Capcon Networks MSA

MASTER SERVICE AGREEMENT
v3.5

This Master Service Agreement (the “MSA” or this “Agreement”) sets forth the terms and conditions pursuant to which Capcon Networks LLC dba EM3 Networks (the “Company“,” “we,” or “us”) may provide telecommunications and related services from time to time to the customer identified in the applicable Service Order (in each instance, the “Customer” “you” or “your”).

Definitions

“AUP” means the Company’s Acceptable Use Policy, available at https://www.capconnetworks.com/legal/aup and as updated from time to time in accordance with Section 15.01.

“Agreement Effective Date” means, with respect to each Service Order, the date on which Customer executes such Service Order.

“Confidential Information” has the meaning set forth in Section 14.01.

“Customer Equipment” means routers, modems, network interface devices, inside wiring, and other equipment owned or leased by Customer (or its end users) and used in connection with the Services

“Customer Location” means the physical location(s). identified in the applicable Service Order at which the Services are provided.

“Demarcation Point or DEMARC” means the physical network handoff point at which the Company’s responsibility for the applicable Service ends and Customer’s responsibility begins, as identified in the applicable Service Order. “E-rate” means the federal Schools and Libraries Universal Service Support Program administered by the Universal Service Administrative Company (“USAC”) under the rules of the Federal Communications Commission (the “FCC”).

“Force Majeure Event” has the meaning set forth in Section 13.01.

“Funding Year” means each twelve-month period beginning July 1 and ending June 30 of the following calendar year, as recognized by USAC for E-rate purposes.

“Initial Service Term” means the initial term for a Service as set forth in the applicable Service Order.

“MRC” means the monthly recurring fee for a Service, as set forth in the applicable Service Order.

“NRC” means any one-time, non-recurring fee for a Service, including without limitation installation, construction, and special-build charges, as set forth in the applicable Service Order.

“Renewal Term” with respect to each Service, has the meaning set forth in Section 3.02.

“RHC Program” means the federal Rural Health Care Program (including both the Telecommunications Program and the Healthcare Connect Fund) administered by USAC under FCC rules, which provides funding support for eligible rural healthcare providers.

“Service” means each telecommunications or related service provided by the Company to Customer pursuant to the terms of this Agreement and an executed Service Order.

“Service Commencement Date” means, with respect to each Service, the date identified by the Company in the applicable Service Commencement Notice as the date on which the Service is made available for Customer’s use and represents the beginning of the Initial Service Term for such service, except as otherwise provided for E-rate-eligible Customers under Article XXII. The Service Commencement Date may be a date earlier than, the same as, or later than the date on which the Company delivers the Service Commencement Notice.

“Service Commencement Notice” has the meaning set forth in Section 5.01.

“Service Order” has the meaning set forth in Section 2.01.

“Service Outage” has the meaning set forth in the Company’s SLA.

“SLA” means the Company’s Service Level Agreement, available at https://www.capconnetworks.com/legal/sla and incorporated into this Agreement by reference.

“Term” means, with respect to a Service, the Initial Service Term for such Service together with any Renewal Term(s) for such Service.

“USAC Programs” means collectively, the E-rate program and the RHC Program.

Article I. Services and Orders

2.01 Provision of Services. The Company shall provide Services to Customer pursuant to one or more mutually executed service orders (each, a “Service Order”). By executing a Service Order, Customer agrees to be bound by the version of this Agreement posted at https://www.capconnetworks.com/legal/msa as of the Agreement Effective Date of such Service Order, and each Service Order shall identify by version number the form of this Agreement so incorporated. Each Service Order is incorporated into and made part of this Agreement. The Company shall have no obligation to provide, and Customer shall have no obligation to purchase or pay for, any Services except as expressly set forth in an executed Service Order. In the event of a conflict between this Agreement and a Service Order, the Service Order shall control with respect to the applicable Services. In the event of any conflict between Article XXII (E-rate and Rural Healthcare Customers) and any other provision of this Agreement with respect to a Customer participating in a USAC Program, Article XXII shall control.

2.01 Amendment and Updates to this Agreement. The Company may update this Agreement from time to time. The Company will provide Customer with at least thirty (30) days’ prior written notice of any such update, which may be given by email to the contact on file or by posting the updated Agreement at https://www.capconnetworks.com/legal/msa together with email notice to Customer that an update has been posted. The updated Agreement shall take effect on the date specified in the notice (which will be no earlier than thirty (30) days after notice is given) and will apply automatically to all Services then in effect and to all Service Orders executed thereafter. Customer’s continued use of the Services after the effective date of an update constitutes Customer’s acceptance of the updated Agreement; provided that no update will materially reduce the Services or materially increase Customer’s financial obligations with respect to any then-existing Service Order during the Initial Service Term or Renewal Term, as applicable, without Customer’s consent.

2.02 Entire Agreement. This Agreement, together with any applicable Service Orders constitute the entire agreement between the Company and Customer relating to the Services and supersedes all prior negotiations and agreements relating to the same subject matter.

Article II. Term and Renewal

3.01 Agreement Term. This Agreement governs each Service Order executed by the parties thereto and the Services provided thereunder from and after the Agreement Effective Date for such Service Order, whether or not any Service has been installed, activated, or made available for Customer’s use as of such date. As to such Service Order, this Agreement shall remain in effect until terminated in accordance with the terms and conditions of this Agreement.

3.02 Service Term and Renewal. Each Service Order shall become effective on the Agreement Effective Date for such Service Order. Each Service ordered thereunder shall have its own Initial Service Term, which shall commence on the Service Commencement Date for such Service and continue for the period specified for that Service in the applicable Service Order. Multiple Services may be ordered on a single Service Order, each with its own Service Commencement Date and Initial Service Term. Upon expiration of the Initial Service Term for a Service, such Service shall automatically renew for successive one (1) year renewal terms (each, a “Renewal Term”), unless either Party provides written notice of non-renewal for that Service at least thirty (30) days prior to the expiration of the then-current term. Unless otherwise specified in the applicable Service Order, MRCs shall commence on the applicable Service Commencement Date. NRCs, if any, may be invoiced and become due upon the Agreement Effective Date. The Company may modify the applicable fees, including the MRC and any NRCs for any Renewal Term upon at least thirty (30) days’ prior written notice to Customer. Additional billing commencement and term provisions applicable to E-rate-eligible Customers are set forth in Article XXII.

Article III. Billing and Payment

4.01 Fees. In consideration for the Services, Customer shall pay the Company the fees and charges set forth in the applicable Service Order, including applicable monthly recurring charges (“MRCs”), non-recurring charges (“NRCs”), usage-based charges (if any), and any other fees and charges identified therein.

4.02 Billing Commencement. Unless otherwise specified in the applicable Service Order, the Company shall commence billing of MRCs for a Service on the applicable Service Commencement Date. NRCs and other one-time charges, if any, may be invoiced on or after the Agreement Effective Date for the applicable Service Order. For the avoidance of doubt, commencement of billing shall not be contingent upon Customer’s installation, activation, or use of any Customer Equipment or Customer’s actual transmission of traffic over the applicable Service. Additional billing provisions applicable to E-rate-eligible Customers are set forth in Section 22.03.

4.03 Invoices. The initial invoice for a Service shall include (a) prorated MRCs for any partial billing month, b) MRCs for the first full billing month thereafter, (c) any applicable NRCs, and (d) applicable taxes and surcharges. Following the initial invoice for a Service, the Company shall invoice Customer monthly in advance for all recurring MRCs on the first day of each month. Any NRCs, usage-based charges (if any) and other non-recurring charges incurred during a billing month shall be invoiced monthly in arrears.

4.04 Payment Terms. All invoices shall be due and payable within thirty (30) days after the date of the applicable invoice (the “Due Date”). Payment shall be made by ACH, wire transfer or check. Any amount not paid by Customer by the Due Date shall accrue interest at the lesser of one-and-one-half percent (1.5%) per month or the maximum rate permitted by applicable law.

4.05 Suspension.

(a) If Customer’s account remains past due more than ten (10) days after the Company delivers written notice of non-payment, the Company may, in addition to any other remedies available to it, suspend one or more Services provided under any Service Order between Customer and the Company until all overdue amounts are paid in full. Customer shall remain responsible for all applicable MRCs during any such suspension.

(b) In addition, the Company may suspend any one or more Services provided under any Service Order between Customer and the Company, upon written notice if the Company reasonably determines that: (i) Customer or any of its end-users is violating the AUP, applicable law, or this Agreement; or (ii) suspension is reasonably necessary to protect the Company’s network, operations, or other customers. Except where immediate suspension is reasonably necessary to prevent harm or comply with applicable law, the Company shall provide Customer with reasonable notice and an opportunity to cure prior to suspension of Services. The Company shall restore the affected Service promptly following resolution of the applicable issue.

4.06 Delinquent Accounts. If Customer fails to timely pay invoices on more than two (2) occasions during any twelve (12)-month period, then the Company may, upon fifteen (15) days’ prior written notice to Customer and in addition to any other remedies available to it exercise one or more of the following remedies: (a) modify the payment terms applicable to Customer (including, without limitation, requiring payment in advance of Service); (b) require Customer to post and maintain a security deposit in an amount reasonably determined by the Company to secure Customer’s payment obligations under this Agreement and the applicable Service Order, which deposit the Company may apply against any unpaid amounts and return (less any applicable offsets) upon termination of this Agreement and the underlying Service Order and payment in full of all outstanding amounts; or (c) terminate this Agreement and discontinue any or all Services provided under any one or more Service Orders between Customer and the Company. Customer shall remain responsible for all amounts that accrue through the effective date of any such termination.

4.07 Invoice Disputes. Customer may dispute any charge on an invoice by providing written notice to the Company within thirty (30) days after the applicable invoice date, together with reasonable supporting detail for the disputed charge(s). Failure to dispute a charge within such period constitutes a waiver of Customer’s right to dispute such charge(s), except as required by applicable law. Customer shall timely pay all undisputed amounts, and any failure to timely pay undisputed amounts shall remain subject to Section 4.04 through Section 4.06. If a dispute is resolved in the Company’s favor, Customer shall pay the disputed amount within ten (10) days of resolution, together with any interest accruing thereon pursuant to Section 4.04 from the original due date

4.08 Taxes and Surcharges. All charges for the Services are exclusive of any applicable taxes, surcharges, fees, and assessments (collectively, “Taxes”), all of which shall be the responsibility of Customer. In addition, Customer shall pay all taxes, fees, surcharges, and other governmental or regulatory charges that the Company is required by applicable law to collect from Customer or that the Company is otherwise permitted under applicable law to pass through to Customer in connection with the Services or amounts charged under this Agreement and the applicable Service Order(s), including, without limitation, federal Universal Service Fund (“USF”) contributions, Telecommunications Relay Service (TRS) fees, federal regulatory fees, state and local universal service fees, 911/E-911 fees, state and local sales, use, communications, gross receipts, and excise taxes, franchise fees, access fees, regulatory recovery fees, and any similar federal, state, or local taxes, fees, or surcharges now existing or hereafter imposed, together with any cost-recovery surcharges established by the Company to recover such amounts. Such amounts shall be in addition to, and not included in, the fees set forth in the applicable Service Order. Taxes do not include taxes based on the Company’s net income, taxes imposed on the Company’s real or personal property, or taxes imposed on the Company’s employment relationships. If Customer is exempt from any Taxes, Customer shall provide the Company with a valid exemption certificate promptly following execution of the applicable Service Order or, if applicable, promptly upon obtaining the same. The Company shall have no obligation to apply any exemption until receipt of such valid exemption certificate.

Article IV. Installation, Acceptance Testing, and Customer Delay

5.01 Service Commencement Notice. With respect to each Service, the Company shall deliver to Customer a written notice (the “Service Commencement Notice”) identifying the Service Commencement Date for such Service. The Service Commencement Notice may be delivered before, on, or after the Service Commencement Date it identifies, and the date on which the Company delivers the Service Commencement Notice shall not constitute or be deemed to be the Service Commencement Date.

5.02 Acceptance Testing. Customer shall promptly test each Service upon receipt of the applicable Service Commencement Notice and shall notify the Company in writing within five (5) business days of any material deficiency (a “Material Deficiency”) preventing the applicable Service from being ready for Customer’s use in accordance with the applicable Service Order. If Customer fails to provide such notice within such five (5) business day period, the applicable Service Commencement Date shall be deemed accepted by Customer for all purposes under this Agreement, including billing commencement. Any other service issues arising after the applicable Service Commencement Date shall be addressed in accordance with the SLA and the Company’s standard support and maintenance procedures. For the avoidance of doubt, if Customer fails to provide notice of a Material Deficiency within the five (5) business day period set forth above, Customer shall not be entitled to any service credits, refunds, or other remedies retroactive to the Service Commencement Date, and any service credits or other remedies to which Customer may be entitled with respect to such deficiency shall, subject to the Company’s confirmation that the issue is attributable to the Company, accrue only from the date on which Customer first provides written notice of the deficiency to Company.

5.03 Company Response. If Customer timely notifies the Company of an issue in accordance with Section 5.02, the Company shall promptly investigate such issue and shall use commercially reasonable efforts to correct any verified deficiency attributable to the Company. If, following such investigation, the Company reasonably determines the reported issue is not attributable to the Company, the Company shall notify Customer, the applicable Service Commencement Date shall remain unchanged and the applicable Service shall be deemed accepted as of the original Service Commencement Date.

5.04 Customer Delay. If the Company is unable to complete installation or activation of a Service due to any act or omission of Customer, including, but not limited to Customer’s failure to provide required access, information, rights of entry, space, or power, the Company shall provide Customer with written notice of the delay. Customer shall have fifteen (15) days after delivery of such notice to cure the cause of the delay. If Customer fails to cure the cause of such delay within such period, the Company may cancel the affected Service Order and Customer shall reimburse the Company for all costs and expenses incurred by the Company in connection with such Service Order, including, but not limited to, waived installation, construction, and third-party charges, as further described in Section 10.05.

Article V. Customer Responsibilities

6.01 Cross-Connects. Customer shall be responsible, at its sole cost and expense, for procuring all cross-connects between the applicable DEMARC and Customer Equipment, including at colocation facilities, multi-tenant buildings, and meet-me rooms. At Customer’s request, the Company may, but shall not be obligated to, arrange for such cross-connects on Customer’s behalf and at Customer’s expense, as mutually agreed by the Company and Customer.

6.02 Letters of Authorization and Customer Facility Assignments. The Company shall issue or accept Letters of Authorization (“LOAs”) and Customer Facility Assignments (“CFAs”) as reasonably required to provide the Services. Customer shall timely execute and deliver any LOAs, CFAs, or similar authorizations reasonably requested by the Company in connection with the provision of the Services. Failure to do so may constitute Customer Delay under Section 5.04.

6.03 Inside Wiring, DEMARC Extensions, and CPE. Inside wiring beyond the DEMARC, DEMARC extensions, and customer premises equipment (“CPE”) shall be Customer’s responsibility unless otherwise specified in the applicable Service Order. Customer may request that the Company perform a DEMARC extension for an additional fee mutually agreed-upon by the Company and Customer in writing.

6.04 Access, Space, and Power. Customer shall provide the Company and its contractors with reasonable access to the Customer Location and with adequate space, electrical power, and environmental conditions necessary for the Company to install, maintain, and, upon termination, remove any Company-furnished facilities and equipment.

6.05 Truck Roll Fee. If the company or any of the Company’s underlying service providers dispatches a technician to a Customer Location in response to a reported Service issue and such issue is determined not to be attributable to the Company or its underlying service providers, the Company may charge Customer a truck-roll fee of three hundred fifty dollars ($350.00) per dispatch. Such fee shall be in addition to any other charges that may apply, including time-and-material charges for work performed at Customer’s request and any pass-through charges imposed by the Company’s underlying service providers.

Article VI. Limitation of Liability

7.01 Consequential Damages Waiver. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN ARTICLE VIII AND EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY FOR SERVICES, IN NO EVENT WILL EITHER THE COMPANY OR CUSTOMER BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, OR BUSINESS INTERRUPTION, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.02 Limitation on Liability. THE AGGREGATE LIABILITY OF EITHER THE COMPANY OR CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE), SHALL NOT EXCEED AN AMOUNT EQUAL TO THREE (3) MONTHS OF THE MRC FOR THE AFFECTED SERVICE, MEASURED IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION SHALL NOT APPLY TO (A) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT AND THE APPLICABLE SERVICE ORDER (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE VIII, OR (C) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

7.03 Basis of the Bargain. The Parties acknowledge that the limitations of liability and disclaimers set forth in this Agreement are an essential basis of the bargain between the Parties and shall apply notwithstanding any failure of essential purpose.

7.04 Performance Failures. Except as expressly set forth in Article X, the remedies set forth in the SLA shall be Customer’s sole and exclusive remedies for any Service outage, interruption, or failure to meet the applicable SLA.

Article VII. Indemnification

8.01 Indemnification by the Company.

(a) The Company shall indemnify, defend, and hold Customer harmless from and against all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) Action brought by any third party against Customer arising out of or relating to (i) the infringement or misappropriation of any intellectual property right relating to the delivery of the Services (except to the extent arising from Customer’s modifications, combinations, or misuse); and (ii) bodily injury caused by the gross negligence or willful misconduct of the Company.

(b) If any Service becomes, or in the Company’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, the Company may, at its option and expense: (i) procure for Customer the right to continue using the affected Service; (ii) modify or replace the affected Service so that it becomes non-infringing without materially degrading its functionality; or (iii) terminate the affected Service upon written notice to Customer, in which event the Company shall have no further liability with respect to such affected Service except for any indemnification obligations accrued prior to such termination.

(c) The Company shall have no obligation under this Section 8.01 to the extent any claim arises from: (i) modifications to the Services not made by the Company; (ii) use of the Services in combination with products, services, or systems not provided by the Company; (iii) Customer’s failure to use the Services in accordance with the Agreement or applicable documentation; or (iv) Customer specifications or instructions.

8.02 Indemnification by Customer. Customer shall indemnify, defend, and hold the Company and its affiliates, officers, directors, employees, and agents harmless from and against any and all Losses resulting from any Action brought by any third party against the Company arising out of:

(a) Customer’s use of the Services;

(b) Customer’s violation of applicable law or the AUP;

(c) Customer Equipment or Customer-provided content/data, Customer’s end users, or Customer’s representations regarding the Services; or

(d) bodily injury or property damage caused by Customer’s gross negligence or willful misconduct.

8.03 Notice and Cooperation. Each Party’s indemnification obligations under this Article VIII are subject to: (a) receiving prompt written notice of the existence of any Action; (b) being permitted, at its option, to control the defense of the Action; (c) permitting the indemnified Party to participate in the defense of the Action at its own expense; (d) receiving full cooperation of the indemnified Party in the defense; and (e) no settlement of any Action may impose any liability, admission of fault, or obligation on the indemnified Party without such Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. The indemnifying Party shall reimburse the indemnified Party for reasonable attorneys’ fees and costs incurred in connection with any indemnifiable Action as such costs are incurred. Failure to provide prompt notice shall not relieve the indemnifying Party of its obligations except to the extent materially prejudiced thereby.

Article VIII. Insurance

9.01 Required Coverage. Throughout the Term, each of the Company and Customer shall maintain, at its sole cost and expense, the following insurance coverage with insurance carriers having an A.M. Best rating of A- or better:

(a) Commercial General Liability insurance with a limit of not less than two million dollars ($2,000,000) per occurrence for bodily injury and property damage liability, including coverage for blanket contractual liability and personal-injury liability;

(b) Workers’ Compensation insurance as required by applicable law; and

9.02 Additional Insured. The Company and Customer shall each name the other Party as an additional insured under its Commercial General Liability policy, but only to the extent of the indemnifying Party’s indemnification obligations under Article VIII. The coverage afforded to the additional insured shall apply on a primary and non-contributory basis solely with respect to claims covered by Article VIII.

9.03 Proof of Insurance. Upon written request, the Company and Customer shall provide the other with a certificate of insurance evidencing the coverage required by this Article IX.

Article IX. Termination

10.01 Termination for Cause. Either the Company or Customer may terminate this Agreement and/or any affected Service Order upon written notice if (a) the other Party breaches a material term of this Agreement and fails to cure the breach within thirty (30) calendar days after receipt of written notice; (b) the other Party becomes the subject of a voluntary bankruptcy, insolvency, receivership, liquidation, or similar proceeding; or (c) the other Party becomes the subject of any involuntary bankruptcy or similar proceeding that is not dismissed within sixty (60) days after filing.

10.02 Customer Termination for Chronic Outage. Customer may terminate any Service Order, without penalty, if either: (a) a Service Outage exceeds seventy-two (72) consecutive hours; or (b) the same Service experiences three (3) or more separate Service Outages of eight (8) or more consecutive hours each within any thirty (30) consecutive-day period. To qualify for termination under this Section 10.02, each Service Outage relied upon by Customer must be supported by a contemporaneous trouble ticket opened with the Capcon Help Desk (or Network Operations Center) that documents the start time, end time, and duration of the outage. Service Outages that are not so documented will not be counted toward the thresholds in clause (a) or clause (b). Customer must exercise the right described in clause (b) by written notice to the Company within fifteen (15) days following the third qualifying outage; otherwise the right is waived with respect to those outages. For purposes of this Section 10.02, “Service Outage” shall exclude any outage, interruption, or unavailability excluded from SLA availability calculations under the SLA.

10.03 Customer Termination for Convenience. Customer may terminate a Service Order for convenience upon written notice to the Company. Any such termination shall be subject to the Early Termination Liability provisions set forth in Article XI.

10.04 Termination by Company. The Company may terminate a Service Order upon written notice if the applicable Service becomes commercially impracticable or technically infeasible due to circumstances outside the Company’s reasonable control, including the loss of underlying carrier facilities or required third-party rights.

10.05 Effect of Termination. Termination of this Agreement shall automatically terminate all active Service Orders as of the effective date of such termination unless otherwise expressly agreed by the Company and Customer in writing. Termination of a particular Service Order shall not, by itself, terminate this Agreement or any other Service Order then in effect. Upon the effective date of termination of any Service Order: (a) the Company shall cease providing the affected Service; (b) Customer shall promptly pay all amounts due for Services provided through the effective date of termination, plus any applicable Early Termination Liability under Article XI; and (c) each Party will return all Confidential Information of the other Party in its possession or, with the disclosing Party’s consent, destroy and certify the destruction of the Confidential Information (except as required by applicable law or regulatory record-keeping requirements).

Article X. Early Termination Liability

11.01 Early Termination by Customer. If Customer terminates a Service Order for any reason other than (a) pursuant to Section 10.01 or (b) Section 10.02, Customer shall pay the Company, as liquidated damages and not as a penalty, an amount equal to one hundred percent (100%) of the MRC for the affected Service multiplied by the number of months remaining in the then-current Initial Service Term or Renewal Term for the affected Service, plus any waived or unpaid NRCs, installation charges, construction costs, third-party cancellation charges, and other non-recurring costs incurred by the Company in connection with the affected Service Order.

11.02 Pre-Installation Termination. If Customer cancels a Service Order prior to the Service Commencement Date, Customer shall reimburse the Company for all costs incurred by the Company in connection with provisioning and delivery of the applicable Service, including without limitation waived installation charges, construction charges, third-party vendor termination or cancellation fees, and any other costs associated with the affected Service Order.

11.03 Liquidated Damages; Reasonable Estimate. The Company and Customer acknowledge that the Company’s damages arising from the early termination or cancellation of a Service Order prior to the Service Commencement Date would be difficult to ascertain at the time of contracting and that the amounts set forth in Section 11.01 and Section 11.02 constitute a reasonable estimate of such damages and are intended as liquidated damages and not as a penalty.

Article XI. Service Portability

12.01 Right to Relocate. Subject to this Article XII, Customer may relocate an existing Service to a new Customer Location without incurring Early Termination Liability with respect to the existing Service, provided that: (a) the new location is on-net for the Company or for one of the Company’s underlying service providers and does not require the Company or its underlying service providers to incur material construction or implementation costs; (b) the Company and Customer execute a replacement Service Order for the relocated Service; (c) the replacement Service Order has a term equal to or greater than the time remaining on the original Service Order, or twelve (12) months, whichever is greater; (d) the replacement Service Order has an MRC equal to or greater than the MRC of the existing Service Order; and (e) Customer pays all applicable NRCs and third-party charges associated with provisioning the replacement Service.

12.02 Company Approval; Best Efforts. Service Portability shall be subject to the Company’s reasonable approval based on facility availability, network capacity, and the conditions set forth in Section 12.01. The Company shall use commercially reasonable efforts to accommodate Customer’s request to relocate a Service to a new Customer Location; provided, however, that Customer acknowledges that service portability is subject to technical, operational, commercial, regulatory, and right-of-way constraints, including factors outside of the Company’s reasonable control.

Article XII. Force Majeure

13.01 Force Majeure. Except for Customer’s obligation to make payments to the Company for Services actually provided, neither the Company nor Customer shall be liable for any failure or delay in its performance under this Agreement to the extent caused by events beyond such Party’s reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental action, third-party fiber cuts or facility damage, failures of underlying service providers, or failures of third-party networks or the Internet not caused by the Company (each, a “Force Majeure Event”). The Party affected by a Force Majeure Event shall be excused from performance, on a day-for-day basis, during the continuation of the Force Majeure Event, provided that the affected Party uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event and to resume performance as soon as practicable.

Article XIII. Confidentiality

14.01 Confidential Information. Confidential Information means any non-public information disclosed by either the Company or Customer to the other in connection with this Agreement, whether disclosed in writing or orally and whether or not marked as confidential, which a reasonable person would understand to be confidential or proprietary, including the terms of this Agreement and any Service Order, pricing, network configurations, customer lists, technical specifications, and business plans. Confidential Information does not include information that (a) is or becomes publicly known through no fault of the receiving Party; (b) was known to the receiving Party without restriction prior to disclosure; (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (d) is rightfully obtained from a third party without restriction.

14.02 Obligations. Each of the Company and Customer shall maintain the confidentiality of the other Party’s Confidential Information and shall use such Confidential Information only as necessary to perform its obligations or exercise its rights under this Agreement. Each of the Company and Customer shall restrict access to Confidential Information to its employees, contractors, and professional advisors who have a need to know such information and who are bound by obligations of confidentiality at least as protective as those set forth herein. Each party shall protect the other Party’s Confidential Information using at least the same degree of care to protect it as the receiving Party uses to protect its own confidential information of a similar nature (but in no event less than reasonable care). The obligations set forth in this Article XIV shall survive for three (3) years following the termination or expiration of this Agreement.

14.03 Compelled Disclosure. If the receiving Party is required by law, regulation, court order, or subpoena to disclose Confidential Information, the receiving Party shall, where permitted, give the disclosing Party prompt notice of the requirement and reasonable cooperation in any effort by the disclosing Party to obtain a protective order or other appropriate remedy.

Article XIV. Acceptable Use Policy and Restrictions on Use

15.01 AUP. Customer shall comply at all times with the AUP, which is incorporated into this Agreement by reference and is available at https://www.capconnetworks.com/legal/aup. The Company may update the AUP from time to time by posting an updated version at that URL; updates take effect thirty (30) days after posting.

15.02 Compliance with Law. Customer shall use the Services only for lawful purposes and in compliance with all applicable U.S. federal, state, and local laws and regulations. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all applicable U.S. export-control laws and regulations.

15.03 Restrictions on Resale. Customer shall not resell the Services, in whole or in part, to any third party without the Company’s prior written consent. For purposes of this Section 15.03, providing access to the Services to Customer’s own end-users and invoicing those end-users directly shall not be considered resale.

Article XV. Warranties; Disclaimer

16.01 Mutual Warranties. Each of the Company and Customer represents and warrants, severally and not jointly, that (a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations under it; (b) the execution and performance of this Agreement does not conflict with any other agreement to which it is a party; and (c) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.

16.02 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

Article XVI. Assignment

17.01 By Customer. Upon prior written notice to the Company, Customer may assign this Agreement (and all Service Orders) in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets, provided that the assignee has financial and operational capabilities reasonably comparable to or greater than those of Customer.

17.02 By Company. The Company may assign this Agreement in whole or in part as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. The Company may also delegate the performance of certain Services to third parties, including its affiliates and wholly owned subsidiaries, provided that the Company remains responsible in full for performance under this Agreement and any applicable Service Orders.

17.03 Successors and Assigns. This Agreement is binding upon and inures to the benefit of each Party’s successors and permitted assigns.

Article XVII. Notices

Any notice required or permitted under this Agreement must be in writing and may be delivered by hand, by overnight courier, by email, or by certified or registered mail (return receipt requested), addressed to the receiving Party at the address set forth in the applicable Service Order, or at such other address as the receiving Party may designate from time to time by notice given in accordance with this Article XVIII. Notices to the Company shall be addressed to Capcon Networks LLC DBA EM3 Networks, 500 W. 2nd Street, Suite 1900, Austin, Texas 78701, with a copy by email to legal@capconnetworks.com. Notice is deemed given on the date of delivery (for hand delivery and email), the next business day after deposit (for overnight courier), or five (5) business days after deposit (for certified or registered mail).

Article XVIII. Non-Solicitation

During the term of this Agreement and for twelve (12) months following its termination, neither Party will directly solicit for employment any person then employed (or employed within the prior six months) by the other Party. The foregoing does not restrict either Party from (i) hiring an applicant who responds to a general solicitation (such as a job advertisement or recruiter posting) not targeted at the other Party’s employees, or (ii) hiring a person who has been terminated by the other Party.

Article XIX. Governing Law and Dispute Resolution

20.01 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict-of-laws principles, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods.

20.02 Good-Faith Resolution. The Parties will use good-faith efforts to resolve any dispute, claim, or controversy arising out of or relating to this Agreement through direct discussion between authorized representatives of the Parties before initiating litigation.

20.03 Venue. Any unresolved dispute must be brought in a court of competent jurisdiction located in Travis County, Texas, and each Party irrevocably consents to the exclusive jurisdiction and venue of such courts.

Article XX. Miscellaneous

21.01 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement creates any partnership, joint venture, franchise, employment, or agency relationship between the Parties, and neither Party has authority to bind the other or incur obligations on the other’s behalf without prior written consent.

21.02 No Third-Party Beneficiaries. Except as expressly provided herein, no third party is a beneficiary of this Agreement, and no third party (including, without limitation, the insurance providers of either Party or the end-user customers of Customer) is entitled to enforce any provision of this Agreement.

21.03 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

21.04 Waiver. The failure of either Party to enforce any provision of this Agreement, or to exercise any right under it, is not a waiver of that provision or right. The waiver of any breach or default of this Agreement does not constitute a waiver of any subsequent breach or default.

21.05 Counterparts; Electronic Signatures. Service Orders under this Agreement may be executed in counterparts, including by hand signature, via electronic signature platforms such as DocuSign, or via the Company’s customer portal, Clearview. Customer agrees that Service Orders executed electronically — whether through DocuSign, the Clearview portal, or any other electronic signature method made available by the Company — have the same legal force and effect as hand-signed documents, and that all such Service Orders, regardless of how executed, together constitute one and the same instrument.

21.07 Survival. The provisions of Article IV (with respect to amounts owed), VII, VIII, XI, XIV, XIX, XX, XXII (where applicable), and any other provision that by its nature is intended to survive termination, will survive the expiration or termination of this Agreement.

Article XXI. Additional Terms for E-rate and Rural Healthcare Customers

22.01 General. This Article XXII shall apply only to Customers receiving (or seeking to receive) funding for the Services through the USAC Programs. To the extent any provision of this Article XXII conflicts with another provision of this Agreement, this Article XXII shall control with respect to Customers participating in either of the USAC Programs and the Services for which they receive (or seek) funding through those Programs. Provisions in this Article XXII that reference a specific USAC Program apply only to Customers participating in that Program.

22.02 Eligibility and Cooperation. Customer represents that it is an eligible school, library, or consortium under the E-rate program, or an eligible rural healthcare provider or consortium under the RHC Program, as applicable, and that Customer reasonably believes the Services ordered are eligible for funding under the applicable USAC Program. Customer shall cooperate in good faith with the Company in connection with all compliance matters arising under the applicable USAC Program, including (as applicable) the timely filing of FCC Form 471 (E-rate), FCC Form 462 or Form 466 (RHC), the Service Provider Identification Number (SPIN) selection, the BEAR (Form 472), SPI (Form 474), or Form 463 (RHC) invoicing process, FCC Form 486 (E-rate) or FCC Form 463 (RHC) confirmation of service receipt, and the response to any USAC inquiry, audit, or post-commitment review.

22.03 E-rate Billing Commencement. Notwithstanding Section 3.02 or Section 4.01, for E-rate-eligible Customers, the Initial term and billing of MRCs shall commence on the later of (a) the first day of the eligible E-rate billing period for the relevant Funding Year (typically July 1^st of the current funding year), and (b) the Service Commencement Date. NRCs and other one-time charges shall remain payable in accordance with the applicable Service Order. Notwithstanding the foregoing, if Customer agrees in writing to accept Services prior to the start of the eligible E-rate billing period, Customer shall pay for those Services in full at the non-discounted rate from the date of Customer’s acceptance of such Services through the commencement of the eligible E-rate billing period.

22.04 Funding Commitment Contingency. The Company’s obligation to provide Services at a discounted rate under any USAC Program is contingent on (a) Customer’s timely filing of all required forms and certifications, (b) issuance by USAC of a funding commitment (a Funding Commitment Decision Letter for E-rate, or a Funding Commitment Letter or comparable instrument for the RHC Program) approving funding for the Services, and (c) Customer’s timely filing of FCC Form 486 (E-rate) or FCC Form 463 (RHC) confirming receipt of service. The USAC Programs operate on a reimbursement basis. If the Company is not reimbursed in whole or in part by USAC for invoiced Services for any reason, including, without limitation, USAC denial, reduction, or rescission of funding; Customer’s failure to timely file required forms; or loss of eligibility. Customer shall remain responsible for payment of all amounts not reimbursed by USAC.

22.05 Non-Discount Share; State Matching Funds. Customer is responsible for paying the non-discount share of the Services as determined under the applicable USAC Program rules, in accordance with the payment terms set forth in Section 4.04. To the extent additional state or local funding programs are available and approved for the Services, Customer’s non-discount share may be reduced accordingly. Customer is responsible for timely filing all applications, certifications, and renewals required to qualify for and maintain eligibility under any such supplemental program, and the Company shall reasonably cooperate with Customer in providing documentation needed to support those applications. Customer remains responsible to the Company for any portion of the charges that is ultimately not funded by the applicable USAC Program or any such supplemental program.

22.06 USAC Invoicing. For E-rate Customers, Customer may elect either the BEAR (FCC Form 472) reimbursement method or the SPI (FCC Form 474) discount method for invoicing the discounted portion. If Customer elects SPI, the Company will invoice USAC for the discount portion directly. If Customer elects BEAR, Customer will pay the full undiscounted amount to the Company and seek reimbursement of the discount portion from USAC directly. For RHC Customers, the discounted portion is invoiced to USAC by the Company (or, where applicable, sought by Customer) via FCC Form 463 in accordance with USAC procedures. Until USAC approves the applicable invoicing process and the Company receives the applicable reimbursement from USAC, Customer shall remain responsible for paying the full undiscounted amount pursuant to Section 4.04. Following the Company’s receipt of reimbursement from USAC for amounts previously paid by Customer, the Company shall apply an appropriate credit to Customer’s account.

22.07 Voluntary Contract Extensions (E-rate). For E-rate Service Orders, the Initial Service Term may include up to five (5) voluntary one-year contract extensions, exercisable by Customer in accordance with the applicable FCC and USAC rules and as described in the original FCC Form 470 procurement. Each voluntary extension, when properly elected by Customer through a timely FCC Form 471 filing for the relevant Funding Year, may extend the Service Order for one (1) additional Funding Year on the terms of the Service Order then in effect, subject to USAC funding approval for the extension period.

22.08 Bandwidth Upgrades (E-rate). For E-rate Service Orders, Customer may request bandwidth upgrades during the term of the Service Order in a manner consistent with the scope of services described in the original FCC Form 470 bid request. Any such bandwidth upgrade will be memorialized in an amended or replacement Service Order executed by both Parties, will be subject to USAC funding approval, and may result in adjustments to MRC and NRC.

22.09 Document Retention. Customer and the Company will each maintain records relating to the Services, the procurement process, and the funding application under any applicable USAC Program for a minimum of ten (10) years from the later of (i) the last day of the applicable Funding Year or (ii) the last day on which Services were delivered under the Service Order, in accordance with applicable FCC and USAC rules. Each Party will cooperate with the other in responding to USAC, FCC, or other governmental inquiries, audits, or reviews relating to the Services.

22.10 Lowest Corresponding Price (E-rate). For E-rate Customers, the Company will charge Customer no more than the lowest corresponding price (as defined by FCC rules) for the Services, unless a waiver has been granted by the FCC or USAC.

22.11 Eligible Services Only. If the Company reasonably believes that any Service ordered is not eligible for funding under the applicable USAC Program, the Company will notify Customer prior to invoicing the discount portion, and the Parties will work together in good faith either to modify the Service to make it eligible or to remove the discount and invoice Customer at the non-discounted rate. In no event shall any ineligibility determination, modification, or removal of discount under this Section relieve or waive Customer’s obligation to pay all amounts due for the Services in full, including any portion not covered by E-rate funding.