Master Service Agreement

Impulse Master Services Agreement (“MSA”)

This Master Services Agreement between Impulse Advanced Communications, LLC (“Impulse”) and the Customer identified below (“Customer”) includes all Service Supplements (“Service Supplement”) containing Service Orders and any Additional Terms and Conditions mutually agreed upon in writing.

1. Services: Impulse will provide the services and products (“Service”) described in the Service Supplement in accordance with the terms noted herein and as amended within the Service Supplement.
2. Prices and Rates:. The price for each Service is set forth in the Service Supplement.  Customer shall pay all sales, use, gross receipts, excise, occupational, access, bypass, franchise and other federal, state and local taxes, assessments, fees, charges, and surcharges, however designated, imposed on or based upon the provision, sale, purchase and/or use of Services.
3. Payment: Impulse shall invoice you monthly, (i) in advance for monthly recurring flat-rate Service to be provided, (ii) in advance for one-time, non-recurring and pro-rated Service to be provided and (iii) following the use of all measured or metered Service provided.  All invoices are due upon delivery, subject to any additional payment terms set forth in the Service Supplement and become past due thirty (30) days later without demand or set off by Customer.  If any invoice is not paid to Impulse within thirty (30) days of delivery, a late charge shall accrue on the delinquent amount at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is less. Any and all dispute claims must be submitted to Impulse within thirty (30) days of receipt of the applicable invoice.  All dispute claims not submitted within said thirty (30) day period are deemed waived.  Impulse shall have the right, at its election and without obligation, in addition to all of its other rights and remedies, to immediately terminate this Master Services Agreement and/or suspend performance in the event of any overdue payment in excess of thirty (30) days or any breach or default under Sections 8, 10 or 11.  Customer shall be responsible for all reasonable costs (including reasonable attorney’s fees) incurred in collecting past due amounts under this agreement.
4. Term; Renewal: The term of this agreement shall begin on the Acceptance Date set forth at the end of this agreement and shall end upon the later of the completion of twelve (12) months or completion of the term for Service.  The term for each Service shall be set forth in the Service Supplement and shall not be less than twelve (12) months unless otherwise stated in the Service Supplement.  During the term, Customer shall pay Impulse for each Service subject to these terms and Impulse shall not increase such amounts during that period, but thereafter, Impulse may increase such amounts upon 30 days prior written notice.  If Customer cancels Service before the term of the agreement is complete or before Service activation, then Customer is responsible for the termination charges equal to the remaining balance of the agreement.  The term for each Service shall automatically renew for successive additional periods (“Extended Term”) each equal to the term set forth in Service Supplement unless either party delivers to the other party written notice of termination at least sixty (60) days prior to the end of the term or then Extended Term.
5. Obligations of Impulse: Impulse shall be responsible for providing Service consistent with industry standards, except as provided in the applicable Service Supplement.  IMPULSE DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.
6. Obligations of Customer: Customer shall be responsible for the manner in which Service is used, including the maintenance and security of the data, computer network, PBX, ACD, voice mail, IVR and other facilities, the choice of equipment, software and online content, and all other matters related to the use of Service.
7. Indemnity: Impulse shall defend, indemnify and hold harmless Customer from and against any and all claims that any design of Service infringes on any U.S. patent, copyright, trademark, trade secret or other intellectual property right.  CUSTOMER WAIVES ANY AND ALL CLAIMS BASED UPON THE IMPLIED WARRANTY OF NON-INFRINGEMENT.  Customer shall defend, indemnify and hold harmless Impulse from and against any and all claims, damages, liabilities, losses, costs and expenses arising out of the use of Service, Customer’s combination of Service with other products and services not provided by Impulse, and any modification of Service.
8. Liability Limitation: Except for indemnification under section 7, any defaults under sections 10 and 11 and any breach by Customer of any Service Supplement, neither party shall be liable, for any direct, indirect, consequential, special or punitive damages or losses (including, but not limited to damages for lost profits or lost revenues), whether or not caused by acts, omission or negligence of its employees or agents, and regardless of whether such party has been advised of the possibility of such damages or losses.  This includes, but is not limited to, loss of data or any other loss whatsoever resulting from delays, non-deliveries, mis-deliveries, or service interruptions of any nature whatsoever.  IMPULSE’S AGGREGATE LIABILITY ARISING OUT OF THIS MASTER SERVICES AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF (1) THE TOTAL AMOUNT PAID BY CUSTOMER TO IMPULSE FOR THE APPLICABLE SERVICE DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO THE CLAIM OR (2) $100,000. Without limiting the generality of the above paragraph, you further acknowledge and agree that:
   • No Warranties, No Responsibility. Impulse exercises no control whatsoever over the content of the information passing through its Service connection.  Impulse makes no warranties of any kind, whether expressed or implied, as to the availability, accuracy, or content of the information, products, or services it is providing.  Impulse disclaims any warranty of merchantability or fitness for any particular purpose.  Use of any information or data obtained via Impulse is at your own risk.  Impulse bears no responsibility for the accuracy or quality of information obtained through its services.   Customer is solely responsible for any 3rd party company charges incurred by customer as a result of using Impulse Service.
   • Use Restricted to Lawful Purposes: Disclosure of Customer Information .Customer agrees to only use Impulse Service for lawful purposes and not to transmit any material in violation of any U.S. federal, U.S. State, or foreign law.  This includes, but is not limited to: copyrighted material, material legally judged to be threatening, obscene, or fraudulent or material protected by trade secret.  Impulse has no obligation to monitor Service but may do so and may disclose information regarding Customer’s use of Service to satisfy laws, regulations or governmental requests; to operate Service properly; and, to protect itself and its members. However, Impulse will not disclose member information to outside persons or entities for the purpose of soliciting Impulse members.
9. Other Networks: Access and Cancellation at Impulse Discretion. Customer agrees to comply with the acceptable use policies, rules and regulations, and terms and conditions of any networks accessed through Impulse as outlined herein including all Service Supplements.  Impulse reserves the right to deny access to, or terminate Service which, in Impulse sole opinion, is (are) causing, or may cause, harm to Impulse facilities, servers or to other systems.  Impulse will make reasonable efforts to notify Customer of any such Impulse action, but is not bound by this agreement to do so.
10. Confidential Information: Each party shall keep and maintain strictly secret and confidential any and all confidential or proprietary information of the other party and, except as required in connection with the performance of this Master Services Agreement or as is required by law, shall not use the same or disclose the same to any third party.
11. Non-Solicitation: Customer shall not, directly or indirectly, do any of the following: (i) solicit any director, officer, employee, or agent of Impulse, or encourage any such person to terminate any such relationship with Impulse, (ii) encourage any customer, client, supplier or other business relationship of Impulse to terminate or alter such relationship, whether contractual or otherwise written or oral, with Impulse, (iii) encourage any prospective customer or supplier not to enter into a business relationship with Impulse.
12. Miscellaneous: Customer may not assign this Master Services Agreement or any rights or interests hereunder without the express prior written consent of Impulse and no said assignment shall relieve Customer of its obligations hereunder. This Master Services Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.   This Master Services Agreement and any and all related Service Supplements constitute the entire agreement and understanding of the parties and supersede all prior and contemporaneous agreements and understandings between the parties with respect to the subject matter hereof. In the event of any action or proceeding to enforce or construe any of the provisions of this Master Services Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs.  This Master Services Agreement shall be governed and construed in accordance with the laws of the State of California.  Any changes to this Master Services Agreement, or any additional or different terms in the Customer Orders, Service Supplements or any other documents will not be effective unless agreed to in writing by Impulse.  The contractual relationship between Impulse and Customer for each Service shall be governed by the following order of precedence: (i) Service Supplement, (ii) Additional Terms and Conditions, and (iii) Master Services Agreement.
13. Governing Law: Customer and Impulse agree that the law of the State of California, U.S.A. will apply to all matters relating to this Agreement and to Impulse Service.  In addition, Customer and Impulse agree and consent that the courts of Santa Barbara County, California, U.S.A., will have exclusive jurisdiction and be the exclusive venue for any legal actions relating to this Agreement or to Services provided hereunder.
14. Compliance With Laws: Customer shall not use or permit its end users to use Service in any manner that violates any applicable laws or Impulse use policies, infringes on the rights of others or interferes with users of the Impulse network or other networks, including, without limitation, distribution of chain letters or unsolicited bulk electronic mail (spamming), knowingly distribute or release computer worms and viruses, use a false identity, attempt to gain unauthorized entry to any site or network, distribute child pornography, obscenity or defamatory material, or infringe patents, copyrights, trademarks or other intellectual property rights.
15. Rights not Waived: Failure by either Customer or Impulse to insist upon compliance by the other party with the terms and conditions of this Agreement including any Service Supplement shall not constitute a waiver of any rights under this Agreement.
16. Partial Invalidity: If any part, term, or provision of this Agreement is determined to be invalid or unenforceable by a court, board, or tribunal of competent jurisdiction, such term or provision shall be construed in all respects as if such provision were written in a manner acceptable to said court, board, or tribunal, or, if such provision is found to be totally unacceptable to such court, board, or tribunal in any form, then as if such invalid provision were omitted altogether.
17. Entire Agreement: It is expressly understood that there are no oral agreements or understandings between Customer and Impulse, which will be deemed to extend, restrict, or otherwise supersede the exact terms of this agreement.  If any provision of this Agreement including any Service Supplement fails to comply with applicable law, then this Agreement shall, without prior notice, be automatically modified to conform with the minimum requirements of any law or governmental regulation having application to or jurisdiction over the subject matter or the parties hereto.   Otherwise, this Agreement, the Application Form, and any later written changes published via Impulse service, constitutes the entire agreement between the parties.