This Master Services Agreement (“Agreement”) is entered into by and between ShopRocket, LLC, a Tennessee limited liability company doing business as OktoRocket (“OktoRocket”), with a principal place of business at 660 Bakers Bridge Avenue, Suite 200, Franklin, Tennessee 37067, and the customer identified in the applicable Subscription Agreement (“Customer”), effective as of the date of the last signature below (the “Effective Date”).
1. Structure and Order of Precedence
This Agreement, together with any Subscription Agreement(s), the Fulfillment Policy, the Privacy Policy, the Data Retention Policy, the 911/E911 Notice, the SMS Terms, the Acceptable Use Policy, and, where Customer purchases Hardware from OktoRocket, the Hardware Sales Terms and Conditions (collectively, the “Governing Documents”), constitutes the entire agreement between the parties regarding the Services. In the event of a conflict, the following order of precedence applies: (1) the applicable Subscription Agreement; (2) this Agreement; (3) the Fulfillment Policy; (4) the remaining Governing Documents. This Agreement supersedes OktoRocket's standard Terms and Conditions for the duration of the Term. Where Customer uses the Platform's SMS or text messaging features, such use is additionally governed by OktoRocket's SMS Terms, incorporated into this Agreement by reference.
2. Services
OktoRocket will provide Customer the SaaS platform and, where selected on the Order Form, VoIP communication services (collectively, the “Services”) described in the applicable Subscription Agreement.
3. Term and Renewal
3.1 Initial Term
This Agreement begins on the Effective Date and continues for the Initial Term selected below (the “Initial Term”):
- 12 months
- 24 months
- 36 months
- Other: _______ months
3.2 Renewal
Upon expiration of the Initial Term, this Agreement automatically renews for successive terms of the same length (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least 30 days before the end of the then-current term.
3.3 Interaction with Fulfillment Policy
Where this Agreement specifies a defined Term, this Section governs instead of the month-to-month default described in the Fulfillment Policy. All other billing, cancellation-notice, and non-payment mechanics in the Fulfillment Policy continue to apply.
4. Fees and Payment
Fees are as set out in the Subscription Agreement and are billed in accordance with the Fulfillment Policy, including its full-month billing and no-proration terms. Early termination fees, if applicable, are set out in Section 12.
5. Service Level Agreement
5.1 Uptime Commitment
OktoRocket will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99.9%, calculated as described below.
5.2 Calculation
“Monthly Uptime Percentage” is calculated as:
((Total Minutes in the Month − Downtime Minutes) ÷ Total Minutes in the Month) × 100
“Downtime” means any period during which Customer is unable to access or use the core functionality of the Services, excluding Excluded Downtime as defined in Section 5.5.
5.3 Service Credits
If OktoRocket fails to meet the 99.9% Monthly Uptime Percentage in a given billing month, Customer is eligible for a service credit applied to a future invoice, calculated as a percentage of that month's Service fees according to the following schedule:
| Monthly Uptime Percentage | Service Credit |
|---|---|
| 99.0% – 99.89% | 5% of monthly fees |
| 97.0% – 98.99% | 10% of monthly fees |
| 95.0% – 96.99% | 20% of monthly fees |
| Below 95.0% | 30% of monthly fees |
5.4 Credit Mechanics
- Service credits are calculated against the fees for the affected Service only, not the customer's total invoice if they subscribe to multiple products.
- Total service credits in any billing month will not exceed 100% of that month's fees for the affected Service.
- Service credits are Customer's sole and exclusive remedy for OktoRocket's failure to meet the uptime commitment in this Section.
- To receive a credit, Customer must submit a request within 30 days of the end of the affected billing month, including the dates and times of the claimed Downtime. OktoRocket will verify the claim against its own monitoring data.
5.5 Excluded Downtime
Downtime does not include unavailability caused by:
- Scheduled maintenance during non-impacting hours of business;
- Force majeure events under Section 18;
- Customer's equipment, internet connectivity, or third-party services not controlled by OktoRocket;
- Suspension of Service due to Customer's non-payment, consistent with the Fulfillment Policy; or
- Outages attributable to upstream carriers or telecommunications providers, to the extent OktoRocket has no reasonable ability to prevent or mitigate the outage.
6. E911 and Regulatory Compliance
Customer acknowledges the limitations of VoIP-based 911 and E911 service described in OktoRocket's 911/E911 Notice, which is incorporated into this Agreement by reference. Customer is responsible for the address registration and update obligations described in that notice.
7. CPNI Compliance
OktoRocket will handle Customer Proprietary Network Information in accordance with 47 C.F.R. Part 64, Subpart U, and as described in OktoRocket's Privacy Policy and Data Retention Policy.
8. Number Porting
Phone numbers associated with Customer's account are handled in accordance with the number ownership and porting provisions of the Fulfillment Policy and Data Retention Policy.
9. Data Protection
OktoRocket's collection, use, and retention of Customer data is governed by the Privacy Policy and Data Retention Policy, both incorporated into this Agreement by reference.
10. Confidentiality
Each party will protect the other's confidential information using at least the same degree of care it uses to protect its own confidential information of similar sensitivity, and will not disclose such information except to personnel or subcontractors with a need to know, or as required by law.
11. Limitation of Liability
Except for breaches of confidentiality, indemnification obligations, or a party's gross negligence or willful misconduct, neither party's total liability arising out of this Agreement will exceed the fees paid or payable by Customer in the 12 months preceding the claim. Neither party is liable for indirect, incidental, special, or consequential damages.
12. Term Commitment and Early Termination
If Customer terminates this Agreement before the end of the then-current Term for reasons other than OktoRocket's uncured material breach, Customer will pay an early termination fee equal to the fees remaining for the balance of the Term, as set out in the Subscription Agreement.
13. Termination for Breach
Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure that breach within 30 days of written notice.
14. Indemnification
14.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless OktoRocket, its officers, employees, and agents from and against third-party claims, damages, liabilities, and expenses (including reasonable attorneys' fees) arising from or relating to: (a) any failure, inaccuracy, or delay in Customer's registration or maintenance of E911 address information, or any other failure of 911/E911 calling arising from Customer's acts or omissions, as described in OktoRocket's 911/E911 Notice; (b) toll fraud, unauthorized use, or fraudulent calling activity occurring through Customer's account, network, endpoints, or credentials; (c) Customer Content; and (d) Customer's violation of applicable law or third-party rights in connection with its use of the Services, including telemarketing, messaging, robocall, and other consumer-protection or communications laws.
14.2 OktoRocket Indemnification. OktoRocket will defend, indemnify, and hold harmless Customer from and against third-party claims that the Services, as provided by OktoRocket and used in accordance with this Agreement, infringe or misappropriate a third party's United States intellectual property rights, and will pay the damages and costs (including reasonable attorneys' fees) finally awarded against Customer arising from such a claim. Notwithstanding Section 11 or any other provision of this Agreement, OktoRocket's total liability under this Section 14.2 will not exceed the fees paid by Customer for one (1) month of Services.
14.3 Procedure. The indemnified party will provide the indemnifying party with prompt written notice of any claim, allow the indemnifying party to control the defense and settlement of the claim (subject to the indemnified party's approval of any settlement that imposes liability or an obligation on the indemnified party, not to be unreasonably withheld), and provide reasonable cooperation at the indemnifying party's expense.
15. Governing Law
This Agreement is governed by the laws of the State of Tennessee, without regard to conflict-of-laws principles, and any dispute will be brought exclusively in the state or federal courts located in Williamson County, Tennessee.
16. Assignment
Neither party may assign this Agreement without the other's prior written consent, except that OktoRocket may assign this Agreement in connection with a merger, acquisition, or sale of assets.
17. Notices
Notices to OktoRocket must be sent to: ShopRocket, LLC d/b/a OktoRocket, 660 Bakers Bridge Avenue, Suite 200, Franklin, Tennessee 37067, Attn: Legal, or to legal@oktorocket.com.
18. Force Majeure
Neither party is liable for delays or failures in performance caused by circumstances beyond its reasonable control.
19. Entire Agreement; Amendments
This Agreement, together with the Governing Documents, constitutes the entire agreement between the parties regarding the Services. Amendments must be in writing and signed by both parties.
Signatures
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
ShopRocket, LLC d/b/a OktoRocket
By: _______________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________
Customer
By: _______________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________