Midco Business Master Services Agreement (MDU)
Updated April 2021
These General Terms and Conditions along with any Exhibits, Attachments and Service Orders and Addendums together constitute the “Master Service Agreement” (“Agreement”) is made by and between Midcontinent Communications®, a South Dakota General Partnership (Midco®), with a principal place of business at 3901 N Louise Ave. Sioux Falls SD 57107, and MDU Owner/Manager, at the principal place of business shown in each Service Order (“Owner”); each a “Party” and, collectively, the “Parties.”
TERMS AND CONDITIONS APPLICABLE TO ALL SERVICES
1. Service. Subject to the terms and conditions contained herein, tariffs on file in each state and Federal Communications Commission (FCC), and the applicable usage policies as posted on www.midcocomm.com, Midco agrees to provide to Owner the service or services identified in the accepted Service Order(s) (collectively, the “Service”). Except as required by law, Service is for end-use only and may not be resold by Owner. Owner is responsible for security and all usage of Service.
2. Grant of Access to Operator. Operator can provide its Services to Residents at the Property. Owner hereby grants to Operator: (a) the right to deploy (install, own, repair, operate, remove, improve and maintain) a property-wide fiber optic network (including extension of fiber optic facilities to each Unit) and/or other wire facilities, innerducts, conduits, raceways, moldings, network cabinets and other related equipment capable of accommodating voice, data and video transmissions (the “System”) at the Property, and (b) the right to provide its Services, to Residents at the Property. Operator’s personnel may access the Property and the System, during reasonable times and subject to such reasonable limitations as Owner may impose.
3. Term. This Master Service Agreement shall be effective upon the signature of both Parties. This Master Service Agreement shall remain in effect until the expiration or termination of the Term (initial or any renewal) of the last Addendum executed.
4. System. Using industry standard placement procedures, Operator may install the System, wiring and equipment on the Property, in telecom closets, in risers, and in tenant/homeowner space). Operator shall maintain its System so installed. Operator will repair any damage to the Property that it causes while installing the System, wiring or facilities to the satisfaction of the Owner. All parts of the System shall be and remain the personal property of Operator. Owner understands and agrees that Operator owns and will continue to own the facilities/System, which will not be deemed fixtures. Owner will not move, disturb, alter or change the facilities/System except with Operator’s written consent or in the case of an emergency. If Operator ceases operating or using the System for any reason, it shall have six (6) months to remove the System at a mutually agreeable time.
5. Successors and Assignees. This Contract is binding on Owner’s successors and assignees. In the event Customer sells, assigns, transfers or otherwise conveys the Property to a third party, Customer shall assign this agreement and cause the new owner or controlling party to expressly assume this Agreement and agree to be bound by its terms. If this change does not occur, Customer acknowledges they remain responsible for all the duties and obligations under the Contract.
6. Midco Equipment. Midco Equipment is defined as any equipment that is owned by Midco or by a third party which has been provisioned by Midco to Owner or its tenants. This equipment includes all transmission equipment, wiring and lines installed by Midco (or its contractor) and located on the Property of Owner. Midco Equipment shall not become a fixture of the property or part of the premises. Owner shall not, and shall not permit others, without the prior written consent of Midco, to (a) rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Midco Equipment, (b) use any Midco Equipment for any purpose other than that for which Midco provides them, or (c) take any action that causes the imposition of any lien or encumbrance on the Midco Equipment. In no event shall Midco be liable to Owner or any other person for interruption of Service or any other loss, cost or damage caused by or related to improper use or maintenance of the Midco Equipment by Owner or third parties provided access to the Midco Equipment by Owner in violation of this Section. Owner shall be responsible for any damage to Midco Equipment to the extent arising from the improper use or maintenance thereof by Owner or third parties provided access to Midco Equipment by Owner. Owner agrees to allow Midco to remove the Midco Equipment from Owner’s premises after termination, expiration or cancellation of the Service in connection with which the Midco Equipment was used, and for maintenance, repair, replacement or otherwise as Midco may determine is necessary or desirable from time to time. If Owner fails to permit such retrieval or if the retrieved Midco Equipment has been damaged and/or destroyed other than by Midco or its agents, normal wear and tear excepted, Midco may invoice Owner for the replenishment cost of the relevant Midco Equipment, or in the event of minor damage to the retrieved Midco Equipment, the cost of repair, which amounts shall be immediately due and payable. Midco retains the right to remove the Midco Equipment for a period of three (3) months following Midco’s discontinuance of Service to the Service Location.
7. Facilities and Access. Owner shall allow Midco access to the Service Location to the extent reasonably necessary for the Service. Owner shall provide and maintain facilities at the Service Location suitable for the provisioning of the Service. Proper facilities shall include, but may not be limited to, adequate space, sufficient electrical power and proper operating environment, including heating, cooling, and air quality, for the necessary equipment. Owner will ensure Midco has the right and, with reasonable notice, ability to access the facility space, building conduits and wiring for installation, inspection, maintenance, operation and removal of all Midco Equipment related to the Service. Owner shall also ensure the Service Location is secure and safe from hazards to the facilities, Midco Equipment and to Midco’s employees, agents and contractors. Midco shall be responsible for any damage to the Service Location to the extent arising from the improper use of the facilities by Midco or third-party agents or contractors acting on Midco’s behalf during such installation, inspection or maintenance activities.
The installed cable, conduit and equipment will remain the property of Midco and use by Midco will not be interfered with. Midco will exercise due care in the performance of its activities on the property and will repair all damage to the property caused by the activities. Owner is responsible for locating and clearly marking all private utilities on the property. Midco is not liable for any damages or fees incurred as a result of striking private utilities that were not conspicuously and accurately marked.
8. Disruption of Service. Midco does not warrant that the Service or Midco Equipment will be uninterrupted, error-free, or free of latency or delay, or that the Service or Midco Equipment will meet Owner’s requirements. The Service is not fail-safe and is not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Service could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Midco may, in its own discretion, temporarily suspend Services for the purpose of repair, maintenance or improvement of any of Midco Hardware, Software or Owner Equipment (if applicable). Midco shall provide prior notice where it is reasonably practical under the circumstances, and Midco shall restore service as soon as it is reasonably practical.
9. Limit of Liability.
a. Midco shall not be liable for and credit shall not be given for any failure or interruption of Service caused by acts of God, strikes, emergencies, mechanical failure, cable cut, regulatory or other governmental action, action or inactions by Owner, its employees, agents, invitees, a breach of this Agreement by Owner or any other cause beyond Midco’s control.
b. IN NO EVENT SHALL MIDCO BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES. MIDCO HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPLICIT OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LIABILITY OF MIDCO UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID TO MIDCO BY OWNER FOR SERVICES HEREUNDER AT A SPECIFIC LOCATION DURING THE PRECEDING TWELVE (12) MONTHS.
c. IN NO EVENT SHALL MIDCO, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE, (ii) ANY ACT OR OMISSION OF OWNER, ITS USERS OR THIRD PARTIES, (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICE WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY OWNER OR THIRD PARTIES, OR (iv) LOSS OR DESTRUCTION OF ANY OWNER HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM AN ATTEMPT TO REMOVE IT.
a. Owner agrees, at its own expense, to indemnify, defend and hold harmless Midco and its directors, employees, representatives, officers and agents, (the “Midco Indemnified Parties”) against any and all third party claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses, including but not limited to, reasonable attorneys’ fees and court costs, (collectively, “Claims”) incurred by and/or brought against Midco Indemnified Parties, to the full extent that such Claims arise from: (i) Owner’s noncompliance with the terms of this Agreement and/or any or all Service Orders, (ii) Owner’s or their users failure to comply with applicable laws or violation or infringement upon the rights of any other party, including, without limitation, contractual rights, intellectual property rights, publicity and privacy rights and the rights against libel, defamation and slander, (iii) Owner’s use or misuse of the Service, including claims resulting from use/misuse of the Service by Owner’s users and/or the content of any communications transmitted via the Service, (iv) Owner’s willful misconduct, and/or (v) physical damage to personal or real property or bodily injury, including death, caused by the negligent or willful misconduct of Owner or Owner’s users, its employees or contractors, at the Service Location during the installation or maintenance of equipment in connection with Service. Owner shall have full authority to settle any such Claims; provided, however, that it may not enter into any settlement without Midco’s advance written consent in which a full and final release of such Claim in favor of Midco Indemnified Parties is not obtained as a result of the settlement, or any admission or affirmative obligation is required or placed upon Midco Indemnified Parties.
b. Midco agrees, at its own expense, to indemnify, defend and hold harmless Owner, its directors, officers, employees, agents and/or representatives (“Owner Indemnified Parties”) from and against any and all third party Claims incurred by and/or brought against Owner Indemnified Parties to the full extent that such Claims arise from: (i) physical damage to personal or real property or bodily injury, including death, caused by the negligent or willful misconduct of Midco, its employees or contractors, at the Service Location as a direct result from Midco’s installation, removal or maintenance at the Service Location of the Midco Equipment, and/or (ii) Midco’s failure to comply with applicable laws, and/or (iii) Midco’s willful misconduct. Midco shall have full authority to settle any such Claims; provided, however, that it may not enter into any settlement without Owner’s advance written consent in which a full and final release of such Claim in favor of Owner Indemnified Parties is not obtained as a result of the settlement, or any admission or affirmative obligation is required or placed upon Owner Indemnified Parties.
11. Content. Midco does not operate or control the content transported over the Service. Midco shall have no liability or responsibility for Owner created content or any communication transmitted via the Service hereunder. Owner shall defend, indemnify and hold harmless Midco from any and all third-party claims (including claims by governmental entities seeking to impose penal sanctions) related to such content, and from any and all third-party claims relating to Owner’s use of Service hereunder. Owner shall make no claim against Midco regarding said content, or respecting any information, product, service, software or other item(s) ordered through or provided by virtue of the Service.
12. Public Performance of Copyrighted Works. Midco has no authority to grant any license for the public performance of copyrighted works. If Owner intends to play publicly any audio or visual content provided via the Service, Owner is advised that additional fees may be owed to copyright holders or public performance licensing organization such as ASCAP, SEASAC, or BMI.
13. Legal Application. This Agreement will be governed by the laws of the state where service is provided, however, any claims hereunder shall be brought in the state or federal courts located in Minnehaha County, South Dakota. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. This document, Exhibits, Attachments, Service Orders, and Midco’s Acceptable Use Policy (as presented on www.midco.com) represent the entire Agreement between the Parties and supersedes all prior conversations, representations, promises, and warranties (expressed or implied) made prior to or at the time of the signing of this document. This Agreement may be amended only in writing signed by an authorized representative of each Party. If any action at law or equity is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, costs, and expenses, in addition to any other relief to which it may be entitled. Each of Midco’s rights and remedies under this Agreement shall be cumulative and additional to any other or further rights or remedies provided in law or equity or otherwise.
14. Assignment. This Agreement is binding upon the heirs, devisees, successors, and assigns of each Party. Provided, however, Owner shall not assign or transfer its rights or obligations under this Agreement without prior written consent of Midco, which consent shall not be unreasonably withheld, and further provided that any assignment or transfer without such consent shall entitle Midco to terminate the Service at its option upon ten (10) days prior written notice. In the event Owner changes ownership, if the remaining term of this Agreement is not assumed by the new owner, or if a new Agreement is not signed with Midco for like services by the new owner, Owner will be held accountable for any applicable Termination Fees as defined in the Agreement.
15. Confidential Information. “Confidential Information” includes but is not limited to any and all business, technical, or third party information (including but not limited to rate information, discounts, network information, trade secrets, marketing plans, financial data, specifications, drawings, and documentation) provided, disclosed, or made available to one party (the “Disclosing Party”) to the other (the “Receiving Party”) under this Agreement that is either identified as, or reasonably understood to be, confidential or proprietary. The Receiving Party will: (a) not use Confidential Information of the Disclosing Party for any purpose other than the fulfillment of its obligations under this Agreement, and (b) protect and treat all Confidential Information of the Disclosing Party with the same degree of care as it uses to protect its own Confidential Information of like importance, but in no event with less than reasonable care. In the event 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, if permitted, with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party
in taking appropriate protective measures, and will make any such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Confidential Information also includes the terms and conditions of this Agreement. Confidential Information does not include information that the Receiving Party can clearly establish by written evidence: (a) is or becomes known to the Receiving Party from a third party without an obligation to maintain its confidentiality, or (b) is or becomes generally known to the public through no act or omission of the Receiving Party, or (c) is independently developed by the Receiving Party without the use of Confidential Information of the Disclosing Party.
16. No Third Party Beneficiaries. This Agreement shall be binding upon, enforceable by, and inure solely to the benefit of each Party hereto as well as their successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any right, benefit, or remedy of any nature under or by reason of this Agreement.
17. Notice. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective upon the earlier of receipt or five (5) days after deposit with the respective courier or United States Postal Service, and (c) delivered by one of the following means: (i) by prepaid, nationally recognized, overnight package delivery or courier service, or (ii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid. In addition to actual receipt by a Party, the following shall constitute receipt: (a) a Party’s rejection or other refusal to accept notice, and (b) the inability to deliver notice to a Party because of a changed address of which no notice has been provided in accordance with this Section and received by the other Party.
18. Authority. Each signatory to this Agreement does hereby represent and warrant that he/she has the authority to execute this Agreement on behalf of the Party to this Agreement for whom he/she is executing this Agreement.
19. Owner Representatives. Following the Service Commencement Date, someone seeking support of, or desiring to make non-material changes to Service on behalf of Owner will be qualified by Midco. If the individual can meet cursory qualification criteria, or if the person is listed as an authorized user or authorized vendor on the Service Order, Midco may assume the individual is an authorized user on the account and will follow that individual’s direction. Alternately, Owner may provide to Midco a list of authorized users. Owner will be responsible for the maintenance of this list. Someone desiring to make a material change to Service must be noted on Owner’s account as an authorized user. Midco will not be held liable for following the direction of qualified or authorized users.
20. Electronic Signature. This Agreement may be executed by the Parties by electronic signature. The Parties agree that an electronic signature is the legal equivalent of a manual printed signature on the Agreement; thus, an electronic signature is also a valid consent to be legally bound by this Agreement’s terms and conditions. The Parties also agree that no certification authority or other third party verification is necessary to validate an electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting Agreement between the parties.
21. Survival. The provisions of Sections 8-15, together with any provisions of this Agreement that by their nature are meant to survive, shall survive the termination or expiration of this Agreement.
22. Severability. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective only to the extent of such holding or determination without (a) invalidating the remaining provisions of the Agreement in that jurisdiction or (b) affecting the legality, validity or enforceability of such provision in any other jurisdiction.
23. Relationship of Parties. Nothing in this Agreement shall be construed as creating a joint venture or partnership between the Parties hereto. Neither Party has or shall have any authority to bind, assume any obligation for or incur any debt on behalf of the other Party in any respect whatsoever.
24. General Terms. Owner’s use of Midco’s Services is specifically subject to this Agreement, and Owner’s agreement to: (a) the legal notices found at
Midco.com/Legal (the “Legal Notices”), which may be modified by Midco from time to time in accordance with the Legal Notices and applicable law, and which are incorporated herein by reference and made part of this Agreement, and (b) applicable Midco tariffs on file with the appropriate regulatory body.
25. Order of Precedence. In the event of a conflict or inconsistency between any Service Order and the remaining terms and conditions of this Agreement, the following is the order of precedence: 1) the applicable Service Order, 2) the Agreement General Terms and Conditions.