This Master Customer Agreement (“ MCA ”) is effective immediately (“ Effective Date ”) between Vlan24 INC. , a California Corporation, with an address of 1605 W Olympic Blvd # 400, Los Angeles, CA, 90015 (collectively “ Vlan24 ” and each entity controlled by, controlling or under common control with Vlan24, a “ Vlan24 Affiliate ”). Vlan24 and Customer each may be referred to herein as a “ Party ” and collectively as the “ Parties ”.
ARTICLE 1 - GENERAL
1.1 Agreement Structure. This MCA provides general terms and conditions under which Customer may from time-to-time purchase access to and utilization of selected portions of the Vlan24 fiber network, associated infrastructure, telecommunications, and infrastructure services (“ Services ”) from Vlan24. Terms and conditions that apply to each type of Ser vice are set forth in customer schedules (each a “ Customer Schedule ”). This MCA, applicable Customer Schedules are collectively the “ Agreement ”. Any part of the Agreement may be entered into and performed by any Vlan24 Affiliate, including those authorized to provide Services in any country or jurisdiction.
1.2 Orders for Services. Customer may request that Vlan24 provide Services by submitting a service order in a form provided by Vlan24 (“ Service Order ”). Customer is responsible for the accuracy of all information that it provides to Vlan24. Service Orders shall set forth the term, pricing, and Service type and location(s), monthly recurring charge (“ MRC ”), non-recurring charge (“ NRC ”) and any additional terms applicable to the Services. All Service Orders are subject to availability and acceptance by Vlan24 and are governed by this Agreement.
1.3 Term. The term of each Service Order shall commence on the Activation Date (as defined in the applicable Service Order) for such Service and continue for the period specified in that Service Order. Thereafter, the term shall automatically renew for one-year periods (collectively, the “ Order Term ”) until terminated by either Party upon at least 90 days written notice prior to the end of the Order Term. Customer is responsible for payment to Vlan24 for the Services to be terminated through the entirety/remaining of set term on the Service Order(s). The term of the Agreement is coterminous with the longest Order Term hereunder.
1.4 Order of Precedence. In the event of an express conflict between terms in the Agreement, precedence will be given, as applicable, in the following order: (a) the Service Order, but solely with respect to the Services covered by such Service Order (b) the Customer Schedule, but solely with respect to the Services covered by such Customer Schedule, and (c) the MCA.
ARTICLE 2 - PAYMENT TERMS
2.1 Invoicing and Payment Terms. Vlan24 commences billing and Customer shall be liable for payment upon the Activation Date. Vlan24 will provide Customer with a monthly itemized invoice for the Services together with all other charges due. Customer shall pay to Vlan24 all amounts due in full, without offset or reduction, within 30 days from the date of the invoice (“ Due Date ”). Invoice amounts not paid on or before the Due Date shall bear interest at the rate of one and one-half percent per month or the highest lawful rate, whichever is lower. Unless otherwise stated in the Agreement, Vlan24 invoices NRCs upon acceptance of a Service Order.
2.2 Invoice Disputes. If Customer reasonably disputes any portion of an invoice, Customer shall timely pay all undisputed amounts and shall notify Vlan24 in writing and provide detailed documentation supporting its dispute by the Due Date or Customer’s right to any billing adjustment shall be waived. If the dispute is resolved against Customer, Customer shall pay such amounts due plus interest, as set forth in Section 2.1 above, from and after the Due Date.
2.3 Taxes and Other Fees and Surcharges. Excluding taxes based on Vlan24’s net income, Customer shall be responsible for all Taxes (defined below) and Other Fees and Surcharges (defined below) arising in any jurisdiction imposed on or incident to the provision, sale or use of Services, including but not limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access and bypass (collectively “ Taxes ”) and any property, franchise, rights of way, license or permit, regulatory or other taxes, duties, fees, charges or surcharges (collectively “Other Fees and Surcharges”), imposed on Vlan24, Customer or a Customer’s end users. Charges for Services are exclusive of any Taxes and Other Fees and Surcharges. Taxes and Other Fees and Surcharges may be recovered through imposition of a percentage surcharge on the charges for Services to Customer. Customer may present Vlan24 with a valid exemption certificate (in a form reasonably acceptable to Vlan24) eliminating Vlan24’s liability to pay certain Taxes and Other Fees and Surcharges; Vlan24 will give effect thereto prospectively.
ARTICLE 3 - DEFAULT
If Customer fails to make any payment due under the Agreement by the Due Date, and such failure continues for five days after receiving notice of the failure to make payment, or if a Party fails to cure any material breach of any term of the Agreement within 30 days of receiving notice of the breach from the other Party, then the non-breaching Party may: (a) terminate the Agreement in whole or in part and (b) subject to the liability limitations stated herein, pursue any available remedies at law or in equity.
ARTICLE 4 - LIABILITIES
4.1 Damage Limitations. Except for indemnity obligations arising under Section 4.4 or confidentiality obligations arising under Section 5.1: (i) Vlan24’s total liability for any and all causes and claims whether based in contract, warranty, tort or otherwise shall be limited to the lesser of (a) the actual direct damages sustained by Customer in connection with the affected Service Order and affected Service, or (b) an amount equivalent to the total MRC payable by Customer over the preceding three months for the Service affected or if the claim arises prior to the Activation Date, an amount equivalent to the total MRC payable by Customer for the first three months of the Order Term. Notwithstanding anything to the contrary, Customer’s sole and exclusive remedy for any non-performance, defect or failure to deliver the Service are the performance credits and/or other remedies expressly stated in the relevant Customer Schedule, and (ii) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF DATA, ANTICIPATED SAVINGS OR COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT.
4.2 No Warranty. VLAN24 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 ANY PARTICULAR PURPOSE.
4.3 No Liability for Certain Actions. Vlan24 exercises no control over and is not responsible for the content of any information transmitted or received through the use of the Services. Other than as expressly stated in the Agreement, Customer shall be solely responsible for all of the security and confidentiality of information it transmits using the Service.
4.4 Indemnification. Each Party (an “ Indemnifying Party ”) shall indemnify, defend and hold harmless the other Party, its directors, officers, employees, agents, contractors, successors and assigns (“ Indemnified Party ”) harmless from and against all losses, damages, costs, expenses and liabilities (including reasonable attorney’s fees and expenses) incurred by such Indemnified Party arising from any third party claims relating to: (i) any physical damage to tangible property, or personal injury or death, or (ii) infringement or misappropriation of such third party’s intellectual property right, in each case caused by the gross negligence or willful misconduct of the Indemnifying Party, provided, however, that Vlan24 is not obligated to indemnify Customer, and Customer shall defend and indemnify Vlan24 as an Indemnified Party, for any claims or actions commenced by any third party, including end users, arising from or in connection with goods or services provided by Customer that incorporate any of the Services.
ARTICLE 5 – MISCELLANEOUS PROVISIONS
5.1 Confidentiality. Information or documentation exchanged between the Parties in performing this Agreement, including the terms of this Agreement, are subject to the terms of any non-disclosure agreement in effect between the Parties, and if none, the Parties agree to keep any such information which is of a confidential nature confidential and not disclose such information to third parties (other than to vendors, if needed to perform under this Agreement).
5.2 Force Majeure. Neither Party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure or hindrance of performance hereunder due to causes beyond its reasonable control. The Party claiming relief under this Section shall notify the other Party of the occurrence or existence of the event and of the termination of such event.
5.3 Subject to Laws. Each Party is responsible for complying with laws and regulations applicable to it, including but not limited to applicable: (a) federal, state, and local laws; (b) regulations, rulings and orders of government agencies; (c) data protection legislation; (d) laws, statutes, regulations and codes relating to anti-bribery and anti-corruption; and (e) import, export and economic sanction laws and regulations. Neither Party shall use the Services for any unlawful purposes.
5.4 Governing Law; Venue; Prevailing Party. The Agreement shall be governed by and construed in accordance with the laws of California, without giving effect to any conflict of law principles. Venue arising under the Agreement shall be Los Angeles, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If suit is brought or an attorney is retained by either party to enforce the terms of the Agreement or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and related expenses incurred in connection therewith.
5.5 Notices. Notices under this MCA shall be in writing and delivered by electronic mail or certified mail, return receipt requested, or by a nationally recognized courier to the persons whose names and business addresses appear below, and such notice shall be effective on the date of receipt, or refusal of delivery, by the receiving Party. In lieu of the foregoing notice requirement, if Customer is discontinuing Service(s) of any type for any reason, Customer must submit the disconnection request through the support ticket system.
If to Vlan24:
Vlan24, INC.
Attn: General Counsel
1605 W Olympic Blvd # 400
Los Angeles, CA, 90015
Email: info@vlan24.com
Billing Disputes:
Vlan24 INC.,:
Attn: Accounts Receivable
1605 W Olympic Blvd # 400
Los Angeles, CA, 90015
Email: billing@vlan24.com
If to Customer:
Customer
Attn: (insert Name)
Address
Email:
(if this “Customer” section is left blank, notice shall be deemed effective if delivered to Customer’s registered office address or the last Customer address provided to Vlan24 by Customer)
5.6 Assignment. Neither Party shall transfer or assign, voluntarily or by operation of law or otherwise, its obligations under the Agreement without the prior written consent of the other party, except no such consent shall be required in the event of a merger, reorganization, consolidation or sale of substantially all of the Party’s assets or business in which case the assigning party shall provide notice to the non-assigning Party; provided, however, that Customer may only transfer or assign under this provision if its account balance with Vlan24 is current. Vlan24 may assign in whole or in part the Agreement or any of its rights and obligations hereunder to any Vlan24 Affiliate without prior notice to Customer. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
5.7 No Third-Party Beneficiaries; Relationship and Counterparts. The Agreement is not intended for, nor shall it be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, end users. The Agreement does not create a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever. The Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. The Agreement may be executed via a recognized electronic signature service and/or signed, scanned, and emailed to Vlan24, and any such signatures shall be treated as original signatures.
5.8 Entire Agreement; Amendment. The Agreement constitutes the entire and final agreement and understanding between the Parties, expressed or implied, with respect to the Services ordered after the Effective Date and supersedes all other prior or contemporaneous representations, understandings, or agreements. No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by the Parties. If any provision of the Agreement shall be held to be invalid or unenforceable, the remaining provisions of the Agreement shall be unimpaired and shall remain in effect and be binding upon the Parties. No course of dealing and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof.
