Addendum to Customer Agreement for Transport Connectivity
This Addendum for Transport Connectivity (this “TCA”) is entered into between Vesta Solutions, Inc., with offices at 42555 Rio Nedo, Temecula, CA 92590 (“Vesta”), a wholly owned subsidiary of Motorola Solutions, Inc. (“Motorola”), and the entity set forth in the signature block below or in the MCA or Primary Agreement (“Customer”), and will be subject to, and governed by, the terms of the Master Customer Agreement or other Primary Agreement entered into between Customer and Motorola, effective as of the earlier of (a) the first purchase of a Product or Service from Motorola, and (b) the date of the last signature on the first Ordering Document between the Parties (the “Agreement”), and the applicable Addenda. Capitalized terms used in this TCA, but not defined herein, will have the meanings set forth in the Agreement or the applicable Addenda.
If you are purchasing or using Transport Connectivity Services on behalf of your employer or another entity, you warrant that: (a) you have authority to bind your employer or the applicable entity, as “End-User” to this Agreement; (b) you have read and understand this Agreement; and (c) on behalf of the End-User that you represent, you agree to this Agreement. If you do not have the legal authority to bind your employer or the applicable entity as End-User to this Agreement, please do not use or complete the purchase of Transport Connectivity Services.
1. Addendum. This TCA governs Customer’s purchase of certain transport connectivity, as further described below (generally referred to as the “Connectivity”), and constitutes an agreement solely entirely between Vesta and Customer. Vesta and Customer shall only be liable to each other for the obligations expressly set forth in this TCA. In no event will Motorola be liable for any of Vesta’s obligations or liabilities pursuant to this TCA. In addition to the Agreement, other Addenda may be applicable to other Products or Services, with respect to Software and Equipment, as each of those terms is defined therein, and as further described below, if any. This TCA will control with respect to conflicting terms in the Agreement or any other applicable Addendum, but only as applicable to the Connectivity purchased under this TCA and not with respect to other Products or Services.
2. Connectivity Service Description and Applicable Terms and Conditions.
2.1. Connectivity Service Description. Connectivity means the physical connection (i.e. the physical copper, fiber or other transmission medium used) that is designed for the transmission of information including data between locations, devices, equipment and/or facilities designated for Customer, as set forth in the applicable Statement of Work (“SOW”) between the parties, which may be located on Customer premises, mobile, and/or in remote Vesta or Motorola procured data centers or cloud-based locations. If a generic demarcation point (such as a street address) is provided, the demarcation point will be Vesta's Minimum Point of Entry (MPOE) at such location (as determined by Vesta and/or its vendors). Additional wiring may be provided by Motorola, at its sole discretion, and may entail electrical or optical cabling into 1) existing or new conduit or 2) bare placement in drop down ceilings, raised floors, or mounted to walls/ceilings. Any additional wiring will be provided and/or maintained by Motorola as specifically described in the accompanying SOW. Vesta will maintain Connectivity to the demarcation point only. Customer disclaims any interest in any equipment, property or licenses used by Vesta to provide Connectivity. Terms for interest in additional wiring and maintenance of additional wiring will be as delineated in an applicable SOW.
2.2. Types of Connectivity Technologies. Vesta uses different technologies to provide Connectivity. Some technologies or speeds may not be available in all areas or with certain types of Connectivity. Unless otherwise set forth in the Agreement or applicable SOW, Vesta utilizes different technologies to provide Connectivity at its sole discretion and may include, but not be limited to ethernet, wavelength, special access, and/or wireless technologies (again, including but not limited to LTE or equivalent wireless services or wireless satellite services). In addition, Connectivity may include additional technologies for security or commonality of protocol, including but not limited to Multiprotocol Label Switching (“MPLS”) and Software Defined Wide Area Network (“SD-WAN”).
3. Requests for Connectivity, Third Party Providers and Statements of Work. Customer will request Connectivity as provided for in the applicable SOW(s). Vesta will notify Customer of acceptance of a request for Connectivity by delivering (in writing or electronically) a confirmation, or by delivering the Connectivity.
3.1. Third Party Providers of Connectivity. Customer understands and agrees that Connectivity is provided to Vesta by third parties, and then may be combined with certain Vesta and/or Motorola equipment, as requested by Customer and agreed in an applicable SOW. Vesta does not build or provision Connectivity itself; it solely procures underlying services to provide Connectivity from third parties.
3.1.1. Provision of Connectivity is subject to availability of underlying Connectivity from Vesta’s applicable vendor. Provisioning intervals for Connectivity are dependent upon the intervals provided to Vesta by the underlying third party provider. Customer agrees that Vesta may request, but is not responsible for, certain provisioning intervals as requested by Customer in a SOW.
3.1.2. Customer further agrees that Vesta does not offer any specific service level agreements, service level objectives, outage credits or other guarantees regarding outages or reliability of services (collectively, “SLAs”) procured and included as part of Connectivity from third party providers. Any SLAs available to Customer will be separately identified and provided by Motorola under the Agreement and any applicable SOW. No other SLAs will be provided or are available from Vesta, unless specifically delineated herein.
3.1.3.Certain requirements of Vesta’s third party providers may apply to the provision of Connectivity and are included as Exhibit A to this TCA.
3.2. Statement of Work. Vesta and Motorola will provide a Statement of Work (“SOW”) to further describe implementation of Connectivity and the use of the provided Connectivity with additional services and/or equipment provided by Motorola. An applicable SOW may contain SLAs with respect to other services provided by Motorola outside of Connectivity or in conjunction with Connectivity. However, Customer and Vesta agree that such SLAs do not apply directly to Connectivity in and of itself provided by Vesta.
4. Provisioning, Maintenance and Repair. Vesta may re-provision Connectivity from one third party provider to another and such changes will be treated as scheduled maintenance. Scheduled maintenance will not normally result in Connectivity interruption. If scheduled maintenance requires Connectivity interruption Vesta will: (1) provide Customer seven days’ prior written notice, (2) work with Customer to minimize interruptions and (3) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time. Customer may request a technician dispatch for Connectivity problems, for which Vesta will use commercially reasonable efforts to obtain applicable service from third party providers, if applicable. Vesta may assess a dispatch fee if costs for such services are invoiced to Vesta.
5. Termination. Should any Connectivity be terminated under the provisions of the Agreement, Customer agrees that it will reimburse Vesta for any termination charges levied against Vesta by any third party providers of individual components of Connectivity. Vesta will invoice such charges through its standard billing processes and such amounts will be paid pursuant to the provisions of the Agreement.
6. Customer Information. Customer agrees that Vesta may use, access and disclose Customer’s information including customer data and network information within its own and its affiliates’ business operations, and with third party vendors acting on Vesta’s behalf for provision of the Connectivity.
7. Network Monitoring. Transmissions passing through the facilities of Vesta’s vendors may be subject to legal intercept and monitoring activities by its vendors (or vendors’ suppliers) or local authorities in accordance with applicable local law requirements. To the extent consent or notification is required by Customer or end users under applicable data protection or other laws, Customer grants its consent under and represents that it will have at all relevant times the necessary consents from all end users.
8. Transmission Service Priority. Certain service priority(ies), including restoration, may be available to Customer for an additional fee from Vesta’s third party provider of Connectivity. If Customer elects to implement an available service priority for Connectivity, then Customer is required to expressly set forth its priority election within the applicable SOW, cooperate fully with Vesta and Vesta’s third party provider of Connectivity to effectuate and maintain implementation, and pay any additional fees, costs, or surcharges applicable to the elected priority service.
9. Billing and Payment. Vesta will issue invoices to Customer for the provision of Connectivity to Customer, which may include but not limited to charges billed by third party providers and all taxes fees, surcharges or other charges imposed by such third party providers. Customer will pay invoices from Vesta for the Connectivity covered by this TCA in accordance with the invoice payment terms set forth in the Agreement. Fees for Connectivity will be invoiced as of the provisioning date, as determined by Vesta, unless another payment schedule or milestones are set forth in the Agreement or applicable SOW.
10. Taxes and Regulatory Cost Recovery Fees. Unless otherwise specified, prices for Connectivity do not include any excise, sales, lease, use, property, or other taxes, assessments, duties or governmental impositions including regulatory charges or contribution requirements when Vesta is required to collect such regulatory charges or contributions from Customer (collectively, “Taxes”), or any fees or charges to offset costs Vesta incurs to comply with regulations or participate in regulatory programs, including but not limited to regulatory fees or charges imposed on Vesta by governmental entities or collected from Vesta by third parties, which are not Taxes or charges that government mandates be recovered from Customer but that Vesta is permitted to recover from Customer either in aggregate or as individual line items ("Regulatory Cost Recovery Fees"). Such Taxes and Regulatory Cost Recovery Fees will be paid by Customer, except as exempt by law, unless otherwise specified in a SOW. If Vesta is required to pay any Taxes or permitted to recover any Regulatory Cost Recovery Fees, Customer will be billed by Vesta for such Taxes (including any interest and penalties) or Regulatory Cost Recovery Fees, whether as part of its standard billings or as separately billed and, with respect to the latter, using a "regulatory cost recovery" descriptor or other applicable descriptor, and Customer agrees that it will pay such Taxes and Regulatory Cost Recovery Fees within thirty (30) days after Customer’s receipt of an invoice therefore, unless Customer furnishes Vesta Solutions applicable tax-exemption certificates. Vesta will be solely responsible for reporting Taxes on its income and net worth.
Requirements of Third Party Providers for Provision of Connectivity
For Connectivity using Verizon third party services, the following additional terms apply.
For purposes of this Exhibit, “Service” means certain wireline (including but not limited to Ethernet, wavelength, MPLS or other VPN services and SD-WAN) and/or wireless services provided directly or indirectly by Verizon which may include but it is not limited to data transmission services between devices (wireless or other) and computer servers or other machines, or between wireless devices, with limited or no manual intervention or supervision.
Content Disclaimer. Neither Verizon, Vesta, nor Motorola exercises control over nor has any responsibility for the accuracy, quality, security or other aspect of any content accessed, received, transmitted, stored, processed or used through Verizon facilities or any Services (except to the extent particular Services explicitly state otherwise). Customer accesses, receives, transmits, stores, processes, or uses any content at its own risk. Customer is solely responsible for selecting and using the level of security protection needed for the content it is accessing, receiving, storing, processing or using, including without limitation Customer data, individual health and financial content. Each of Verizon, Vesta, and Motorola is not responsible if the level of security protection Customer uses for any particular content is insufficient to prevent its unauthorized access or use, to comply with applicable law, or to otherwise fully protect the interests of Customer and others in that content.
Use of Customer Data. Verizon, Verizon Affiliates and their respective agents, may use, process and/or transfer Customer data (including intra-group transfers and transfers to entities in countries that do not provide statutory protections for personal information): (a) in connection with provisioning of Services; (b) to incorporate Customer data into databases controlled by Verizon, Verizon Affiliates or their respective agents for the purpose of providing Services; administration; provisioning; billing and reconciliation; verification of Customer identity, solvency and creditworthiness; maintenance, support and product development; fraud detection and prevention; sales, revenue and customer analysis and reporting; market and customer use analysis; and (c) to communicate to Vesta, Motorola or Customer regarding Services.
Customer Consent. Customer warrants that it has obtained or will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer data as described in the Use of Customer Data clause above.
A. VERIZON WIRELESS SERVICES TERMS (IF APPLICABLE AND PART OF CONNECTIVITY):
Customer agrees to comply with the additional responsibilities for access to and use of the Service provided by Verizon:
Service Availability. The Service uses radio technologies and is subject to transmission and service area limitations, interruptions and dropped calls caused by atmospheric, topographical or environmental conditions, cell site availability, equipment or its installation, governmental regulations, system limitations, maintenance or other conditions or activities affecting Service operation. The Service and/or features may not be available in all areas. The Service is only available within each applicable calling plan coverage area, within the operating range of the wireless systems, and with equipment that is authorized to operate on Verizon's network.
WARRANTY DISCLAIMER. VERIZON AND ITS AFFILIATES AND CONTRACTORS MAKE NO WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, QUALITY, PERFORMANCE OR NON-INFRINGEMENT OF THE SERVICE OR EQUIPMENT OR THEIR USE IN CONNECTION WITH THE CUSTOMER PROVIDED EQUIPMENT OR VERIZON PRODUCT OR SERVICE WITH RESPECT TO VERIZON.
User Disclosures. THE CUSTOMER UNDERSTANDS AND AGREES THAT IT: (1) HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS; (2) IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN MOTOROLA SOLUTIONS INC. AND ITS AFFILIATES INCLUDING VESTA SOLUTIONS INC. AND THE UNDERLYING CARRIER; AND (3) ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER SECTION OF THE AGREEMENT, NEITHER MOTOROLA, VESTA NOR VERIZON AND THEIR AFFILIATES AND CONTRACTORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY END USER:
A) IF CHANGES IN THE SERVICE OR IN THE VERIZON NETWORK, SYSTEMS, OPERATIONS, EQUIPMENT, POLICIES OR PROCEDURES RENDER OBSOLETE OR OUTDATED ANY EQUIPMENT, HARDWARE, DEVICES OR SOFTWARE;
B) FOR ANY CAUSES OF ACTION, LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF (I) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS IN FURNISHING THE SERVICE, OR (II) FAILURES OR DEFECTS IN THE VERIZON NETWORK OR SYSTEMS,
C) FOR ANY INJURY TO PERSONS OR PROPERTY, LOSSES (INCLUDING ANY LOSS OF BUSINESS), DAMAGES, CLAIMS OR DEMANDS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, USE OR INABILITY TO USE THE SERVICE, RELIANCE BY CUSTOMER ON ANY DATA PROVIDED OR OBTAINED THROUGH USE OF THE SERVICE, ANY INTERRUPTION, DEFECT, ERROR, VIRUS, OR DELAY IN OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. IN NO EVENT SHALL VERIZON, MOTOROLA, VESTA OR ITS VENDORS BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE OR ATTEMPTED USE OF, OR THE INABILITY TO ACCESS, LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E9l I, OR OTHER EMERGENCY NUMBERS OR SERVICES
D) NOTWITHSTANDING THE FOREGOING THE TOTAL LIABILITY OF VERIZON TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS, IS LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY CUSTOMER; OR (B) THE AMOUNT PAID BY CUSTOMER TO VERIZON UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRIOR TO ACCRUAL OF THE MOST RECENT CAUSE OF ACTION. NOTHING IN THIS SECTION LIMITS VERIZON’S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT; OR (B) FOR BODILY INJURY. FOR THE AVOIDANCE OF DOUBT, UNDER NO CIRCUMSTANCES SHALL VERIZON'S, MOTOROLA’S, OR VESTA’S EXERCISE OF ANY RIGHTS SET FORTH IN THIS ADDENDUM BE DEEMED WILLFUL OR INTENTIONAL MISCONDUCT.
B. VERIZON WIRELINE SERVICES TERMS (IF APPLICABLE AND PART OF CONNECTIVITY):
Services Suspension. Verizon may, subject to giving Vesta, Motorola or Customer reasonable notice where practicable, suspend one or more services provided by Verizon (or a part thereof) if:
- suspension of Services is necessary to prevent or protect against fraud, or otherwise protect persons or property, Verizon personnel, agents, facilities, or services;
- Verizon is obliged to comply with an order, instruction or request of a court, government agency, emergency service organization (e.g. police or fire service) or other administrative or regulatory authority;
- Verizon has reasonable grounds to consider that use of the Services violates the AUP, as defined below, or other terms of a contract; or
- Customer fails to provide or increase the security as requested by Verizon.
Access. Where Verizon requires access to a Customer site in order to provide Services, Customer shall grant or shall procure the grant to Verizon of such rights of access to each Customer site, including any necessary licenses, waivers and consents. Customer shall advise Verizon in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer site. Customer shall provide Verizon with such facilities and information as Verizon may reasonably require to perform its obligations or exercise its rights under a Contract.
Acceptable Use Policy (AUP).
Compliance. Use of Verizon IP Services must comply with the then current version of the AUP of the countries from which Customer uses such Services (in the event no AUP exists for a country, the U.S. AUP shall apply). The applicable AUP is available at the following URL: http://www.verizonenterprise.com/terms or other URL designated by Verizon. Customer shall ensure that each user of the Services complies with the AUP. Verizon reserves the right to change the AUP from time to time, effective upon posting of the revised AUP at the designated URL or other notice to Customer. Verizon will regularly review the AUP (and whether there have been any changes to it) with Customer, but no less than quarterly, and sooner in the event there are changes.
To the extent permitted by law, Customer will defend, indemnify and hold harmless the Verizon lndemnitees, as defined by Verizon at the link for the AUP identified above, from and against any claims, suits, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses), and costs (including allocable costs of in•house counsel) asserted against or incurred by any of the Verizon lndemnitees arising out of any of the following allegations by a third party: Customer's, users' of the Services, or Customer's customers' violation of the AUP; or the unauthorized use of or access to the Services or Verizon Facilities by any person, under Customer's reasonable control, using Customer's systems or network. Notwithstanding any other provision of a Contract, Customer shall pay all expenses and costs, including costs of investigation, court costs, and reasonable legal fees and expenses (including allocable costs of in-house counsel) incurred by Verizon lndemnitees in enforcing this provision. Verizon holds the benefit of this sub-clause on trust for the other Verizon lndemnitees.