Service Solicited - 2015 - Zayo - Zayo Service AgreementMASTER SERVICE AGREEMENT
This Master Service Agreement ("MSA") is made ellective as of 4-J cI, 201?("Effective Date") by and between
Zayo Group, LLC, a Delaware limited liability company, and its affiliates and subsidiaries with an address of 400
Centennial Parkway, Suite 200, Louisville, CO 80027 ("Zayo") and Customer Name, a corporation/limited liability
company/partnership (select one) in the State of Insert State, with an address of -,:=-....,,_-::-________ _
("Customer"). Each may be referred to herein as a "Party" and collectively as the "Parties."
ARTICLE 1 -GENERAL
1.1 Agreement Structure. The purpose of this MSA is to provide general terms, conditions and a framework
within which Customer may from time to time purchase certain telecommunications and related infrastructure
services ("Services") from Zayo for its use and/or for resale to its customers ("End User Customers"). Additional
terms and conditions that apply to each type of Service are set forth in service schedules (each a "Service
Schedule"), and each such Service Schedule executed by Customer shall become part of this Agreement. In the
event that Customer purchases a Service without executing the applicable Service Schedule, such Service shall be
governed by Zayo's standard Service Schedule for that Service. This MSA, the applicable Service Schedules and
Service Orders (as defined in Section 1.2 below) and any other attachments incorporated therein shall collectively be
referred to as the "Agreement." The Services and the respective Service Schedules available to Customer are: (i)
Ethernet and IP Services, (ii) Wavelength and Sonet Services, (iii) Dark Fiber Services, (iv) Data Center Services and
(v) Colocation Services.
1.2 Orders for Services. Customer may request Zaya to provide a Service by submitting a service order in a
form provided by Zayo from time to time ("Service Order") in accordance with the procedures set forth in this
Agreement. Customer acknowledges and agrees that Customer is solely responsible for the accuracy of all Service
Orders and other information that it provides to Zayo. Each accepted Service Order shall incorporate by reference,
and shall be subject to, the terms and conditions of this Agreement and the applicable Service Schedule. Service
Orders shall clearly set forth the term, pricing, service type and location(s), monthly recurring charge ("MRC"), non-
recurring charge ("NRC"), and any additional specific terms for the Services. All Service Orders shall be subject to
availability and acceptance by Zayo.
1.3 Order of Precedence. In the event of an express conflict between a term(s) of this MSA and the term(s) of
any Service Schedule and/or Service Order, precedence will be given in the following order: (a) the State of Idaho
Standard Contract Terms and Conditions (b) the Service Order but solely with respect to the Service covered by that
Service Order and provided that an authorized representative of Zayo has executed such Service Order; (c) the
Service Schedule but solely with respect to the Service covered by that Service Schedule; and (d) this MSA.
ARTICLE 2 -PAYMENT TERMS
2.1 Credit and Deposit. If requested by Zayo, Customer shall complete and submit Zayo's standard credit
application. Zayo may from time to time conduct a review of Customer's credit rating and payment history. Zayo may
require Customer to pay a deposit before acceptance of a Service Order. Additionally, for any existing Services,
Zayo may require (i) Customer to pay a deposit or (ii) an increase in the existing deposit, upon the failure of Customer
to submit payment of any amount by the Due Date as a condition to the continued provision of such existing Services.
Zayo shall refund any amount of deposit paid pursuant to this Section, less any amount for payments that Customer
still owes to Zayo, when Zayo determines in good faith , based on Customer's credit rating and payment history, that
such deposit is no longer necessary to ensure payment, but in no event later than after the termination of all Services
and termination of this Agreement.
2.2 Billing Commencement. Zayo may commence billing and Customer shall be liable for payment for
Services upon the Service Activation Date as defined in the applicable Service Schedule.
2.3 Invoicing and Payment Terms. Zayo will provide Customer with a monthly itemized invoice, in advance,
for the Services together with all other charges due. All amounts due Zayo are payable in full within thirty (30) days
from date of invoice ("Due Date"). Invoice amounts not paid on or before the Due Date shall bear interest at the rate
of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is lower. Unless otherwise stated
in the Service Order or Service Schedule, Zayo shall invoice Customer for any NRC upon acceptance of a Service
Order.
2.4 Invoice Disputes. To the extent that Customer disputes any portion of an invoice, Customer shall notify
Zayo in writing and provide detailed documentation supporting its dispute within forty-five (45) days of the invoice
date or the Customers right to any billing adjustment shall be waived. In the event of a billing dispute, Customer
Master Service Agreement (Ver. 4.24.2014)
Confidential and Proprietary
Page 1 of 5
DocuSign Envelope ID: E1F2CDF3-1547-414E-8F7A-BC75551F327E
shall timely pay all undisputed amounts. If the dispute is resolved against Customer, Customer shall pay such
amounts due plus interest as .set forth in Section 2.3 from the date the payment was originally due. A dispute may not
be based upon a claim that all or a portion of the charges for the Services were incurred by unauthorized users.
ARTICLE 3 -TERM
3.1 MSA Term. This MSA shall be in effect for a period of five (5) years from the Effective Date ("Initial Term")
unless terminated earlier as otherwise provided for in this MSA, and shall automatically renew for one (1) year
periods thereafter (each a "Renewal Term" and together with the Initial Term, shall be referred to as the "Term") until
either Party notifies the other Party of its intent not to renew the MSA at least ninety (90) days prior to the end of the
Initial Term or any Renewal Term. Notwithstanding the foregoing, in the event that any Service Order remains in
effect following such termination, this MSA shall govern and continue in effect with regard to such Service Order until
the termination of such Service Order.
3.2 Service Order Term. The term of each Service Order shall commence on the Service Activation Date for
such Service and continue for the period of time specified in that Service Order and thereafter shall automatically
renew for one (1) year periods (collectively, the "Service Term") until terminated by either Party upon at least ninety
(90) days written notice prior to the end of the Service Term. Customer shall continue to be responsible for payment
to layo for the Services to be terminated through the end of the ninety (90) day notice period. Following the initial
Service Term stated in any Service Order, Zaya reserves the right to increase rates for any Services provided
thereunder upon at least thirty (30) days' notice.
ARTICLE 4 -DEFAULT; SUSPENSION OF SERVICE
4.1 Customer Default.
4.1.1 Customer is in default of this MSA if Customer (a) fails to cure any monetary breach within five (5)
days of receiving notice of the breach from layo; (b) fails to cure any non-monetary breach of any
terms of the agreement within thirty (30) days of receiving notice of the breach from layo; or (c)
files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation,
reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian
or such other official) under any bankruptcy, insolvency or other similar law (each such event shall
be a "Customer Default").
4.1.2 In the event of a Customer Default, layo may suspend Services to Customer until Customer
remedies the Customer Default, or Zaya may terminate this MSA and/or any or all of the Services
being provided hereunder. Zaya may at its sale option, but without any obligation, cure a non-
monetary breach at Customer's expense at any point and invoice Customer for the same. These
remedies are in addition to and not a substitute for all other remedies contained in this MSA or
available to layo at law or in equity.
4.2 Zayo Default.
4.2.1 layo is in default of this MSA if layo fails to cure any non-monetary breach of any material term of
this MSA within thirty (30) days of receiving written notice of the breach from Customer ("Zayo
Default"); provided, however, that Customer expressly acknowledges that Service related failure or
degradation in latency, packet loss or Service availability is not subject to a claim of a
layo Default. Customer's sale and exclusive remedy for any failure of Service is set forth in the
applicable Service Schedule.
4.2.2 In the event of a layo Default, Customer may terminate the Services and the Agreement upon
written notice to layo. Any termination shall not relieve Customer of its obligations to pay all
charges incurred hereunder prior to such termination.
ARTICLE 5 -TAXES AND OTHER FEES AND SURCHARGES
All charges for the Services are exclusive of any taxes and other fees and surcharges (as defined below). Except for
taxes based on layo's net income, Customer shall be responsible for payment of all applicable taxes that arise in any
jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and
bypass ("Taxes"). Customer shall also be responsible for any property tax surcharges, additional government fees
(including without limitation Federal and State regulatory fees), franchise fees, rights of way fees or charges, license
or permit fees, and any other duties, fees, charges or surcharges imposed on incident to, or based upon the
provision, sale, or use of the Services.("Other Fees and Surcharges") If applicable to the Services being
Master Service Agreement (Ver. 4.24.2014)
Confidential and Proprietary
Page 2 of 5
DocuSign Envelope ID: E1F2CDF3-1547-414E-8F7A-BC75551F327E
purchased by Customer, such Other Fees and Surcharges will be listed on Customer's Invoice. If Customer is
entitled to an exemption from any of the Taxes or Other Fees and Surcharges, Customer is responsible for
presenting layo with a valid exemption certificate (in a form reasonably acceptable to layo). layo will give effect to
any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any
Service billed by layo to Customer following layo's receipt of such exemption certificate. Customer shall indemnify,
defend and hold layo harmless from payment and reporting of all such Taxes and Other Fees and Surcharges,
including costs, expenses, and penalties incurred by layo in settling, defending or appealing any claims or actions
brought against layo related to, or arising from, the non-payment of such Taxes and/or Other Fees and Surcharges.
ARTICLE 6 -LIMITATION OF LIABILITY
6.1 General Limitations. layo shall not be liable for loss or damage occasioned by a Force Majeure Event and
to the extent allowed by law, for injury to or death of any person and for damage to or loss of any property arising out
of or attributable to its operations and performance under this Agreement. Zaya's total liability for any and all causes
and claims whether based in contract, warranty, negligence or otherwise shall be limited to the lesser of (i) the actual
direct damages sustained by Customer; or (ii) an amount equivalent to the total MRC received by layo from
Customer over the preceding three (3) months for the Service affected. No cause of action under any theory which
accrued more than one (1) year prior to the filing of a complaint alleging such cause of action may be asserted by
either Party against the other Party.
6.2 Special Damages. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH BELOW
IN ARTICLE 7 AND EXCEPT FOR CLAIMS ARISING FROM A PARTY'S INTENTIONAL MISCONDUCT, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION
WITH, THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF
GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER
PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY SET
FORTH IN THIS MSA, lAYO MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS
TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR
PURPOSE OR USE OF THE SERVICE, LOCAL ACCESS OR ANY OTHER MATTER, AND ANY SUCH
WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
6.3 No Liability for Certain Actions. layo shall not be liable to Customer or its End User Customers for any
claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premise
equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or
information through accident, wrongful means or devices, or any other method; (b) Customer's fault, negligence or
failure to pertorm Customer's responsibilities; (c) claims against Customer by any other party (except for third-party
claims indemnified under Article 7); (d) any act or omission of any other party, including End User Customers; or (e)
equipment or services furnished by a third party, including End User Customers. layo is not responsible for the
content of any information transmitted or received through the Services. Customer shall be solely responsible for all
of the security and confidentiality of information it transmits using a Service. Customer shall be solely responsible for
all Customer support, pricing and service plans, billing and collections with respect to its End Users Customers,
including obtaining all necessary legal or regulatory approvals to provide or terminate the provision of the services to
its End User Customers. layo exercises no control over, and accepts no responsibility for, the content of the
information passing through its network, or Customer equipment, and use of any such Service is at Customer's own risk.
ARTICLE 7 -INDEMNIFICATION
7.1 Indemnification. Each Party shall indemnify, defend and hold harmless ("Indemnifying Party") the other
Party, its directors, officers, employees, and agents, successors and assigns ("Indemnified Party"), from all
damages, costs, expenses and liabilities, including reasonable attorney's fees and disbursements, sustained in any
action commenced by any third party in connection with the Indemnifying Party's performance of, or failure to
perform, its obligations and duties under this Agreement except for those damages, costs, expenses and liabilities
arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that layo is not
obligated to indemnify Customer, and Customer shall defend and indemnify layo hereunder, for any claims by any
third party, including End User Customers, arising from services provided by Customer that incorporate any of the
Services including but not limited to (a) violation of any applicable law by End User Customers; (b) damage to
property or personal injury (including death) arising out of the acts or omissions of End User Customers; (c)
termination or suspension of Services of Customer or End User Customers, due to a Customer Default; or (d) claims
by a third party, including without limitation End User Customers, arising out of or related to the use or misuse of any
Service.
Master Service Agreement (Ver. 4.24.2014)
Confidential and Proprietary
Page 3 of 5
DocuSign Envelope ID: E1F2CDF3-1547-414E-8F7A-BC75551F327E
7.2 Indemnification Procedures. The Indemnilied Party shall promptly notify the Indemnifying Party in writing
of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse
consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to
control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to
participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and
provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would
negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its
personnel as required for the defense at the cost and expense of the Indemnifying Party.
ARTICLE 8 -CONFIDENTIALITY
"Confidential Information" shall mean all information, including this Agreement, regarding the telecommunications
needs of Customer and the Services that layo offers under this Agreement which is disclosed by one Party
("Disclosing Party") to the other Party ("Receiving Party"), to the extent that such information is marked or identified
as confidential or proprietary. Notwithstanding the foregoing, all written or oral pricing and contract proposals
exchanged between the Parties shall be deemed Confidential Information, whether or not so deSignated.
Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon
request. Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the
Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other
than by breach of this Agreement, shall not be considered Confidential Information. A Receiving Party, including its
officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information
in confidence from the time of disclosure until three (3) years following its disclosure. During that period, the
Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under
this Agreement; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c)
shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes;
(d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party
except as expressly provided in this Agreement or as required by law; and (e) shall use at least the same degree of
care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to
prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving
Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will
notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will
cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a
fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in
this Article to the contrary, the fact that Customer is a customer of layo shall not be deemed Confidential Information
and layo may disclose the same without liability therefor.
ARTICLE 9 -FORCE MAJEURE
Neither Party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control
including, but not limited to, acts of third parties not under the direction or actual control of the Party delayed or
unable to periorm, acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any
law, order, regulation, direction, action or request of the government, or any department, agency, commission, court,
or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout,
or work stoppage (each, a "Force Majeure Event"). The Party claiming relief under this Section shall notify the other
Party of the occurrence or existence of the Force Majeure Event and of the termination of such event.
ARTICLE 10 -MISCELLANEOUS PROVISIONS
10.1 Subject to Laws. This Agreement is subject to all applicable federal, state and local laws, and regulations,
rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as
amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications
Commission ("FCC"), layo's applicable tariffs, if any, and the obtaining and continuance of any required approval or
authorization of the FCC or any governmental body. Either Party may terminate its obligations under this Agreement
andlor a Service Schedule andlor a Service Order without liability if ordered to do so by the final order or ruling of a
court or other governmental agency or if such order or ruling would make it impossible for either Party to carry out its
obligations under this Agreement.
10.2 Governing Law. This Agreement shall be construed and enforced in accordance with, and the validity and
performance hereof shall be governed by the laws of the State of Idaho.
10.3 Prevailing Party. In the event that suit is brought or an attorney is retained by either party to enforce the
terms of this Agreement or to collect any money as due hereunder or to collect any money damages for breach
Master Service Agreement (VeT. 4.24.2014)
Confidential and Proprietary
Page 4 of 5
DocuSign Envelope ID: E1F2CDF3-1547-414E-8F7A-BC75551F327E
hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement of
reasonable attorneys' fees, court costs, costs of investigation and other related expenses incurred in connection
therewith.
10.4 Relationship of Parties. This Agreement does not create a partnership, joint venture or agency
relationship between the Zayo and Customer. Neither Party shall have any authority to bind the other Party to any
agreement, understanding or other instrument, in any manner whatsoever.
10.5 Assignment; Binding Effect. Customer shall not transfer or assign, voluntarily or by operation of law, its
obligations under this Agreement without the prior written consent of Zayo. This MSA shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and assigns. Each of the undersigned hereby
state that he/she has full authority to enter into this MSA and hereby accepts this MSA on behalf of the companies
identified below.
10.6 Notices. Notices under this MSA shall be in writing and delivered by certified mail, return receipt requested,
or by nationally recognized courier to the persons whose names and business addresses appear below, and such
notice shall be effective on the date of receipt, or refusal of delivery, by the receiving Party.
If to Zayo: If to Customer:
Zayo Group, LLC Insert
Attn: General Counsel, Legal Attn:
400 Centennial Pkwy, Suite 200
Louisville CO 80027
Billing Disputes:
Zayo Group, LLC
Attn: Accounts Receivable
400 Centennial Pkwy, Suite 200
Louisville, CO 80027
10.7 No Third Party Beneficiaries. The representations, warranties, covenants and agreements of the Parties
set forth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person
not a Party hereto, including without limitation, End User Customers.
10.8 Entire Agreement. This Agreement constitutes the entire understanding between the Parties relating to the
rights, duties and obligations granted and assumed herein. Any prior agreements, promises, negotiations or
representations regarding the subject matter hereof are of no force or effect. No alteration or variation of the terms of
any provision shall be valid unless made in writing and signed by a duly authorized representative of Zayo and the
Customer. In the event that anyone or more of the provisions of this MSA shall for any reason be held to be invalid
or unenforceable, the remaining provisions of this MSA shall be unimpaired, and shall remain in effect and be binding
upon the Parties. The Services provided by Zayo are subject to the condition that they will not be used for any
unlawful purposes. No course of dealing between the Parties and no failure to exercise any right hereunder shall be
construed as a waiver of any provision hereof.
10.9 Counterparts/Facsimile Signatures. This MSA may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same instrument. This MSA
and any Service Schedule and any Service Orders may be executed via a recognized electronic Signature service
(e.g., Docusign) or may be delivered by facsimile transmission, or may be signed, scanned and emailed to Zayo, and
any such signatures shall be treated as original signatures for all applicable purposes.
ZAVO GROUP, LLC
Signature:
Name:
Title:
Master Service Agreement (Ver. 4.24.2014)
Confidential and Proprietary
(INSERT CUSTOMER NAME)
Signature:
Name:
Title:
Page 5 of 5
DocuSign Envelope ID: E1F2CDF3-1547-414E-8F7A-BC75551F327E
General Counsel
Christopher Yost