MASTER SERVICE AGREEMENT – January 4, 2018
The services referenced in the Agreement (“Service” or “Services”) are offered to Customer (“Customer” or “Reseller”) by White Label Communications, LLC, (“White Label Communications” or “WLC”). This Agreement between White Label Communications and Reseller sets forth the legal rights and obligations governing White Label Communications offer, provisioning and delivery of services and Customer’s receipt and use thereof. Customer shall contract for, and order, Service on a White Label Communications designated Statement of Work (“SOW”). White Label Communications and Reseller are referred to herein collectively as “Parties” and individually as “Party.”
Whereas, Reseller and White Label Communications desire for Reseller to market, sell and support Services to End-Users directly, and through Reseller’s indirect channel partners on a non-exclusive basis.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. SERVICES: White Label Communications will provide to Reseller the services specified in each Statement of Work (“Services”).
2. TERM: This Agreement will commence as of the Effective Date first set forth above and will continue until the expiration or termination of the latest-ending SOW. Each SOW will specify its duration. Thereafter, this Agreement shall automatically renew for 36 months (“Renewal Term”) unless either party gives the other party written notice of termination at least ninety (90) days prior to the maturity date of each SOW.
3. PAYMENT: (a) Reseller will pay the fees described in the SOW. Except as specified in an SOW, (i) recurring fees whether actual or as part of the monthly minimum commitment will be billed at the end of the applicable month; (ii) non-recurring fees will be due upon contract signing; and (iii) subject to Section (3.d) below, all invoices will be due and payable within ten (10) days of invoice date.
(b) Reseller will bear all taxes, duties, and other government charges relating to the Services (including interest and penalties to the extent caused by Reseller’s actions or omissions), except taxes based on White Label Communications’ income. Reseller will support any White Label Communications claim of tax exemption with appropriate documentation.
(c) Interest will accrue on past-due balances as of the date of delinquency at the lower of: (i) one and one-half percent (1.5%) per month, or (ii) the highest rate permitted by applicable law. If Services are discontinued due to nonpayment of fees and subsequently recommenced, a reconnection fee or deposit will apply, in addition to applicable interest.
(d) If Reseller disputes an invoice in good faith, Reseller may withhold the disputed amount, not to exceed one month’s recurring fees for such Service, provided that Reseller must: (a) notify White Label Communications within thirty (30) days of any such invoice, specifying the nature of the dispute or inaccuracy; and (b) pay any undisputed amounts as provided herein. Both Parties will in good faith investigate and attempt to promptly resolve any disputed invoices. Once resolved, Reseller will promptly pay any amounts owed.
(a) During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. “Confidential Information” means any confidential information or data disclosed by a Party (“Disclosing Party”) to the other Party (“Recipient”) under or in contemplation of this Agreement, which (a) if in tangible form or other media that can be converted to readable form is clearly marked as Confidential, proprietary, or private when disclosed; or (b) if oral or visual, is identified as Confidential, proprietary, or private on disclosure. The terms “Disclosing Party” and “Recipient” include each Party’s corporate affiliates that disclose or receive Confidential Information. Each Party will cause its affiliates to comply with the obligations of this Section 4, and each Party agrees that it is responsible for its affiliates’ compliance with this Section 4. Actions or omissions by a Party’s affiliate, that if taken by said Party would constitute a breach of this Section 4, will be considered actions or omissions of said Party. The Recipient acknowledges the economic value of the Disclosing Party’s Confidential Information. The Recipient therefore, will; (i) use the Confidential Information only in connection with the Recipient’s performance of its obligations or in exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to employees of the Recipient and its affiliates with a “need to know” and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (iii) “employee” includes third parties retained by the Parties for temporary or consultative, administrative, clerical, programming or related services. A “need to know” means that the employee reasonably requires the Confidential Information to perform his or her responsibilities in connection with this Agreement. (iv) advise those employees who have access to the Confidential Information of their obligations with respect thereto; (v) treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and (vi) copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies.
(b) Confidential Information, including copies, will be deemed the property of the Disclosing Party. The Recipient will, within twenty (20) days of a written request by the Disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Disclosing Party or if so directed by the Disclosing Party, destroy such Confidential Information. The Recipient will also, within ten (10) days of a written request by the Disclosing Party, certify in writing that it has satisfied its obligations under this Section.
5. LIMITED WARRANTY:
(a) White Label Communications warrants that Services (i) will meet the applicable specifications in the SOW(s); and (ii) will be provided in a professional and workmanlike manner by individuals with suitable skills and abilities. White Label Communications will use commercially reasonable efforts to re-perform any Services not meeting this limited warranty promptly following written notice from Reseller. Except as provided in an SOW, Services will be deemed accepted when performed. White Label Communications does not warrant products, equipment, hardware, or software not manufactured or owned by White Label Communications, but will, to the extent permitted, assign to Reseller any warranties given to White Label Communications by the applicable vendor(s).
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WHITE LABEL COMMUNICATIONS MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE REMEDY STATED ABOVE, IF ANY, IS RESELLER’S SOLE REMEDY FOR A BREACH OF WARRANTY. WHITE LABEL COMMUNICATIONS EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE
6. LIMITATION OF LIABILITY:
(a) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER.
(b) WHITE LABEL COMMUNICATIONS, LLC, ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO SERVICES OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY RESELLER FOR THE APPLICABLE SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM
(c) RESELLERS ENTIRE AGGREGATE LIABILITY WILL BE FOR THE ALL SUMS DUE AND OWING FOR SERVICE THAT HAVE BEEN DELIVERED BY WHITE LABEL COMMUNICATIONS UNDER THE TERMS OF THIS AGREEMENT AND ITS ATTACHMENTS
(d) THE FOREGOING LIMITATIONS OF LIABILITY IN SECTION (6.c) ABOVE WILL NOT APPLY FOR CLAIMS RELATING TO VIOLATIONS OF WHITE LABEL COMMUNICATIONS’ INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO SOFTWARE). THE PARTIES’ OBLIGATIONS IN THE SECTIONS “CONFIDENTIALITY” AND “INDEMNIFICATION” MAY BE FURTHER LIMITED BY FEDERAL, STATE OR LOCAL LAW. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY, HOWEVER, WHETHER THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
7. INDEMNIFICATION: Subject to Section (6.b), White Label Communications and Reseller agree to indemnify and hold harmless the other, its respective officers, agents, employees, contractors, subcontractors, suppliers, invitees, and representatives, from and against any and all third party claims, including without limitation claims by Reseller’s customers, of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) for physical injury or death or damage to real property to the extent caused by the indemnifying Party’s gross negligence or willful misconduct. If the indemnifying Party acknowledges in writing its obligations under this Section, the indemnifying Party will have the right to conduct the defense of such claim or action and all negotiations for settlement or compromise. However, the indemnified Party, at its own expense, may participate in the defense of any such proceeding through counsel of its choosing.
8. TERMINATION: If either Party materially defaults in the performance of any material provision of any SOW or this Agreement, and such default is not cured within (i) for late payments, ten (10) days; (ii) for all other matters, thirty (30) days, after notice specifying, in reasonable detail, the nature of the default, then the non-defaulting Party may by further notice terminate for cause the SOW or, if such breach affects the entire Agreement, this Agreement. Where White Label Communications is the defaulting Party, the cure period will extend for up to thirty (30) more days if White Label Communications notifies Reseller that White Label Communications has commenced cure activities and continues to use good faith efforts to cure the default. On termination, Reseller will pay as liquidated damages and not as a penalty the sum of all remaining recurring Service fees (as well as any past due balances) due under the remaining term(s) of the affected SOW(s). Termination of one SOW will not affect any other SOW.
9. INTELLECTUAL PROPERTY: White Label Communications will have and retain full and exclusive ownership of all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including any White Label Communications work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing (collectively, “White Label Communications Property”). The intellectual property rights associated with White Label Communications Property are referred to collectively as “White Label Communications IP”. Except as provided in an SOW, Reseller receives no right, title or interest in or license to use any White Label Communications IP. However, Reseller does receive a non-exclusive, nontransferable, terminable license to use such of the White Label Communications IP that is necessary for Reseller to exercise its rights hereunder, but solely in connection with and only for the term of the applicable Service and subject to the terms of any applicable SOW. Reseller will not allow access to White Label Communications Property, including without limitation, software and systems, by anybody other than Reseller’s employees and subcontractors who (i) are bound by law or written agreement to comply with Reseller’s duties under this Agreement with respect to White Label Communications Property and Confidential Information, and (ii) require such access to assist Reseller in its permitted use thereof. Reseller will not directly or indirectly reverse engineer, decompile, disassemble or copy any White Label Communications Property. Reseller will return all White Label Communications Property to White Label Communications at the conclusion of the applicable Service. Reseller will cooperate to take such actions reasonably requested to vest ownership of White Label Communications IP and White Label Communications Property in White Label Communications.
(a) Force Majeure. Services may be impeded by events outside of White Label Communications reasonable control, including acts of God, floods, fires, hurricanes, earthquakes, acts of war or terrorism, technology attacks, labor actions, failure of third-party suppliers, or changes in applicable laws and regulations. Failure to provide the Services due to a force majeure event will be excused.
(b) Notices. All notices required hereunder will be made in writing to the addresses below the signature line. Notices will be acceptable only if provided as follows, and will be deemed given: (a) one (1) day after deposit with an overnight courier, charges prepaid; (b) three (3) days after mailing by first class, certified, or registered U.S. Mail, charges prepaid, return receipt requested; and (c) when delivered by hand or by facsimile with confirmed receipt.
(c) Material Provided for Resellers. Any tools including and not limited to excel, web based, powerpoints, word docs, etc. whether they pertain to sales and marketing, operations, legal, or any other subject matter and are provided through White Labels partner portal or otherwise, is provided without any representations as to its accuracy or fitness for a particular purpose. It is intended as a sample and is used at the sole risk of the Reseller. It should not in any way replace Resellers own diligence and judgment related to selling and/or delivering the service or replace Resellers consulting with their Professional Advisors which would include but are not limited to; Lawyers, Accountants, etc..
(d) Independent Contractors. The Parties are independent contractors, and nothing herein will be construed to any other effect. Each Party alone will determine, supervise and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or attempt to act or represent itself, directly or by implication, as the other Party’s agent. Each Party will be solely responsible for the withholding and payment of all applicable federal, state, and local taxes for its own employees.
(e) Exclusivity and Competition. During the Initial Term or any Renewal Term hereof, White Label Communications shall have the exclusive right to provide the Services to Reseller within any area of the United States of America or Canada where the Services are available. Nothing herein shall prohibit White Label Communications from providing services similar or identical to the Services provided to Reseller hereunder to any other entity or person; provided, however, that White Label Communications does not use Confidential Information of Reseller to do so. During the term of this Agreement, Reseller agrees that it will not compete with White Label Communications in the marketing or sales of services similar or identical to the Services provided hereunder.
(f) No Third Party Beneficiaries. This Agreement benefits Reseller and White Label Communications. There are no intended third party beneficiaries, including without limitation Reseller’s customers.
(g) Severability; No Waiver. Any provision of this Agreement that is prohibited or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions. No course of dealing or failure of a Party to enforce strictly any term or provision of this Agreement, or to exercise any right, obligation, or option provided hereunder, will waive such term, provision, right, obligation, or option.
(h) Interpretation. In this Agreement, the term “including” means “including, without limitation”, and the term “days” refers to calendar days. This Agreement and each SOW is the joint work product of White Label Communications and Reseller, and no inference may be drawn or rules of construction applied against either Party to interpret ambiguities. Should the terms of this Agreement and an SOW conflict, the terms of the SOW will govern for that SOW only. No preprinted or form terms on a purchase order will apply.
(i) Assignment. This Agreement will be binding on the successors and assigns of both Parties, provided, however, Reseller will not assign, delegate or transfer this Agreement (an “Assignment”) without White Label Communications’ prior written consent. Such consent will not be required, however, for an assignment involving a sale of all of Reseller’s stock or a substantial portion of Reseller’s assets that relate to this Agreement. Any other assignment or transfer will be void and of no effect.
(j) Governing Law; Venue. This Agreement and all acts, transactions, rights, and obligations relating thereto will be governed by and construed under the laws of the commonwealth of Pennsylvania, without giving effect to principles of conflicts of law. All disputes will be resolved exclusively in the federal or state courts located in Allegheny County, Pennsylvania, and each Party consents to the personal jurisdiction and exclusive venue of those courts for that purpose.
(k) Laws, Regulations, Permits. Each Party will comply, at its own expense, with all applicable federal, state, county, and local ordinances, regulations, and codes in performing its obligations hereunder. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States. If White Label Communications reasonably believes that continued performance of the Services would cause White Label Communications or Reseller to be in violation of any applicable law, statute, ordinance, court order or regulatory agency rules, White Label Communications may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation.
(l) Tax Information. For the benefit and convenience of it’s Resellers, White Label Communications has integrated Suretax into the Atlas platform. Suretax is a third party company whose service is to provide a tax table database for federal, state, and local taxing authorities applicable to services sold by an Internet Telephony Service Provider (ITSP). White Label Communications has also worked through a third party company, General Solutions Associates (GSA), to have certain core service items rated by GSA for the purpose of mapping those items to the Suretax database in order to calculate, charge for, and remit for applicable taxes. DISCLAIMER: WHITE LABEL COMMUNICATIONS DOES NOT PROVIDE AS ANY OF ITS SERVICES ACCOUNTING OR TAX ADVICE. WHITE LABEL COMMUNICATIONS DOES NOT REPRESENT TO HAVE ANY EXPERTISE OR PARTICULAR KNOWLEDGE IN THE DISCIPLINE OF EITHER ACCOUNTING OR TAXATION. ANY STATEMENTS MADE BY WHITE LABEL COMMUNICATIONS EMPLOYEES REGARDING ACCOUNTING OR TAX MATTERS SHOULD NOT BE RELIED UPON BY RESELLER. IT IS THE RESPONSIBILITY OF THE RESELLER TO VERIFY THE RATING OF ANY ITEM PROVIDED AS RATED BY WHITE LABEL COMMUNICATIONS AND TO RATE ANY ITEMS NOT RATED IN THE WHITE LABEL COMMUNICATIONS PORTAL. WHITE LABEL COMMUNICATIONS IN NO WAY REPRESENTS OR WARRANTS THE ACCURACY OF ANY INFORMATION PROVIDED BY ANY THIRD PARTY COMPANY WHETHER PROVIDED THROUGH THE WHITE LABEL PORTAL OR OTHERWISE. RESELLER ACKNOWLEDGES THAT WHITE LABEL COMMUNICATIONS HAS NO EXPERTISE OR SERVICES AS IT RELATES TO ACCOUNTING OR TAXATION AND THE RESELLER SHOULD IN NO WAY RELY UPON WHITE LABEL COMMUNICATION FOR EXPERTISE IN THOSE AREAS.
(m) Authority. Each Party represents to the other that (i) it has full authority to enter into and perform under this Agreement (ii) the person signing this Agreement on its behalf is properly authorized; and (iii) it has read this Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions.
(n) Survival. Sections 3, 4, 6, 7, and 9 will survive the expiration or termination of this Agreement or any SOW.
(o) Entire Agreement. This Agreement, together with any SOW(s) or executed amendments, constitutes the Parties’ entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. This Agreement or any SOW may be modified only by a mutually executed amendment. This Agreement is not enforceable unless properly executed by both parties.
(p) White Label Communications may from time to time at its sole discretion engage in activities that result in lead generation of end user opportunities. White Label will distribute these lead(s) to the Reseller(s) of its choosing at its sole discretion. White Label is under no obligation to either generate leads or provide them to any specific Reseller. To the extent that White Label provides a lead to a Reseller and the Reseller pursues the lead Reseller is prohibited from offering any service that competes with any service White Label provides. Further, if Resellers is successful in converting the lead into a customer within 6 months of receiving the lead from White Label then Reseller is prohibited for the life of its relationship with that customer from providing any service White Label provides either directly or through another provider. For the avoidance of doubt, it is the Resellers responsibility to market and sell services and leads provided by White Label are again at its sole discretion and only intended to augment not replace the Resellers own marketing and sales efforts.