subject to a commercially reasonable cure period.

4.3 Termination for Convenience. Either party may terminate for convenience upon days prior written notice to the other party, subject to payment of all accrued Fees for Services performed through the effective date of termination.

5. Fees, Invoicing and Payment

5.1 Fees. Network Partner shall pay Service Provider the fees specified in the applicable SOW. Fees are exclusive of taxes unless otherwise stated. Except as expressly set forth in an SOW, expenses shall not be reimbursed without prior written approval.

5.2 Payment Terms. Unless otherwise stated in an SOW, Service Provider shall invoice Network Partner monthly and invoices are due within days of the invoice date. Late payments shall bear interest at per month or the maximum permitted by law, whichever is less.

6. Change Orders

6.1 Any changes to Services, scope, schedule or fees shall be documented in a written change order signed by authorized representatives of both parties. Service Provider shall not be obligated to perform changed work until the parties execute a change order.

7. Confidentiality

7.1 Each party shall protect the Confidential Information of the other party using at least the same degree of care it uses to protect its own confidential information but in no event less than reasonable care. Confidential Information may be disclosed only to employees, contractors and agents who have a need to know and are bound by confidentiality obligations at least as protective as those in this Agreement.

7.2 The obligations in this Section shall not apply to information that: (a) is or becomes publicly available other than by breach of this Agreement; (b) is rightfully received from a third party without restriction; (c) is independently developed by the receiving party without use of Confidential Information; or (d) is required to be disclosed by law or valid legal process, provided the disclosing party is given prompt notice and opportunity to seek a protective order.

8. Data Protection and Security

8.1 Service Provider shall implement and maintain administrative, physical and technical safeguards designed to protect Network Partner data against unauthorized access, disclosure, alteration or destruction. Service Provider shall promptly notify Network Partner upon becoming aware of any security incident affecting Network Partner Data and shall provide cooperation and information reasonably requested to investigate and remediate the incident.

9. Intellectual Property

9.1 Each party retains all right, title and interest in its pre-existing intellectual property. Service Provider grants Network Partner a non-exclusive, non-transferable license to use any Service Provider materials and Deliverables solely for Network Partner's internal use as contemplated by the applicable SOW. To the extent that any Deliverable is created specifically for Network Partner and paid for in full by Network Partner, ownership of such Deliverable shall transfer to Network Partner, subject to any third-party components and underlying Service Provider tools and methodology, which remain the sole property of Service Provider.

10. Warranties and Disclaimers

10.1 Service Provider warrants that it will perform Services in a professional and workmanlike manner in accordance with industry standards. For any breach of this warranty, Service Provider will re-perform the non-conforming Services or, if Service Provider cannot substantially cure the breach, provide a refund of fees attributable to such non-conforming Services. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE PARTIES DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

11. Indemnification

11.1 Service Provider shall indemnify, defend and hold harmless Network Partner from and against any third party claims arising out of Service Provider's gross negligence or willful misconduct, or infringement by Service Provider of a third party's intellectual property rights in the Deliverables, provided Network Partner (a) gives prompt written notice of the claim, (b) permits Service Provider to control the defense and settlement, and (c) cooperates reasonably in the defense.

11.2 Network Partner shall indemnify, defend and hold harmless Service Provider from and against claims arising from Network Partner's negligence, breaches of this Agreement or misuse of the Services.

12. Limitation of Liability

12.1 EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A PARTY'S BREACH OF CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. EACH PARTY'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY NETWORK PARTNER TO SERVICE PROVIDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OR , WHICHEVER IS GREATER.

13. Insurance

13.1 During the Term, Service Provider shall maintain commercial general liability, professional liability and cyber liability insurance in commercially reasonable limits appropriate to the Services performed. Upon request, Service Provider shall provide certificates of insurance evidencing coverage.

14. Compliance with Laws

14.1 Each party shall comply with all applicable laws, rules and regulations in performing its obligations under this Agreement, including export control, data protection and telecommunications laws.

15. Notices

15.1 All notices, consents, approvals and other communications required or permitted hereunder shall be in writing and delivered to the addresses set forth below or to such other address as either party may designate by written notice to the other in accordance with this Section.

16. Assignment

16.1 Neither party may assign this Agreement in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that either party may assign the Agreement in connection with a merger, acquisition or sale of substantially all of its assets to which this Agreement relates.

17. Amendments, Waiver, Counterparts

17.1 This Agreement may be amended only by a written instrument executed by authorized representatives of both parties. Waiver of any provision shall be effective only if in writing and signed by the waiving party. This Agreement may be executed in counterparts and delivered by electronic transmission, each of which shall be deemed an original and all of which together shall constitute one instrument.

18. Governing Law

18.1 This Agreement shall be governed by and construed in accordance with the laws of the state of , without regard to conflict of law principles.

19. Entire Agreement

19.1 This Agreement, together with all SOWs executed hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, discussions and communications, whether oral or written.

20. Severability

20.1 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect and the parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid provision that effectuates the original intent.

21. Survival

21.1 Provisions that by their nature should survive termination or expiration of this Agreement shall so survive, including but not limited to Sections 7 (Confidentiality), 9 (Intellectual Property), 11 (Indemnification), 12 (Limitation of Liability), 19 (Entire Agreement) and 20 (Severability).

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