Master Solutions Agreement

TS MASTER SOLUTIONS AGREEMENT (the “Agreement”) is entered into as of the last date signed by the Parties (the “Effective Date”) by and between TeleComp Holdings, Inc., an Arkansas Corporation whose principal address is located at 5104 S. Pinnacle Hills Pkwy, Ste. 200, Rogers, AR 72758 (“TeleComp”), and <CUSTOMER NAME> whose principal address is located at <CUSTOMER ADDRESS> (“Customer”).  (TeleComp and Customer are hereby collectively referred to herein as, the “Parties” and individually referred to herein as, a “Party”.)

WHEREAS, TeleComp designs, develops, manages, and/or provides certain technology and telecommunications products and services; and

WHEREAS, Customer desires to purchase one or more of TeleComp’s technology and telecommunications products and services; and

WHEREAS, TeleComp agrees to provide its technology and telecommunications products and services to Customer subject to the terms and conditions of this Agreement and each applicable statement of work related to the products and services being provided.

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties hereby agree as follows:

1. Definitions

The following capitalized terms shall have the meanings set forth below.

“Agreement” means this Master Solutions Agreement, as well as each Statement of Work made a part of this Master Solutions Agreement, and any modifications, changes, or amendments thereof.

“Equipment” any hardware, software, licenses, servers and ancillary equipment, telephones and other telecommunications products, office products such as photocopiers and fax machines, or other technology or equipment that is used in the creation, conversion, or duplication of data or information.

“Managed Solution” means any products, services, data, support, consultation, training, monitoring, maintenance, repair, enhancement, update, and/or any other services or systems developed, designed, furnished, supplied, provided, installed, or supported by TeleComp for the benefit of a Customer pursuant to this Agreement and to the extent provided in any applicable Statement of Work, related thereto.

“Proprietary Information” means all information concerning TeleComp’s specific manner of doing business, including, but not limited to, any processes, methods, models, manuals, formulations, configurations, know-how, ideas, or techniques utilized by TeleComp in providing any of its Managed Solutions or Equipment; any and all agreements, documents, data, records and other information with respect to the Managed Solutions or Equipment, including the terms of this Agreement; fees charged for the Managed Solutions or Equipment; specifications, system documentation, any hardware, software and software licenses relating to the Equipment; as well as any user manuals, user identification, passwords, codes, keys, security devices, policies and procedures, embedded algorithms, and other similar devices and information relating to the Manages Solutions or the Equipment.  Proprietary and Confidential Information does not include information relating to the Managed Solutions or the Equipment which is generally available and known to the public and its availability was not the result of wrongful or improper disclosure.

“Statement(s) of Work” or “SOW(s)” has the meaning set forth in Section 3 and specifically includes, but is not limited to, any “Service Schedule”, “Service Wireline”, or other document used by TeleComp from time to time to describe the applicable terms and conditions of the Managed Solutions being provided to the Customer.

1. Scope of Services and Products 

2.1        Provision of Managed Solutions. This Agreement sets forth the general terms and conditions governing TeleComp’s provision and the Customer’s use of any Managed Solutions referenced herein or in a Statement of Work applicable hereto.  TeleComp agrees to provide Managed Solutions to the Customer in the manner specifically described in, and subject to, the terms and conditions of each applicable Statement of Work.

2.2        Provision of Customer Equipment. TeleComp shall acquire and utilize, at the Customer’s expense, the hardware, software, systems, and procedures, including backup protection, necessary to provide the Managed Solution to the Customer. TeleComp will deliver and install Equipment at the Customer’s premises subject to conformity of the premises with the environment required for the Equipment and TeleComp’s standard practices and requirements.

2.3        Provision of Support Services.  TeleComp shall provide technical support and service assistance, both remotely and onsite, to the Customer for any Managed Solution TeleComp provides (“Support Services”). These Support Services are provided Monday through Friday from 8:00 am to 5:00 pm CST excluding Federal holidays.

2.4        Provision of Other Services, Products and Support.  TeleComp may, in its sole and absolute discretion, provide to the Customer additional services, products, Equipment, or other support that is not specifically established in this Agreement or a Statement of Work (“Other Solutions”).  A Customer’s request for Other Solutions may be made in writing or verbally and shall include any additional services, products, Equipment, or other support TeleComp determines is necessary to provide or complete the Other Solutions.   The Customer shall compensate TeleComp for the provision of any Other Solutions in the manner set forth in Section 7.3.

1. Delivery of Certain Services

3.1        Internet Access. Internet access service (“IAS”) shall be provided to the Customer subject to TeleComp’s or its supplier’s, Acceptable Use Policy. The Acceptable Use Policy generally provides that the Customer may not use the IAS to: (a) engage in illegal activity; (b) violate the network policies of any network accessed through the IAS; or (c) engage in any activity that interferes with other internet users use and enjoyment of the IAS.  The supplier’s Acceptable Use Policy may change periodically, and it is the duty, obligation, and responsibility of the Customer to review the Acceptable Use Policy from time to time and comply with any changes.

3.2        Personal Identifiers. TeleComp may assign telephone numbers, e-mail addresses and other personal identifiers at its discretion in connection with the provision of certain Managed Solutions.  Unless specifically granted by TeleComp to the Customer, Customer shall have no proprietary right, title, or interest in any such personal identifiers, and TeleComp reserves the right to change such personal identifiers upon advance notice to Customer.  In the event Customer requests that TeleComp transfer any personal identifiers to a third party, TeleComp shall be entitled to assess and charge the Customer a fee for such transfer.

3.3        Licenses.  During the Term of this Agreement, TeleComp’s license to the Customer for the use of any of TeleComp’s Proprietary and Confidential Information shall be in accordance with the applicable Statement of Work.  In addition, to the extent the Equipment used in providing the Managed Solution contains any licensed software, the Customer shall use the software solely for the intended purpose and its proper and lawful use of the Equipment and shall not violate any copyright or proprietary status of any software.

1. Standard of Care 

4.1        Delivery and Installation. TeleComp will deliver and install the Managed Solutions, Equipment, and/or software in accordance with TeleComp’s standard practices and requirements.  Customer shall be responsible for providing an environment that is compatible and suitable for the installation and use of the Managed Solutions, Equipment, or Software. This includes, but is not limited to, having appropriate cable installed, having a network that can handle the Managed Solutions, Equipment and/or Software at Customer cost.

4.2        Customer Network. If TeleComp determines that the Customer Network is causing quality and/or reliability issues with the Managed Solution(s), Equipment, or Software and TeleComp recommends actions to be taken (for example, TeleComp may recommend Customer purchase additional Managed Solutions such as firewall, switching, or other equipment from TeleComp or another vendor) and Customer chooses not to take those recommendations then Customer agrees that TeleComp will not be obligated to perform additional trouble shooting of the affected Managed Solutions, Equipment, and/or Software and that Customer may terminate the agreement subject to the provisions for Unauthorized Termination set forth in the Agreement.

4.3        Services Provided by Third Parties. The Managed Solutions, Equipment, and other products and services will be provided either by TeleComp or by its third-party vendors or contractors.  TeleComp reserves the right to change or modify the provider or source of any Managed Solution without notice to the Customer. TeleComp may elect to have some third parties invoice the Customer directly for the services or equipment the third party provides to the Customer.  In the event that a third party is used to provide a Managed Solution to the Customer, the total amount invoiced to the Customer shall not exceed the total charges and fees set forth in the applicable Statement of Work.

4.4        Risk of Loss. Upon delivery of any Equipment to the Customer, the risk of loss of the Equipment shall be borne by the Customer. 

4.5        Return Policy. All returns and exchanges of any Equipment must be in original condition and include all accessories. TeleComp does not accept returns or exchanges on computers, monitors, notebook computers, projectors, cables, phones, phone systems, phone system accessories, labor or any other product that does not specifically state that it is eligible to be returned on the Statement of Work. A restocking fee of 15% of the purchase price paid by the Customer will be charged on all returned Equipment.  If the Equipment is eligible for a return, the refund will be in the same form as original purchase, except cash, debit or check purchases over $250 will be refunded in the form of a check mailed to the Customer within 15 business days of receipt of the Equipment.

1. Statements of Work

5.1        Meaning and Purpose. As used herein, any statement of work, service addendum, work order, or other document describing the provision of any Managed Solutions to Customer under this Agreement shall be considered a “Statement of Work”.  In addition to the inclusion of the terms and conditions set forth in this Agreement, each Statement of Work shall include additional terms and conditions, including, but not limited to: (i) a description of the Managed Solution to be provided to Customer; (ii) any additional rights, obligations, prohibitions, or restrictions applicable to the Customer’s use of the Managed Solution; (iii) the fees and costs for the Managed Solution to be paid by Customer, excluding any applicable taxes or fees; (iv) except as provided below, the period of time for which the Statement of Work shall be effective; and (v) such additional terms and conditions as may be mutually agreed upon by TeleComp and Customer.

5.2        Enforcement and Amendment.  Each Statement of Work shall be executed by the Parties prior to the commencement of the Managed Solution.  Notwithstanding the foregoing, in the event that TeleComp in good faith delivers or provides any Managed Solutions to Customer and Customer accepts the delivery of the Managed Solution prior to the execution of this Agreement or a Statement of Work, the provisions of this Agreement and the applicable Statement of Work shall be deemed effective and enforceable according to their respective terms and conditions and the Parties shall use all commercially reasonable efforts to execute this Agreement and the Statement of Work in a timely manner.  Any amendments, changes, modifications, or alterations of any kind whatsoever shall be made either by a fully executed written amendment to the Statement of Work or by an email from an authorized representative of the Customer to TeleComp detailing the specific requested changes to be made with a confirmed receipt of acknowledgement from an authorized representative of TeleComp, approving the requested changes.

5.3        Conflict or Ambiguity.   In the event of any conflict or ambiguity between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of the Statement of Work shall prevail with respect to the subject matter of such Statement of Work.

1. Term and Renewal

6.1.       Initial Term. The initial term of this Agreement shall commence on the earlier of, the date upon which the Parties have fully executed the applicable Statement of Work associated with the Managed Solution provided to the Customer or the Customer’s acceptance of any Managed Solution provided by TeleComp (the “Commencement Date”).  It is the intention of the Parties that the provisions of this Agreement shall remain in full force and effect and shall be binding upon the Parties for so long as TeleComp provides the Customer any Managed Solution.  As such, the initial term of this Agreement shall coincide with the prescribed term set forth in each separate Statement of Work entered into by the Parties but if a Statement of Work does not provide for such term, the duration of this Agreement and the Statement of Work related to that Managed Solution shall be sixty (60) months from the applicable Commencement Date (the “Initial Term”).

6.2        Renewal Term and Hold-Over Term. Except as relates to changes in pricing, this Agreement and each applicable Statement of Work shall be automatically renewed for the same period of time as the Initial Term (the “Renewal Term”) unless either Party provides notice to the other Party in writing of its intent to not renew the applicable Managed Solution at least forty-five (45) days prior to the expiration date of the Initial Term or Renewal Term of the Agreement (“Non-Renewal Notice”).  At the end of the Renewal Term, this Agreement shall be automatically renewed on a month-to-month basis (“Hold-Over Term”) unless Customer provides TeleComp a Non-Renewal Notice at least forty-five (45) days prior to the expiration date of the Renewal Term or any Hold-Over Term.

6.3        Extended Term.  If the Customer provides to TeleComp the proper notice contemplated in Section 3.2, but nonetheless requests that TeleComp continue to provide the Managed Solution, TeleComp may, in its sole discretion, upon the expiration of the term continue to provide such Managed Solution on a month-to-month basis (the “Extended Term”).  The Extended Term for continuing the provision of the Managed Solution may be terminated by either Party upon thirty (30) days written notice to the other Party.  During the Extended Term, the Managed Solution will be provided subject to the terms and conditions of this Agreement and the applicable Statement of Work, except for the charges and fees for the Managed Solution which may be changed by TeleComp in its sole and absolute discretion.

1. Charges for Managed Solutions, Equipment, and Other

7.1        Charges for Managed Solutions. Customer is responsible for paying all fees and charges applicable to each Managed Solution, including but not limited to, access or other carrier or TeleComp assessed charges, airtime, features, installation, repair, restocking, toll, long distance, and directory, or operator assistance (all, the “Base Charges”).  In addition to the Base Charges, Customer is responsible for paying any taxes, surcharges, fees, and assessments imposed by TeleComp or any governmental authority in connection with the delivery or sell of the Managed Solution.  The Base Charges for the Managed Solutions will be included in the applicable Statement of Work, but the assessed charges, taxes, surcharges, fees and/or assessments will be in addition to the Base Charges and will be reflected on the Customer’s regular invoice.

The charges for the Managed Solutions shall remain in effect for the first year of this Agreement or the applicable Statement of Work. Thereafter, TeleComp shall have the right to increase its fees and charges once each year. TeleComp agrees that such increases will not exceed the increases in the “Consumer Price Index”. As used herein, the term Consumer Price Index means the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, All Urban Consumers (“CPI-U”); U.S City Average; All Items, not seasonally adjusted; Standard Reference Base (currently, 1982 – 184 = 100). These adjustments may be cumulative. In any event, the price increase will not be raised greater than TeleComp’s then-current standard prices applicable to all TeleComp Customers.

7.2        Charges for Purchase, Repair and Replacement of Equipment.  Unless and except as specifically provided in a Statement of Work, the Customer shall be responsible for any fees or charges for all Equipment required for the provision of the Managed Solution by TeleComp.  The expense for any routine repair and maintenance of any Equipment owned by TeleComp and used to provide the Managed Solution shall be borne by TeleComp.  The expense for any repair, maintenance, or replacement of any Equipment owned by Customer or due to or caused by the actions or inactions of the Customer, its employees, agents, representatives, invitees, or guests shall be borne by the Customer. TeleComp reserves the right, in its sole discretion, to repair or replace the effected Equipment which shall be at the expense of the Customer. 

7.3        Charges for Other Solutions. The Customer shall be responsible for any fees and charges incurred for any Other Solutions provided by TeleComp whether done so by verbal or written request of the Customer or its employees, agents, or representatives.  The Customer shall be responsible for any fees and charges related to any Equipment used in providing the Other Solutions.  Additionally, any Other Solutions provided to the Customer by TeleComp shall be billed to the Customer at TeleComp’s standard time and materials rates as may be in effect at the time the Other Solutions are provided. 

7.4        Billing Information. Customer represents and warrants that the billing address provided to TeleComp is correct and acknowledges that TeleComp is relying on this information to determine the appropriate taxes, fees and/or surcharges for the provision of the Managed Solution. Customer agrees to immediately notify TeleComp of any changes to its billing address.  In the event the Customer does not provide a valid address or change of address to TeleComp, the Customer shall be responsible for the expense of any additional taxes, fees, penalties, or surcharges for the Managed Solution. 

7.5        Payments. The Customer shall pay for all Equipment, labor, installation fees and the first and last monthly charge for the Managed Solution in full upon the execution of this Agreement and any applicable Statement of Work.  Thereafter, the Customer will be invoiced monthly for all fees and charges associated with the Managed Solution.  Payment in full is due no later than the earlier of the due date indicated on the invoice or within twenty-five (25) days of the date of the invoice. The first and last months payment will be applied from the date service is installed until the first of the following month and the last month will be applied from the time the service is disconnected until the end of that month. Monthly charges will not be prorated. If payment is authorized by credit card or bank account, no additional notice or consent of any kind is required prior to TeleComp charging the credit card or debiting the bank account for all amounts due.  TeleComp may accept late payments, partial payments, payments marked as being “payment in full”, or payments considered as settlement of any dispute without waiving any rights to full payment, termination, or other rights under this Agreement.  The Customer will pay all costs and fees TeleComp may incur in collecting any unpaid balance due to it.  The Customer further agrees that if TeleComp, in its sole discretion and option, concludes that the Customer’s credit worthiness has changed or other events have changed that affects the Customer’s perceived ability to pay as agreed, TeleComp can adjust the Customer’s monthly charge accordingly or discontinue the provision of the Managed Solution. 

7.6        Late Payments. If any portion of a payment is not received when due, is received after the payment due date, or is received in funds not immediately available (all referred to as a “Late Payment”), then without waiving any other rights TeleComp may have, a Late Payment penalty shall be due and added to the amount of the Late Payment.  The Late Payment penalty shall be the amount of the Late Payment multiplied by .000590 per day, compounded daily for the number of days from the payment date to and including the date received in immediately available funds, or the maximum lawful rate allowable by law, whichever is lower, along with any fees for collection. 

7.7        Disputed Invoices.  Any dispute with respect to an invoice or a portion of an invoice must be made in good faith and must be disclosed to TeleComp in writing specifying the basis for the dispute within fifteen (15) days of the invoice date or all disputes shall be waived. If Customer complies with this process, Customer may be required, in TeleComp’s sole and absolute discretion, to place the disputed amount into an escrow account with a third-party mutually agreed upon by the Parties until the dispute is resolved. 

7.8        Credits and Deposits. Customer authorizes TeleComp to obtain any available credit information or history about the Customer from any reputable credit-reporting agency. TeleComp, in its sole and absolute discretion, may require Customer to submit a deposit as security for payment of and fees and charges.  An additional deposit may be required if either the amount or number of Managed Solutions is increased or the Customer’s credit rating changes. Simple interest will be paid on the cash deposit for the period it is held by TeleComp and will be refunded if satisfactory credit has been established or upon termination of the Managed Solution.  TeleComp reserves the right to apply the deposit to any amount due and unpaid.  TeleComp, in its sole and absolute discretion, may require a guarantee of payment by an individual or entity approved by TeleComp at any time during the Term of this Agreement. 

7.9       Start and End Date for Service Billing. In the event TeleComp utilizes a Third Party Supplier to provide a Circuit or Fiber connection in which the sole use of that circuit is to provide service to Customer, the Customer will be responsible for paying the monthly cost of Customers Service with TeleComp during every period that TeleComp is billed by the Third Party Supplier even if Customer is not utilizing the service, but the service is available for Customers use.

1. Default and Termination

8.1        Notice of Default. In the event of any default or breach by a Party of any term, condition, obligation, covenant, representation or warranty contained in this Agreement, the other Party shall give written notice thereof to the breaching or defaulting Party (the “Offending Party”), and the Offending Party shall have a period of thirty (30) days within which to cure or correct such breach or default, except in the case of a breach or default in the payment of money in which case such period shall be ten (10) days. The Offending Party shall utilize its best efforts to cure the default as soon as reasonably possible. If the default (excepting default in the payment of money) cannot be cured within thirty (30) days from date of receipt of the notice thereof, the Offending Party shall have additional, reasonable time to cure such default. This additional time shall not exceed ninety (90) days without the written consent of the other Party, which consent shall not be unreasonably withheld. If the Offending Party fails to cure the default or breach within the period of time provided herein, the other Party shall have the right to terminate this Agreement.  In the event of termination due to the Customer’s default, all payments due to TeleComp, including but not limited to the liquidated damages set forth in Section 8.5, shall be due and payable to TeleComp at the time of the termination. 

8.2        Termination by TeleComp. TeleComp may limit, interrupt, terminate, (and in the case of Equipment enter upon the Customer’s premises and repossess), sell and apply the proceeds of such sale to any amounts due and payable to TeleComp by the Customer, if Customer: (a) does not honor any provision of this Agreement or Statement of Work; (b) uses a Managed Solution in a manner that adversely affects service to other Customer(s) or employees; (c) or other parties related to Customer use a Managed Solution to engage in fraud or unlawful conduct or are suspected of doing so; (d) uses the Managed Solution in a manner that is excessive or unreasonable with respect to volume or length of calls when compared to the predominant volume or length of call of other Customers on a similar rate plan or in the same geographic area; (e) resell any Managed Solution or uses it to aggregate the traffic of other persons.  TeleComp may restore or redeliver interrupted, repossessed, or terminate the Managed Solution, in its sole discretion, following correction of the violation and payment of any amounts due, including any applicable restoration charge. 

8.3        Termination Upon Insolvency or Other. If the Customer is declared insolvent by any state or federal regulatory agency, this Agreement shall automatically terminate upon the declaration of insolvency and TeleComp shall become immediately entitled to all payments due to it, including but not limited to, the liquidated damages set forth in Section 8.5. Notwithstanding the foregoing, if the Customer is declared insolvent but is not liquidated, TeleComp will, only as an accommodation, make its Managed Solutions available to Customer for thirty (30) days following the date of insolvency and the continued use of its Managed Solutions thereafter by any new owner or successor in interest shall be deemed an acceptance and assumption of this Agreement under the terms and conditions set forth herein. In the event of any material change to the Customer’s current business operations including, but not limited to, staffing reductions or a material change in the address or location at which TeleComp is providing the Managed Solutions, TeleComp may, in its sole and absolute discretion, terminate the affected Managed Solution and shall become immediately entitled to all payments due to it, including but not limited to the liquidated damages set forth in Section 8.5.

8.4        Unauthorized Termination by Customer.    If the Customer terminates this Agreement or a Statement of Work prior to the Commencement Date of the Initial Term or prior to the expiration date of the Initial Term or any Renewal Term, except as provided in Section 6.2 or 6.3, and the termination is for any reason other than TeleComp’s failure to cure a default under Section 8.1, all payments due TeleComp, including but not limited to the liquidated damages as defined in Section 8.5, shall be due and payable to TeleComp at the time of termination.

8.5        Liquidated Damages. In the event of TeleComp’s termination of this Agreement as provided herein or in the event of an Unauthorized Termination by the Customer, the Customer shall pay to TeleComp as liquidated damages an amount based upon the number of months remaining under the applicable Term of the Agreement, as follows:

1. If the termination takes place with sixty (60) months or more remaining under the applicable Term, the liquidated damages shall be calculated as the product of ninety percent (90%) of the then-current monthly charges to the Customer multiplied by sixty (60); or 

1. If the termination takes place with less than sixty (60) months remaining under the applicable Term, the liquidated damages shall be calculated as the product of ninety percent (90%) of the then-current monthly charges to the Customer multiplied by the remaining number of months under the applicable Term.

(Strictly by way of example and for the avoidance of confusion or doubt, if Customer terminates the Agreement or a Statement of Work five (5) months prior to the expiration of the Term for a Managed Solution that is billed to the Customer at $1,200 per month after taxes and fees; the liquidated damages payment would be $5,400 which is calculated as $1,200 X 90% = $1,080 x 5 = $5,400.) 

If the Customer terminates this Agreement prior to the Commencement Date of the Initial Term, the full Term specified in Section 6.1 of this Agreement shall apply. If the Customer terminates this Agreement at the expiration date of the then applicable Term without forty-five (45) days’ advance written notice to TeleComp, the next full Term specified in Section 6.2 of this Agreement shall apply. 

The Customer acknowledges and agrees that: (i) the damages or losses which would be sustained by TeleComp by reason of the termination are uncertain and difficult to ascertain, and that the amount determined hereunder represents a reasonable method of estimating such damages or loss; (ii) the amount determined hereunder is a reasonable estimate of the damages or losses which would be sustained by TeleComp by reason of the termination; (iii) the amount determined hereunder is reasonably proportionate to the damages or losses that would be sustained by TeleComp; and (iv) the amount determined hereunder is in the nature of liquidated damages and is not nor at any time should it be deemed or construed a penalty. 

8.6        Equipment Return Charges.  In the event of TeleComp’s termination of this Agreement or any Statement of Work for reason of the Customer’s default, or in the event of an Unauthorized Termination by the Customer for purchase or renting of Equipment, the Customer shall be required to pay the entire unpaid purchase or rental price, as applicable, of the Equipment plus any costs incurred by TeleComp for restocking, returning, and repossessing the Equipment and any costs incurred by TeleComp for making the Equipment ready, including packaging, shipping, installing and delivery to The Customer.  In addition, Customer will remain liable for the payment of all outstanding charges for all services used prior to termination. 

8.7        Bundled Managed Solutions.  If the Customer receives from TeleComp a discounted price for the delivery of any Managed Solutions based on receiving more than one or a combination of Managed Solutions or other services (a “Bundle”) and subsequently terminates, disconnects, or unbundles the Bundle, then the price for any remaining Managed Solutions shall be automatically adjusted to TeleComp’s then-current monthly charges and fees for such Managed Solution.

1. Dispute Resolution

9.1        Informal Dispute Resolution Procedure. If any dispute, controversy, or claim should arise concerning, connected with, or relating to this Master Agreement or a Statement of Work, Service Wireline or Service Schedule, the breach, termination, validity, interpretation or enforceability of any provision thereto, or the performance by either TeleComp or Customer of its obligations under or pursuant to this Master Agreement or a Statement of Work, Service Wireline, or Service Schedule (a “Dispute”), then, prior to, and as a condition of either Customer or TeleComp’s right to initiate any formal legal action, the Parties will attempt in good faith to resolve the Dispute informally.  If any portion of the Dispute remains unresolved twenty-one (21) business days following the initial written notice for dispute resolution (or such longer or shorter period as they may agree in writing), either Party may initiate a binding arbitration proceeding. The Parties hereby waive the expiration of any applicable statute of limitations during this informal dispute resolution process and for the thirty (30) days next following. 

9.2              Arbitration. TeleComp and Customer stipulate and agree that if they are unable to resolve any controversy arising under this Agreement as contemplated by Section 5.1, then such controversy, and any ancillary claims not so resolved and not so subject, shall be submitted to mandatory and binding arbitration at the election of either Party (the “Disputing Party”) pursuant to the following conditions: 

9.2.1     Selection of Arbitrator. The Disputing Party shall notify the American Arbitration Association (“AAA”) and the other Party in writing describing in reasonable detail the nature of the dispute (the “Dispute Notice”), and shall request that AAA furnish to the Parties a list of five (5) possible arbitrators who shall be licensed to practice law in the United States, who shall not have any conflict of interest, and who shall have at least five (5) years of experience in related matters. Each Party shall have fifteen (15) days to reject two (2) of the proposed arbitrators. If one individual has not been so rejected, he or she shall serve as arbitrator; if two (2) or more individuals have not been so rejected, AAA shall select the arbitrator from those individuals. 

9.2.2     Conduct of Arbitration. Arbitration will be conducted by the arbitrator selected pursuant to Section 5.2.1 with respect to the dispute described in the Dispute Notice and any other disputes related to this Agreement between the Parties (i) pending at the inception of such arbitration and not otherwise being arbitrated under this Section 5.2; or (ii) arising during the pendency of such arbitration, in accordance with the Commercial Arbitration Rules of the AAA, except as specifically provided otherwise in this Section 5.2. The arbitrator will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator will have no power or authority, under the Commercial Arbitration Rules of AAA or otherwise, to amend or disregard any provision of this Section 5.2. The arbitration hearing shall be limited to not more than ten (10) hearing days, with each of TeleComp and Customer being allocated one-half of the time for the presentation of its case. Unless otherwise agreed to by the Parties, an arbitration hearing shall be conducted on consecutive business days. 

9.2.3     Replacement of Arbitrator. Should the arbitrator refuse or be unable to proceed with arbitration proceedings, the arbitrator shall be replaced by an arbitrator selected from the other four (4) arbitrators originally proposed by AAA and not rejected by the Parties, if any, or if there are no remaining proposed arbitrators who have not been rejected, by repeating the process of selection described in Section 5.2.1 above. If an arbitrator is replaced pursuant to this Section 5.2.3, then a rehearing shall take place in accordance with the provisions of this Section 5.2 and the Commercial Arbitration Rules of AAA. 

9.2.4     Findings and Conclusions. The arbitrator will have the authority to grant any temporary, preliminary, or permanent injunctive or other equitable relief in a substantially similar form that would otherwise be granted by a court. The arbitrator will have no authority to award punitive or consequential damages. The resulting arbitration award may be enforced by all lawful remedies, including without limitation injunctive or other equitable relief in any court of competent jurisdiction. Each Party will pay the fees of its own attorneys and the expenses of its witnesses. All other costs and expenses of the arbitration will be borne equally by the Parties. The Parties agree that the arbitrator’s opinion shall be a confidential document subject to the confidentiality obligations contained herein. 

9.2.5     Place of Arbitration Hearings. Arbitration hearings shall be held in Rogers, Arkansas. 

9.2.6     Proprietary Information Protection.  The existence, extent, and enforcement of TeleComp’s protection of any Proprietary Information shall not be required to be, but may be in its sole and absolute discretion, subject to any of the terms and conditions of the preceding provisions of this Section 9 and TeleComp may seek relief and enforcement, as well as related damages for any claim, concerning its Proprietary Information in any court of competent jurisdiction.

1. Privacy, Proprietary Information, Limitation of Liability and Warranties

10.1      Privacy and Customer Network Information. Customer authorizes TeleComp to monitor and record communications regarding Customer’s account for the Managed Solution for purposes of quality assurance, support, or to assure compliance with the terms of this Agreement.  TeleComp need not provide Customer notice of any subpoenas or court orders related to the Customer’s account or use of the Managed Solution unless required by law.  Information in TeleComp’s billing, ticketing and customer care systems concerning the Customer’s account and use of the Managed Solutions belongs to TeleComp, and Customer has no expectation of privacy with respect to such information.  Customer agrees that TeleComp may release information about Customer when required to do so by law, to provide to third parties for the purpose of assisting in providing any Managed Solution to Customer, or if TeleComp reasonably believes that an emergency involving immediate harm to a person or property requires disclosure.  TeleComp may analyze Customer’s account and usage information and share this information with other affiliated entities to communicate with Customer regarding Equipment or other services that may be available. 

10.2      Protection of Proprietary Information.  The Customer understands, acknowledges, and agrees that the provision, performance and delivery of the Managed Solutions and Equipment include Proprietary Information used by TeleComp and any disclosure thereof to third parties will result in substantial monetary loss and irreparable damage to TeleComp. The Customer agrees not to disclose such Proprietary Information to any third party, nor to make any use of them not contemplated by this Agreement or Statement of Work, and to treat the same confidentially and to safeguard them. All Proprietary Information including any user manuals, computer tapes, disks, programs, specifications, and enhancements developed in connection with the services are and shall remain at all times during and after the term of this Agreement the exclusive property of TeleComp. 

10.3      Theft and Fraud. TeleComp shall not be responsible or liable if service is lost or stolen or fraudulently used and Customer is responsible and shall hold TeleComp harmless for all usage, costs, fees, liability, and charges incurred before TeleComp receives notice from Customer of such loss, fraud, or theft.  Customer is responsible for taking security measures to safeguard all Managed Solutions and Equipment and acknowledges that TeleComp is not liable for the fraudulent use of the Managed Solution or Equipment or toll fraud resulting in not taking these security measures.  Customer will cooperate in the investigation of fraud or theft and provide TeleComp with such information and documentation as TeleComp may request (including affidavits and police reports). 

10.4      Limitation of Liability. TELECOMP’S LIABILITY TO THE CUSTOMER REGARDING THE MANAGED SOLUTIONS OR EQUIPMENT, THIS AGREEMENT, OR THE CUSTOMER’S FAILURE OF OR INABILITY TO USE THE MANAGED SOLUTIONS OR EQUIPMENT, IS LIMITED TO THE CHARGES CUSTOMER INCURS FOR THE MANAGED SOLUTIONS OR EQUIPMENT DURING THE AFFECTED PERIOD.  TELECOMP SHALL NOT BE LIABLE FOR ANY INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), PUNITIVE OR EXEMPLARY DAMAGES, OR ATTORNEYS’ FEES. 

10.5      Disclaimer of Warranties TELECOMP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE MANAGED SOLUTIONS OR EQUIPMENT AND DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  TELECOMP IS NOT RESPONSIBLE, IN ANY EVENT, FOR CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING WITHOUT LIMITATION ACTS OF OMISSIONS OF OTHER, ATMOSPHERIC CONDITIONS, OR ACTS OF GOD.  TELECOMP DOES NOT PROMISE UNINTERRUPTED OR ERROR FREE SERVICE.  TELECOMP DOES NOT MANUFACTURE ANY EQUIPMENT OR SOFTWARE THAT CUSTOMER MAY USE IN CONNECTION WITH THE MANAGED SOLUTIONS, AND CUSTOMER’S ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO EQUIPMENT OR SOFTWARE ARE THOSE PROVIDED BY THE MANUFACTURER (WITH RESPECT TO WHICH TELECOMP SHALL HAVE NO LIABILITY WHATSOEVER).

1. Miscellaneous 

11.1      Force Majeure. Except for the payment of money by Customer for services performed, and each Party’s right to terminate as provided in Section 3, if the performance of any part of this Agreement or applicable Statement of Work by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial, regulatory or governmental action, labor disputes, act of God, communication line failures, or any other causes beyond the reasonable control of either Party, then that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes. 

11.2      Choice of Law. This Agreement shall be governed by and interpreted under the laws of the State of Arkansas without giving effect to any choice of law rules. Any action or proceeding arising from or in connection with this Agreement shall be brought solely in the federal or state courts located in Benton County, Arkansas, and each of the Parties hereto hereby consents to the jurisdiction of that court for any such action or proceeding. The prevailing Party in any such action shall be entitled to an award of its attorneys’ fees and costs, whether such action is reduced to judgment. 

11.3      Advertising or Publicity. TeleComp may use the name, marks, and trade name of Customer in any publicity, releases, commercials, advertising and has no obligation to inform Customer or gain Customer’s approval prior. 

11.4      No Hire Agreement. The Customer agrees that it will not, at any time during the term of this Agreement or for a period of twelve (12) months after the termination hereof, hire or attempt to hire any current employee of TeleComp and further agrees to not hire any former employee of TeleComp if that employee was employed by TeleComp within the last four (4) months, even if Customer has not had direct contact with such Employee. The Customer agrees to pay TeleComp liquidated damages equal to 1-year annual gross salary of each and any employee hired by Customer in violation of the terms and provisions of this Section 11.4. The Customer and TeleComp agree that this amount is the estimated cost to TeleComp of hiring, training, and making productive a new employee. 

11.5      Security Interest. The Customer grants TeleComp a first priority purchase money security interest and lien in Equipment and all of Customer’s right, title, and interest therein, together with any accessories, additions, substitutions and replacements, to secure payment of the balance of the purchase price owed.  The Equipment shall be deemed and remain personal property even if attached to real property.  Upon request, Customer will execute any documents that may be necessary to perfect or continue the security interest provided herein and Customer authorizes TeleComp to file such documents to perfect that security interest. 

11.6      Governmental Approval.  In the event this Agreement is required by law to be filed with and approved by a governmental authority before it can be binding and effective, it will be effective upon the earlier date allowed by law of either (i) date specified herein or (ii) the date approved by the government authority. 

11.7      Accepting Services. The Customer agrees that by using any service or equipment or allowing the installation of services or equipment provided by TeleComp that Customer will be bound to the terms of this Master Agreement even if Customer has not signed the Agreement or signed an applicable Scope of Work, Service Schedule, or Service wireline for a particular product or service. 

11.8      Material Change. A Material Change is any change that: (a) terminates or substantially reduces the availability of a Managed Solution; or (b) except as provided in Section 7.1, results in the increase of any charge by more than Thirty percent (30%) of the regular charge for that Managed Solution, excluding taxes, fees, and surcharges.  Material Changes DO NOT include the increase in, or imposition of: (c) any charge as provided in Section 7.1 of this Agreement; (d) any charge required to be collected by any governmental authority; or (e) any charge permitted to be collected by TeleComp or any governmental authority to recoup expense for the provision of a service required by that governmental authority. If Customer does not accept a Material Change, Customer may terminate the Agreement solely for the affected Managed Solution by providing TeleComp written notice with Thirty (30) days after notice of the change and Customer will not be subject to an early cancellation fee or liquidated damages.  The Customer will continue to be responsible for all fees and charges for the terminated Managed Solution at the prior rate until the service is stopped. 

11.9      Emergency Services.  The Customer expressly acknowledges and understands that certain Services, customer premise equipment, means of communication and Service configurations, including but not limited to, voice over internet protocol (VOIP), virtual services, and softphones, may not provide access to 911 services or may not transmit the location or extension of Customer in the event of an emergency and attempt to access 911 services.  The Customer expressly assumes all responsibility and risk of harm, loss, or damage in the event that 911 access fails, is not possible or does not provide the address, correct address, extension, or other information. 

11.10    Assignment. TeleComp may assign this Agreement and its rights and responsibilities hereunder to another entity without any advance consent from or notice to Customer.  The Customer may not assign this Agreement without TeleComp consent.  Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.

11.11    Severability.  If any provision of this Agreement is determined to be invalid, the offending provision shall be deemed severed from this Agreement and the determination shall not affect the validity of any other clause or provision of this Agreement, which shall remain in full force and effect, or constitute any cause of action in favor of either party against the other.

 11.12    No Implied Waiver. Any delay or failure of either party at any time to require performance by the other party of any provision of this Agreement shall not in any way affect the right of such party to require performance. Any waiver by either party of any breach of any provision of this Agreement shall not be construed to be a waiver of any subsequent breach or of any other right under this Agreement.

11.13    Modifications. Any modifications of this Agreement or a Statement of Work shall be in writing and duly executed by the Parties.

11.14    Notices. Any notice, request, instruction, or documents required or permitted hereunder shall be in writing and shall be deemed given if delivered personally or by courier service or sent by telex, telecopy, or other telecommunication device capable of creating a written record (and promptly confirmed by hard copy delivery} to a party at the address set forth in the first paragraph of this Agreement.

11.15    Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which, together shall be one and the same agreement.

11.16    Entire Agreement. This Agreement, including the Statements of Work, contains all the terms and conditions agreed upon by the Parties, and supersedes all prior and contemporaneous negotiations, representations, understandings, and other agreements, oral or otherwise, that may have been entered into by the Parties. All other statements, conditions, covenants, representations, and warranties are merged herein.

IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the Effective Date set forth above.

TELECOMP:                                                                             CUSTOMER:

TeleComp Holdings, Inc.                                                         Customer Name

By: ___________________________                                          By: ______________________________

Name: ________________________                                          Name: ___________________________

Title: __________________________                                         Title: _____________________________

*Last updated March 2024