Master Services Agreement
1. Engagement
2pifi shall provide the services described in Statements of Work or other written service orders agreed by the parties (“Service(s)”). That writing may be a 2pifi Statement of Work agreed to by Client, or a Client service-order form accepted by 2pifi. Each such order will describe the scope, fees, and other terms for those Services and becomes part of this Agreement. Additional Services require a written order agreed by the parties. If this Agreement conflicts with an order, this Agreement controls.
2. Use and Resale Restriction
Client shall use the Services solely for its own business purposes and shall not, without 2pifi’s prior express written consent, resell, sublicense, or otherwise make the Services available to any third party as a telecommunications, internet, or similar service offering.
2.1 Acceptable Use Policy
Client’s use of the Services, and use by anyone accessing the Services through Client, shall comply with 2pifi’s Acceptable Use Policy, as 2pifi may update from time to time (the “AUP”). The current AUP will be posted publicly on 2pifi’s website. As of the Effective Date, the AUP is available at https://2pifi.com/acceptable-use-policy/. 2pifi may change that URL, provided the AUP remains publicly available on 2pifi’s website. The AUP is incorporated into this Agreement by reference. Client is responsible for all use of the Services under its account, including use by employees, contractors, guests, patrons, tenants, and other end users. A violation of the AUP by any such person is a violation by Client. 2pifi may suspend or terminate a Service, in whole or in part, if Client or any end user violates the AUP or if 2pifi reasonably determines that such action is necessary to protect its network, equipment, Services, or other customers. Continued use of the Services after an AUP update constitutes acceptance of the revised AUP notwithstanding Section 11.
2.2 Equipment, IP Addresses, and Demarcation
2pifi’s responsibility ends at the demarcation point in the Statement of Work, typically the NID or designated Ethernet handoff. Client is responsible for all equipment, wiring, power, and use on the LAN side of that point.
2pifi-provided equipment remains 2pifi’s property unless purchased in writing. Client shall not sell, pledge, or remove it and bears the risk of loss after installation. When Service ends, Client shall cooperate with 2pifi to return the equipment in good condition, reasonable wear excepted, by pickup, shipment, or another method 2pifi reasonably designates. If the equipment is not made available within a reasonable time after 2pifi’s request, Client shall pay 2pifi’s then-current replacement cost.
IP addresses assigned by 2pifi are licensed for the Service only, remain under 2pifi’s administration, and must be released when Service ends. 2pifi may change them if required by network operations or registry rules.
3. Payment Terms
Unless a Statement of Work says otherwise, payment terms are net thirty (30) days from invoice date. Monthly recurring charges are billed in advance of the service month. Non-recurring charges, including installation and setup fees, are billed after the related work is completed. Late fees, delinquency, and interruption for non-payment shall be as set forth in the applicable Statement of Work.
Charges billed or applied to Client’s account before 2pifi receives a request to disconnect the applicable Service are valid and due. 2pifi will not credit, refund, or prorate those charges.
All applicable federal, state or local taxes, and all sales, commercial, privilege, surcharges or other similar taxes, (except for taxes for 2pifi’s property, payroll, net profits or income, gross receipts, or franchise fees), whether charged to or against 2pifi or Client shall be payable by Client. Client agrees to pay all government mandated charges, provided such taxes, fees, charges, or surcharges (collectively “Taxes”) are of general applicability to the communications industry and to the extent 2pifi is required to pay such Taxes to a governing authority. All such Taxes shall be stated separately on Client’s invoices unless otherwise prohibited by a governing authority.
Client is responsible for providing 2pifi a valid, properly executed tax exemption or resale certificate, or other written proof of exemption, before the related charges are billed. 2pifi shall not bill Client for Taxes that are exempt under a certificate 2pifi has on file. If Client does not provide a valid exemption, Client shall pay the Taxes invoiced.
3.1 Billing Disputes
In the event Client disputes any charges, Client shall pay all undisputed charges and submit written notice of the dispute along with supporting documentation of the reason for the dispute. 2pifi shall respond to Client, in writing, within thirty (30) days of receiving a dispute notice from Client. Any dispute resolved in favor of Client shall be credited to Client’s account on the next available billing period. Any disputed amounts which are deemed to be correct as billed and in compliance with this Agreement shall be due and payable by Client, upon notification by 2pifi, with the next regularly due Client payment. Pertaining to Services provided under this Agreement, 2pifi will not be obligated to consider any notice of billing discrepancies from Client that are received after ninety (90) days following the receipt of charges.
4. Working Arrangements
In the event that 2pifi performs the Services on Client’s premises, Client shall provide the following: (a) a reasonably suitable work environment; (b) reasonable access to and use of Client’s facilities and all relevant information necessary for 2pifi to perform the Services; and (c) any other items set forth in each Statement of Work. Any specific work environment, support or other facilities that 2pifi may need to perform the Services shall be detailed in each Statement of Work.
5. Confidentiality
Each Party shall keep confidential the other Party’s proprietary or confidential information, including information about products, customers, pricing, passwords, trade secrets, methods, and marketing (“Confidential Information”). Confidential Information may be used only to perform this Agreement. This duty lasts eight (8) years from the date of disclosure and survives termination.
These obligations do not apply to information that: (a) is or becomes public other than through the receiving Party’s fault; (b) was already in the receiving Party’s possession, as shown by written or other tangible evidence; (c) is received from a third party with no confidentiality duty; (d) is independently developed by the receiving Party; or (e) must be disclosed by law, provided the receiving Party gives prompt notice so the disclosing Party may seek a protective order or other remedy.
6. Independent Contractor
2pifi is an independent contractor, not an employee or agent of Client. 2pifi retains the right to hire, direct, compensate, and terminate its own personnel. 2pifi shall pay and comply with all employment-related taxes, insurance, and wage laws for its personnel.
7. Warranties
2pifi represents and warrants that: (a) it will perform the Services in a professional and workmanlike manner; (b) it will comply with applicable law in performing the Services; (c) to its actual knowledge, the Services will not infringe a third party’s intellectual property or confidentiality rights; and (d) it has the authority to enter into and perform this Agreement.
Internet access is provided subject to the performance standards in the applicable Statement of Work. Except as stated there, 2pifi does not warrant that the Services will be uninterrupted, error-free, or available at all times, and disclaims all implied warranties, including merchantability and fitness for a particular purpose, to the extent permitted by law.
8. Indemnification
Each Party shall indemnify the other Party and its officers, directors, employees, and agents against third-party claims, damages, and reasonable attorneys’ fees arising from the indemnifying Party’s breach of this Agreement or its negligent act or omission. The indemnified Party shall give prompt written notice of the claim, allow the indemnifying Party to control the defense and settlement, and reasonably cooperate in the defense.
9. Limitation of Liability
Except for a Party’s indemnification obligations, breach of confidentiality, fraud, gross negligence, or willful misconduct, and except for Client’s payment obligations:
- Neither Party is liable for indirect, incidental, special, consequential, or punitive damages, or for lost profits, revenue, data, or business, even if advised of the possibility of such damages.
- 2pifi’s total liability under this Agreement shall not exceed the fees paid by Client for the affected Service during the twelve (12) months before the claim.
- Outage credits under Section 16 are Client’s sole remedy for Service performance failures and shall not exceed one hundred percent (100%) of the monthly recurring charges for the affected Service in any month.
- 2pifi is not liable for failures caused by Client, Client equipment or premises, Client’s end users, scheduled maintenance, Force Majeure, or third-party networks or providers.
10. Insurance
a. 2pifi shall at all times maintain the following minimum levels of insurance coverage: (a) Worker’s Compensation and employers’ liability insurance with a limit of liability not less than $1,000,000 per accident; (b) commercial general liability insurance with a combined single limit of liability not less than $1,000,000 per occurrence; (c) automobile liability insurance for hired and non-owned vehicles with a combined single limit of liability not less than $1,000,000 per accident; and (d) excess liability insurance, with a limit of liability not less than $2,000,000 per occurrence. 2pifi shall provide to client certificates evidencing the specified insurance coverage upon request.
b. Notwithstanding, nothing in this Section 10 will be construed to prohibit Client from utilizing self-insurance.
11. Agreement Term and Termination
The term of this Agreement shall commence on the Effective Date first written above and continue for sixty (60) months or until the end of the Service Term for the last Statement of Work in effect, whichever is longer (“Term”), unless terminated as set forth in this Section 11. Either Party may terminate this Agreement if at any time: (a) the other Party materially breaches any term, representation or warranty of this Agreement or Statement(s) of Work and such breach is not cured within thirty (30) days of written receipt of notice specifying such breach; (b) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (c) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. This Agreement shall automatically renew at the end of the Term for successive monthly terms, each a (“Renewal Term”) until either party gives written notice to the other Party of its intention not to renew ninety (90) days before expiration of the Term or a Renewal Term.
11.1 Service Term
The duration of the length of a Service (“Service Term”) will be identified in the Statement of Work. In the event Client terminates a Service prior to the end of the initial Service Term (except for default by 2pifi), 2pifi may collect from Client (a) charges for such terminated Service provided by 2pifi to Client up to the date of termination, and (b) all charges specified in the applicable Statement of Work through the remainder of the initial Service Term which shall be calculated based upon the following method (the “Termination Charges”). Client shall pay 2pifi one hundred percent (100%) of the monthly recurring charges for each month left in the first two (2) years (or less) of the Service Term, and fifty percent (50%) of the monthly recurring charges for each month left for the balance of the months remaining in the Service Term as specified in the applicable Statement of Work.
12. Force Majeure
Neither Party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, hurricane, tornado, epidemic, casualty, riot, civil disturbance, act of public enemy, embargo, war, act of God, the enactment of any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which is not the result of any act or omission which would constitute a default hereunder) or such other event beyond a Party’s reasonable control. Notwithstanding the foregoing, a Party shall exercise commercially reasonable efforts to perform in spite of the Force Majeure event.
13. Waiver and Severability
No waiver may be valid against any Party to this Agreement unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision shall not affect the Agreement’s other terms or provisions, or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary, in the court’s opinion, to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and this Agreement of the Parties.
14. Notice
Notices under this Agreement must be in writing and are effective on the earlier of actual receipt, the next business day after delivery by a national overnight courier, five (5) days after certified U.S. mail, return receipt requested, or the day sent by email if sent during regular business hours and not returned as undeliverable. Notices shall be sent to the addresses on the first page, or to an email or address a Party later designates under this Section.
15. Maintenance
2pifi may suspend a Service for routine maintenance. 2pifi will give Client at least five (5) business days’ prior notice by phone or email and will use commercially reasonable efforts to perform maintenance between 11:30 p.m. and 6:00 a.m. local time, or at another mutually agreed time. For emergency repairs, 2pifi will give as much notice as practicable. Maintenance notices will be sent to: _______________________.
2pifi will provide a 24x7x365 contact for Service problems. If Client believes a Service Outage has occurred, Client shall contact 2pifi’s Network Operations Center to open a trouble ticket. 2pifi will investigate, and the parties shall cooperate to restore Service. A Service Outage ends when the affected Service is fully operative. After notice of a Service failure, degradation, or Service Outage, 2pifi will have repair personnel working to restore the affected Service within two (2) hours.
16. Service Level Agreement and Outage Credits
Each Service will meet the minimum performance standards identified in the SOW(s). In the event a Service fails to meet the applicable performance standard, 2pifi will take action as outlined in the Remedy section of the applicable table. In no event will Service Outage credits exceed one hundred percent (100%) of the MRC for a Service in any month. Outage credits must be requested in writing within 30 days of breach.
17. Assignment
Neither Party may assign its obligations under this Agreement without the prior written consent of the other Party; such consent not to be unreasonably conditioned, delayed or withheld. Either Party may, however, assign its rights hereunder to either a company which purchases all or substantially all of its assets (“Acquiring Party”) or an affiliate (each an “Assignee”) without the consent of the other Party, but with no less than thirty (30) days’ prior notice to the non-assigning Party; provided that the Assignee agrees to be bound by all the terms and conditions of this Agreement, including the Assignee’s agreement to cure all prior defaults of the assigning Party under this Agreement.
18. Publicity
Neither Party may place content on a public website or release a media notice, press release, or any other sales, promotion, or collateral material (“Press Release”) for external use that uses the other Party’s or its affiliates’ name, service mark, or trademark without specific, per issuance prior written approval from the other Party.
19. Entire Agreement
This Agreement constitutes the entire understanding and agreement of the Parties as to the subject matter hereof and supersedes, replaces and terminates all prior negotiations or agreements, written or oral, between the Parties. This Agreement and the Statement(s) of Work shall not be modified, amended or otherwise changed without the written agreement of the Parties.
20. Governing Law
This Agreement and Statement(s) of Work shall be governed by, and construed in accordance with, the laws of the State of Iowa, without giving effect to the principles of conflict of the laws of such State.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first above written, and represent that the persons whose signatures appear below are duly authorized to execute this Agreement.