RESIDENTIAL

BUSINESS

24/7 Customer Support: 541-754-PEAK (7325)

RESIDENTIAL

BUSINESS

24/7 Customer Support:
541-754-PEAK (7325)

Master Services Agreement

This MASTER SERVICES AGREEMENT (“Agreement”) dated as of                 (“Effective Date”) is by and between PEAK Internet, an Oregon corporation with offices at 1600 SW Western Blvd, Suite 160, Corvallis, OR 97333, (“PEAK”), and                        (“Customer”) (each a “Party” and collectively the “Parties”).

 

Customer desires to purchase from PEAK and PEAK desires to sell to Customer certain communications facilities, equipment, software and services (“Services”). This Agreement states the general terms and conditions by which PEAK shall provide and Customer shall receive such Services.

 

NOW, THEREFORE, Customer and PEAK, in consideration of the mutual conditions and covenants hereinafter described, agree as follows:

  1. Term and Renewals.

a. The term of this Agreement shall commence as of the Effective Date and shall expire, unless terminated earlier in accordance with this Agreement, upon the last termination or expiration of all Service Orders executed pursuant to this Agreement.

 

b. Each Service Order shall have its own term (“Service Order Term”), which shall commence and end on the dates set forth in the applicable Service Order, unless earlier terminated in accordance with the terms and conditions of this Agreement or the Service Order. Except as otherwise provided in the Service Order, each Service Order shall automatically renew for successive one (1) year terms, unless earlier terminated by either Party giving written notice to the other Party not less than sixty (60) days prior to the end of the Service Order Term or renewal term. In such case, the Service Order will terminate at the end of the current term.

  1. Services.

a. From time to time during the term of this Agreement, Customer may request Services from PEAK. Upon Customer’s request for Services, PEAK shall generate and deliver a Service Order for the provision of the Services to Customer for Customer’s review and approval.

 

b. In order for PEAK to prepare the Service Order, PEAK may request from Customer and Customer shall provide to PEAK all requested information and documentation, in a form reasonably specified by PEAK. If there are errors in the provided information or documentation, and such errors materially affect PEAK’s performance hereunder, then any associated costs shall be the responsibility of Customer, provided that PEAK has notified Customer before any additional costs are incurred. Any additional costs shall be paid within 20 days of receipt of an invoice from PEAK.

 

c. As a condition to PEAK’s agreement to provide the Services, PEAK may require Customer to make a deposit. The deposit shall be held by PEAK as security for payment of Customer’s charges or other sums due PEAK under the MSA. The deposit may be commingled with other funds of PEAK and will not be considered an advance payment to sums due PEAK. If PEAK applies any of the deposit to sums due, Customer will, immediately upon demand, replenish the deposit to its full amount. Upon termination of this Agreement, the amount of the deposit then remaining shall be credited to Customer’s account and any remaining credit balance shall be refunded to Customer within sixty (60) days.

 

d. Each Service Order shall, at a minimum, include:

 

i. a description of the Services to be provided;

 

ii. the fees for the Services;

 

iii. the Service Order Term;

 

iv. the desired date when the Services shall be activated; and

 

v. any other terms and conditions specifically applicable to the Services

 

e. PEAK shall not be obligated to provide any Services until the applicable Service Order has been signed by both Parties and returned to PEAK. Upon execution by both Parties, the Service Order shall become a part of and subject to all terms of this Agreement.

 

f. Following execution of the Service Order by both Parties, PEAK shall commence with design, installation, testing and activation of the Services. Upon completion of design, installation, testing and activation of each Service, PEAK shall notify Customer (which notice may be by e-mail, fax, or mail) that the Service is ready for Customer’s use. Customer’s obligation to pay for the

 

Services shall commence three (3) business days after PEAK has notified Customer via e-mail, fax or mail that the ordered Services are available for testing (“Service Activation Date”), unless within such time period Customer notifies PEAK that the Services do not meet the performance specifications agreed upon by the Parties. In the event that the Services do not meet performance specifications, PEAK shall use commercially reasonable efforts to remedy the issue in a timely manner and when remedied shall again notify Customer that the Services are available for testing and the process shall repeat.

 

g. If Customer desires to cancel a fully executed Service Order, prior to the Service Activation Date, Customer will be required to pay a charge equal to

 

i. any reasonable third party cancellation or termination charges; and

 

ii. PEAK’s actual reasonable out of pocket expenses, if any, incurred in designing, constructing, installing and testing the Services.

  1. Charges and Payment.

a. PEAK shall invoice Customer monthly for all charges set forth in the Service Orders. Billing shall begin on the Service Activation Date and shall continue on a monthly basis during the Service Order Term. PEAK may increase its charges after the end of the Service Order Term or any renewal term by giving sixty (60) days advance written notice to Customer.

 

b. Customer shall pay all charges for the Services within twenty (20) days after Customer’s receipt of PEAK’s invoice.

 

c. Except as otherwise set forth in the applicable Service Order, Customer shall pay all applicable federal, state and local taxes, and all sales, commercial, privilege, surcharges or other similar taxes (except for taxes for PEAK’s property, payroll, net profits or income, gross receipts or franchise fees), whether charged to or against PEAK or Customer.

 

d. PEAK reserves the right to impose a late payment charge of 1.5% per month (or the highest rate allowed by law, whichever is less) on any charges not paid by their due date, plus any costs of collection and reasonable attorney fees incurred whether or not suit is commenced.

  1. Billing Disputes.

a. In the event Customer disputes any charges, Customer shall pay all undisputed charges and submit written notice of the dispute to PEAK along with supporting documentation of the reason for the dispute. PEAK shall respond to Customer in writing within thirty (30) days of receipt of the dispute notice. Any dispute resolved in favor of Customer shall be credited to Customer’s account on the next invoice. Any disputed amounts which are deemed to be correct as billed and in compliance with this Agreement shall be due and payable by Customer on the next invoice following written notification by PEAK. Neither Party shall be obligated to consider any billing discrepancies received more than ninety (90) days following the invoice date. Any charges not disputed within ninety (90) days of the invoice date shall be deemed valid and accepted and shall be due and payable.

  1. Representations and Warranties.

a. PEAK represents and warrants to Customer the Services shall be provided:

 

i. in a professional and workmanlike manner, using qualified personnel; and

 

ii. in compliance with all applicable laws and regulations.

 

b. Customer represents and warrants to PEAK that Customer

 

i. shall use the Services solely for its own lawful, business purposes and in compliance with all applicable laws and regulations including, without limitation, prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, other offensive messages, or otherwise unlawful material;

 

ii. shall not use the Services in any manner which violates or infringes upon the rights of any third party (including without limitation, laws relating to copyright, trade secrets, privacy, libel, obscenity, and harassment) or in any other reasonably unacceptable manner;

 

iii. shall not resell, assign or otherwise provide the Services to others except as authorized in the Service Orders; and

 

iv. shall comply with the acceptable usage policies of PEAK, Customer and any other network service providers.

 

c. Each Party agrees that it will perform its obligations under this Agreement as an independent contractor and not as an agent, employee, of the other Party and that no joint venture or limited partnership is implied and nothing in this Agreement shall be construed to create such.

 

d. THE WARRANTIES SET FORTH IN THIS SECTION CONSTITUTE THE ONLY WARRANTIES PROVIDED BY PEAK, AND PEAK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES TO CUSTOMER. PEAK HEREBY EXCLUDES AND DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY EXPRESS OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF THE TRADE. CUSTOMER ACKNOWLEDGES PEAK HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

  1. Maintenance.

a. PEAK may from time to time during the term of this Agreement suspend the Services for routine maintenance or rearrangement. PEAK will make reasonable effort to give Customer a minimum of two (2) business days advance notice (via text, or e-mail) of such maintenance and PEAK shall use commercially reasonable efforts to ensure that such maintenance does not interrupt service to Customer or Customer’s customers. In the event of a need for emergency repairs PEAK shall provide as much notice as practicable. PEAK shall maintain a knowledgeable point of contact available twenty-four (24) hours a day, seven (7) days a week for Customer to report any degradation or interruption in the Services.

 

b. PEAK’s standard maintenance occurs on Wednesday 12:00 am to 06:00 am (pacific time).

  1. Access to Customer’s Premises.

a. Customer shall allow PEAK access to Customer’s facilities, equipment, software, services and property(“Customer’s Premises”) to the extent reasonably necessary for PEAK to provide the Services. Customer shall ensure that the Customer’s Premises are secure and safe from hazards to equipment and PEAK’s personnel. PEAK shall comply with Customer’s reasonable site and security regulations that are provided to PEAK.

 

b. Upon termination of a Service Order, Customer shall allow PEAK access to Customer’s Premises to the extent necessary for PEAK to remove its facilities and equipment.

  1. Intellectual Property.

a. All right, title and interest in and to the Service, and any modifications or derivatives of the Service, including but not limited to any data, technology, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trademarks, patents, industrial designs, know-how, show-how, Software and specifications owned, developed or licensed by PEAK, is expressly reserved to PEAK and its third party licensors and providers, except as otherwise set forth in this Agreement or an applicable Service Order.

 

b. All right, title and interest in and to any Customer content, including without limitation any and all materials and data owned, developed or licensed by Customer, including text, information, data, images, trademarks, and logos, any portion thereof, is expressly reserved to Customer, except as otherwise set forth in this Agreement of the applicable Service Order.

 

c. Neither Party shall use any intellectual property or trademarks, service marks, logos, or trade names (the “Marks”) of the other Party, and Customer shall not use any Marks of any supplier or subcontractor to PEAK, in any manner whatsoever, including without limitation in any advertising, marketing materials, website content, or brochures, without the other Party’s prior written consent. Each Party agrees that it shall only use any Marks of the other Party in strict compliance with the other Party’s instructions.

  1. Indemnification and Limitation of Liability.

a. Each Party shall indemnify and hold harmless the other Party, its agents, employees, directors, board, shareholders and any other representatives against all costs, losses, harm, damages and expenses (including without limitation reasonable legal fees and costs) which the indemnified Party may sustain or become liable for on account of injury to or death of persons, or on account of damage to tangible property, resulting from performance under this Agreement by the indemnifying Party or its employees, agents or subcontractors, to the extent such loss or damage is due to negligence, gross negligence or willful misconduct of the indemnifying Party or its employees, agents or subcontractors.

 

b.Customer shall defend, indemnify, and hold harmless PEAK, its agents, employees and suppliers, from and against any and all costs, losses, harm, damages and expenses (including without limitation reasonable legal fees and costs) arising out of or in any way relating to Customer’s use of the Services, including claims resulting from use of the Services by Customer’s customers and/or the content of any communications transmitted via the Services.

 

c. PEAK shall defend, indemnify, and hold harmless Customer, its agents and employees, from and against any claim or action brought against Customer which alleges that the Services infringes any Marks and PEAK shall pay damages awarded against Customer (including court costs and reasonable attorneys’ fees and costs) in connection therewith. The foregoing indemnity shall not apply if the alleged infringement is attributable to:

 

i. content supplied by Customer or any customer;

 

ii. the combination, operation or use of the Services in connection with any products or Services not provided by PEAK (the combination of which causes the infringement), or

 

iii. modification of the Services by any person or entity other than PEAK.

 

d. The indemnified Party shall promptly advise the indemnifying Party of any such claim or action and shall cooperate with the indemnifying Party, at the indemnifying Party’s expense, in the defense or settlement of such claim or action, provided that the indemnifying Party shall have sole control thereof. The indemnified Party may participate in the defense of any such claim or action at its own expense.

 

e. PEAK SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY LOST PROFITS OR LOST SALES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY PEAK. WITHOUT LIMITAION, PEAK SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE FOLLOWING: (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED CUSTOMER CONTENT, DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E) SERVICES, EQUIPMENT OR THIRD-PARTY EQUIPMENT NOT BEING AVAILABLE FOR USE BY CUSTOMER. PEAK’S AGGREGATE LIABILITY FOR ANY LOSSES OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES INCURRED AND SHALL NOT EXCEED THE CHARGES PAID TO PEAK BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO THE LIABILITY DURING THE PRIOR THREE (3) CALENDAR MONTH(S); PROVIDED THAT THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY ANY AMOUNTS DUE UNDER THIS AGREEMENT.

    1. Force Majeure.

 

a. If either Party’s performance of any obligation hereunder other than an obligation to pay money is delayed, prevented, obstructed or inhibited by any cause beyond that Party’s reasonable control, including, without limitation, acts of God or of the public enemy; governmental action or requirements; changes in governmental laws or regulations; earthquakes; fires; explosion; cable cut; floods or other catastrophes; epidemics, pandemics or quarantines; freight embargoes; war; terrorism; civil strife; insurrection; riot; materials shortages; supplier failures; or labor stoppages (each, a “Force Majeure Event”), then the affected Party shall promptly notify the other Party of the Force Majeure Event and shall be excused from performance to the extent delayed or prevented; provided, however, that the affected Party shall exercise commercially reasonable efforts to avoid or remove such cause of nonperformance and shall continue to perform to the extent reasonably possible, and provided further that any time for performance set forth in this Agreement shall be extended for a period equal to the period of any such delay.

 

b. PEAK’s performance or non-performance hereunder shall be excused to the extent that any wrongful or negligent act or omission of Customer or its employees and agents, including, but not limited to, any breach of this Agreement or Customer’s failure to provide access to the Customer’s Premises which affects PEAK’s performance and/or the availability of Services.

 

c. In the event that such Force Majeure Event continues for sixty (60) days, either Party may terminate the affected portion of the Services.

    1. Confidentiality.

a. From time to time during the term of this Agreement, one Party may disclose to the other Party certain information considered proprietary or confidential by the disclosing Party. As used in this Agreement, “Confidential Information” means any and all technical and business information (tangible or intangible), whether written, oral or graphic, that either Party may disclose or reveal to the other Party, including, but not limited to: financial plans and records; marketing plans; business strategies and relationships with third parties; customer lists and related information; information regarding Customer’s suppliers, founders, and Representatives (defined below); Intellectual property including but not limited to, present and proposed products, trade secrets, know-how, processes, computer software programs, software tools and descriptions of functions and features of software, source code, computer hardware designs, methods for systems integration, systems or software and any and all derivates of the foregoing and intellectual property rights associated therewith; and any and all other information the receiving Party is notified constitutes “Confidential Information” as provided below.

 

b. When disclosing tangible materials that disclosing or includes Confidential Information, the disclosing Party shall mark materials as “Confidential” or “Proprietary” (or the substantial equivalent thereof) prior to disclosure to the receiving Party. When disclosing Confidential Information orally or visually, the disclosing Party shall notify the receiving Party at the time of disclosure that such information constitutes Confidential Information. Following such disclosure, the disclosing Party shall provide the receiving Party with a written summary including a brief description of the Confidential Information that was disclosed orally or visually and any additional relevant identifying information, shall mark the summary as “Confidential” or “Proprietary” (or the substantial equivalent thereof) and shall deliver the summary to the receiving Party by the end of the month following the month in which the disclosure occurs.

 

c. Each Party agrees to protect the disclosing Party’s Confidential Information from disclosure to anyone other than the receiving Party, its affiliates and any of their directors, officers, managers, members, employees, agents and representatives who need to have access to such information in order for the receiving Party to perform its obligations under this Agreement (collectively “Representatives”). Prior to disclosing and Confidential Information to a permitted third party, the Disclosing Party shall advise the third party of the restrictions relating to disclosing the Confidential Information and require the third party to acknowledge receipt of the restrictions in writing. Each Party shall exercise the same degree of care used to protect the receiving Party’s Confidential Information of like importance and in any event no less than a reasonable degree of care. In furtherance of the foregoing, each Party agrees that Confidential Information will be used, and copies of Confidential Information will be made, only as necessary for performance of the receiving Party’s obligations under this Agreement. Within fourteen (14) days of a request by the disclosing Party, all Confidential Information, and all copies thereof, shall be destroyed or returned and not retained by the receiving Party or its Representatives and, upon request, the receiving Party shall furnish written confirmation that it has done so.

 

d. In the event the receiving Party is ordered to disclose the disclosing Party’s Confidential Information pursuant to a judicial or governmental request, requirement or order, the receiving Party shall, if permitted by law, immediately notify the disclosing Party and take reasonable steps to assist the disclosing Party in contesting such request, requirement or order or otherwise protecting the disclosing Party’s rights.

 

e. The Parties recognize and acknowledge that Confidential Information may have competitive value and that any use or disclosure of a Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable harm for which there is no adequate remedy at law. Accordingly, the Parties agree that in the event of any threatened or unauthorized disclosure by the receiving Party or any of its Representatives, the disclosing Party shall be entitled to injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of proving actual harm or posting bond, in addition to all other rights and remedies under this Agreement or otherwise available at law or in equity.

 

f. Notwithstanding anything to the contrary in this Agreement, the receiving Party shall not have any obligation with respect to any Confidential Information of the disclosing Party or any portion thereof which the receiving Party can establish:

 

i. is or becomes publicly available through no wrongful or negligent act of the receiving Party;

 

ii. was lawfully obtained by the receiving Party from a third party without any obligation to maintain the Confidential Information as proprietary or confidential;

 

iii. was previously known to the receiving Party without any obligation to keep it confidential; or

 

iv. was independently developed by the receiving Party.

  1. Insurance.

a. PEAK shall maintain at its sole expense commercial general liability Insurance for bodily injury and property damage with a $1,000,000 per Occurrence and $2,000,000 general aggregate; worker’s compensation insurance as required by Oregon law; and business automobile liability insurance for any owned, non-owned and hired automobiles with a limit of $1,000,000 per accident. At Customer’s request, PEAK further agrees to furnish Customer with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by Customer.

  1. Default and Termination.

a. A default shall occur if:

 

i. Customer fails to pay any amount within ten (10) days after the date such amount is due;

 

ii. Either Party fails to perform or observe any material term or obligation, other than making payment, in this Agreement or any Service Order, and such failure remains uncorrected for thirty (30) days after receipt of written notice from the non-defaulting Party of such failure;

 

iii. Either Party becomes insolvent, makes a general assignment for the benefit of creditors or files for bankruptcy.

 

iv. PEAK is ordered, by a federal, state or local governmental entity, regulatory body or court of competent jurisdiction, to cease providing the Services, whether generally or specifically to Customer;

 

v. changes in applicable law, regulation, decision, rule or order materially increase the costs to PEAK of, or materially affect other terms of, PEAK’s delivery of the Services, and PEAK and Customer are unable to reach agreement respecting new rates, terms and/or conditions regarding such Services within thirty (30) days after PEAK’s delivery of written notice requesting renegotiation thereof; or

 

vi. Either Party is verbally or physically abusive to, or verbally or physically threatens in any manner, the other Party’s personnel.

 

b. Upon default, the non-defaulting Party may, in addition to any other rights it has according to law:

 

i. suspend its performance under this Agreement or any Service Order so long as such default remains uncured; and/or

 

ii. terminate this Agreement upon 10 days written notice of termination to the defaulting Party.

 

c. If Customer is the defaulting Party, or terminates any Services prior to the end of the Service Order Term, Customer shall pay within sixty (60) days after such termination:

 

i. charges for all terminated Services provided by PEAK to Customer up to the date of termination;

 

ii. an amount equal to fifty percent (50%) of the sum of the monthly recurring charges for affected Service Order(s) for each full calendar month remaining in each then-current Service Order Term or renewal term;

 

iii. any waived setup fees and discounts applied to this Agreement or any applicable Service Order(s) during its Initial Term; and

 

iv. any termination charges payable by PEAK to a third party as a result of Customer’s termination of the Service Order, including but not limited to termination charges payable by PEAK for termination of a telecommunications circuit that was necessary to provide the Services to Customer. If PEAK is the defaulting Party, Customer shall only be responsible for charges through the date of termination.

  1. Assignment.

a. Neither Party may assign its obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Either Party may, however, assign its rights hereunder to either a company which purchases all or substantially all of its assets or an affiliate without the consent of the other Party.

    1. Notices.

a. Except as otherwise set forth herein, any notice required or permitted to be given hereunder shall be in writing and delivered by one of the following means:

 

i. by personal delivery;

 

ii. by email, effective upon receipt;

 

iii. by prepaid, overnight package delivery or courier Service; or

 

iv. by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid. Any such notice shall be effective three (3) days after the day it is mailed or upon receipt as evidenced by the U.S. Postal Service return receipt card, whichever is earlier, and upon receipt if given or confirmed via hand delivery or overnight courier Service. Notices shall be addressed as set forth below or to such other addresses of which the Parties hereto have been advised by notice pursuant to this Section.

 

Address Notices for PEAK:
PEAK Internet
1600 SW Western BLVD, STE 160
Corvallis, OR 97333
Tel: (541)754-7325
peaksupport@peakinternet.com

  1. Mediation; Arbitration.

a. In the event of a disagreement between the Parties relating to this Agreement or its performance, or any asserted breach thereof, the Parties shall attempt to negotiate a mutually satisfactory resolution within thirty (30) days. Should such negotiations fail, any dispute or claim that arises out of or that relates to this Agreement, or to the interpretation or breach thereof, or to the existence, validity, or scope of this Agreement shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties acknowledge that mediation helps parties settle their dispute and any Party may propose mediation whenever appropriate through Arbitration Service of Portland or any mediator selected by the parties.

 

b. Notwithstanding anything to the contrary herein, nothing shall prevent a Party from seeking injunctive relief from a court of competent jurisdiction pursuant to Section 11 of this Agreement.

  1. Attorney Fees.

a. In the event suit or action is brought, or an arbitration proceeding is initiated, to enforce or interpret any of the provisions of this agreement, or that arise out of or relate to this Agreement, the prevailing Party shall be entitled to reasonable attorney fees in connection therewith. The determination of who is the prevailing Party and the amount of reasonable attorney fees to be paid to the prevailing Party shall be decided by the arbitrator(s) (with respect to attorney fees incurred prior to and during the arbitration proceedings) and by the court or courts, including any appellate court, in which such matter is tried, heard, or decided, including a court that hears a request to compel or enjoin arbitration or to stay litigation or that hears any exceptions or objections to, or requests to modify, correct, or vacate, an arbitration award submitted to it for confirmation as a judgment (with respect to attorney fees incurred in such court proceedings).

  1. Amendment.

a. PEAK may modify the terms and conditions of this Agreement, including but not limited to the charges for PEAK’S Services at any time after providing 30 days written notice (which notice may be by email, fax, or mail) to Customer. If Customer disagrees with the amended terms and conditions, Customer shall notify PEAK. Customer’s continued use of the Services following the 30-day notice period shall constitute acceptance of the amended terms and conditions.

  1. Miscellaneous.

a. Notwithstanding anything to the contrary herein, this Agreement is not exclusive and shall not be construed to require PEAK to refrain from providing any Services in competition with Customer or to require Customer to refrain from acquiring any Services from a competitor of PEAK, unless expressly agreed in a Service Order.

 

b. This Agreement shall be governed by and construed in accordance with Oregon law jurisdiction and venue shall lie exclusively in Benton County, Oregon.

 

c. Any provision of this Agreement held or determined by a court or other legal authority of competent jurisdiction to be illegal, invalid or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective only to the extent of such holding or determination without invalidating the remaining provisions of this Agreement.

 

d. The failure by either Party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.

 

e. Section headings are inserted for convenience only and shall not be used in any way to construe the terms of this Agreement.

 

f. This Agreement, any Service Orders and all terms and conditions set forth therein or attached thereto, constitute the entire agreement between the Parties with respect to its subject matter and supersede all prior understandings and agreements.

 

g. In the event of a conflict between the terms and conditions of any Service Order and this Agreement, the terms of this Agreement shall control.

 

h. The parties acknowledge that they have had an adequate opportunity to review each and every provision contained in this Agreement, that they have participated equally in the drafting hereof and that they have had adequate time to submit same to legal counsel for review and comment. Based on said review and consultation, the parties agree with each and every term contained in this Agreement. Based on the foregoing, the parties agree that the rule of construction that a contract be construed against the drafter, if any, shall not be applied in the interpretation and construction of this Agreement.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.