MASTER SERVICE AGREEMENT/TERMS AND CONDITIONS
This Master Service Agreement is entered into between the Customer (“Customer”, “You”, “Your”) and Eastern Telephone & Technologies, Inc. (“Eastern”) and is subject to acceptance by Eastern. This Agreement shall only be binding after Service has been activated. Your acceptance is limited to the terms and conditions of this Master Service Agreement and the following:
- If you accept Internet service from Eastern, you shall be bound by the Internet Terms and Conditions found at ettky.com/terms-conditions-policies;
- If the you accept Local Service from Eastern, you shall be bound by the Local Service Terms and Conditions found at ettky.com/terms-conditions-policies;
- If the you accept Managed Services from Eastern, you shall be bound by the Managed Services Terms and Conditions found at ettky.com/terms-conditions-policies.
The Internet Terms and Conditions, Local Service Terms and Conditions, and Managed Services Terms and Conditions are incorporated by reference herein. Prior to acceptance, Eastern may reject a request for Service for any reason, including lack of credit approval for the Customer.
- The term of the Agreement for Service shall begin on the date of activation of your Service and shall continue for the number of months stated in the Service Agreement, and then shall automatically renew for consecutive terms of twelve (12) months, unless terminated in writing or by calling 606-432-0043 at least sixty (60) days prior to the expiration of the then-current term. This contract term may include a waiver of installation fees and charges.
- The rates for Service are specified on the Service Agreement and the you agree to pay all charges for Service billed in accordance with the Service Agreement and this Master Service Agreement. Service charges include all charges recorded to your Bill-To Number, including calls made and received. Eastern may increase or decrease the prices for Service. You shall be deemed to have agreed to the change(s) in prices for Service if you continue to use the Service. Eastern reserves the right to revise, in its sole discretion, the rates, terms, and conditions of its Agreement with you.
- You may terminate this Agreement and discontinue receiving Service from Eastern at the end of your current contract term by giving Eastern sixty (60) days’ notice prior to the end of your current contract term. If your Service is terminated by you for any reason prior to the expiration of your then current term or by us due to your breach of this Agreement, including your failure to pay, Eastern may charge you, as liquidated damages and not as a penalty, an amount equal to (i) any outstanding and unpaid amounts, whether or not previously invoiced, for Service rendered prior to the date the Service is terminated, (ii) 100% of the monthly recurring fees for the terminated Service, including usage based fees, multiplied by the number of months remaining on the then current term, and (iii) any unpaid non-recurring fees associated with the terminated Service, including any costs and charges incurred by Eastern related to the installation and implementation of the Service. Such Early Termination Charges will be due within 30 days of Service cancellation. If you fail to pay any sum under this Agreement when due, breach any representations herein, fail to perform any obligations in the time and manner specified, or fail to maintain any Equipment without damage or interference to Eastern’s business or facilities, Eastern shall have the right to discontinue the Service at any time without notice and/or terminate this Agreement.
- ACCEPTABLE USE POLICY. You shall use Eastern’s services only in accordance with applicable law and for lawful purposes. You shall not use or permit others to use Eastern’s services (including by transmitting, posting or storing content) in a manner which would violate any law or infringe any copyrights or trademarks. Once notified of any violation of this Acceptable Use Policy, you agree to cooperate with Eastern and work promptly to cease the noted activities. Eastern reserves the right to interrupt or disconnect services for non-compliance with this AUP or in compliance with instructions from government authorities. You shall be responsible for all authorized uses of services provided by Eastern. A more extensive AUP may be provided as an addendum to this Agreement in connection with certain
- Eastern shall provide and the you shall accept Service as shown on the Service Agreement, for any lawful purpose, subject to the terms and conditions specified in the Agreement. You are responsible for ensuring that your Equipment is technically and operationally compatible with the Service Network and in conformity with applicable Federal Communications Commission (FCC) rules and regulations. You will not use your Equipment for any unlawful or abusive purpose or in such a way as to create damage or risk to Eastern’s business reputation, employees, facilities, or to third parties or the public generally. If your use of your Equipment adversely affects the Service provided to other customers, Eastern reserves the right to terminate Service without notice.
- ADDITIONAL SERVICES. It is likely that you will from time to time subscribe to additional Services. All additional Services that are not listed on the Service Agreement but have been activated at your request shall be subject to these same terms and conditions.
- Service is subject to transmission limitations caused by atmospheric, topographical, and other like conditions. Additionally, Service may be temporarily refused, limited, interrupted, or curtailed due to government regulations/orders, system capacity limitations, limitations imposed by an underlying carrier, or because of equipment modifications, upgrades, repairs, or relocations, or other similar activities necessary for proper operation or improvement of Service. Certain Services may be provided by other carriers and subject to their regulations and charges. Eastern shall use commercially reasonable efforts to provide you with substantially uninterrupted services by means of Eastern’s systems, personnel, and other resources.
- BILLINGS AND PAYMENTS. Start-up fees and the first month’s service fees are due and payable with the signing of the Service Agreement. Monthly service fees shall be paid monthly in advance by the first of each month, without demand or invoice. Specifically, Eastern shall not be required to generate an invoice or make any demands for payment on or before the first of each month in order for you to be obligated to pay the monthly service fees specified by the Service Agreement by the first of each month, in advance for that month. You shall be responsible for payment of all charges for Service furnished by Eastern, including applicable taxes for Service furnished, including usage charges (which are in addition to regular monthly service charges). Usage charges also includes all long distance charges on Copper Local Service Lines for all calls made or received by you, including any applicable landing access charges and toll charges resulting from the origination of calls to points outside Eastern’s local calling area and charges from other telephone companies for services used by you in their local calling area. Payments received after the due date of an invoice may incur a late payment charge of five dollars or 1.5% per month of the unpaid balance for each month or fraction thereof that such balance shall remain unpaid. Service is subject to interruption and disconnection by Eastern for nonpayment of monthly service fees or any other fees due and payable by you, and Eastern reserves the right to seek all other remedies at Eastern may, to the extent permitted by law, charge you a return check fee of $35.00 for a check returned for any reason. Eastern may, at its sole discretion and in order to safeguard its interest, require you to make suitable deposit(s) to be held by Eastern as a guarantee of the payment charges. Eastern has the right to apply all or part of the deposit toward any amount due and owing from you. Eastern will pay simple interest on the deposit from the date received until it is returned to you or applied against any outstanding charges. At one-year anniversary date, your account may be evaluated for current payment history and Eastern may return the deposit to you. If Eastern determines that a deposit is no longer necessary, or if this Agreement is terminated, Eastern will refund the deposit by applying it against any charges due and owing. Any remaining credit balance will be returned by check.
- TAXES AND OTHER CHARGES. All amounts due and payable hereunder will be exclusive of applicable charges, fees, levies, imposts, duties, tariffs, or other assessments imposed by or payable to any federal, state, local, or foreign tax or governmental authority, including without limitation sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, withholding, and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. You will be responsible for the payment of all such Taxes, excluding Taxes based on Eastern’s income. You will indemnify and hold Eastern harmless from any current or future obligation, including due a change in legislation, to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes or any other Taxes in connection with Eastern’s performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting
- NO WARRANTY. EASTERN PROVIDES ALL SERVICES ON AN AS IS BASIS. IN PROVIDING ITS SERVICES, EASTERN, ITS OFFICERS, DIRECTORS, PRINCIPALS, MEMBERS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, REPRESENTATIVES, AGENTS, SUCCESSORS, AND ASSIGNS MAKE NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY STATED HEREIN AND EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE, OR MULTIPLE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF SECURITY, LOSS OF PRIVACY, COSTS OF RECREATING LOST DATA, COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS OF USE, RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON EASTERN’S SERVICES OR THIRD PARTY SERVICES PROVIDED OR PASSED THROUGH BY EASTERN OR BY ANY OTHER PARTY IN CONJUNCTION WITH EASTERN’S SERVICES, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF EITHER YOU OR EASTERN KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY
Without limiting the foregoing, Eastern shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services, or on information obtained therefrom, interruptions of service, breach, compromise, unauthorized access to any records, files, data, systems, or other assets, valuables and resources; errors, defects, viruses, malware, delays in operation or transmissions or any other failure of performance or business function. Further, except in the event of willful misconduct by Eastern, Eastern shall not be liable for any direct damages resulting from the loss of any of your data or third party data, breach of security or loss of privacy of data on your systems or third party systems that may occur on systems installed, serviced, and/or managed by Eastern, or any direct or indirect damages resulting therefrom; the malfunction, performance or compromise of any system, network or other resource related to or associated with in any capacity or by any theory with Eastern services, and any of your or third party damages, claims, losses or expenses resulting therefrom; any personal injury (whether of a physical or psychological nature) or death of any person, whether associated with you or otherwise, that may in any capacity or by any theory be associated with services provided by Eastern, and any of your or third party damages, claims, losses or expenses resulting therefrom. Further, if Eastern’s or your system or equipment is experiencing issues and you refuse to allow Eastern to remedy the issues, Eastern shall not be liable for any damage caused to you or other customers as a result of your refusal. This includes your refusal to allow Eastern to access your network or equipment or your refusal to permit Eastern access to your property to remedy any issues.
- RANSOMWARE DISCLAIMER. Eastern shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services, interruptions of service, breach, compromise, or unauthorized access to any records, files, data, systems, or other assets, valuables and resources, errors, defects, viruses, malware, delays in operation, transmissions or any other failure of performance or business function, or monetary loss caused by, resulting from, or arising from Ransomware or similar software.
- LIMITATION OF LIABILITY. Both parties agree that it is impossible to guarantee the trouble-free performance of computer hardware, software, networks, environments, security and systems, the security, privacy, specific functionality or performance of any free-standing or integrated system or resource; the reliability, applicability or performance of any technology or technology-related asset; the applicability, outcome or performance of any training or the behavior of any human resources, whether procured, provided, installed, managed, supported, administered, trained and/or supervised by Eastern, or in any way associated with Eastern services or otherwise. Therefore, you and Eastern agree to certain further limitations of liability and damages.
To the extent not prohibited by applicable law, Eastern’s maximum aggregate and cumulative liability under this Agreement for any and all losses, claims, damages, expenses, attorney and expert fees, or liability of any kind, including but not limited to claims of breach of contract, breach of warranty, negligence (including strict liability), whether in contract or in tort, or under any other legal theory, is limited to the amount in fact paid by you hereunder for the two (2) months immediately preceding the event giving rise to such loss, damage, claim, or liability. In no event shall Eastern be liable for (i) any consequential, incidental, special, exemplary, indirect, punitive, or multiple damages in connection with or arising out of this Agreement, (ii) any accompanying or associated Service Agreement, whether signed concurrently or not, and, (iii) any other agreement between you and Eastern that incorporates these Managed Services Terms and Conditions; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, good will, reputation, or other economic advantage, however caused, and regardless of the legal theory of liability, even if Eastern and/or you knew, or should have known of the possibility thereof.
- You agree to indemnify, defend, and hold harmless Eastern, and its officers, directors, principals, members, managers, employees, subcontractors, agents, representatives, successors, and assigns from and against any damage, claim, loss, expense (including reasonable attorneys’ fees and damage to any person or property), occurring as a result of (i) your use or inability to use of Eastern’s services, or use or inability to use by those authorized by you of Eastern’s services; (ii) your handling, storage, transmission or possession of information, data, messages or other content or assets on Eastern’s systems or network, on your systems or network that are installed, managed, or otherwise serviced by Eastern, or on third party systems and networks that Eastern uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission or possession of information that contains viruses, malware or other destructive code, media, or any unlawful content; (iii) your or third parties’ reliance on Eastern’s services or on information obtained therefrom; (iv) your breach of any software licensing requirements of third parties; (v) your failure to comply with any provision of these Managed Services Terms and Conditions or the Service Agreement or Eastern’s Professional Services Agreement; or, (vi) your failure to obtain permits, licenses, or consents that you may be required to obtain to enable Eastern to provide its products or services (e.g., landlord permissions, wiring permits, etc.).
Eastern agrees to indemnify and defend you and your directors, officers, employees, agents, and successors against third party claims enforceable in the United States alleging that Eastern’s services as provided infringe any third party United States patent or copyright or contain misappropriated third party trade secrets. Eastern’s obligations under this section will not apply to the extent that the infringement or violation is caused by (i) functional or other specifications that were provided or requested by you, or (ii) your continued use of infringing services after Eastern provides reasonable notice to you of the infringement. For any third party claim that Eastern receives, or to minimize the potential for a claim, Eastern may, at its option and expense, either: (i) procure the right for you to continue using the services in question; (ii) replace or modify the services with comparable services; or (iii) terminate the services. The provisions of this Section state the entire liability and obligations of the indemnifying party, and the exclusive remedy of the indemnified party, with respect to any of the claims identified herein.
- FORCE MAJEURE. Neither party to this Agreement shall have liability or responsibility to the other party for any delay, failure to perform, service interruption, outage, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the party’s reasonable control including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, strikes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data center, collocation, and cloud service providers, interruption, or outage of or delay in telecommunications including the public Internet, voice lines, data lines, or any telecommunications equipment or service, transportation, delivery, power outages, electrical or other utility services, failure of third party hardware, software or services, or any acts or omissions of any third parties.
- Eastern Supplied Equipment (“Equipment”) shall remain the property of Eastern and you have no rights, title, or interest in the Equipment except as expressly provided in this Agreement.
- You may not transfer or assign this Agreement without the prior written consent of Eastern. This Agreement may be assigned by Eastern without notice. The obligations under this Agreement shall be binding on and inure to the benefit of both Customer and Eastern’s successors and assigns.
- If you default on any of the terms of this Agreement, Eastern may interrupt Service or terminate this Agreement after reasonable notice to you. Upon termination, you shall return all Equipment to Eastern. Termination by Eastern does not relieve you of any obligations under this Agreement if you fail to return the Equipment or pay all Charges. You agree to pay all costs incurred by Eastern in the repossession of all Equipment or in the collection of unpaid Monthly Charges, including but not limited to court costs and attorney fees.
- No action or inaction on the part of Eastern shall constitute a waiver of any right of Eastern to enforce any part of this Agreement. The invalidity or un-enforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision.
- VENUE AND GOVERNING LAW. Venue for the purpose of any disputes regarding this Agreement shall lie exclusively in Kentucky, and the state and federal courts of the Commonwealth of Kentucky shall have exclusive jurisdiction over the parties and subject matter of this Agreement. Each party consents and submits to the in personam jurisdiction of any state or federal court located with the Commonwealth of Kentucky. Any party attempting to bring any suit concerning this Agreement in any state other than Kentucky shall be deemed to have consented to that suit’s dismissal for improper venue and lack of jurisdiction and shall be liable to the other party for the other party’s reasonable and necessary attorney’s fees and costs incurred in moving to dismiss the suit. The interpretation of this Agreement is governed by Kentucky law (except for any conflicts of law rules, if any, that might make the laws of another jurisdiction govern).
- Notwithstanding Paragraph 18 of this Agreement, as a material part of this Agreement, you and Eastern agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement or of Eastern’s services shall be determined by confidential, final, and binding arbitration in Kentucky, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association. Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. By agreeing to submit all disputes, claims, and controversies to binding arbitration, both you and Eastern expressly waive their rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal, and shall agree to all discovery requests and submit to all depositions as if it is doing business in the Commonwealth of Kentucky. The scope of any arbitral award shall be expressly limited by the terms of this Agreement. Any award shall be final, binding, and conclusive upon the parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, both you and Eastern agree that before undertaking the aforementioned arbitration, they shall submit all disputes, claims, or controversies to a mutually agreeable mediator in an attempt to informally resolve said disputes, claims, or controversies without the need for arbitration. Both you and Eastern agree that prior to even engaging mediation, they will make every effort to resolve any disputes peacefully. Nothing in this Section shall be deemed to prohibit Eastern from seeking injunctive relief or to restrict Eastern from asserting or enforcing any collection action in court, other than as set forth in Section 18 and this Section 19 of this Agreement.
- NOTICES AND DISCLOSURES. If you want a paper copy of any document provided to you online, by email, or other electronic means, please contact Eastern at 606-432-0043 and a paper copy will be sent to you at no charge (except for paper invoices for which we may charge a fee). If your email or other address for electronic communications changes, please let Eastern know promptly by contacting 606-432-0043.