Plateautel

Plateau IT Services Master Services Agreement

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  1. IT Services

    (Table of Contents)
    1. Plateau shall provide specific IT Services as defined and set out in an executed Scope of Work (“SOW”) for each service and/or project performed by Plateau for the Customer.
    2. Compensation

      1. Invoices shall be payable ten (10) days after approval by Customer for services performed. Customer must notify Plateau within ten (10) days of receipt of the invoice of any discrepancies which require correction of or any additions as a precedent for payment of such charges. If no discrepancies are noted within ten (10) days of receipt of invoice, the invoice will be considered to be approved. On invoices where discrepancies are noted, all charges not identified for correction will be considered approved and shall be due and payable in accordance with this section. Customer and Plateau shall diligently work toward resolution of all billing issues. Customer’s failure to make payment to Plateau in accordance with the payment terms herein shall constitute a material breach of this Agreement and shall be cause for termination by Plateau.
      2. Each Plateau IT Service shall be of one of the following forms:
        1. Data Center

          The fees and payments due hereunder are defined in an executed SOW. All monthly recurring Data Center Services (“Data Center Services”) are billed in advance for each month with the first month being prorated from the date the service commences (“Start Date”) to the end of the month. Start-up fees, if any and defined in the SOW, are due and payable with the signing of the applicable SOW. Data Center Services shall continue to be billed until the services are terminated by the customer, and shall be subject to an early termination fee as defined by this Agreement if the term of the Data Center Service as defined in the SOW is not completed. Service is subject to interruption and disconnection by Plateau for nonpayment of monthly service fees or any other fees and associated expenses due and payable by Customer.

        2. Time & Expense

          Customer shall pay Plateau for services performed hereunder a sum equal to the time rates for the job classification, plus expenses. Plateau shall submit itemized monthly invoices to Customer. A schedule of time and expense rates is attached as Exhibit A. These rates shall be valid for twelve (12) monthly from the date this Agreement is originally executed; and on each subsequent anniversary of this Agreement, the schedule of rates shall be reviewed and new rates shall be mutually agreed to by both Customer and Plateau until completion or termination of this Agreement. Copy, postage, telephone, faxes, local travel mileage less than 50 miles per day, and technology will be charged as a surcharge of 7% of the labor. Expenses not covered by the surcharge will be itemized separately on the invoice and require prior Customer approval.

        3. Managed Services

          The fees and payments due hereunder are defined in an executed SOW. All monthly recurring Managed Services (“Managed Services”) are billed in advance for each month with the first month being prorated from the date the service commences (“Start Date”) to the end of the month. Start-up fees, if any and defined in the SOW, are due and payable with the signing of the applicable SOW. Managed Service shall continue to be billed until the services are terminated by the customer, and shall be subject to an early termination fee as defined by this Agreement if the term of the Managed Service as defined in the SOW is not completed. Service is subject to interruption and disconnection by Plateau for nonpayment of monthly service fees or any other fees and associated expenses due and payable by Customer.

        4. Project Work

          Project Work shall be billed as a fixed fee service as defined in the applicable SOW. An upfront payment, as defined in the applicable SOW, shall be due upon SOW execution. Work will not commence until payment of the upfront payment is made. The remainder of the payment shall be due upon completion of work by Plateau and acceptance of work by Customer, which shall not be unreasonably withheld. Large projects may require intermediate payments and any such intermediate payment shall be defined in the executed SOW.

      3. Late Fees

        Commencing thirty (30) days after the billing date, Plateau may charge, and the Customer agrees to pay interest on the past due balance at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum rate of interest allowable by applicable law. Late payment charges shall be included on the next invoice. All amounts received by Plateau shall be applied first to accrued unpaid interest and then to outstanding invoices for services and associated expenses.

      4. Taxes and Other Charges

        All amounts due hereunder will be subject to the applicable gross receipts or sales taxes, which will be billed in addition to the amount due.

  2. Termination

    (Table of Contents)
    1. Termination of this Agreement is permissible with 30 days’ written notice if there are not any active SOWs with IT Services being performed by Plateau. Sections 1, 4, 6, 7, 9, 10, 11, 12, 14, 15, 16 and 19 of this Agreement shall survive termination of this Agreement.
    2. Termination of a SOW is permissible under the following conditions:
      1. Lack of Performance by Plateau

        Termination by Customer is permitted without charge only in the case where all of the services provided hereunder as defined by an applicable SOW executed by Customer are unavailable or out of service for a period of seven consecutive days from ticket open, other than due to Force Majeure, provided Customer works in good faith with Plateau to correct the outage and does not contribute to the outage intentionally or not, by action, inaction, or omission. In such case, service fees and associated expenses will be due up to the ticket-open date.

      2. Standard Termination

        The Customer may terminate this Agreement with 30 days’ written notice (“Termination Date”) if the applicable SOW Term Period has expired. The Customer shall pay all applicable service fees and charges up to the termination date.

      3. Early Termination

        The Customer may terminate an applicable SOW with 30 days’ written notice (“Early Termination Date”) if the Term Period has not concluded. The Customer shall pay all applicable service fees and associated expenses up to the Early Termination Date as well as an Early Termination Fee as defined in the SOW.

      4. Customer agrees to allow Plateau personnel and subcontractors reasonable access to the Customer’s premises and/or building (the “Customer Site”) for a minimum of 30 days from the Termination Date for the purpose of removing Plateau owned equipment. Plateau shall restore the premises to the original condition, normal wear and tear excepted.

  3. Data Center Services

    (Table of Contents)
    1. Right to Use

      1. Data Center

        Prior to termination of this Agreement, Customer has a non-exclusive license for chaperoned access to the Data Center. Furthermore, Plateau may adopt rules and procedures to govern use of, and behavior in, the Data Center by Customers by posting the Data Center Rules on the Scope of Work (“SOW”) or on the website. By accessing the Data Center, Customer agrees to the Data Center Rules. The Data Center Rules may be changed by Plateau at any time. When a change is made to the Data Center Rules, it shall be effective upon written notification to the customer. Plateau is responsible for ensuring that the services needed to support the overall operation of the Data Center, such as janitorial services, environmental systems maintenance and power plant maintenance, are provided for the benefit of Customer.

      2. Emergency Operations Room

        In the event of an emergency at the customer’s home office, Plateau will temporarily make available the Emergency Operations Room on a “First Come; First Serve” exclusive basis. If the Emergency Operations Room is not being utilized for an exclusive emergency event, customers may be granted general use access with prior approval from Plateau. Customer is responsible for maintaining their space in the Emergency Operations Room in an orderly manner.

      3. Customer Space

        Prior to termination of this Agreement, Customer has an exclusive license to chaperoned access and use of the Customer Space for the purpose of installing, operating and supporting Customer Equipment. Customer acknowledges that its right to use is not a grant of any real property interest in the Customer Space or the Data Center. Customer is responsible for maintaining the Customer Space in an orderly manner and is responsible for removing trash, packing, cartons and related items from the Customer Space. Customer must maintain the Customer Space in a safe condition, including but not limited to, not storing hazardous material. Customer acknowledges that Plateau, through its officers, employees and contractors, may access the Customer Space, without notice to Customer, for undertaking routine maintenance procedures, completing customer support requests and other activities designed to protect the safety and security of the Data Center and all of its Customers.

      4. Power

        Plateau agrees to provide power to the Customer Space as outlined on the applicable executed SOW. Plateau reserves the right to monitor Customer’s actual electrical consumption and charge Customer for any usage in excess of the ordered amounts in accordance with its standard policy or the terms set forth on the applicable Scope of Work. To the extent usage is based on power consumed by Customer, nothing in this Agreement shall be construed such that Plateau is considered to be reselling electricity to Customer. Rather the usage of the power is intended to measure the amount due to Plateau for its cost in operating and maintaining the Data Center and Customer Space for the benefit of Customer.

      5. Customer Equipment

        Prior to termination of this Agreement, all Customer Equipment remains Customer’s exclusive personal property. Customer is solely responsible for obtaining and maintaining property insurance covering the Customer Equipment. Plateau assumes no risk for any damage or loss of the Customer Equipment. Customer must give prior notice to Plateau when installing or removing Customer Equipment from the Data Center. Customer Equipment may only be installed and stored within the Customer Space. The installation or storage of Customer Equipment outside the Customer Space must be approved in advance by Plateau. Without Plateau’s prior written consent, Customer (i) may not install wireless equipment and/or antennas in the Data Center or in the Customer Space; (ii) may not use camera or other video equipment in the Customer Space; or (iii) may not access the subfloor, at any time, to install or remove Customer Equipment. Plateau is responsible for providing and connecting a cable from the demarcation point of Customer’s Internet’s carrier’s network to the demarcation point of the Customer Equipment. Customer must provide access to the Customer Equipment to Plateau to enable Plateau to perform its duties under this Agreement. Customer must ensure that all Customer Equipment conforms to the manufacturer’s specifications. Customer must provide Plateau with such documentation prior to Plateau performing any maintenance service on such Customer Equipment.

      6. Vacating

        Upon termination of this Agreement for any reason, Customer must, at its own expense, immediately vacate and surrender the Customer Space and remove all Customer Equipment from the Customer Space and the Data Center. If Customer fails to remove such Customer Equipment within 30 days of the effective date of termination, then Plateau may charge Customer a storage fee for such Customer Equipment in amount equal to 50 percent of the monthly recurring charge (excluding the monthly recurring charge for usage based Services) as of the effective date of termination of this Agreement until the time Customer either (i) removes the Customer Equipment from the Customer Space or (ii) it is deemed abandoned by Customer. Customer Equipment is deemed abandoned if Customer does not remove the Customer Equipment within six months of the effective date of termination of this Agreement. Customer must return to Plateau all keys, access cards and other security devices received from Plateau by the effective date of termination.

      7. Damages

        Customer is responsible for all damages caused by Customer’s employees, agents, vendors or visitors to the Data Center or the Customer Space. Customer is also responsible for all damages caused by Customer’s removal of the Customer Equipment or other items installed in the Customer Space. Customer agrees to promptly reimburse Plateau for all repairs and restoration costs associated with repairing such damage upon written notice to Customer itemizing the damages and associated costs for repairing.

    2. Alterations

      1. General

        Customer may not make any construction changes or material alterations to the Customer Space, including changes to the cabling and power supplies for the Customer Equipment, without the prior written consent of Plateau. All fixtures, repairs, build-outs and other alterations in or to the Customer Space (“Fixtures”) shall become part of the Customer Space. Upon termination of this Agreement, Customer may not remove any Fixtures from the Customer Space without the prior written consent of Plateau.

      2. Vendor Approval

        Prior to any delivery, installation, replacement or removal work, Customer must obtain the written approval of Plateau with respect to the suppliers or contractors to be used by Customer, which approval may not be unreasonably withheld. Plateau may request additional information before granting approval. The approval of the supplier or contractor is not an endorsement of Customer’s choice. Customer remains solely responsible for the selection of the supplier or contractor and for all payments due to such suppliers or contractors.

      3. No Liens

        Customer must keep the Data Center and the Customer Space free from any liens arising from any work performed, material furnished or obligations incurred by or at the request of Customer. Any vendor contracting with Customer or furnishing or rendering labor and materials to Customer must be notified in writing by Customer that they must look solely to Customer for payment. If any lien is filed against the Data Center or the Customer Space as a result of the acts or omissions of Customer, Customer must discharge it within 60 days of learning of such lien.

    3. Relocation

      Plateau shall not arbitrarily require Customer to relocate Customer Equipment and/or move into different Customer Space within the Data Center listed on the executed SOW. However, upon 60 days prior written notice or, in the event of an emergency with such time as may be reasonable, Plateau may require Customer to change location of its Customer Space to a location within the Data Center that affords comparable environmental conditions for, and accessibility to, the Customer Equipment.

    4. Prohibited Activities

      1. Non-Interference

        Customer shall not use any products, tools, material or methodologies that interfere with the Colocation Services or may cause damage to the Data Center and/or the Company Network or may cause harm to any individual or the public. Furthermore, Customer agrees that the Customer Equipment installed or stored in the Customer Space shall not;

        1. interfere with or impair the Colocation Services provided to other Customers;
        2. unreasonably disturb any other Customer or other tenant in the Data Center;
        3. endanger or damage the Data Center or the Customer Space of other Customers;
        4. compromise the privacy of any communications carried in, from or through the Data Center; or
        5. create an unreasonable risk of injury or death to any individual or the public. Customer shall not improperly restrict or interfere with the use of the Company Network. Upon notice to Customer, Customer shall promptly remove any hazard, interference or service obstruction that may be caused by the Customer Equipment or the connectivity under the control of Customer.
      2. Not Permitted

        Food and drinks are not permitted inside the Data Center at any time. Combustibles (i.e., cardboard boxes, paper, etc.) are not permitted to be stored inside the Customer Space.

      3. Smoking

        Smoking is strictly forbidden inside the Data Center, including the Customer Space.

      4. Signage

        No signage or advertising may be placed within the Data Center or the Customer Space without the prior written consent of Plateau, which may be withheld in its sole discretion.

  4. Managed Services Monitoring and Support

    (Table of Contents)
    1. Plateau monitors all systems and networked equipment that it manages under a Managed Services SOW 24 hours per day, 365 days per year except for cases of third party hardware, software, or service failure and Force Majeure described in Section 13 of this Agreement, or other service interruptions that prevent monitoring, however caused. In case of interruptions in monitoring, Plateau shall make commercially reasonable efforts to restore monitoring.
    2. Start Date/Service Period

      The Start Date is the date Plateau turns on its Managed Services covered hereunder and described in further detail in the applicable SOW. The Service Period and billing begin on the Start Date. At the end of the Service Period, this Agreement will automatically renew for consecutive terms of the same duration as the Service Period, unless terminated in writing at least thirty (30) days prior to the expiration of the then-current term. Any changes made to the Managed Services by mutual consent during a Service Period shall be documented by executing a subsequent SOW during that Service Period, but such changes to Managed Services shall not affect the Service Period itself as set forth in the original SOW, unless such subsequent SOW specifies a different Service Period.

    3. Responsibility of Parties

      Plateau shall use commercially reasonable efforts to provide the Customer with substantially uninterrupted services by means of Plateau’s systems, personnel, and other resources.

    4. Exclusions from Managed Services

      1. The following is a list of costs, expenses, charges or services explicitly excluded from any Managed Service SOW executed by Customer, unless otherwise specified in the applicable SOW. The below is not meant to constitute a complete list, and any cost, expense, charge, or service that is not specifically listed and explicitly included in an executed SOW and is excluded by definition:
        1. Any taxes of any kind
        2. Any premise wiring services (voice/data/video cabling) of any kind
        3. Training of any person in any context, unless otherwise specified
        4. Unless explicitly covered under an Endless Hardware SOW:
          1. Any parts, equipment, or hardware costs, fees or charges of any kind
          2. Any software, licensing, software assurance, renewal, or upgrade fees of any kind
          3. Any shipping, handling, courier, or postage charges of any kind
          4. Any 3rd party vendor, Original Equipment Manufacturer (OEM) equipment, or other manufacturer support fees or incident fees of any kind
        5. Any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software or other resources, with or without administrative access to such resources, by anyone other than authorized Plateau personnel. This includes any change or service occasioned by acts or omissions by the Customer's own employees, principals, consultants, subcontractors, third party vendors, or any other third parties who may have or have had physical, logical or remote access to Customer’s resources
        6. Maintenance of third party applications, software, software packages or add-ons, whether acquired through Plateau or any other source. The only exception is software made or modified by Plateau in order to provide the Managed Service.
        7. Any software programming or scripting (creation or modification of software code) and program (software) maintenance
        8. Any work, project, service or support of any kind, whether one-time, periodic, or ongoing, that involves a new resource that was not present at the time the SOW is executed
        9. Any work that does not qualify as a service ticket with respect to restoring the normal functioning of the resources being managed as per the SOW, i.e. any work that does not involve proactive management, routine administration, or troubleshooting (whether Customer-prompted/requested or otherwise) malfunctioning or non-functioning systems or resources under management as per the SOW. Any such work is defined as a Project. Projects include but are not limited to re-configuring resources by Customer request, integrating with newly acquired/introduced hardware, software or networks, or with other formerly non-existent third party resources, or otherwise making changes to managed resources, when such configuration, integration or changes are not warranted nor necessary (a) to manage such resources, or, (b) to keep such resources in good working order. Such Projects are by definition not part of Managed Services, since Managed Services concern themselves with proactively managing, maintaining, troubleshooting, and keeping operational existing resources explicitly covered by the SOW.
  5. Intellectual Property

    (Table of Contents)

    Nothing in the Agreement or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors. Plateau's intellectual property and proprietary rights include any skills, know-how, processes, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Service. Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors.

  6. Acceptable Use Policy ("AUP")

    (Table of Contents)

    The Customer shall use Plateau’s services only in accordance with applicable law and for lawful purposes. The Customer shall not use or permit others to use Plateau’s services (including by transmitting, posting or storing content) in a manner which would violate any law or infringe any copyrights or trademarks. Once notified of any violation of this Acceptable Use Policy, the Customer agrees to cooperate with Plateau and work promptly to cease the noted activities. Plateau reserves the right to interrupt or disconnect services for non-compliance with this AUP or in compliance with instructions from government authorities. Customer shall be responsible for all authorized uses of services provided by Plateau. A more extensive AUP may be provided as an addendum to this Agreement in connection with certain services.

  7. Plateau Equipment

    (Table of Contents)

    In certain circumstances, Plateau may supply Customer premises equipment or cloud premises equipment that may consist of third party hardware and software not manufactured by Plateau (“CPE”) to the Customer and retain ownership in such CPE. Unless otherwise specified through an SOW or other agreement, all CPE shall be purchased and owned by the Customer, whether procured by Plateau and passed through to Customer, or purchased directly by Customer from third party hardware and software vendors. In the event that any CPE is owned by Plateau, Plateau shall have the right to remove all CPE that it has supplied. Customer agrees to allow Plateau personnel and subcontractors reasonable access to the Customer Site for the purpose of installing, configuring, managing, maintaining, repairing, replacing and removing the CPE. If Customer does not own the Customer Site and access to portions of the Customer Site other than the Customer premises is needed (i.e. building phone room, data room, HVAC room, roof, etc.), Customer shall obtain, with Plateau’s cooperation, all appropriate permissions from the owner or landlord for such activities.

  8. No Warranty

    (Table of Contents)

    Without limiting the foregoing, Plateau shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services or on information obtained therefrom, interruptions of service, breach, compromise, unauthorized access to any records, files, data, systems, or other assets, valuables and resources; errors, defects, viruses, malware, delays in operation or transmissions or any other failure of performance or business function. Further, except in the event of willful misconduct by Plateau, Plateau shall not be liable for any direct damages resulting from the loss of any of Customer's data or third party data, breach of security or loss of privacy of data on Customer's systems or third party systems that may occur on systems installed, serviced, and/or managed by Plateau, or any direct or indirect damages resulting therefrom; the malfunction, performance or compromise of any system, network or other resource related to or associated with in any capacity or by any theory with Plateau services, and any Customer or third party damages, claims, losses or expenses resulting therefrom; any personal injury (whether of a physical or psychological nature) or death of any person, whether associated with Customer or otherwise, that may in any capacity or by any theory be associated with services provided by Plateau, and any Customer or third party damages, claims, losses or expenses resulting therefrom.

  9. Limitation of Liability

    (Table of Contents)
    1. Both parties agree that it is impossible to guarantee the trouble-free performance of computer hardware, software, networks, environments, security and systems, the security, privacy, specific functionality or performance of any free-standing or integrated system or resource; the reliability, applicability or performance of any technology or technology-related asset; the applicability, outcome or performance of any training or the behavior of any human resources; whether procured, provided, installed, managed, supported, administered, trained and/or supervised by Plateau, or in any way associated with Plateau services or otherwise. Therefore, Customer and Plateau agree to certain further limitations of liability and damages.
    2. PLATEAU PROVIDES ALL SERVICES ON AN AS IS BASIS. IN PROVIDING ITS SERVICES, PLATEAU, ITS OFFICERS, DIRECTORS, PRINCIPALS, MEMBERS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS MAKE NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY STATED HEREIN AND EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR MULTIPLE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF SECURITY, LOSS OF PRIVACY, COSTS OF RECREATING LOST DATA, COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS OF USE, RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON PLATEAU’S SERVICES OR THIRD PARTY SERVICES PROVIDED OR PASSED THROUGH BY PLATEAU OR BY ANY OTHER PARTY IN CONJUNCTION WITH PLATEAU’S SERVICES, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF EITHER CUSTOMER OR PLATEAU KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
    3. To the extent not prohibited by applicable law, Plateau’s maximum aggregate and cumulative liability under this Agreement for any and all losses, claims, damages, expenses, attorney and expert fees or liability of any kind, including but not limited to claims of breach of contract, breach of warranty, negligence (including strict liability), whether in contract or in tort, or under any other legal theory, is limited to the amount in fact paid by Customer hereunder for six (6) months immediately preceding the event giving rise to such loss, damage, claim, or liability. In no event shall Plateau be liable for any consequential, incidental, special, exemplary, indirect, punitive or multiple damages in connection with or arising out of this Agreement or any other agreement between Customer and Plateau that incorporates this Agreement; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, good will, reputation, or other economic advantage, however caused, and regardless of the legal theory of liability, even if Plateau and/or Customer knew, or should have known of the possibility thereof. Customer and Plateau agree that the provisions of Section 7 (No Warranty) and this Section 9 (Limitation of Liability) of this Agreement shall constitute Customer’s sole and exclusive remedy with respect to (i) Plateau’s services and any claims or actions arising therefrom, and, (ii) any third party services passed through or provided by Plateau or by any other party in conjunction with Plateau’s services, and any claims or actions arising therefrom; even if a mediator, arbitrator, or court of competent jurisdiction finds that such sole and exclusive remedy has failed its essential purpose.
  10. Indemnity

    (Table of Contents)
    1. Customer agrees to indemnify, defend, and hold harmless Plateau, and its officers, directors, principals, members, managers, employees, subcontractors, agents, representatives, successors and assigns from and against any damage, claim, loss, expense (including reasonable attorneys’ fees and damage to any person or property), occurring as a result of (i) Customer’s use or inability to use of Plateau’s services, or use or inability to use by those authorized by Customer of Plateau’s services; (ii) Customer’s handling, storage, transmission or possession of information, data, messages or other content or assets on Plateau’s systems or network, on Customer systems or network that are installed, managed or otherwise serviced by Plateau, or on third party systems and networks that Plateau uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission or possession of information that contains viruses, malware or other destructive code, media, or any unlawful content; (iii) Customer’s or third parties’ reliance on Plateau’s services or on information obtained therefrom; (iv) Customer’s breach of any software licensing requirements of third parties; (v) Customer’s failure to comply with any provision of this Agreement or Plateau’s Professional Services Agreement; or, (vi) Customer’s failure to obtain permits, licenses, or consents that Customer may be required to obtain to enable Plateau to provide its products or services (e.g., landlord permissions, wiring permits, etc.)
    2. Plateau agrees to indemnify and defend Customer, its directors, officers, employees, agents and successors against third party claims enforceable in the United States alleging that Plateau’s services as provided infringe any third party United States patent or copyright or contain misappropriated third party trade secrets. Plateau’s obligations under this section will not apply to the extent that the infringement or violation is caused by (i) functional or other specifications that were provided or requested by Customer, or (ii) Customer’s continued use of infringing services after Plateau provides reasonable notice to Customer of the infringement. For any third party claim that Plateau receives, or to minimize the potential for a claim, Plateau may, at its option and expense, either: (i) procure the right for Customer to continue using the services in question; (ii) replace or modify the services with comparable services; or (iii) terminate the services.
    3. The provisions of this Section 10 state the entire liability and obligations of the indemnifying party, and the exclusive remedy of the indemnified party, with respect to any of the claims identified herein.
  11. Entire Agreement

    (Table of Contents)
    1. This Agreement, any addendum to this Agreement, and associated SOWs constitutes the entire agreement between the parties. There are no other written or oral agreements or understandings. Any previous or contemporaneous proposal, understandings, or writings are hereby superseded by this Agreement. This agreement may not be modified, amended, or interpreted except by a written document that identifies this Agreement and states that it is an amendment to it.
  12. Severability

    (Table of Contents)
    1. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement will be prohibited by or be invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
  13. Force Majeure

    (Table of Contents)
    1. Neither party to this Agreement shall have liability or responsibility to the other party for any delay, failure to perform, service interruption, outage, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the party's reasonable control including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, strikes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data center, collocation, and cloud service providers, interruption or outage of or delay in telecommunications including the public Internet, voice lines, data lines, or any telecommunications equipment or service, transportation, delivery, power outages, electrical or other utility services, failure of third party hardware, software or services, or any acts or omissions of any third parties.
  14. Jurisdiction and Governing Law

    (Table of Contents)
    1. The Parties agree that all disputes in any way relating to, arising under, connected with or incident to this Agreement shall be litigated, if at all, solely and exclusively in the State District Courts of Curry County, New Mexico and if necessary, their respective corresponding appellate courts. The Parties further agree to forebear from filing a claim in any other county or jurisdiction and expressly submit themselves to the personal jurisdiction of the State of New Mexico. The performance and construction of this Agreement shall be governed by the substantive laws of the State of New Mexico without regard to conflict of law provisions.
  15. Attorney's Fees

    (Table of Contents)
    1. In any litigation arising under the terms and conditions of this Agreement, the prevailing Party shall be entitled to be reimbursed for reasonable legal fees and expenses in addition to the amount of any judgment.
  16. Dispute Resolution

    (Table of Contents)
    1. Any claims or disputes between Plateau and Customer arising out of the services to be provided by Plateau or out of this Agreement first shall be submitted to non-binding mediation.
  17. Insurance

    (Table of Contents)
    1. During Plateau’s performance hereunder, Plateau shall take out and maintain full paid insurance not less than the minimum coverage required by the attached Insurance Exhibit B.
  18. Assignment

    (Table of Contents)
    1. This agreement may not be assigned without the written consent by both parties.
  19. Confidentiality

    (Table of Contents)
    1. Every telecommunications carrier has a general duty to protect the confidentiality of its customers’ information. In addition, a carrier may only use, disclose, or permit access to customers’ information in limited circumstances:

      1. as required by law;
      2. with the customer’s approval; or
      3. in its provision of the telecommunications service from which such information is derived, or services necessary to or used in the provision of such telecommunications service.
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