The following Master Services
Agreement (“MSA”) between Central Wisconsin Communications,
LLC, or Wood County Telephone Company Inc, dba Solarus
(hereafter referred to as “we”, “us”, and “our”) and its
Customer, _____________________________________
(hereafter collectively referred to as “you” and “your”)
describes the mutual agreement under which we provide Services
to you. You and we are each a “Party” and collectively
referred to as “Parties.” The MSA together with all other
referenced documents, and exhibits constitute our entire
Agreement and supersede any prior contemporaneous discussions
and understandings, written or verbal.
In consideration of this Agreement, we provide Services
to you, and you agree to purchase these Services under
the following provisions:
Description of Services Provided
We will provide you with Services as described in the attachments
to this MSA during the term of this Agreement and warrant
that our Services will meet the minimum performance standards
described in the attachments to this MSA.
Use of Service
You agree that our Services will not knowingly be used
for any unlawful purpose. You agree that Services shall
be provided subject to our Acceptable Use, Web Hosting
and Privacy Policies as in effect from time to time as
posted at www.solarus.net
Service Term, Renewal and Cancellation.
The initial term of this Agreement shall be ______________
years from the Activation Date (defined as the date we
make Services available for your use), and shall automatically
renew on the anniversary date of the Activation Date on
a month to month basis, at the month to month rate current
at the time of renewal, unless either of us provides the
other with sixty (60) days written notice prior to such
anniversary that it intends to terminate the Agreement
effective on that anniversary date.
Equipment Installation and Non-Liability.
If applicable to the Services you buy from us, we will
make arrangements through equipment vendors to install
the equipment you have ordered for installation in order
that your service can be activated as soon as possible.
If the equipment is leased from us, we will maintain and
support the equipment. If the equipment is purchased from
us, you may purchase maintenance and support from us. You
agree that we are not responsible for maintenance or support
of the equipment or any failures of our service as a result
of your failure to maintain the equipment. You further
agree that upon termination of this Agreement you will
return to us all of our equipment, if leased from us, in
good condition. If you fail to do so, you agree to pay
us the reasonable value of our equipment within 10 days
after your receipt of our invoice.
Charges and Payments.
Charges for our Services will be calculated in accordance
with the MSA and issued for monthly periods based upon
the anniversary date of your service activation. Recurring
minimum monthly charges will be billed in advance of the
service period. You will pay all charges due by the invoice
due date in U.S. dollars.
Elimination or Modification
Services
We reserve the right to eliminate and/or modify Services
and/or upon prior written notice to you, which notice will
state the effective date for the elimination and/or modification.
In the event we notify you of an elimination and/or modification
for an individual Service, you may terminate this Agreement
only with respect to the Services affected by the elimination
and/or modification of Service. In order to cancel such
Services, you must notify us, in writing, prior to the
effective date of the modification.
Credit Approval
Your execution of this Agreement signifies your acceptance
of our initial and continuing credit approval procedures
and policies. We reserve the right to withhold activation
of Services pending our initial satisfactory credit review.
We reserve the right to modify our credit requirements
in light of your actual usage and payment history. We may
also run credit reports on you at any time. You agree to
provide us with updates on your financial condition upon
our request.
Credit Card and Automated Clearing House (“ACH”) Payments
If you are paying us through your credit card, you agree,
within ten (10) days of any change, to provide us with
an updated credit card account number and expiration date,
if your credit card information changes. Similarly, if
you have made arrangements for us to collect our invoice
by automatic transfer from your bank account through an
ACH payment, you agree to notify us within ten (10) days
of any change to your bank account information.
Taxes
All fees charged by us for Services are exclusive of all
(federal, state or local) taxes and similar fees (whether
considered imposed on us or you, and regardless of characterization
as sales, use, excise, gross receipts, privilege, duties,
fees or other similar liabilities) now in force or enacted
in the future imposed on the transaction and/or the delivery
of Services, all of which you will be responsible for and
will pay in full, except for taxes based on our net income
or property taxes. You shall pay such additional charges
for taxes in addition to all other charges provided for
herein.
Tax Exemption
If you are eligible for exemption from certain taxes imposed
on us, you, or the delivery of Services, we will continue
to charge for all such taxes and you shall pay for all
such taxes until such time as you deliver appropriate certifications
or exemption certificates to us in accordance with the
applicable taxing laws or regulations.
Late Payment and Collection
Charges
Any payment not received within thirty (30) days of the
invoice date (the “Due Date”) will accrue interest at a
rate of one and one-half percent (1 1/2%) per month or
fractional month, or the highest rate allowed by applicable
law, whichever is lower. If a payment is returned for non-sufficient
funds, you agree to pay a charge equal to the greater of
$35.00 or the actual bank charges to us. If you are delinquent
in your payments, we may, by written notice to you, modify
the payment terms to require advance payment before the
provision of Services or require other assurances, such
as a security deposit, to secure your payment obligations.
Billing
Disputes
Notwithstanding the foregoing, late payment charges shall
apply (but shall not be due and payable for a period of
thirty (30) days following the Due Date) for amounts reasonably
disputed by you, provided that you: (a) pay all undisputed
charges on or before the Due Date, (b) present a written
statement of any billing discrepancies to us in reasonable
detail on or before the Due Date of the invoice in question,
and (c) negotiate in good faith with us for the purpose
of resolving such dispute within said thirty (30) day period.
In the event such dispute is resolved in our favor, you
agree to pay us the disputed amounts together with any
applicable late fees within ten (10) days of the resolution.
In the event such dispute is resolved in your favor, you
will receive a credit for the disputed charges in question
and the applicable late fees. In the event the dispute
cannot be resolved within such thirty (30) day period (unless
we have agreed in writing to extend such period), all disputed
amounts together with late fees shall become due and payable,
and this provision shall not be construed to prevent you
from pursuing any available legal remedies. We shall not
be obligated to consider any of your notices of billing
disputes which are received by us more than thirty (30)
days following the Due Date of the invoice in question.
Default
You will be in default if (a) you do not pay any amount
due within thirty (30) days of when it first becomes due;
or (b) you break any of your commitments or obligations
to us under this Agreement; or, (c) you cause us to be
insecure with respect to your willingness or ability to
pay. You will cause us to be insecure if, for example,
and without limitation: you become insolvent, you stop
paying your debts as they become due, you stop doing business
as a going concern, you or a guarantor dies or becomes
insolvent, you consolidate or merge without our written
consent, you or any guarantor fail to affirm or assume
this Agreement within sixty (60) days of filing bankruptcy,
or our credit approval procedures and practices lead us
to believe that you will not be able to pay the amounts
due under this MSA.
Remedies
If you default, we may do any or all of the following:
(a) we may exercise any right we have by law or equity,
for which you, including any guarantor, expressly waive
any required notice; (b) we may refer this matter to
an attorney for appropriate legal action, in which case
you agree to pay our reasonable attorney’s fees and actual
costs, including our travel costs to any deposition or
court appearance; (c) we may, upon ten (10) days written
notice to you, suspend your Services until payment of
all amounts owing (as provided under Suspension of Service
below, including late fees, reactivation fees and any
other costs; and, (d) we may process billings for cancellation
charges.
YOUR EXCLUSIVE REMEDY FOR OUR FAILURE TO PROVIDE SERVICES
UNDER THIS MSA IS TO RECEIVE A CREDIT FOR AMOUNTS YOU HAVE
PAID FOR SERVICES YOU DO NOT RECEIVE. OUT OF SERVICE CREDIT
WILL BE GIVEN IN PER DAY INCREMENTS FOR EACH FULL CALENDAR
DAY DURING WHICH THE SERVICE IS NOT AVAILABLE DUE TO THE
FAILURE OF OUR NETWORK DUE TO CIRCUMSTANCES WITHIN OUR
CONTROL.
Suspension of Service
In the event all undisputed charges due pursuant to our
invoice are not paid in full by the Due Date or disputed
charges owed by you, if any, are not paid in full by the
time specified under Billing Disputes above, we shall have
the right, after giving you five (5) days prior written
notice (“Suspension Notice”) and the opportunity to pay
such charges, to suspend all or any portion of our Services
until such time that you have paid in full all undisputed
charges then due to us, including any late fees. Following
such payment, we shall reinstitute Services to you only
when you have provided us with satisfactory assurance of
your ability to pay for Services (i.e., a deposit, letter
of credit or other means acceptable to us) and your advance
payment of the cost of reinstituting Services. If you fail
to make the required payment by the date set forth in the
Suspension Notice, you will be deemed to have canceled
the Services suspended effective as of the date of suspension.
Such cancellation shall not relieve you of your obligation
to pay all amounts owing to us.
Warranty
We will use reasonable efforts under the circumstances
to maintain our overall service quality in accordance with
the terms of this MSA. WE MAKE NO OTHER WARRANTIES ABOUT
OUR SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
DAMAGES WAIVER. IN NO EVENT WILL WE BE LIABLE TO YOU FOR
ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR
CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION,
LOSS OF REVENUE, REPLACEMENT GOODS, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF TECHNOLOGY,
RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS
OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE
OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
Basis of the Bargain; Failure of Essential Purpose
You acknowledge that we have set our prices and entered
into this Agreement in reliance upon the limitations of
liability and the disclaimers of warranties provided, and
that the same form an essential basis of the bargain between
us. You agree that the limitations and exclusions of liability
and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential
purpose.
Indemnity
YOU AGREE TO INDEMNIFY US FOR ANY ACTIONS ARISING FROM
USE OF OUR SERVICES INCLUDING PURPORTED VIOLATIONS OF COPYRIGHT,
TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES. YOU AGREE TO REIMBURSE US FOR ALL REASONABLE COSTS
AND EXPENSES INCURRED BY US DUE TO OUR DIRECT PARTICIPATION
(EITHER AS A PARTY OR WITNESS) IN ANY ADMINISTRATIVE, REGULATORY
OR CRIMINAL PROCEEDING CONCERNING YOU, IF OUR INVOLVEMENT
IN SAID PROCEEDING IS BASED SOLELY ON THE PROVISION OF
SERVICES TO YOU.
No Third Party Beneficiaries
The Parties agree that, except as otherwise expressly provided
in this Agreement, there shall be no third party beneficiaries
to this Agreement, including but not limited to the insurance
providers for either of us
Governing Law; Dispute Resolution
You agree that this Agreement is executed and performed
in Wisconsin and Wisconsin law will apply to it. As to
any dispute arising under this Agreement, you also consent
to the personal jurisdiction of any state or federal court
located in the state of Wisconsin, and waive any right
to a trial by jury so that any trial related to this Agreement
shall be by and only to the court.
Consent to Service of
Process
You agree that any process served for any action or proceeding
shall be valid if done by any means allowed by law, or
if mailed by certified mail, return receipt requested,
with delivery restricted to either the addressee, its registered
agent, or any agent appointed in writing to accept it.
Severability
In the event any provision of this Agreement is held by
a tribunal of competent jurisdiction to be contrary to
the law, the remaining provisions of this Agreement will
remain in full force and effect. In such event, the Parties
will negotiate in good faith with respect to any such invalid
or unenforceable part to the extent necessary to render
such part valid and enforceable.
Waiver
No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused
unless such waiver or consent shall be in writing and signed
by the Party claimed to have waived or consented. No delay
or omission by us to exercise any right or power occurring
upon any noncompliance or default by you with respect to
any terms of this Agreement shall impair any such right
or power, or be construed as a waiver thereof. Our consent
to or waiver of, your breach or default, whether express
or implied, shall not constitute consent to or waiver of
any different or subsequent breach or default.
Assignment
You may not sell, transfer, or assign this Agreement. We
may sell, transfer, or assign our performance under this
Agreement. You agree that if we do, the assignee will have
the same rights and benefits that we have but that our
assignee or successor will not be subject to any claims,
defenses, or setoffs that you claim to have against us.
Notices
Any notice or communication required or permitted to be
given hereunder may be delivered by hand, by an overnight
courier, sent by email, confirmed facsimile, or mailed
by registered or certified mail, return receipt requested,
postage prepaid, in each case to the address of the receiving
party as listed on this Agreement or at such other address
as may hereafter be furnished in writing by either Party
to the other Party. Such notice will be deemed to have
been given as of the date it is delivered, mailed, emailed,
faxed or sent, whichever is earlier.
Relationship of the
Parties
This Agreement does not establish any relationship of partnership,
joint venture, employment, franchise or agency between
us. Neither of the Parties will have the power to bind
the other or incur obligations on the other’s behalf.
Solarus is the largest independent telephone company in Wisconsin and has delivered innovative telecommunications products to residents and businesses for more than 110 years.