This Master Services Agreement (“Agreement”) is entered into as of (the “Effective Date”) by and between Velocity Communications Inc., a corporation registered under the laws of the State of Washington (“Velocity”), and , a registered under the laws of the State of (“Customer”). Velocity and Customer are each referred to herein as a “Party” and collectively as the “Parties.” This Agreement shall become legally binding and effective upon execution by both Parties.
RECITALS WHEREAS, Velocity provides telecommunications, internet, voice, and related services; and
WHEREAS, Customer desires to obtain such services under the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions contained herein, the Parties agree as follows:
1. CONTACT INFORMATION
1.1 Notices delivered electronically (e.g., email) shall be deemed received upon transmission provided no delivery failure notification or similar error is received by the sending Party. Notices sent by first-class mail shall be deemed received three (3) business days after mailing.
1.2 Customer agrees to promptly update Velocity in writing if its contact details change.
2. DEFINITIONS
2.1 “Services” means internet access, voice services, network construction, professional services, and related connectivity products as detailed in applicable Service Orders.
2.2 “Equipment” means hardware or software provided by Velocity, including but not limited to Customer Premises Equipment (CPE), routers, switches, and fiber termination units.
2.3 “Premises” means the Customer’s Service location as described in the applicable Service Order.
2.4 “Special Construction” means any non-standard installation or construction work required to deliver Services, subject to additional costs and prior approval.
2.5 “Service Order” means a written or electronic order for Services executed or accepted by Customer and incorporating the terms of this Agreement.
2.6 “Service Level Agreement” or “SLA” means a written service level commitment, if any, attached to or incorporated by an applicable Service Order. Absent an SLA, Services are provided on a best-effort basis.
2.7 “Managed WiFi” means Velocity provided wireless Equipment together with configuration and firmware management by Velocity, as described in Section 11.3 and priced in the applicable Service Order.
2.8 “Standard Installation” means: (a) a fiber drop of up to 300 feet from Velocity’s nearest network access point (such as a terminal within or upon a pedestal, handhole, or pole) to a network interface device (NID) on the exterior of the Premises, typically near where other utilities enter, using existing aerial, conduit, or underground pathways; (b) up to 20 feet of cable along the exterior from the NID to one building entry; (c) the fiber termination unit (ONT) installed either (i) inside the Premises within 6 feet of the building entry, or (ii) on the exterior at the NID or building entry, with one Ethernet cable through the building entry to a power injector located inside within 6 feet of the entry; in either case, Customer will provide a standard 120V outlet within 6 feet of the ONT or power injector; (d) one Ethernet cable of up to 6 feet from the ONT or power injector to the router; and (e) setup of Velocity-provided Equipment and Service activation. Work outside the Premises beyond Standard Installation, including new trenching, boring, conduit, or pole attachments, is Special Construction. Work inside the Premises beyond Standard Installation is Inside Wiring.
2.9 “Inside Wiring” means telecommunications cabling, jacks, wall plates, and related work inside the Premises beyond Standard Installation, including cable runs through attics, crawl spaces, or finished walls, and relocating the ONT, power injector, or router from the locations described in Section 2.8. Inside Wiring is provided at Velocity’s then-current published rates or, where no rate applies, by quote, and does not include electrical work. Upon completion, Inside Wiring becomes part of the Premises and is Customer’s responsibility to maintain; service calls related to Inside Wiring are billed under Section 11.1. Velocity-provided Equipment remains Velocity’s property under Section 6.1.
2.10 “Residential Service” means a Service designated as residential in the applicable Service Order. All other Services are business Services.
3. TERM AND TERMINATION
3.1 This Agreement is effective as of the Effective Date and remains in effect until terminated by either Party upon thirty (30) days’ prior written notice. Termination of this Agreement does not terminate any Service Order then in effect; this Agreement, as it may be modified or superseded under Section 26, continues to govern each Service Order until that Service Order expires or is terminated.
3.2 Each Service Order will specify either a minimum service term (“Term”) or that the Service is month-to-month. If no Term is specified, the Service is month-to-month. A Term begins on the date Velocity makes the Service available for Customer’s use, not on the date the Service Order is signed. Customer may cancel a Service Order at no charge any time before that date, except that if Velocity has commenced Special Construction or ordered non-standard equipment at Customer’s request, Customer will reimburse Velocity’s documented out-of-pocket costs actually incurred.
3.3 Month-to-month Services may be cancelled by either Party at any time upon notice to the other Party. Service will terminate at the end of the then-current billing period, and the monthly recurring charge for that final billing period will not be prorated or refunded. No early termination charge applies to month-to-month Services except as provided in Section 3.7.
3.4 Early Termination of Business Services. Business Services with a Term, including business broadband, Dedicated Internet Access, and Ethernet services, may be terminated early by Customer upon thirty (30) days’ prior written notice, or by Velocity upon Customer’s material breach or failure to pay, subject to the notice provisions of Section 8.9. In either case Customer will pay: (a) all outstanding amounts for Services rendered through the termination date; (b) the monthly recurring charge for the then-current month in full; and (c) fifty percent (50%) of the monthly recurring charges that would have become due for the remainder of the Term following the then-current month. A reduction in the monthly recurring charge for a Service during its Term will be treated as a partial early termination, and the charges in this Section will apply to the amount of the reduction. Changes that increase the monthly recurring charge do not trigger these charges. The Parties acknowledge that Velocity amortizes network construction and equipment costs into the monthly recurring charge over the Term, and that these amounts are a reasonable estimate of Velocity’s damages and not a penalty. These charges do not apply where Customer terminates due to Velocity’s uncured material breach. No early termination charge under this Section applies to Residential Services; the only amount due upon early cancellation of a Residential Service, beyond amounts for Services rendered, is any repayable amount under Section 3.7.
3.5 At the end of its Term, a business Service will automatically renew for successive one (1) year terms unless either Party provides at least thirty (30) days’ prior written notice of non-renewal. Velocity may change the rates for a renewal term by providing written notice at least sixty (60) days before the end of the then-current Term, and Customer may decline the renewal by written notice at any time before the end of the then-current Term without any charge under Section 3.4. At the end of its Term, a Residential Service continues on a month-to-month basis.
3.6 Upon termination of any Service, Customer will return, or make available for retrieval by Velocity, all Velocity-owned Equipment within thirty (30) days. Customer will be charged Velocity’s then-current replacement cost for any Equipment not returned or made available, or returned damaged beyond ordinary wear and tear.
3.7 Waived Installation Charges. Where Velocity waives or discounts an installation, activation, or Equipment charge, the amount waived or discounted from Velocity’s then-current published rate is repayable if the Service is cancelled by Customer, or terminated by Velocity under Section 5.6 or 8.9, within twelve (12) months of the service activation date. The repayable amount will be reduced by one-twelfth (1/12) for each full month of Service completed. This Section applies to month-to-month Services notwithstanding Section 3.3. No amount is repayable under this Section where early termination charges under Section 3.4 apply to the cancelled Service. No amount is repayable under this Section where Customer cancels due to Velocity’s uncured material breach or under Section 22.
3.8 Seasonal Hold and Reactivation. Where Velocity offers a seasonal hold, Customer may suspend a month-to-month Service for up to six (6) months per calendar year at Velocity’s then-current seasonal hold rate. During a hold, Service is unavailable but Velocity retains the Premises drop, Equipment, and any assigned IP addresses. Service resumes at the then-current rate for the Service. Where a Service is cancelled by Customer, or suspended or terminated by Velocity, and Service is later re-established at the same Premises, Velocity may charge its then-current reactivation, reconnection, or installation charge. No such charge applies to the resumption of Service following a seasonal hold under this Section.
4. DELIVERY OF SERVICES
Velocity shall provide the Services described in each Service Order, subject to network availability, Service feasibility, and technical limitations. Any Special Construction work required to deliver Services shall be subject to separate written agreement and additional charges, as approved by Customer prior to commencement. Inside Wiring requested by Customer shall be approved by Customer in writing prior to commencement, which may be by Service Order line item, signed work order, or email. Velocity may modify, upgrade, or maintain its network or facilities, provided such actions do not materially degrade the agreed Service without prior Customer notice. Scheduled maintenance performed with reasonable advance notice, and emergency maintenance necessary to protect network integrity or restore service, do not constitute a degradation, Service deficiency, or breach of this Agreement, and do not entitle Customer to any credit, remedy, or right of termination. Services shall be deemed delivered, operational, and accepted by Customer upon installation by Velocity, unless Customer notifies Velocity in writing or via a documented support ticket within two (2) business days of installation, identifying a material Service deficiency.
5. ACCEPTABLE USE AND LEGAL COMPLIANCE
5.1 Customer shall use the Services solely for lawful purposes. Customer shall not use the Services to transmit, distribute, or store content that is unlawful or in violation of applicable law. Customer shall not misuse the Services or Equipment and shall ensure that all users at the Premises comply with this Agreement.
5.2 Customer shall not resell, sublicense, or otherwise redistribute the Services without the prior written consent of Velocity.
5.3 Customer shall not use the Services to interfere with, disrupt, or attempt to gain unauthorized access to any network, system, or account. This includes but is not limited to denial-of-service attacks, port scanning, spoofing, or transmission of malicious code.
5.4 Customer shall not transmit unsolicited bulk messages, including email or short-message-service (SMS), or engage in message ‘pumping’, ‘phishing’, or fraudulent communications.
5.5 Voice Services may not be used for: robocalling or automated outbound calling campaigns; predictive dialers, auto-dialers, or call blasting systems; operation of call centers without prior written approval; transmission of unlawful telemarketing calls; spoofing, falsifying, or misrepresenting caller identification information; or violations of the Telephone Consumer Protection Act (TCPA) or applicable federal or state telemarketing laws. Customer is solely responsible for compliance with all telemarketing, robocall, and consumer protection laws. Velocity reserves the right to immediately suspend Voice Services upon receipt of traceback requests, regulatory inquiries, or credible complaints of unlawful calling activity.
5.6 Velocity may suspend, restrict, or terminate Services immediately, without prior notice, if Customer’s use of the Services: (i) violates this Agreement; (ii) causes harm, disruption, or degradation to the network; (iii) results in excessive complaints, abuse reports, or regulatory inquiries; or (iv) exposes Velocity to legal, regulatory, or reputational risk.
6. EQUIPMENT AND INSTALLATION
6.1 Velocity retains ownership of all Equipment unless expressly sold.
6.2 Customer shall not move, modify, or disconnect Equipment without Velocity’s written consent.
6.3 Velocity reserves the right to access the Premises, subject to Customer’s reasonable access policies, for the purposes of installation, maintenance, and removal of Equipment.
6.4 Customer is liable for damage, theft, or loss of Velocity Equipment at the Premises.
6.5 Title to Equipment sold to Customer under a Non-Recurring Charge passes upon payment in full. Title to Equipment billed on an installment basis passes upon payment of the final installment. All other Equipment remains Velocity-owned and is subject to Section 3.6. Section 3.6 does not apply to Equipment to which title has passed to Customer.
7. SERVICE PERFORMANCE; DISCLAIMER OF WARRANTIES
7.1 Services are provided on a best-effort basis unless specified otherwise in a Service Level Agreement (SLA). Performance may vary due to external factors.
7.2 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR AN APPLICABLE SLA, THE SERVICES AND EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VELOCITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. VELOCITY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. VELOCITY IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, OR AVAILABILITY OF ANY THIRD-PARTY NETWORK, SERVICE, OR SITE ACCESSED THROUGH THE SERVICES.
7.3 Equipment may carry a manufacturer’s warranty. Velocity will pass through to Customer any transferable manufacturer warranty on Equipment sold to Customer, but Velocity makes no independent warranty as to such Equipment.
8. BILLING AND PAYMENT
Velocity’s then-current standard rates for installation, Inside Wiring, reactivation, service calls, Services, and other non-recurring charges are published at www.velocitywa.com and are incorporated by reference.
8.1 Velocity will invoice Customer monthly in advance for recurring charges and in arrears for usage-based charges.
8.2 Payment is due within thirty (30) days of invoice issuance.
8.3 Customer is responsible for taxes, regulatory fees, and surcharges.
8.4 Velocity may store and automatically charge authorized payment methods on or around the invoice issue date.
8.5 Charges for Special Construction, if applicable, shall be invoiced separately and may require advanced payment prior to commencement of work.
8.6 Customer must notify Velocity in writing of any disputed charges within thirty (30) days of the charge; failure to do so shall constitute a waiver of the right to dispute such charges.
8.7 Billing for Services shall commence on the earlier of (a) the date the Services are delivered and deemed operational per Section 4, (b) the firm order commit date specified in the applicable Service Order, or (c) five days after notification of service availability.
8.8 Velocity may supply or install certain Equipment required to deliver the Services. Equipment provided by Velocity may be billed to Customer in one or more of the following ways, as specified in the applicable Service Order: (a) Non-Recurring Charge (NRC): A one-time charge for the purchase or provision of Equipment. (b) Installment: Equipment charges billed in equal monthly installments over a defined term as specified in the applicable Service Order. If Services are terminated prior to completion of any Equipment installment term, Velocity may, at its election, either (i) invoice Customer for the remaining unpaid balance of the Equipment charges, in which case title passes to Customer upon payment, or (ii) remove and retain the Equipment, in which case no further Equipment charges accrue. Velocity may not both invoice the remaining balance and remove the Equipment. No refund is due for Equipment charges previously paid.
8.9 If Customer fails to pay an undisputed invoice when due, Velocity may suspend the affected Services, and if non-payment continues, terminate them. Velocity will provide notice of suspension or termination, which may be given at or after the time of suspension. Suspension does not relieve Customer of charges accruing during the suspension period. This Section does not limit Velocity’s rights under Section 5.6.
8.10 Customer is responsible for all reasonable costs of collection on past-due amounts, including third-party collection agency fees and court costs.
8.11 Velocity may modify the recurring charges for any month-to-month Service upon thirty (30) days’ prior written notice to Customer, except where the applicable Service Order specifies a fixed-rate period, in which case the recurring charge for that Service will not increase during that period. Customer may cancel the affected Service without charge before the modified rate takes effect. Continued use of the Service after the effective date constitutes acceptance. Recurring charges for a Service with a Term are fixed for that Term unless the applicable Service Order states otherwise.
9. CREDIT REVIEW AND DEPOSITS
Customer authorizes Velocity to obtain consumer or business credit reports in connection with Customer’s application for Service. Where Velocity denies Service or requires a deposit based in whole or in part on information in a consumer report, Velocity will provide the notices required under the Fair Credit Reporting Act.
10. SUBNET UTILIZATION
Customers with an IP assignment larger than a /29 (more than eight addresses) must maintain 50% utilization of the leased subnet over a rolling 30-day period. Underutilized subnets may be reclaimed after thirty (30) days’ notice unless Customer provides valid justification.
11. SERVICE CALLS
11.1 Service calls determined by Velocity to be attributable to Customer-owned equipment, software, facilities, or Customer actions shall be billed to Customer at Velocity’s then-current service call rates.
11.2 Velocity’s support obligations are limited solely to the Services provided under this Agreement and expressly exclude general IT support or troubleshooting of Customer-owned networks, systems, equipment, or devices.
11.3 Managed WiFi includes remote configuration, firmware updates, and support of Velocity provided wireless Equipment. Wireless performance depends on building construction, layout, interference, and Customer devices. Velocity does not warrant any particular wireless speed, signal strength, or coverage at any location within the Premises. Velocity does not support customer-owned wireless equipment, and Managed WiFi does not include support for Customer devices, applications, or networks. Customer authorizes Velocity to remotely access and manage Velocity provided wireless Equipment for these purposes.
11.4 Where Customer requests on-site service outside Velocity’s published normal business hours, Velocity will charge its then-current after-hours dispatch fee. If the issue is attributable to Customer-owned equipment, facilities, or Customer actions under Section 11.1, after-hours labor will also be billed at Velocity’s then-current after-hours rate. After-hours dispatch fees do not apply where response is included under an applicable SLA.
12. VOICE SERVICES AND E911
12.1 Customer must provide Velocity accurate Premises address records for E911.
12.2 Voice Services are provided on a best-effort basis. Power or internet outages may disrupt emergency calls; alternative communication methods are recommended.
12.3 Voice Services are not intended for use with life-safety systems, including but not limited to fire alarm panels, elevator communication systems, and medical alert devices. Velocity makes no representation or warranty that the Services are compatible with or will satisfy the requirements of any authority having jurisdiction (AHJ), inspection agency, or applicable code.
12.4 Customer acknowledges that Voice Services may not function during power failures, internet or network outages, congestion, or Equipment failure, and that 911 and E911 service may be unavailable or may route to an incorrect location if Customer fails to maintain accurate Premises address records. Customer will inform all users at the Premises of these limitations.
12.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW, VELOCITY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS SHALL HAVE NO LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS ARISING FROM OR RELATING TO VOICE SERVICES, 911 OR E911 CALLING, OR THE INABILITY TO COMPLETE OR CORRECTLY ROUTE AN EMERGENCY CALL, INCLUDING CLAIMS FOR PERSONAL INJURY OR WRONGFUL DEATH, EXCEPT TO THE EXTENT CAUSED BY VELOCITY’S WILLFUL MISCONDUCT. Customer will defend, indemnify, and hold harmless Velocity from any third-party claim arising from the use of or inability to use 911 or E911 service at the Premises, including claims brought by Customer’s employees, tenants, guests, invitees, or other users. In no event will Velocity be liable for punitive or exemplary damages relating to Voice Services.
13. NETWORK INTEGRITY AND SECURITY
Velocity may limit or restrict network use to preserve network integrity, comply with legal requirements, or prevent Service degradation. Customer shall not use the Services in a manner that unreasonably consumes network resources or interferes with other customers’ use of the network. Customer shall not attempt to circumvent network management practices or security measures. Current network management practices are available at www.velocitywa.com.
14. INTELLECTUAL PROPERTY
All intellectual property associated with Services and Equipment remains Velocity’s property. Customer receives no ownership rights or licenses beyond necessary usage.
15. CONFIDENTIALITY AND NON-DISCLOSURE
Each Party agrees to treat all non-public, proprietary, or confidential information of the other Party as confidential, using the same degree of care it uses to protect its own confidential information. Confidential information shall not be disclosed to third parties without prior written consent, except as required by law. Obligations under this section shall survive termination.
16. CUSTOMER DATA AND PRIVACY
16.1 Velocity’s collection and use of Customer information is governed by Velocity’s Privacy Policy, available at www.velocitywa.com/privacy, which is incorporated by reference. Velocity may update the Privacy Policy from time to time and will provide notice of material changes.
16.2 Velocity’s use and disclosure of Customer Proprietary Network Information (“CPNI”), as defined under 47 U.S.C. § 222 and applicable FCC rules, is governed by those rules and Velocity’s CPNI policy. Customer may notify Velocity at any time to restrict Velocity’s use of CPNI for marketing purposes.
16.3 Customer is solely responsible for the security, backup, and lawful handling of Customer’s own data transmitted over or stored on Customer systems. Velocity does not monitor, and assumes no responsibility for, the content of Customer communications except as required by law or as necessary for network management and abuse response.
17. INSURANCE
Velocity maintains commercial general liability, automobile liability, workers’ compensation, and umbrella coverage, and will provide certificates of insurance upon request. Customer is responsible for insuring its own premises, property, and business operations, including business interruption.
18. DMCA POLICY
Velocity complies with the Digital Millennium Copyright Act (DMCA). Customers must not use Services to infringe on copyrights. Copyright holders may notify Velocity of alleged infringements per Velocity’s DMCA Policy available at www.velocitywa.com/dmca. Velocity reserves the right to suspend or terminate Services for repeated infringements.
19. PUBLICITY
Velocity may list Customer as a client in marketing materials unless Customer provides written notice to opt out.
20. LIMITATION OF LIABILITY
20.1 THE TOTAL AGGREGATE LIABILITY OF VELOCITY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE FIRST SUCH CLAIM.
20.2 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF DATA, COST OF SUBSTITUTE SERVICES, OR LOSS OF GOODWILL, WHETHER CHARACTERIZED AS DIRECT OR INDIRECT DAMAGES AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.3 The limitations in Sections 20.1 and 20.2 do not apply to (a) liability for death or bodily injury caused by a Party’s negligence or willful misconduct, except as provided in Section 12.5, (b) a Party’s indemnification obligations under Section 21, or (c) Customer’s obligation to pay amounts due under this Agreement.
21. INDEMNIFICATION
21.1 Customer agrees to indemnify, defend, and hold harmless Velocity from third-party claims arising out of Customer’s use or misuse of the Services, any content or data transmitted, received, or stored by Customer or any user at the Premises, including any claim of copyright or other intellectual property infringement, Customer’s breach of this Agreement, or Customer’s violation of applicable law. This obligation does not extend to claims to the extent caused by Velocity’s negligence or willful misconduct.
21.2 Velocity agrees to indemnify, defend, and hold harmless Customer from third-party claims alleging that the Services or Equipment, as designed and provided by Velocity, infringe a United States patent, copyright, or trademark, and from third-party claims for bodily injury, death, or damage to tangible property to the extent caused by the negligence or willful misconduct of Velocity’s personnel at the Premises. This obligation does not extend to, and Velocity has no liability for, any claim arising from content, data, or communications transmitted, received, stored, or shared by Customer or any user at the Premises, including claims of copyright infringement arising from Customer’s use of the Services. Velocity acts solely as a conduit for Customer’s transmissions and does not select, monitor, modify, or control their content.
21.3 The indemnified Party will promptly notify the indemnifying Party of any claim, tender sole control of the defense, and provide reasonable cooperation at the indemnifying Party’s expense.
22. FORCE MAJEURE
Neither Party shall be liable for delays or failures in performance caused by events beyond its reasonable control, including natural disasters, fire, flood, storm, earthquake, war, terrorism, civil unrest, labor disputes, utility or power failure, third-party network or carrier failure, cable cuts caused by third parties, epidemic, or governmental action (“Force Majeure Event”). The affected Party will notify the other Party promptly and use commercially reasonable efforts to resume performance. Force Majeure does not excuse Customer’s obligation to pay amounts due for Services rendered. If a Force Majeure Event prevents Velocity from delivering a Service for more than sixty (60) consecutive days, either Party may terminate the affected Service upon written notice, and no early termination charge under Section 3.4 and no repayable amount under Section 3.7 will apply to that termination.
23. GOVERNING LAW AND VENUE; ATTORNEYS’ FEES
23.1 This Agreement shall be governed by the laws of Washington State, with disputes resolved exclusively in Grays Harbor County courts.
23.2 In any action or proceeding to enforce or interpret this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees, costs, and expenses, in addition to any other relief awarded.
23.3 Any claim or cause of action arising under or relating to this Agreement must be commenced within one (1) year after the claim accrues, or it is permanently barred, regardless of any statute of limitations providing a longer period. This Section does not apply to claims for amounts owed to Velocity under this Agreement.
24. SURVIVAL
Sections 2, 3.4, 3.6, 3.7, 3.8, 6.1, 6.4, 6.5, 7, 8, 12.4, 12.5, 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 31 survive termination or expiration of this Agreement.
25. ASSIGNMENT
Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement without consent in connection with a merger, acquisition, or sale of substantially all its assets, provided that the assignee assumes all obligations under this Agreement in writing and the assigning Party remains jointly and severally liable for all obligations accrued prior to the assignment. Velocity may additionally assign this Agreement, or grant a security interest in its rights and receivables under this Agreement, to any lender or financing party without Customer’s consent. Any purported assignment in violation of this Section is void.
26. ENTIRE AGREEMENT; ORDER OF PRECEDENCE
This Agreement, along with all incorporated Service Orders and policies, constitutes the entire agreement between the Parties and supersedes prior agreements. Except as provided in Section 26.1, any amendments or modifications to this Agreement must be in writing and signed by both Parties. In the event of conflict, the Service Order controls as to pricing, Service description, Term, and Service-specific commercial terms. This Agreement controls as to all other terms unless the Service Order expressly identifies the Section of this Agreement it modifies and is signed by an authorized representative of both Parties.
26.1 Modifications. Velocity may modify this Agreement by posting an updated version at www.velocitywa.com/msa and providing Customer at least thirty (30) days’ written notice before the modification takes effect. Customer’s continued use of the Services after the effective date constitutes acceptance. If a modification materially and adversely affects Customer, Customer may cancel the affected Services by notice before the effective date without any charge under Section 3.4 or repayable amount under Section 3.7. No modification will change the recurring charges or Term of a Service with a Term during that Term, or apply to any dispute arising before its effective date. Nothing in this Section limits Velocity’s right to change rates under Sections 3.5 and 8.11.
26.2 Governing Version. The version of this Agreement most recently accepted by Customer, or most recently made effective as to Customer under Section 26.1, governs all Service Orders then in effect and all Service Orders thereafter executed, and supersedes all prior versions. Notwithstanding the foregoing, the recurring charges and Term of any Service with a Term in effect on the date a superseding version takes effect continue to be governed by the version in effect when that Service Order was executed, and no superseding version applies to any dispute arising before its effective date.
27. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
28. WAIVER
No failure or delay by either Party in exercising any right or remedy shall constitute a waiver thereof.
29. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the Parties.
30. COUNTERPARTS; ELECTRONIC SIGNATURES
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures and scanned copies of executed counterparts shall be deemed valid and binding.
31. NO THIRD-PARTY BENEFICIARIES
This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing in this Agreement confers upon any other person or entity any legal or equitable right, benefit, or remedy, including any employee, tenant, guest, invitee, contractor, or end user of Customer.