AT&T MASTER AGREEMENT
MA Reference No. 15137
GENERAL TERMS AND CONDITIONS
The following terms and conditions shall apply to the provision and use of the
products and services ("Service" or "Services") provided by AT&T pursuant to
this Agreement.
1.0 DEFINITIONS
1.1 "Affiliate" of a party means any entity that controls, is controlled by or
is under common control with such party, and in the case of AT&T, it also means
any entity which AT&T has authorized to offer any Service or part of any
Service.
1.2 "Content" means information made available, displayed or transmitted
in connection with a Service (including, without limitation, information made
available by means of an HTML "hot link", a third party posting or similar
means) including all trademarks, service marks and domain names contained
therein as well as the contents of any bulletin boards or chat forums, and, all
updates, upgrades, modifications and other versions of any of the foregoing.
1.3 "User" means anyone who uses or accesses any Service purchased by You under
this Agreement.
2.0 CHARGES AND BILLING
2.1 You shall pay AT&T for Your and Users' use of the Services at the rates and
charges specified in the Attachments, without deduction, setoff or delay for any
reason. Charges set forth in the Attachments are exclusive of any applicable
taxes. You may be required at any time to pay a deposit if AT&T determines that
You are not creditworthy.
2.2 You shall pay all shipping charges, taxes (excluding those on AT&T's net
income) and other similar charges (and any related interest and penalties)
relating to the sale, transfer of ownership, installation, license, use or
provision of the Services, except to the extent a valid tax exemption
certificate is provided by You to AT&T prior to the delivery of Services. 2.3
Payment in U.S. currency is due within thirty (30) days after the date of the
invoice and shall refer to the invoice number. Restrictive endorsements or other
statements on checks accepted by AT&T will not apply. You shall reimburse AT&T
for all costs (including reasonable attorney fees) associated with collecting
delinquent or dishonored payments. At AT&T's option, interest charges may be
added to any past due amounts at the lower of 1.5% per month or the maximum rate
allowed by law.
3.0 RESPONSIBILITIES OF THE PARTIES
3.1 AT&T agrees to provide services to You, subject to the availability of the
Services, in accordance with the terms and conditions, and at the charges
specified in this Agreement, consistent with all applicable laws and
regulations. 3.2 You shall assure that Your and Users' use of the Services and
Content will at all times comply with all applicable laws, regulations and
written and electronic instructions for use. AT&T reserves the right to
terminate affected Attachments, suspend affected Services, and/or remove Your or
Users' Content from the Services, if AT&T determines that such use or Content
does not conform with the requirements set forth in this Agreement or interferes
with AT&T's ability to provide Services to You or others or receives notice from
anyone that Your or Users' use or content may violate any laws or regulations.
AT&T's actions or inaction under this Section shall not constitute review or
approval of Your or Users' use or Content. AT&T will use reasonable efforts to
provide notice to You before taking action under this section
4.0 USE OF INFORMATION
4.1 All documentation, technical information, Software, business information, or
other materials that are disclosed by either party to the other in the course of
performing this Agreement shall be considered proprietary information
("INFORMATION") of the disclosing party, provided such information is in written
or other tangible form that is clearly marked as "propriety" or "confidential".
This Agreement shall be deemed to be AT&T and Your INFORMATION. Your Content
shall be deemed to be Your INFORMATION.
4.2 Each party's INFORMATION shall, for a period of three (3) years following
its disclosure (except in the case of Software, for an indefinite period): (i)
be held in confidence; (ii) be used only for purposes of performing this
Agreement (including in the case of AT&T, the ability to monitor and record Your
transmissions in order to detect fraud, check quality, and to operate, maintain
and repair the Services) and using the Services; and (iii) not be disclosed
except to the receiving party's employees, agents and contractors having a
need-to-know (provided that such agents and contracts are not direct competitors
of either party and agree in writing to use and disclosure restrictions as
restrictive as this Article 4), or to the extent required by law (provided that
prompt advance notice is provided to the disclosing party to the extent
practicable).
4.3 The restrictions in this Article shall not apply to any information that:
(i) is independently developed by the receiving party; or (ii) is lawfully
received by the receiving party free of any obligation to keep it confidential;
or (iii) becomes generally available to the public other than by breach of this
Agreement.
5.0 PUBLICITY AND MARKS
5.1 No public statements or announcements relating to this Agreement shall be
issued by either party without the prior written consent of the other party.
5.2 Each party agrees not to display or use, in advertising or otherwise, any
of the other party's trade names, logos, trademarks, service marks or other
indicia of origin (collectively "Marks") without the other party's prior written
consent, provided that such consent may be revoked at any time.
6.0 SOFTWARE
6.1 AT&T grants You a personal, non-transferable and non-exclusive license
(without the right to sublicense) to use, in object code form, all software and
associated written and electronic documentation and data furnished pursuant to
the Attachments (collectively, the Software"), solely in connection with the
Services and solely in accordance with applicable written and electronic
documentation. You will refrain from taking any steps to reverse assemble,
reverse compile or otherwise derive a source code version of the Software. The
Software shall at all times remain the sole and exclusive property of AT&T or
its suppliers. "Third-Party Software" means Software that bears a copyright
notice of a third party. "AT&T Software means all Software other than
Third-Party Software.
6.2 You shall not copy or download the Software, except to the extent expressly
provided otherwise in the applicable documentation of the Service or in writing
signed by AT&T. Any copy must contain the same copyright notices and propriety
markings as the original Software.
6.3 You shall assure that Your Users comply with the terms and conditions
of this Article 6.
6.4 Term of the license granted hereunder shall be coterminous with the
Attachment which covers the Software.
6.5 You agree to comply with any additional restrictions that are provided
with any Third-Party Software.
6.6 AT&T warrants that all AT&T Software will perform substantially in
accordance with its applicable published specifications during a warranty period
of ninety (90) days beginning on the date of delivery of the AT&T Software to
You. If you return to AT&T, within the ninety (90) day warranty period, any AT&T
Software that does not comply with this warranty, then AT&T, at its option, will
either repair or replace the portion of the AT&T Software that does not comply
or refund the amount paid by You for such failed or defective AT&T Software.
This warranty will apply only if the AT&T Software is used in accordance with
the terms of this Agreement and is not altered, modified or tampered with by You
or Users.
7.0 ADJUSTMENTS TO MINIMUM PURCHASE COMMITMENTS
In the event of a business downturn beyond Your control, or a corporate
divestiture, merger, acquisition or significant restructuring or reorganization
using other AT&T Services, or reduction of the rates and charges, or chronic
Service failures, or force majeure events, any of which significantly impairs
your ability to meet Your minimum purchase commitments under an Attachment, AT&T
will offer to adjust the affected commitments so as to reflect Your reduced
traffic volumes, after taking into account the effect of such a reduction on
AT&T's cost and the AT&T prices that would otherwise be available at the revised
purchase commitments levels. If we reach mutual agreement on revised purchase
commitments, we will amend or replace the affected Attachment as applicable.
This provision shall not apply to a change resulting from a decision by You to
transfer portions of Your traffic or projected growth to service providers other
than AT&T. You must give AT&T written notice of the conditions You believe will
require the application of this provision. This provision does not constitute a
waiver of any charges, including shortfall charges, incurred by You prior to
amendment or replacement of the affected Attachment.
8.0 FORCE MAJEURE
Neither AT&T nor You shall be liable for any delay, failure in performance, loss
or damage due to: fire, explosion, power blackout, earthquake, flood, the
elements, strike, embargo, labor disputes, acts of civil or military authority,
war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory
or governmental agencies, or other causes beyond such party's reasonable
control, whether or not similar to the foregoing, except that Your obligation to
pay for charges incurred for Services received by You shall not be excused.
9.0 LIMITATIONS OF LIABILITY
9.1 For purposes of all exclusive remedies and limitations of liability set
forth in this Agreement or any Attachment, "AT&T" shall be defined as AT&T, its
Affiliates, and its and their employees, directors, officers, agents,
representatives, subcontractors, interconnection service providers and
suppliers; and "You" shall be defined as You, Your Affiliates, and Your
and their employees, directors, officers, agents, and representatives; and
"Damages" will refer collectively to all injury, damage, liability, loss,
penalty, interest and expense incurred.
9.2 EITHER PARTY'S ENTIRE LIABILITY AND THE OTHER PARTY'S EXCLUSIVE REMEDIES,
FOR ANY DAMAGES CAUSED BY ANY SERVICE DEFECT OR FAILURE, OR FOR OTHER CLAIMS
ARISING IN CONNECTION WITH ANY SERVICE OR OBLIGATIONS UNDER THIS AGREEMENT SHALL
BE: (i) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY
DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGESARISING FROM THE WILLFUL
MISCONDUCT OF A PARTY OR ANY BREACH OF ARTICLES 4 OR 5, THE OTHER PARTY'S RIGHT
TO PROVEN DIRECT DAMAGES; (ii) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES
SET FORTH IN SECTION 6.6; (iii) FOR INTELLECTUAL PROPERTY INFRINGEMENT, THE
REMEDIES SET FORTH IN ARTICLE 11; (iv) FOR DAMAGES OTHER THAN THOSE SET FORTH
ABOVE AND NOT EXCLUDED UNDER THIS AGREEMENT, EACH PARTY'S LIABILITY SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE
DURING ANY TWELVE (12) MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS
MADE BY YOU FOR THE AFFECTED SERVICE DURING THE THREE (3) MONTHS PRECEDEING THE
MONTH IN WHICH THE DAMAGE OCCURRED. THIS SHALL NOT LIMIT YOUR RESPONSIBILITY FOR
THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT.
9.3 EXCEPT FOR THE PARTIES' ARTICLE 11 OBLIGATIONS, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF
OPERATIONS.
9.4 AT&T ALSO SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO
INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS,
EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY YOU OR THIRD PARTIES;
SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR,
UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF YOUR, USERS'
OR THIRD PARTIES' APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR
SYSTEMS.
9.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AT&T MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF
TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. EQUIPMENT PROVIDED BY AT&T IN
CONJUCTION WITH A SERVICE IS PROVIDED ON AN "AS IS" BASIS.
9.6 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL ALLY: (I)
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES WERE FORSEEABLE. THESE LIMITATIONS OF
LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS
AGREEMENT.
10.0 TERMINATION
10.1 If a party fails to perform or observe any material term or condition of
this Agreement and the failure continues unremedied for thirty (30) days after
receipt of written notice, (i) the other party may terminate for cause any
Attachment affected by the breach, or (ii) where the failure is a non-payment by
You of any charge when due, AT&T may, at its option, terminate or suspend
Service or require a deposit under affected Attachments.
10.2 An Attachment may be terminated immediately upon written notice by; (i)
either party if the other party has violated the other party's Marks, becomes
insolvent or involved in a liquidation or termination of its business, files a
bankruptcy petition, has an involuntary bankruptcy petition filed against it (if
not dismissed within thirty (30) days of filing), becomes adjudicated bankrupt,
or becomes involved in an assignment for the benefit of its creditors; or (ii)
either party due to a material breach of any provision of Article 4.
10.3 You shall be responsible for payment of all charges under a terminated
Attachment incurred as of the effective date of termination. You shall also be
liable to AT&T for Termination Charges, if specified in a terminated Attachment,
in the event that AT&T terminates under Section 10.1 or 10.2, or You terminate
without cause.
11.0 FURTHER RESPONSIBILITIES
11.1 AT&T agrees to defend or settle any claim against You and to pay all
Damages that a court may award against You in any suit, that alleges a Service
infringes any patent, trademark, copyright or trade secret, except where the
claim or suit arises out of or results from: Your or User's Content;
modifications to the Service or combinations of the Service with non-AT&T
services or products, by You or others; AT&T's adherence to Your written
requirements; or, use of the Service in violation of this Agreement. You agree
to defend or settle, at Your own expense and without prejudice to AT&T or AT&T's
continued provisioning of the Service to You or others, all claims or suits
against AT&T covered by the exceptions in the preceding sentence and shall
immediately cease any activity which gives rise to the alleged infringement. The
indemnifying party will also pay all Damages and costs that by final judgment
may be assessed against the indemnified party due to infringement by the
indemnifying party.
11.2 Whenever AT&T is responsible under Section 11.1, AT&T may at its option
either procure the right for You to continue using, or may replace or modify the
alleged infringing Service so that the Service becomes noninfringing, but if
those alternatives are not reasonably achievable, AT&T may terminate the
affected Attachment without liability other than as stated in Section 11.1.
11.3 AT&T grants to You the right to permit Users to access and use the
Services, provided that You shall remain solely responsible for the access and
use by any User of the Services. You shall defend, indemnify and hold harmless
AT&T from and all Damages arising out of third party claims relating to Your or
Users' use of the Service or Content or performance of the Service.
11.4The indemnified party under this Article 11: (i) must notify the other party
in writing promptly upon learning of any claim or suit for which indemnification
may be sought, provided that failure to do so shall have no effect except to the
extent the other party is prejudiced thereby; (ii) shall have the right to
participate in such defense or settlement with it's own counsel and at its sole
expense, but acknowledges that the other party shall have control of the defense
or settlement with its own counsel and at its sole expense, but acknowledges
that the other party shall have control of the defense or settlement; and (iii)
shall reasonably cooperate with the defense.
12.0 GENERAL PROVISIONS
12.1 Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by authorized representatives of both parties. A
waiver by either party of any breach of this Agreement shall not operate as a
waiver of any other breach of this Agreement.
12.2 This Agreement may not be assigned by either party without the prior
written consent of the other, except that either party may, without the other
party's consent, assign this Agreement or any Attachment to a present or future
Affiliate or successor, provided that any such assignment by You shall be
contingent upon AT&T determining the assignee to be creditworthy and in
compliance with any eligibility criteria for the Services. AT&T may subcontract
work to be performed under this Agreement, but shall retain responsibility for
all such work.
12.3 If any portion of this Agreement is found to be invalid or unenforceable
portions that are essential parts of this Agreement.
12.4 Any legal action arising in connection with this Agreement must begin
within two (2) years after the cause of action arises.
12.5 All notices under this Agreement shall be in writing and either mailed by
certified or registered mail, postage prepaid return receipt requested, sent by
express courier or hand delivered and addressed to each party at the address set
forth on the cover page of this Agreement or, if the notice relates to a
specific Attachment, the address set forth in such Attachment, or such other
address that a party indicates in writing.
12.6 State law issues concerning construction, interpretation and performance of
this Agreement shall be governed by the substantive law of the State of New
York, excluding its choice of law rules. The United Nations Convention on
Contracts for International Sale of Goods shall not apply.
12.7 This Agreement does not provide any third party (including Users) with any
remedy, claim, liability, reimbursement, cause of action or other right or
privilege.
12.8 The respective obligations of You and AT&T, which by their nature would
continue beyond the termination or expiration of any Attachment or this
Agreement, including, without limitation, the obligations regarding
confidentiality, publicity and Marks, and limitations of liability, shall
survive termination or expiration.
12.9 THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SERVICES. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS,
PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, OR THE RIGHTS AND OBLIGATIONS RELATING TO THE SERVICES. THIS AGREEMENT
SHALL NOT BE CONTRADICTED, OR SUPPLEMENTED BY ANY WRITTEN OR ORAL STATEMENTS,
PROPOSALS, REPRESENTATIONS, ADVERTISEMENTS, SERVICE DESCRIPTIONS OR YOUR
PURCHASE ORDER FORMS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR AN ATTACHMENT.
