CityCare Master Service Agreement (MSA)

LAST UPDATED ON AUGUST 15, 2017

In consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.  Services: MJ2 Internet, LLC dba CityCare (“CityCare”), agrees to provide and Customer agrees to accept and pay for all services and other associated activities (collectively the “Services”) as further described in the CityCare Service Agreement and Service Schedules (collectively the “Schedule(s)”) available at the CityCare website www.Citycare.com and incorporated herein by reference, which describe the particular services, rates, applicable service level commitments and guarantees, specific terms and other information necessary or appropriate for CityCare to provide the services to the Customer. The Services provided by CityCare are subject to (I) the terms and conditions contained in this Master Service Agreement (“MSA”), (II) the rates and discounts and other applicable terms set forth in the Schedule(s) including, but not limited to the CityCare Service Agreement (“Service Agreement”) incorporated herein by reference, and (II) each new service request which is accepted hereunder. The Schedule(s), as subscribed to by the parties, shall set forth the Effective Date, the Service Term, Rates, Customer’s minimum monthly commitment, if any, and other information necessary to provide the Services under this MSA. This MSA and the applicable Schedules are sometimes collectively referred to as the “Agreement”. This Agreement will be effective as of the date the initial Service Agreement is executed by Customer and accepted by CityCare (the “Effective Date”).
2. Sales Orders: The Services are described in the Service Agreement and Exhibits which detail the price, location and required information about the Services; and are not binding until executed by Customer and accepted by CityCare. Any additional and incremental Services requested by the Customer automatically become a part of this Agreement and may be subject to additional cost.
3. Payment of Invoices and Disputes: Invoices are delivered monthly and due 10 days after the invoice date. Fixed charges are billed in advance. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is responsible for all charges respecting the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the invoice or Customer waives the right to dispute the charges. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest from the date originally due.
4. Taxes and Fees:  Customer is responsible for all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges, whether imposed on CityCare or a CityCare affiliate, along with similar charges stated in a Sales Order (collectively “Taxes and Fees”). Some Taxes and Fees may be recovered by CityCare through imposition of a percentage surcharge on the charges for Service. Basic charges for Service are exclusive of Taxes and Fees. Customer may present CityCare with an exemption certificate eliminating CityCare’s liability to pay certain Taxes and Fees; CityCare will give effect thereto prospectively.
5. Service Term: Schedules will contain the duration for which Services are ordered (“Service Term”). The term will begin and billing will commence as of the Effective Date and will not be delayed due to Customer’s readiness to accept or use Service. Customer agrees to provide CityCare any information necessary to deliver the Services. At the end of the initial Service Term or any renewal term, this Agreement will automatically renew for an additional term of one year unless either party terminates the Agreement by giving the other party written notice of termination not less than sixty (60) days prior to the expiration of the initial term, or renewal term, as the case may be. In connection with a renewal, all Services in effect at the renewal date that would otherwise have expired during the renewal term will have a new Service Term that expires at the end of the one year renewal term. The Service Term will remain unchanged for any Services for which the original Service Term extends past the end of the renewal term. Upon termination of this Agreement, Customer may not order any new Services, and CityCare will not be obligated to furnish new Services to Customer.
6. Customer Cancellation Prior to Effective Date: If Customer, without any express right to do so, cancels any ordered Service prior to the Effective Date for such Service, then Customer’s liability for such cancellation shall be an amount equal to (a) all non-recurring charges incurred by CityCare as a result of such cancellation; plus (b) two (2) months of the forecasted monthly recurring charges or monthly commitment level payments. Customer shall pay such cancellation amount immediately upon receipt of an invoice therefore.
7. Cancellation and Termination Charges After Effective Date: If Customer terminates this Agreement or any Service after the Effective Date for such Service but prior to the end of the applicable Service Term for any reason other than CityCare’s default, then Customer must pay immediately to CityCare as liquidated damages 100% of all monthly recurring charges associated with the terminated Service(s) for the remaining monthly recurring charges through the end of the applicable Service Term(s). It is agreed that CityCare’s damages in the event of early termination will be difficult to ascertain. These provisions are therefore intended to establish a reasonable approximation of CityCare’ losses in the event of early termination and are not intended as a penalty.
8. Regulatory and Legal Changes: This Agreement is subject to all applicable U.S. federal, state and local laws, rules and regulations. CityCare may discontinue, limit, or impose additional requirements to the provision of Service, as required to meet regulatory requirements. If changes in applicable law, regulation, rule or order materially affect delivery of Service (including the economic viability thereof), the parties will negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within 30 days after CityCare’ notice requesting renegotiation: (a) CityCare may, on a prospective basis after such 30 day period, pass any increased delivery costs on to Customer and (b) if CityCare does so, Customer may upon notice given to CityCare within 30 days after delivery of the notice of the increased charges terminate the affected Service, unless CityCare agrees to waive the increased charges.
9. Default: If (A) Customer fails to make any payment when due and such failure continues for 5 business days after written notice from CityCare, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any Sales Order, in whole or in part, and/or (ii) subject to the terms of this Agreement, pursue any remedies it may have at law or in equity. If Customer gives CityCare notice of breach and such breach is not capable of cure within a 30 day period, the time for CityCare to cure will be extended to 90 days from the date that CityCare received notice of such breach so long as CityCare is diligently attempting to remedy such breach during that period. Customer’s rights under this Section are in addition to Customer’s rights under any Service Schedule(s).
10. No Special Damages: Subject to this MSA and the Schedules, Customer understands and agrees that CityCare shall not be liable to Customer or any other party for interruption or delays in transmission or failure to transmit of customers voice or data services, nor for special, incidental or consequential damages caused thereby, including lost profits or loss of goodwill (whether or not CityCare has been advised of the possibility thereof) by reason of any breach, act or omission of CityCare in its performance hereunder. Customer will indemnify and hold CityCare harmless from and against any and all claims by any third party arising from or relating to delivery of Services to Customer under this Agreement.
11. Disclaimer of Warranties: CityCare will use reasonable efforts under the circumstances to maintain the quality of Services provided hereunder which shall be consistent with sound business practices. CITYCARE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.
12. Support and Service Level Commitments: Customer understands and agrees that CityCare will provide telecommunications lifecycle management (“TLM”) for the network inventory items included in this Agreement. TLM will include but is not limited to procurement, provisioning and post sale support activities as requested by the Customer. TLM includes but is not limited to traditional TLM activities including carrier quoting, contract procurement, service provisioning, post sale support, and all subsequent MAC/renewal activity. CityCare will provide and maintain a complete inventory of all services provided by Customer and accepted by CityCare. CityCare will make it’s best effort to complete Customer’s requests within normal and reasonable timeframes. However, Customer understands and agrees that CityCare cannot control the service delivery intervals of the underlying Carriers which may result in a request being delayed or not completed. CityCare provides it services during hours of operation published at www.Citycare.com. Customers needing service outside of said hours of operation are encouraged to use the CityCare after hour instructions published at www.Citycare.com. CityCare is neither your attorney nor your advisor; the information we provide does not constitute legal or other professional advice; and you are responsible to seek information or clarification from your own legal counsel pertaining to your specific activities or if you have any questions or concerns. You agree that we have no liability to you whatsoever, whether for direct, indirect, or other damages, and regardless of legal theory, based upon or arising out of your use of the information we provide (if you disagree, please do not use this information). We also reserve the right to comply or assist with any investigation or enforcement activities undertaken by any regulatory entity with applicable jurisdiction.
13. Assignment; Change in Status: Customer shall not assign or otherwise transfer (including, without limitation, a transfer due to a “Change of Control”) its rights or obligations under this Agreement without the prior written consent of CityCare, which shall not be unreasonably withheld. Customer must be current on all payments required by this Agreement before any assignment is approved by CityCare. Any such assignment or transfer of Customer’s rights or obligations without such consent shall entitle CityCare to terminate the Services provided hereunder at its option upon ten (10) calendar days prior written notice to Customer and shall constitute a default of a material obligation. A Change in Control shall be deemed to be an assignment, merger, sale of a controlling interest or other transfer of a controlling ownership interest.
14. Force Majeure: If CityCare’s performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States government, or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, war, strike, lockout or work stoppage or other labor difficulties, or supplier failure, shortage, breach or delay, then CityCare shall be excused from such performance on a day to day basis to the extent of such restriction or interference. CityCare shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
15. Use of Service: Upon CityCare’s acceptance of a Sales Order hereunder, CityCare will provide the Services specified therein to Customer upon condition that such Services shall not be used for any unlawful or unauthorized purpose. Customer will not resell any of the Services. Customer’s use of Service shall comply with CityCare’ Acceptable Use Policy and Privacy Policy, as communicated in writing to Customer from time to time and which is also available through CityCare’ web site www.Citycare.com. Customer consents that CityCare may use Customer data for the performance of CityCare’s obligations and the exercise of CityCare’s rights under this Agreement, including storing, processing or transferring data to or from the United States. The provision of Services is not intended to and will not create a partnership or joint venture between the parties.
16. No 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. Consent to waiver of or excuse for a breach or default by either party, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach or default.
17. Public Releases, Use of Name: Without the prior written consent of the other party, neither party may issue a news release, public announcement, advertisement or other form of publicity concerning the existence of the Agreement or the Services. Without CityCare’s consent, Customer may not use CityCare’s name, logo or service mark in marketing services to end users.
18. Confidential Information: The parties understand and agree that the terms and conditions of this Agreement (but not the existence thereof), all documents referenced herein (including invoices to Customer for Services provided hereunder), communications between the parties regarding this Agreement or the Services to be provided hereunder (including price quotes to Customer for any services proposed to be provided or actually provided hereunder), as well as such information relevant to any other agreement between the parties (collectively “Confidential Information”), are confidential between Customer and CityCare for a minimum period of one year or for the length of the agreement, whichever is longer.
19. Choice of Law; Forum: This Agreement shall be construed under the laws of the State of Arizona without regard to choice of law principles. Any legal action or proceeding with respect to this Agreement may be brought in the Courts of the State of Arizona in Maricopa County. By execution of this Agreement, both Customer and CityCare hereby submit to such jurisdiction, hereby expressly waiving whatever rights may correspond to either of them by reason of their present or future domicile. In furtherance of the foregoing, Customer and CityCare hereby agree to service by U.S. Mail at the billing address indicated on the Service Agreement. Such service shall be deemed effective upon the earlier of actual receipt or seven (7) days following the date of posting.
20. Non-exclusivity: This Agreement is non-exclusive. Nothing in this Agreement prevents either party from entering into similar arrangements with other entities.
21. Notices: Any notice required or given under this Agreement will be in writing and will be made to the contact and address set forth on the Service Agreement. Such address and contact information may be changed by either party by notice to the other party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested, or (ii) if sent by e-mail or fax, when the receipt of the e-mail or fax is acknowledged in writing (which acknowledgement may be by e-mail or fax).
22. Survival; Entire Agreement: The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favor they operate. This Agreement (which includes the Sales Order(s), Service Schedules, and any other attachments, and addenda) constitutes the entire agreement of the parties with respect to the subject matter, and supersedes any prior agreements and negotiations. In the event of a conflict, the terms of a Service Agreement prevail over a Service Schedule, which prevails over these terms. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.