Terms-Conditions of Use
1. Terms and Conditions:
A. Services: Service Provider shall provide Services to Client as more fully described in Exhibits attached hereto to this MSA and as may be described elsewhere by Service Provider.
B. Client’s Responsibility: Services provided by Service Provider are interactive. This means that both Service Provider and Client have responsibilities. The Client’s responsibilities are set forth in Service Provider’s policies. Client is also responsible for placement, installation, operation, maintenance, repair, and replacement of all inside wire (including riser cable) and Client Premises Equipment (“CPE”) not provided by Service Provider that Client uses in connection with Services. Premises wiring and Client provided CPE must be compatible with the Services and features. Service failures due to premises wiring or Client provided CPE are the sole responsibility of Client, and Service Provider has no liability in connection therewith.
C. Service Changes: Client may add additional Services at the rates available at time of service addition.
D. Equipment and software provided by Service Provider: Any equipment and software not purchased by Client and provided by Service Provider to Client is owned by Service Provider. Service Provider may at any time substitute one piece of equipment for another and may upgrade or otherwise change the equipment configuration upon agreement by both parties. Upon termination of Services, Service Provider shall be entitled to remove its equipment and software from Client’s premises. Service Provider will make up to two (2) attempts to retrieve equipment from Client’s site. If Service Provider is unable to retrieve equipment within two (2) attempts, Client must deliver equipment to 100 N. Stanton Street, Suite 700; El Paso, Texas 79901, within five (5) days of service disconnection. Failure to return equipment will result in Service Provider billing the Client for the unreturned equipment at the price of the unreturned equipment at time of initial installation. The rights and responsibilities of the parties with respect to the equipment shall be governed by the Texas Uniform Commercial Code. Service Provider will not reimburse Client for costs incurred by Client to remove and deliver equipment to Service Provider’s offices.
2. Charges, Billing:
A. Client shall pay each invoice in full by the payment due date with the initial indicated payment for nonrecurring charges (NRC) due as indicated in the description of services (“Services”) being provided by Service Provider to Client that are more fully described in attached Exhibit A, Service Description, and incorporated herein by reference. Beyond the initial startup period, on an ongoing basis, Services will be invoiced approximately three weeks in advance of the Service Month for Services, which are provided during Service Month, and payment is due on the 1st of the upcoming Service Month.
B. Accounts not paid in full by the 5th of the Service Month will be considered delinquent. Delinquent accounts will become due and fully payable upon demand.
C. Accounts not paid in full by the 15th of the Service Month will be assessed a penalty of 10% (ten percent) of the unpaid amount and are subject to service suspension.
D. Accounts not paid in full by the 25th of the Service Month will be suspended and subject to a $50.00 re- connect fee.
E. Accounts not paid in full by the 30th of the Service Month will be terminated. An installation charge of 100.00 will be assessed against the account for service to be re-installed.
F. Accounts that have been terminated will have their files deleted from the system. In the event the Client’s account is placed with an attorney or collection agency for collection, in addition to the payment of unpaid charges, Client agrees to pay all costs of the collection, including but not limited to, court costs and reasonable attorney’s fees.
G. Client will pay nonrecurring charges (NRC) and monthly recurring charges (MRC) for Services, in addition to all applicable taxes, usual and customary surcharges, and all government imposed fees, assessments, 2% administrative charge for regulatory compliance, or other charges that relate to the Services or installation.
3. Disclaimer of Warranties: THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY SERVICE PROVIDER ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
4. Limitation of Liability, Exclusive Remedy: NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICE OR THIS MSA, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. CLIENT’S EXCLUSIVE REMEDIES FOR CLAIMS RELATED TO THE SERVICE SHALL BE LIMITED TO THE APPLICABLE OUT- OF-SERVICE CREDIT(S), IF ANY, SERVICE PROVIDER’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS MSA SHALL NOT EXCEED THE TOTAL MONTHLY RECURRING COSTS PAID BY THE CLIENT TO SERVICE PROVIDER PURSUANT TO THIS AGREMENT IN THE MONTH IMMEDIATELY PRECEEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO CLIENT’S PAYMENT AND INDEMIFICATION OBLIGATIONS. PROVIDED HOWEVER, EACH PARTY SHALL BE RESPONSIBLE FOR ANY ACTUAL PHYSICAL DAMAGES IT DIRECTLY CAUSES IN THE COURSE OF ITS PERFORMANCE UNDER THIS MSA, LIMITED TO DAMAGES RESULTING FROM PERSONAL INJURIES, DEATH, OR PROPERTY DAMAGE ARISING FROM NEGLIGENT ACTS OR OMISSIONS, REMEDIES UNDER THIS MSA ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS MSA.
5. Limitations: Service Provider shall not be liable for interruptions caused by failure of equipment or services regardless of whether provided by Service Provider or a third party, power fluctuations and outages, and all other interruptions of whether within or outside the reasonable control of Service Provider. If Service Provider fails to provide the services for an unreasonable length of time for any reason, the sole and exclusive remedy shall be the pro-rata portion of the Monthly Service Fee for the time during which the services were not provided. Service Provider shall not be liable for incidental, consequential (including but not limited to lost profits), or punitive damages.
6. Force Majeure: Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by an unforeseeable event (other than a failure to comply with payment obligations) beyond the reasonable control of a party, including without limitation: act of God; fire; flood; earthquake; tornado; wildfire; mudslides; wind damage; labor strike; sabotage; terrorism; fiber cut; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefore; lack of or delay in transportation; government codes ordinances; laws; rules; regulations or restrictions; war or civil disorder; or failures
of suppliers of goods and service (“Force Majeure Event”).
7. Lawfulness: This MSA and Exhibits, and the parties’ actions under this MSA and Exhibits, shall comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any change in rates, charges or regulations mandated by legally constituted authorities will act as a modification to this MSA and/or Exhibits to that extent without further notice.
8. Publicity: Neither party shall, without the prior written consent of the other, issue any press release or public announcement regarding this MSA and /or Exhibits or any relation between Client and Service Provider or use the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates. Such consent by Service Provider may be given in writing by the President or General Manager.
9. Default and Termination of Services: Service Provider may terminate the services provided to Client upon the happening of any of the following events (i) Client’s failure to pay for the services in accordance with this MSA and/or Exhibits, and the established policies of Service Provider, or (ii) Client’s failure to comply with the terms of this MSA and/or Exhibits, or failure to comply with the policies adopted by Service Provider and uniformly applied to its Clients. Generally, Service Provider will provide Client five (5) business days written or emailed notice of the intended discontinuance of services. However, if the Client is causing damage to Service Provider Equipment or Network, acting illegally, causing a disruption of services to other Service Provider Clients or Internet users, or incurring abnormal and continuing long distance calling or bandwidth charges, Service Provider may terminate the service immediately. Either party may terminate this MSA and/or Exhibits for cause. Cause shall mean any material breach, which remains uncorrected thirty (30) days after written notice to the other party. If Client terminates this MSA and/or Exhibits prior to installation of Service, Client shall pay those reasonable costs incurred by Service Provider. If Service Provider terminates this MSA and/or Exhibits for cause, or if Client terminates this MSA and/or Exhibits in whole or in part WITHOUT cause, Client will pay Early Termination Charges (ETC). The ETC formula is as follows:
Early Termination Charge: Equals total Monthly Recurring Charges (MRC) multiplied by 100% of number of months remaining on the applicable Exhibit A, Service Description. Example: Service Provider invoices Client $300.00/month in MRC [not including taxes, assessments, etc.] on a 36 month term. Client decides to give thirty (30) calendar days notice at end of 20th month to terminate services early. At the end of the thirty (30) calendar days notice period, there are 15 months remaining on the term. At $300.00/month in MRC multiplied by 15 months equals $4,500.00, and then multiplied by the 100% ETC factor equals $4,500.00 owed by Client to Service Provider, plus applicable taxes, assessments, etc. if any. Upon receipt of thirty (30) calendar days notice from Client, Service Provider will invoice Client for ETC computed charges with payment of such invoice due within ten (10) business days from date of ETC invoice.
10. Public Regulation: If Services provided by Service Provider under this MSA and/or Exhibits become publicly regulated, any requirements of the regulator and the standard provisions of related tariffs approved by, or filed with, the regulating authority, shall be incorporated into, and become a part of this MSA and/or Exhibits. Such new provisions shall take precedence over the provisions of this MSA and/or Exhibits. If the regulations results in higher operating costs for Service Provider, the pricing of Services to Client under this MSA and/or Exhibits shall be equitably adjusted.
11. General Provisions: Any disputes arising out of or relating to this MSA and/or Exhibits shall be settled in El Paso County, Texas. This MSA and Exhibits shall be governed by the laws of the state of Texas. Neither party’s failure to insist upon strict performance of any provision of this MSA and/or Exhibits shall be construed as a waiver of any of its rights. If any term of this MSA and/or Exhibits is held to be unenforceable, the unenforceable term shall be construed as nearly as possible to reflect the original intent of the parties and the remaining terms shall remain in effect. All terms of this MSA and/or Exhibits, which should by their nature survive the termination of this MSA and/or Exhibits, shall so survive. Client may not assign this MSA and/or Exhibits or any of its rights or obligations hereunder without the prior written consent of Service Provider, which consent will not be unreasonably withheld. This MSA and Exhibits are intended solely for Service Provider and its affiliates and Client and it shall not benefit or be enforceable by any other person or entity. This MSA and Exhibits hereunder constitute the entire MSA and/or Exhibits between Client and Service Provider as identified further in any and all Exhibits. Any statement(s) made by the Service Provider’s sales or other associate(s), or agents of Service Provider, if not included in this MSA or Exhibits, do not become part of the MSA and/or Exhibits.
12. Client Re-location: If Client elects to re-locate from where the Service Provider initially installed and delivered services as indicated elsewhere on attached Exhibits, Client will pay for the moving of such services to the new Client location. Further, the Term and Pricing indicated in this MSA and/or Exhibits may be modified to reflect an adjusted Term and related Pricing of the Services provided by Service Provider.
13. Invoice Amount Dispute Resolution: If Client disputes a portion of an invoice rendered by Service Provider, Client will have five (5) business days to notify the Service Provider of the basis for such dispute and the amount of such dispute, in writing, as more fully described in the Notices section in this MSA. Client is fully obligated to make payment on the non-disputed amounts of invoice on the basis as described elsewhere in this MSA.
14. Dispute Resolution: Any dispute or disagreement arising between Seller and Client in connection with this Agreement which is not settled to the mutual satisfaction of Seller and Client within thirty (30) days from the date that either Party informs the other in writing that such dispute or disagreement exists, shall be settled by arbitration in El Paso, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date that such notice is given. If the Parties are unable to agree on a single arbitrator within fifteen (15) days, each Party shall select an independent arbitrator and the two arbitrators shall select a third arbitrator. The decision of the arbitrator(s) shall be final and binding upon the Parties and shall include written findings of law and fact. Any judgment pursuant to arbitration may be obtained and enforced by either Party in a court of competent jurisdiction. Each Party shall bear the cost of preparing and presenting its own case. The cost of the arbitration, including the charges and expenses of the arbitrator(s), shall be shared equally by the Parties hereto unless the award otherwise provides. The obligation herein to arbitrate shall not be binding upon any Party with respect to requests for preliminary injunctions, temporary restraining orders or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute.
15. Notices: Except as otherwise provided herein, all required notices shall be sent as indicated below. Notices will be considered given either: (a) when delivered in person to the recipient designated for notices; (b) when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or (c) when delivered to an overnight courier service. (Client’s current address, Fax number and position designated for Notices)
A. Amendment Waiver: This MSA and/or Exhibits cannot be amended, modified or revised unless agreed to in writing and signed by authorized agents of both the Service Provider and Client. No provision may be waived
except in writing signed by both Service Provider and Client.
B. Entire MSA and Exhibits: This MSA and any Exhibits attached hereto, all being a part hereof, constitute the entire MSA and/or Exhibits, of the parties hereto and will supersede all prior offers, negotiations and MSAs and Exhibits
C. Severability: If any term or condition of this MSA is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not contained herein.
D. Confidentiality: If Seller and Client have executed a Nondisclosure Agreement, Confidentiality Agreement, or similar agreements of understanding, the parties agree that the terms therein shall remain in full effect throughout the Term of this MSA and/or Exhibits. Notwithstanding the foregoing, Client and Service Provider agree to maintain in strict confidence all plans, designs, drawings, trade secrets, and other proprietary information of the other party disclosed under this MSA and/or Exhibits. No obligation of confidentiality shall apply to disclose information that the recipient: (a) already possesses without obligation of confidentiality; (b) develops independently; or (c) rightfully receives without obligation or confidentiality from a third party. The parties’ obligations under this section shall survive expiration or termination of this MSA and/or Exhibits.
E. Interpretation: Unless otherwise specified, the following rules of construction and interpretation apply:
i. Captions are for convenience and reference only and in no way define or limit the construction of the terms and conditions hereof.
ii. Use of the term “including” will be interpreted to mean “including but not limited to”.
iii. Whenever a party’s consent is required under this MSA and/or Exhibits, except as otherwise stated in the MSA and/or Exhibits or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed;
iv. Exhibits are an integral part of the MSA and are incorporated by reference into this MSA.
v. Reference to a default will take into consideration any applicable notice, grace and cure periods.