1. APPLICABILITY. These MDU Terms and Conditions contain general provisions that apply to all marketing and sales agreements between a Company-affiliated entity and another party. “Agreement” means a signed agreement between a Company-affiliated entity and the party, these MDU Terms and Conditions, and any other documents incorporated by reference. If any of these MDU Terms and Conditions conflict with terms of the Agreement, the Agreement will control. Capitalized terms not defined in these MDU Terms and Conditions are defined in the signed Agreement.
2. CONFIDENTIALITY. “Confidential Information” means any information that is not generally available to the public, whether of a technical, business, or other nature, and that: (a) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party; or (b) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect the information from disclosure. Confidential Information will not include information that is in the public domain through no breach of the Agreement by the receiving party or is already known or is independently developed by the receiving party. Neither party will, without the prior written consent of the other party: (a) disclose any of the terms of the Agreement; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the Confidential Information of the other party. Each party will use reasonable efforts to protect the other’s Confidential Information, and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own. Company’s consent may only be given by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under the Agreement.
3. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that (a) it is authorized to enter into the Agreement; (b) the Agreement constitutes the legal, valid, and binding obligation of the parties; (c) Owner is not a party to any agreement with a third party that gives the third party exclusive rights to provide services that are the same as, or substantially similar to, the Services or that gives such a third party exclusive access to the Property or otherwise limits the rights granted to Company in the Agreement, (d) Owner has not and will not enter into either a bulk services agreement granting the right to provide services to every Unit at the Property or an exclusive marketing agreement granting exclusive marketing rights regarding services at the Property to any third party that provides services substantially similar to the Services provided by Company without regard to the platform or method to deliver such services to the Property and (e) the execution of the Agreement and performance of its obligations does not, and will not, violate any law or result in any breach of or default under the terms of any contract or agreement by which it is bound. In addition, Owner represents and warrants that it has a valid fee title to the Property and otherwise has the authority to perform its obligations.
4. RESTRICTIONS. Owner will not:
- accept any other compensation except for the Compensation described in the Agreement, directly or indirectly, for marketing, promoting, and referring potential subscribers to the Services. Any additional compensation, whether in the form of cash, service credits or otherwise, obtained by Owner, any Owner employee or independent contractor must be reversed or immediately reimbursed;
- make any representations or warranties with respect to the Services, except that Owner may provide the Company Marketing Materials provided or approved by Company to Residents;
- rebate, split or otherwise share the Compensation with any Residents, unless expressly authorized in writing by Company;
- sponsor or participate in any pyramid or multilevel marketing system;
- conduct its business activities in such a manner that Residents pay any amounts to Owner for Services; or
- market/recommend adult-oriented services or products, as defined by Company in its sole discretion, to Residents during the Term of the Agreement.
5. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA REGARDLESS OF THE LEGAL THEORY ASSERTED AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY LIABILITY, LOSS OR DAMAGE.
6. INDEMNIFICATION. Each party will defend and indemnify the other party, its affiliates, agents, and contractors against all third party claims for damages, liabilities, or expenses, including reasonable attorneys’ fees, arising directly or indirectly from (a) the other party’s breach of this Agreement or noncompliance of Applicable Laws (defined below), or (b) the other party’s negligent acts or omissions with respect to the performance of its obligations in this Agreement. Notwithstanding the foregoing, the parties expressly waive any immunity that may be granted to them under the governing workers’ compensation act, disability acts or other employee benefits acts. Further, the indemnification obligation under this Agreement shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable to or for any third party under the workers’ compensation act, disability acts or other employee benefits acts; provided both party’s waiver of immunity by the provisions of this section does not include or extend to any claims made against a party by its own employees. In the event that a claim arises under this section, the indemnified party agrees to provide the indemnifying party with prompt notice of any claim, and the parties will inform one another of any subsequent written communication regarding the claim and will fully cooperate with one another in defense of the claim. Owner will also defend and indemnify Company, its affiliates, agents, and contractors against all third party claims for damages, liabilities, or expenses, including reasonable attorneys' fees, related to the modification or resale of the Services by Owner or any AUP violation arising from any Gratis Services that it receives from Company that Owner uses to provide any complimentary services to Residents or guests at the Property, including, but not limited to, any unmanaged Wi-Fi access that Owner makes available in common areas, lobbies, or a fitness center at the Property using HSI Gratis Services provided by Company.
7. MARKETING; TRADEMARKS, SERVICE MARKS, AND TRADE NAMES. Company may provide Owner with Company Marketing Materials for Owner’s use. All Company Marketing Materials provided by Company to Owner, and Company’s name, trademarks, service marks, label designs, product identifications, artwork, and other symbols and devices associated with the Agreement (collectively, the “Company Marks”) are and will remain the property of Company. Owner is authorized to use the Company Marks provided by Company as described in the Agreement only with Company’s prior written consent. Owner’s right to use the Company Marks is non-exclusive, non-assignable and non-transferable. All uses by Owner of the Company Marks inure solely to the benefit of Company. If Owner uses the Company Marks, Owner will strictly comply with any Company content or brand usage policies Company provides. Company will have use of Owner’s marks and trade designations for the duration of the Term of the Agreement to communicate its association with Owner.
8. CONVERSION. If Owner elects to convert any of the Units from its existing status as a rental or privately owned Unit, Owner will provide Company with written notice no later than 90 days before the conversion. If the Owner converts any of the Units, Company may, in its sole discretion, terminate the Agreement by providing no less than 30 days Notice to Owner.
9. NEW CONSTRUCTION. If any Units are not completed or ready for occupancy within twelve months of the Effective Date of the Agreement, Company may, in its sole discretion, terminate the Agreement by providing no less than 30 days Notice to Owner.
10. GOVERNING LAW; DISPUTE RESOLUTION.
- Billing Disputes. If Owner disputes a charge in good faith, Owner may withhold payment of that charge if Owner makes timely payment of all undisputed charges when due and provides Company with a written explanation of the reasons for Owner’s dispute of the charge within 90 days after the invoice date of such amount. If Company determines, in its good faith, that the disputed charge is valid, Company will notify Owner and within five business days after Company’s notification, Owner must pay the charge and accrued interest.
- Governing Law; Forum. This Agreement is governed by, enforced and construed in accordance with all applicable local, state, and federal laws, rules, regulations, tariffs, schedules, ordinances, and codes, and Company’s franchise, and future modifications thereto (collectively, “Applicable Laws”) and by the laws of the jurisdiction in which the Property is located, without regard to its choice of law provisions. Any legal proceeding related to the Agreement will be brought in U.S. District Court, or absent federal jurisdiction, in a state court of competent jurisdiction, in Denver, Colorado.
- Costs of Collection. If Owner’s unpaid balances or other charges pursuant to the Agreement are collected through legal proceedings or the Agreement is placed in the hands of a collections agency or an attorney(s) for collection, Owner hereby agrees to pay all reasonable costs and expenses (including attorneys' fees) incurred by Company in collecting or attempting to collect such balances or other charges.
- Waiver of Jury Trial and Class Action. Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to the Agreement on a class or consolidated basis or in a representative capacity. If for any reason the jury trial waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute relating to the Agreement under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq. The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules. Judgment upon the arbitration award may be entered in any court having jurisdiction.
- Limitations Period. Any claim relating to the Agreement must be brought within two years after the claim arises other than Owner disputing an amount in an invoice, which must be done by Owner within 90 days after the invoice date of the disputed amount.
11. INSURANCE; WAIVER OF SUBROGATION.
- Company agrees that it will maintain, at its own cost and expense, with authorized insurers in each state where Company will perform work under the Agreement and having an A.M. Best’s rating of A-VII or better, the following:
- General Liability insurance with limits of not less than $3,000,000 per occurrence and $5,000,000 aggregate covering personal injury, bodily injury, death, property damage, products and completed operations;
- Workers’ Compensation insurance with statutory limits applicable in the state where the work is to be performed including Employers Liability or “Stop Gap” insurance with limits not less than $1,000,000 each accident;
- Commercial Automobile Liability insurance with limits not less than $3,000,000 combined single limit per occurrence covering bodily injury and property damage for all owned, non-owned and hired vehicles;
- Excess/Umbrella Liability insurance with limits of not less than $5,000,000 each occurrence; and
- All Risk Property insurance covering not less than the full replacement cost of Company’s personal property.
- Company will make available to Owner evidence of such insurance prior to or upon the Effective Date of the Agreement. The evidence of insurance (available at www.lumen.com/moi) shall provide that (a) Owner, its affiliates, subsidiaries, and parent, as well as the officers, directors, employees and agents of all such entities will be included as an additional insured on the Commercial General Liability and Commercial Automobile Liability policies, and (b) coverage is primary and not excess of, or contributory with, any other valid and collectible insurance purchased or maintained by Owner, subject to indemnification protections within the Agreement. Company hereby waives any right it or its insurer’s may have against Owner for any loss or damage to the Company arising from any cause covered by any insurance carried by Company.
12. SEVERABILITY. If any provision of the Agreement is held unenforceable, the remaining terms will remain in effect. Such provision will be updated or deleted and deemed to be amended to the minimum extent necessary to render it enforceable, and the remaining provisions will remain in full force and effect to the greatest extent permitted by law.
13. LAWFULNESS. The Agreement and the parties’ actions under the Agreement will comply with all Applicable Laws. Company will ensure that all materials used and installation performed by Company will comply with all Applicable Laws, including but not limited to, all applicable safety codes, electrical codes, fire codes, and building codes. Company will ensure that all Services are delivered to the Property in compliance with all Applicable Laws. Specifically, Company agrees that it will be responsible for complying with the Communications Assistance with Law Enforcement Act (“CALEA”) and Digital Millennium Copyright Act (“DMCA”) with respect to the Services delivered to the Property and provided to Residents. Owner is responsible for compliance with all Applicable Laws, including CALEA and DMCA, if and to the extent CALEA and DMCA are applicable, with respect to any HSI Gratis Services that it receives from Company that Owner uses to provide any complimentary services to Residents or guests at the Property, including, but not limited to, any unmanaged Wi-Fi access that Owner makes available in common areas, lobbies, or a fitness center at the Property using HSI Gratis Services provided by Company. With respect to CALEA or DMCA compliance obligations, each party will provide reasonable assistance as reasonably requested by the other party as long as such requests do not require a party to reveal confidential information about the Residents and do not exceed that party’s obligations under applicable law. This section survives the expiration or earlier termination of the Agreement.
14. MISCELLANEOUS. The Agreement and its exhibits and attachments contain the entire agreement between the parties and supersede all prior oral or written agreements between the parties with respect to the subject matter of the Agreement. Each party may, at any time, reject any handwritten change to the Agreement. The parties are independent parties and nothing in the Agreement may be construed as creating an employment relationship, association, joint venture, partnership, or other business enterprise. “Force Majeure Event” means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, explosion, lightning, hurricane, labor dispute, cable cuts by third parties, failure by any third party that provides video services, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. Each party is not responsible for any delay or other failure to perform due to a Force Majeure Event. The terms and conditions of the Agreement regarding confidentiality, indemnification, limitation of liability, warranties, payment, dispute resolution, and all other terms of the Agreement that should by their nature survive the termination of the Agreement will survive. A party’s failure or delay to exercise any right is not a waiver of that right and partial exercise of any right does not preclude further the exercise of that right. The parties further agree to take whatever other actions and to execute whatever other documents are needed to fulfill the intent of the Agreement.