Redpoint Broadband, LLC of 2970 Clairmont Road Northeast, Suite 310, Atlanta, GA 30329 (the “Provider”).
Background
- The Client is of the opinion that the Provider has the necessary qualifications, experience, and abilities to provide certain products and services to the Client.
- The Provider is agreeable to providing such products and services to the Client on the terms and conditions set out in this Agreement.
IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Provider (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
Scope of Services
1. The Provider will use commercially reasonable efforts to provide the products and services (collectively, “Services”) set forth in one or more Services Schedules in a competent, professional and workmanlike manner, which may include hardware or other tangible goods, access to software and other technology services, telecom services, or other products and services set forth in the Service Schedule. This initial Services Schedule is included in this Agreement. Additional Services Schedules may be added to this Agreement upon mutual written agreement of the Parties.
Products/Goods
1. Solely to the extent purchased pursuant to a Services Schedules, with respect to tangible goods and products included with the Services (“Goods”), the following terms apply:
A. Title and risk of loss pass to Client upon delivery of the Goods to the applicable property. As collateral security for the payment of the purchase price of the Goods, Client hereby grants to Provider a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code. Such security interest shall be extinguished when all corresponding amounts owed have been paid in full.
B. Client shall inspect the Goods within 96 hours of implementation (“Inspection Period”). Client will be deemed to have accepted the Goods unless it notifies Provider in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Provider. “Nonconforming Goods” means the Product is different than identified in the Services Schedule or is not operable.
C. If Client timely notifies Provider of any Nonconforming Goods, Provider shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. Client acknowledges and agrees that the foregoing remedies are Client’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section, all sales of Goods to Client are made on a one-way basis and Client has no right to return Goods purchased under this Agreement to Provider.
Software
1. With respect to any software (including SaaS) included with the Services (“Software”), the following terms apply:
A. To the extent such Software is made available by Provider and not subject to third-party terms between Client and the third-party provider, Provider hereby grants to Client, during the term set forth in the corresponding Services Schedule (as may be renewed as contemplated herein), a non-exclusive, nontransferable, non-assignable, and limited right to access and use the Software for Client’s business purposes in accordance with the terms of this Agreement.
B. The Client shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Software. The Software may only be used by the Client and its end users. In addition, Client shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble, or reverse engineer the Software.
C. In no event shall the Software constitute Assigned IP pursuant to this Agreement, and all rights thereto are reserved by Provider and its third-party providers and suppliers.
D. Client shall not and shall not permit others in using the Software to:
I. defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Provider.
II. publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications).
III. engage in any conduct that could constitute a criminal offense or give rise to civil liability for Provider.
IV. transmit or upload any material through the Software contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Provider’, or any other person’s or entity’s, network, computer system, or other equipment.
V. interfere with or disrupt the Software, networks or servers connected to the Provider or third-party systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Software Services.
VI. or attempt to gain unauthorized access to the Software, other Provider clients’ computer systems or networks using the Software. The Provider may at any time monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. Client shall use commercially reasonable efforts, including reasonable security measures relating to administrator account access details, to ensure that no unauthorized person may gain access to the Software.
Term and Termination
1. The term of this Agreement (the “Term”) will begin on the Effective Date and will remain in full force and effect for so long as any Service Schedules have any obligations, goods or services unfulfilled or outstanding, subject to earlier termination as provided in this Agreement. The Services contemplated in each of the Services Schedules, and the corresponding term thereof, shall automatically renew for successive one-year periods if there are outstanding obligations in them unless and until either Party provides at least 30 days’ advance written notice of its intent to terminate any of the corresponding Services Schedules at the end of the then-current term of the Services Schedule.
2. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate this Agreement as follows: (a) by either Party if the other Party commits a Material Breach of this Agreement or the undertakings in any Services Schedules and such breach remains uncured 30 days after written notice of such breach is delivered to such other; or (b) by either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws. “Material Breach” means the failure of a party to comply with the terms of this Agreement that has a material, adverse impact on the other party, including, without limitation, non-payment of fees owed.
Compensation
1. The Client shall pay all fees owed to the Provider in accordance with the Services Schedules or other written agreement between the Parties. Except as otherwise set forth in a Services Schedule or other written agreement between the Parties, invoices submitted by the Provider to the Client are due within 30 days of Client’s receipt.
2. The Provider is responsible for paying, and complying with reporting requirements for, all local, state and federal taxes related to payments made to the Provider under this Agreement. Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars).
Confidentiality
1. Confidential information (the “Confidential Information”) refers to any business plans or market strategies, data, drawings, specifications, design criteria, financial information, or other information relating to the business of the Client which would reasonably be considered to be proprietary to the Client and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client, including, but not limited to, accounting records, business processes, and client records.
2. The Provider agrees to not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Provider has obtained, except in furtherance of the Services or as otherwise authorized by the Client or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement.
3. All written and oral information and material disclosed or provided by the Client to the Provider that constitutes Confidential Information under this Agreement shall be treated as such regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Provider.
Ownership of Intellectual Property
1. Excluding Background IP (defined below), all intellectual property, drawings, specifications, and related material, including any patent, copyright, trademark, trade dress, industrial design, trade name or other intellectual property rights therein (the “Assigned IP”) that is developed by Provider for Client under this Agreement is a “work made for hire” and will be the sole property of the Client, and Provider hereby assigns the Assigned IP to Client. The use of the Assigned IP by the Client will not be restricted in any manner. The Provider may not use such Assigned IP for any purpose other than that contracted for in this Agreement except with the written consent of the Client.
2. Notwithstanding the foregoing, Provider retains all right, title and interest in and to any proprietary methodologies, tools, software, documentation, know-how, trade secrets, inventions, or works of authorship conceived or developed by Provider prior to or independent of this Agreement (“Background IP”). If Provider incorporates into or provides in conjunction with any Assigned IP, or creates any Assigned IP with a dependency upon any Background IP, then Provider hereby grants Client a non-exclusive, royalty-free, fully paid up, irrevocable, worldwide, perpetual license to make, have made, sell, offer for sale, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, export, and disclose the Background IP in connection with the Assigned IP.
Return of Property
1. Upon the expiry or termination of this Agreement, the Provider will return to the Client any property, documentation, records, and Confidential Information which is the property of the Client.
Third-Party Services and Terms
1. The Services may include, enable or otherwise facilitate Client’s access and use of third-party services (“TP Services”). Provider does not control or endorse, and is not responsible for, any TP Services or any other data, content, services, or products (including software) that Client accesses, uses, downloads, licenses, buys or otherwise obtains or receives while using the Services, other than to the extent directly provided to Client by Provider in connection with this Agreement. Provider is not responsible for the unavailability of any TP Services, or any other issue arising in connection with the TP Services, except to the extent due solely to the fault of Provider. Additionally, such TP Services may be subject to additional terms between Client and the third party, and Client agrees to comply with such terms. Client represents and warrants that its use of TP Services does not violate any agreement it may have with a third party. Except as stated herein, Client hereby holds Provider harmless from and against any claim regarding the TP Services. Client further acknowledges that Provider may change or add third-party providers and corresponding TP Services from time-to-time in its reasonable discretion.
Independent Contractor
1. In providing the Services under this Agreement it is expressly agreed that the Provider is acting as an independent contractor and not as an employee. The Provider and the Client acknowledge that this Agreement does not create a partnership or joint venture between them and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers’ compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Provider during the Term.
Notice
1. All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the following addresses:
if to Client:
a. legal notices to be provided in the “Sales Order”
if to Provider:
b. Redpoint Broadband, LLC
2970 Clairmont Road Northeast, Suite 310
Atlanta, GA 30329
Attn: Jeff Eckard or Jim Behner
or to such other address as either Party may from time to time notify the other and will be deemed to be properly delivered (a) immediately upon being served personally, (b) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with overnight courier.
Indemnification
1. To the fullest extent permitted by law, each Party agrees to indemnify and hold harmless the other Party and each of their subsidiary, parent, and affiliated companies and each of their employees, members, managers, officers, directors, shareholders, and permitted successors and assigns from and against any and all claims, damages, losses, and expenses, including but not limited to reasonable legal fees and costs of any kind or amount whatsoever arising from or occurring in connection with this Agreement, provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible property, but only to the extent caused by the negligent acts, errors or omissions, or willful misconduct of the indemnifying party, or of those for whom the indemnifying party is legally liable. This indemnification will survive the termination or expiration of this Agreement.
Insurance
1. The Provider shall maintain the following minimum insurance coverages during the performance of the services and for such longer period of time as required by this Agreement for the protection of the Client and the other persons and entities designated herein:
A. Commercial General Liability Insurance, on an “occurrence-based” policy:
I. Each Occurrence Limit – $1,000,000.00
II. General Aggregate – $2,000,000.00
III. Products/Completed Operations – $2,000,000.00 coverage to continue for 2 years after completion of the services
IV. Personal & Advertising Limit – $1,000,000.00
V. Coverage must be issued on an ISO General Liability Form with no additional limitation and must include Contractual Liability (for liability assumed in an insured contract per standard ISO language), Premises and Operations, Independent Contractors, Separation of insured, and Defense.
B. Excess/Umbrella Liability Insurance on an “occurrence-based” policy “following-form” or greater to liability coverages above:
I. Each Occurrence Limit- $1,000,000.00
II. Aggregate Limit – $5,000,000.00
C. Professional Liability Insurance:
I. $1,000,000.00
D. Workers Compensation:
I. $500,000.00 each accident
II. $500,000.00 disease – policy limit
III. $500,000.00 disease – each employee
2. The Provider shall cause the commercial general liability and any excess/umbrella liability coverage required hereunder to include additional insured endorsements in favor of the Client on a primary and non-contributory basis with any insurance maintained by the Client. All insurance coverages required of the Provider shall contain a waiver of subrogation in favor of the Client and will not be canceled or allowed to expire until at least 30 days’ (10 days for non-payment of premiums) prior written notice has been given to the Provider. All insurance policies required hereunder shall be written by insurance companies having a minimum A.M Best rating of A or better and a financial category of VII or greater and otherwise, acceptable to the Client. The Provider shall be responsible for all deductibles and self-insured retention amounts applicable to such policies. The Parties acknowledge the Client may obtain additional insurance coverage commitments from third-party vendors in addition to the commitments made by Provider in this Agreement.
Limitation of Liability; Disclaimer
A. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS SECTION SHALL SURVIVE TERMINATION OF THE AGREEMENT. IF THE SCOPE OF SERVICES CHANGES, THE PARTIES MAY RENEGOTIATE THE FOREGOING TERMS IN GOOD FAITH.
B. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE TERMINATION OF THE AGREEMENT.
Modification of Agreement
1. Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by an authorized representative of each Party.
Assignment
1. Neither Party will voluntarily, or by operation of law, assign or otherwise transfer or assign this Agreement or its rights or obligations under this Agreement without the prior written consent of the other Party. However, Provider may subcontract portions of the Services to third parties provided, subject to the “Third-Party Services and Terms” Section, Provider shall remain responsible for any such subcontractors as if their acts or omissions are Provider’s own. This Agreement will ensure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
Entire Agreement
1. It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement.
Titles/Headings/Gender
1. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
Governing Law and Jurisdiction
1. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Georgia without regard to the conflict of laws principles thereof. Parties agree that personal jurisdiction shall exist in the State of Georgia and that the State of Georgia shall have subject-matter jurisdiction over any issues arising from interpretation or enforcement of this Agreement. Any lawsuits arising out of this Agreement shall be brought in DeKalb County, Georgia.
Severability
1. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
Waiver
1. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
Service Schedule and Scopes of Work
1. Service schedules and Scopes of Work are to be included within the Sales Order processed between the Provider and the Client.