ADDENDUM TO MASTER SERVICES AGREEMENT

HOSTING & BACK-UP SERVICES, COMMUNICATION SERVICES & INTERNET SERVICES

This Addendum to Master Services Agreement (“Addendum”) supplements the Master Services Agreement between Concensus and Customer. Definitions, terms and conditions contained in the Agreement shall apply to this Addendum. In the event of any conflicting definitions, terms or conditions, this Addendum shall control.

  1. Equipment and Third-Party Software
    1. Managed Services.  If the Services include a Managed Service, including but not limited to, Cloud Services, Managed Server, Managed Firewall, Managed Backup or Single Server, all hardware and software (together with all appurtenant licenses, documentation and media) provided by Concensus as part of the delivery of the Managed Service to Customer are at all times the personal property of Concensus, and subject to the terms and conditions set forth in the manufacturer’s warranty or end-user license applicable to such software, with no warranty of any kind from Concensus. Concensus shall provide Services to Customer as defined in the Concensus Service Level Agreement (Section 6) or an applicable Service Supplement. Upon termination of the Services, Customer will immediately cease all use of the Managed Service and within two (2) business days shall return to Concensus any copies it has made of software, documentation or licenses owned by Concensus that may have been used in conjunction with the Managed Service.
    2. Sold to Customer.  If requested by Customer, Concensus shall procure equipment or software on Customer’s behalf in connection with the Services. Customer acknowledges that: (a) Concensus is not a manufacturer of any such equipment or software; and (b) Concensus is not bound by or liable for any representation, warranty or promise made by the manufacturer. Concensus shall not be liable for any liability for loss, damage or injury to any party or property as a result of any defects, latent or otherwise, in any equipment or software.  Concensus retains title to purchased equipment until the equipment is paid for in full by Customer, including any shipping, installation or maintenance contract costs related to such equipment.
    3. Customer-Owned/Concensus Managed.  Any equipment owned by Customer and for which Customer has contracted Concensus to manage is and shall remain the property of Customer. Concensus will provide Customer support in the maintenance and repair of the hardware only, unless otherwise specified in the Service Supplement. All repair and replacements of Customer hardware (or other Customer-owned components) shall be made at Customer’s expense and Customer shall immediately reimburse Concensus for its expenses upon presentation of its invoice.
    4. On Loan, Lease, or Rental to Customer.  Any property of Concensus made available to Customer for its exclusive use (“Concensus Property”), including but not limited to access badges, keys, media converters, power distribution devices, networking devices, rails and shelves, are, at all times, the property of Concensus. Customer agrees not to: (a) disassemble, deface or modify it in any way; (b) remove or attempt to obscure any labels or markings placed by Concensus or the manufacturer; (c) reverse engineer it; or (d) place it in the possession or control of any third party. Concensus may request the return of Concensus Property at any time and for any reason. In such case, Concensus may provide a functionally equivalent replacement. Any Concensus Property not returned to Concensus in the same condition that it was given, reasonably adjusted for normal wear, within five (5) business days of the earlier of Concensus’s written request for its return or any termination of this Agreement shall be deemed lost hereunder.
  2. Delivery of Hosting and Communications Services
    1. General.  By submitting a Quote, Customer agrees to take and pay for, and, by accepting the Quote, Concensus agrees to provide, the Services specified on the Quote during the Initial Term and for any Renewal Term, as specified in Section 2.3. Billing for individual Services will begin as set out on the applicable Quote. If no time is set out on a Quote, billing will begin on the Service Commencement Date.
    2. Commencement of Initial Term.  The term for each Service will commence on the Service Commencement Date and continue for the Initial Term.
    3. Renewal Terms of Hosting and Communication Services.  Each Service will continue automatically for additional terms equal to the Initial Term (“Renewal Term”) unless either Customer or Concensus notifies the other party in writing at least sixty (60) days prior to the end of the Initial Term or a Renewal Term, as applicable, that it has elected to terminate such Service, in which case such Service shall terminate at the end of such term. The termination of any Service will not affect Customer’s obligations to pay for other Services. Except as otherwise expressly provided in this MSA, Concensus is obligated to provide and Customer is obligated to pay for each Service through its Initial Term and any Renewal Term.
    4. Utility Rate Increases.  Customer acknowledges that Concensus may increase power charges to match the utility rate increases or decreases during the Initial Term or any Renewal Term. Concensus does execute long term contracts with the utility, so while this event is unlikely, it is possible for the utility to pass through governmental or other surcharges.
    5. Data Backups.  Customer acknowledges that Concensus does not provide complimentary backups for hosted physical or virtual servers. Backup software and storage associated with backups are available for purchase. Without Customer’s purchase of backup software and storage associated with backups, Concensus accepts no responsibility or liability for backup data accidentally destroyed.
  3. Termination of Hosting and Communication Services
    1. Termination by Customer for Cause.  Termination by Customer for Cause. If Concensus fails to perform a particular Service under this MSA and does not remedy such failure within thirty (30) days following written notice from Customer (or such additional time which may be reasonably necessary to remedy such failure), Customer may terminate such Service without any further obligation to Concensus except for the payment of accrued but unpaid charges. If Concensus is unable to provide Service for thirty (30) consecutive days due to a Force Majeure event as defined in Section 5.1, then provided Concensus gives Customer prompt notice of such cause and uses commercially reasonable efforts to promptly correct such failure or delay in performance, then Customer may not terminate such Service.
    2. Termination by Customer for Convenience.  Customer may, at any time and without cause, terminate any Hosting and Communication Service upon thirty (30) days written notice to Concensus, provided the following: (i) if Customer terminates any Service prior to the applicable Service Commencement Date, Customer shall reimburse Concensus for all costs of implementation of terminated Service; or (ii) if Customer terminates any Service after the applicable Service Commencement Date, Customer shall immediately pay Concensus: (a) all charges for Services previously rendered; and (b) the monthly amount due for the terminated Services times the number of months remaining on the applicable term. Customer acknowledges that Concensus will suffer damages if a Service is terminated prior to the expiration of the Initial Term or any Renewal Term as the case may be and that the aforementioned payment is a genuine pre-estimate of liquidated damages that Concensus will suffer and not a penalty.
    3. Termination by Concensus.  Concensus may terminate this MSA or any Service with no further liability if: (i) Customer fails to make payment as required under this MSA and such failure is uncorrected for ten (10) calendar days following written notice from Concensus; (ii) Customer fails to perform any other material obligation under this MSA and does not remedy such failure within thirty (30) days following written notice from Concensus; or (iii) Customer files for bankruptcy or reorganization (voluntary or involuntary) (hereinafter collectively referred to as “Customer Default”). In the event of a Customer Default, Concensus shall have the right to: (i) suspend Service to Customer; (ii) cease processing or accepting orders for Service; and/or (iii) terminate this MSA or any Service. If Concensus terminates this MSA due to a Customer Default, Customer shall remain liable for all charges outlined in Section 3.2 herein.  Customer agrees to pay Concensus’s reasonable expenses (including attorney and collection agency fees) incurred in enforcing Concensus’s rights in the event of a Customer Default.  It is the express intent and understanding of the parties that, this MSA and Service Orders hereunder being one integrated agreement and not separate, severable contracts, Customer’s rights to early termination of any Service is not a right to “reject”, on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws.
    4. Termination on Expiration of all Services.  Either party may terminate this MSA, effective as of the date specified in written notice of termination provided to the other party, if all Services have been terminated in accordance with the procedures in Section 2.3 or if no Quotes are in effect.
    5. No Liability for Termination.  Neither party will be liable to the other for any termination or expiration of any Service or this MSA in accordance with its terms.
    6. Effect of MSA Termination.  Upon the effective date of termination of this MSA:
      1. Concensus will immediately cease providing the Services;
      2. Any and all payment obligations of Customer under this MSA for Services through any applicable term will immediately become due;
      3. Within ten (10) days of such termination, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement;
      4. Customer will pay to Concensus all expenses incurred by Concensus to return Customers’ Confidential Information contained on Customer equipment or Concensus equipment, including, but not limited to, labor costs and the cost of storage media; and
      5. Concensus at its sole discretion, may remove any Customer Equipment from any Concensus facility or location where the Customer bears the cost of the removal and storage of the Equipment and risk of damage or loss related in any way to the removal of the Equipment.
    7. Termination Assistance.  Notwithstanding the provisions of Section 3.6, upon the termination of this MSA for any reason, Concensus will provide to Customer such termination assistance relating to the Services, at Concensus’s then current standard rates, as may be reasonably requested in writing by Customer. Concensus’s obligation to provide assistance pursuant to this Section 3.7 is limited to a period of fifteen (15) days (the “Assistance Period”).  Customer will pay Concensus, on the first day of the Assistance Period and as a condition to Concensus’s obligation to provide termination assistance to Customer during the Assistance Period, an amount equal to Concensus’s reasonable estimate of the total amount payable to Concensus for such termination assistance for the Assistance Period.
  4. Service Warranties. 
    1. Service Level Warranty.  Subject to the exceptions set forth in the Service Level Agreement applicable to a specific Service, Concensus warrants that it will provide each Service at or above the service levels defined in the applicable Service Level Agreement (the “Service Level Warranty”).
    2. Remedies.  In the event that Concensus fails to provide a Service at the level required by the Service Level Warranty, Customer’s only remedies are those set forth in the Service Level Agreement applicable to that Service (the “Remedies”).
    3. Customer Must Request Remedies.  In order to receive any of the Remedies, Customer must notify Concensus in writing within thirty (30) days from the time Customer becomes eligible to receive such Remedies.  Failure to comply with this requirement will forfeit Customer’s right to receive such Remedies.
    4. Remedies Shall Not Be Cumulative.  Maximum Remedy. The Remedies set forth in each Service Level Agreement are not cumulative.  The aggregate maximum Remedy for any and all failures to provide Services at the level required by a particular Service Level Agreement that occur in a single calendar month shall not exceed the maximum set forth in such Service Level Agreement.
    5. Termination Option for Chronic Problems.  Customer may terminate a specific Service if the Customer experiences Chronic Problems (as defined in the applicable Service Level Agreement) with such Service.  Customer must provide Concensus written notice of termination for Chronic Problems as specified in the Service Level Agreement and such termination will be effective as provided in the Service Level Agreement.
    6. Warranty Limitation.  THE SERVICE LEVEL WARRANTY SET FORTH IN THIS SECTION 4 DOES NOT APPLY TO: (I) ANY PROFESSIONAL SERVICES; (II) ANY SUPPLEMENTAL SERVICES; OR (III) ANY SERVICES THAT EXPRESSLY EXCLUDE THIS SERVICE LEVEL WARRANTY (AS STATED IN THE SERVICE LEVEL AGREEMENTS FOR SUCH SERVICES).
    7. System Maintenance.  Except for Emergency Maintenance, in the event Concensus determines that it is necessary to perform maintenance that has the potential for Service to be interrupted for the performance of system maintenance, Concensus will notify Customer five (5) days prior to the performance of such maintenance and will schedule such maintenance during non-peak hours (midnight to 6:00 A.M. EST).  In no event shall interruption for system maintenance constitute a failure of performance by Concensus.
    8. Third Party Solutions.  Customer agrees and acknowledges that Customer may purchase, install or utilize certain third party applications, products, services or software (“Third-Party Solutions“) through Concensus with the Services. These Third-Party Solutions are provided to Customer “AS IS” and are governed by the third party’s own terms of service (including any required payments) and privacy policies as set forth by that third party. Concensus does not endorse and is not responsible or liable for, directly or indirectly, and makes no representations or warranties and provides no indemnification for the services or features provided by any Third-Party Solutions that Customer may choose to install, notwithstanding any language to the contrary in this Agreement, any Quote, Statements of Work or Service Level Agreement. Concensus is not liable for Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Solutions. CONCENSUS DOES NOT MANAGE OR PROVIDE CUSTOMER SUPPORT OR ASSISTANCE WITH RESPECT TO THE THIRD-PARTY SOLUTIONS, UNLESS PREVIOUSLY AGREED IN WRITING BY THE PARTIES, AND CONCENSUS IS NOT RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY DAMAGES OR LOSSES ALLEGED OR CAUSED IN CONNECTION WITH THE USE OF, OR RELIANCE UPON, ANY THIRD-PARTY SOLUTIONS.
    9. Disclaimer of Actions Caused by or Under the Control of Third Parties.  CONCENSUS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM CONCENSUS’S NETWORK AND OTHER PORTIONS OF THE INTERNET.  SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.  AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH CONCENSUS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, CONCENSUS CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.  ACCORDINGLY, CONCENSUS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
  5. Hosting and Communications General Provisions
    1. Force Majeure.  Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this MSA due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of Concensus) (each a “Force Majeure Event”), provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses commercially reasonable efforts to promptly correct such failure or delay in performance.
  6. Hosting and Communications Service Level Agreement (SLA)
    1. SLA Definitions
      1. Covered Service.  “Covered Service” is any of the services purchased and fully paid for by the Customer as follows: Connectivity Service, Managed Firewall, Concensus Cloud Hosting, Concensus Cloud Backup, and Concensus Cloud Storage.
      2. Service Availability.  Is defined as Covered Services functioning as intended without any significant interruption.
      3. Service Credit.  A service credit is a credit issued to a Customer’s account based upon the actual duration of an interruption of a Covered Service.  A single Service Credit is equal to the prorated amount of one (1) day’s service based on Customer’s billing during the service period in which the interruption occurs.
    2. Requesting Credit.  Any claim for credit under this SLA shall be made with reference to a trouble ticket opened by the Customer during the interruption and submitted in writing and received by Concensus within ten business days of the interruption occurring.  Late claims will not be accepted.
    3. Schedule of Credits. 
      1. General Terms.  Should Concensus fail to meet the Service Availability performance requirements in any given calendar month, then Concensus will, as its sole obligation and Customer’s sole and exclusive remedy for failure to meet the performance requirement, issue Service Credits to the Customer’s account according to the following schedule, up to a maximum of 50% of Customer’s normal monthly recurring billing for the affected services.
      2. Connectivity and Communication Services.  If the Customer has purchased any connectivity/bandwidth or Communication Service/SIP trunk service product that includes redundancy, then Customer shall receive credits based upon the manufacturer’s Service Level Agreement. Customer may request in writing the manufacturer’s current service level agreement. 
      3. Managed Server or Managed Firewall.  In the event of a hardware failure of a Concensus owned and managed server or firewall, Concensus will begin work to repair or replace the affected equipment within two (2) hours and restore service to Customer within four (4) hours thereafter. Failure of Concensus to meet these requirements shall result in a credit of one Service Credit, plus one additional Service Credit for each four-hour period thereafter until service is restored. A managed server is deemed “restored” when access is returned to Customer, but does not include the restoration of any Customer data, Customer-installed software, or configuration changes made by Customer that were on the server prior to the failure.
      4. Managed Backup.  If Customer has purchased any backup service that includes offsite storage redundancy, then Customer shall receive full credit for a maximum period of (1) one month for the storage components, if the backups are accidentally destroyed.
      5. Support Service.  Concensus will respond to all non-emergency Customer support requests within one (1) business day of its receipt of the request by email or phone, and emergency requests made by telephone only within four (4) hours. Email requests, which are to be used for non-emergency requests only, should be made to ctsupport@concensus.com (or such other address that Concensus may later designate).   Email requests are deemed received when acknowledged by Concensus’s auto-responder.  Telephone requests may be made to 888-349-1014 (choose option two for the Customer Support Center), or such other number as Concensus may designate for the purpose and are deemed received when made directly to a member of Concensus’s technical staff or at the time a voicemail is left in the mailbox designated for technical support.  Customer is not eligible for a credit if Concensus cannot reach the Customer at a contact telephone number or email address provided in Customer’s email or voicemail, or if Customer fails to provide such information correctly. The credit for Concensus’s failure to respond by the foregoing time is one-fourth (1/4) of one (1) service credit per support incident. Support return telephone calls will be made only to numbers in the United States and Canada.
    4. Exceptions. 
      1. Customer Must be in Good Standing.  The remedies provided under this SLA for an event resulting in interruption of service shall apply only while the Customer  is in good standing and not in breach of any term of the MSA or any attachments, and the Services provided hereunder have been fully paid for by Customer and its accounts are paid in full with no amounts past due.
      2. Exclusions.  Service Credits will not be issued for any interruption of service that, as determined by Concensus in its reasonable judgment, result from or are related to:
        1. Circumstances beyond Concensus’s reasonable control, such as Force Majeure.
        2. Events occurring during any Scheduled or Emergency Maintenance Period.
        3. Events caused by equipment not provided and maintained by Concensus, unless the failure is caused by Concensus.
        4. Events caused (directly or indirectly) by acts, errors, or omissions by Customer or Customer’s agents, contractors or vendors, including negligence, misconduct, or breach of Concensus’s MSA.
        5. Intentional interruption or reductions in Service by Concensus for non-payment or other Customer default or breach.
        6. Events arising from malicious, unlawful, or terrorist acts against Customer or Concensus.
        7. Viruses, Trojan Horses, Spyware or software defects.
        8. Backups Hosted within Concensus Cloud older than 3 business days.
    5. Termination for Cause Under SLA.  Should Customer elect to terminate its Services for Concensus’ material non-performance as provided by this SLA, Customer shall have no obligation to provide Concensus with an opportunity to cure prior to such termination. Customer should notify Concensus in writing of its intent to terminate within five (5) business days of the event giving rise to Customer’s right to terminate, and Customer should specify an effective date of such termination not more than ninety (90) calendar days from the date of such notice.  Nothing shall in any way relieve Customer of its obligations to perform under the MSA (including this SLA and applicable supplements), including timely payment of fees for Concensus’s Services, through the effective date of such termination.

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