GENERAL TERMS AND CONDITIONS FOR SERVICES
PROVIDED BY UNITED NETWORK SERVICES, INC.
This document contains the general terms and conditions for the services provided by American Broadband, Inc., doing business as United Network Services, Inc. (hereinafter “UNSi”). These general terms and conditions (hereinafter “General Terms”) shall apply to any and all Services (defined below) that are performed by UNSi pursuant to a work order, service order, statement of work, or any other form of an order for services (collectively hereinafter “Service Order”) placed by any customer (hereinafter “Customer”) with UNSi and accepted and signed by UNSi. If Customer has a governing general written agreement such as a master services agreement (“MSA”) with UNSi, then the terms and conditions of such MSA shall replace these General Terms.
These General Terms, the service supplements applicable to specific types of services (“Service Supplements”), SLAs (defined below) and UNSi’s and/or third party provider’s AUP (defined below) may be modified by UNSi anytime at UNSi’s sole discretion and without notice to Customer; provided however that any changes shall not apply to Service Orders issued prior to the effective date of the changes. The effective date of these General Terms is AUGUST 1, 2013 (hereinafter “Effective Date”).
1. Agreement; Services.
- These General Terms govern services purchased by Customer and provided by UNSi as agreed to in the Service Order (the “UNSi Services” or the “Services”). UNSi Services may consist of any one or combination of (i) UNSi’s Data and Internet Services, such as Internet, Broadband, MPLS, Ethernet, DIA, VPLS, Private Line and/or Fixed Wireless; (ii) UNSi’s Managed Services, such as managed LAN, managed Router, managed Firewall, Same IP Failover (SIF), back-office services, managed co-location, and/or hosted monitoring; (iii) UNSi’s Professional Services; (iv) UNSi’s VoIP Services, such as hosted PBX, SIP Trunking, PRI Replacement and/or Business Line Replacement; and (v) any other voice, data, managed and/or professional services and/or products.
- The Services shall be provided according to the terms and conditions in these General Terms and as specified in an accepted Service Order. All Services are subject to availability at the time of receipt of each Service Order.
- The agreement between UNSi and Customer in its entirety for the Services shall consist of these General Terms, the Service Order, the Service Supplement(s), the applicable Service Level Agreements (“SLA”), UNSi’s and any third party provider’s Acceptable Use Policy (collectively the “AUP”). All such documents are incorporated by reference herein, are integrated into these General Terms thereby, and the foregoing shall be deemed one integrated agreement, and not as separate severable contracts. These documents will be located on UNSi’s website at www.unsi.net, and are accessible at all times by Customer.
2. Service Term; Start of Service Date.
- The term for each Service shall be described in the Service Order (“Service Term”). If no Service Term is indicated on the Service Order, the Service Term shall be thirty-six (36) months. At the end of the Service Term or Extension Period for any Service, such Service shall continue automatically for a consecutive twelve (12) month period (“Extension Period”) unless (i) either party gives written notice to the other that the Service(s) shall be disconnected and/or terminated, such notice to be delivered at least thirty (30) calendar days before the end of the Service Term, or if during the Extension Period, then upon at least thirty (30) calendar days’ prior written notice; or (ii) UNSi and Customer have agreed otherwise in the Service Order.
- UNSi will provide Customer written or electronic notice that the Service is ready for use. Customer shall thereafter have two (2) calendar days to test the Service. The Service Term shall commence upon the “Start of Service Date,” determined to be the next calendar day after the earlier of the following: (i) the date that Customer tests and provides written or electronic notification to UNSi that the Service is accepted; or (ii) the two (2) calendar days have passed without written or electronic notification by Customer to UNSi of non-acceptance of the Service.
- The Start of Service Date shall not be delayed or otherwise affected if facilities, equipment, or services not ordered from UNSi, nor being UNSi’s responsibility, have not been installed or are not functional. UNSi may cancel and/or reject any Service Order without any liability to Customer, even after executing the Service Order, if UNSi determines that third party facilities required to feasibly provision the ordered Service to the Customer-requested location are unavailable or impractical.
3. Payment Terms and Charges; Billing Adjustments.
- Customer agrees to pay all recurring and non-recurring charges for UNSi Services, and all separate charges from third party services. UNSi provides and charges for Services in U.S. Dollars, commencing on the Start of Service Date. UNSi may invoice Customer for Services in arrears or in advance. Usage-based Services will be invoiced in the billing period after such Services have been provided.
- Subject to Sections 4 (regarding billing disputes) and 5 (regarding credit approval) below, all amounts stated on each invoice are due and payable upon receipt of the invoice (“Due Date”).
- Customer agrees to accept delivery of invoices via mail or electronically via the Internet. Customer agrees to remit payment via check, automated or wire transfer or credit card to UNSi or such other bank or account as UNSi may in writing direct Customer to remit payment. UNSi shall not be responsible for any charges or expenses incurred by Customer overdrawing its bank account or exceeding its credit card or other limits as a result of any automatic charge generated by UNSi pursuant to this authority.
- In the event Customer fails to make full payment of undisputed amounts by the Due Date, such payments are past due. In such event, Customer shall also pay a late fee in the amount of the lesser of (i) one and one half percent (1½%) per month; or (ii) the maximum lawful monthly rate under applicable state law, of the unpaid balance which amount shall accrue from the Due Date (“Late Fee”).
- UNSi may make billing adjustments and/or back-bill for Services for a period of one hundred eighty (180) calendar days after the date a Service is rendered, or within two (2) months of UNSi’s receipt of any invoice from a third party provider, or any other time frame allowed by contract, law, or government rule or regulation, whichever is later. UNSi will invoice Customer for any billing adjustments or back-billing; and Customer agrees to pay such amounts in accordance with this Section 3.
- Customer shall be responsible for any and all additional charges arising from (i) fraudulent use of the Services; (ii) costs or relocation of UNSi Equipment (defined below) upon Customer’s request submitted after any portion of installation has begun and approved by UNSi; and (iii) charges incurred for maintenance or diagnostics if a service issue is caused by equipment not provided by UNSi or not caused by the acts or omissions of UNSi
4. Billing Disputes.
- Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (ii) present within thirty (30) calendar days of the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and (iii) negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days from the Due Date.
- Disputed charges resolved in favor of UNSi, with a Late Fee, are due and payable within ten (10) calendar days of UNSi’s written notice denying the dispute, which shall be the Due Date for such payment. Disputed charges resolved in favor of Customer will be credited to Customer on the Customer’s next billing cycle and no Late Fees shall apply.
- Any charge not disputed by Customer by the Due Date and supported by the required documentation submitted within the time periods and in the manner set forth in this Section 4 is irrevocably waived by Customer.
5. Credit Approval; Right to Assurance.
- All Services are subject to credit approval of Customer by UNSi at the time of the Service Order. In the event Customer’s credit is approved by UNSi, UNSi may establish a credit limit (“Credit Limit”) which may be specified in a separate rider (the “Credit Approval Rider”) that shall be incorporated into the Service Order and these General Terms by reference. The Credit Limit is subject to review by UNSi at any time and may be adjusted by UNSi upon written notice to Customer. Such adjustment may be made without an amendment to the Service Order or Credit Approval Rider.
- Customer shall provide UNSi will all credit information reasonably requested by UNSi. UNSi may seek and acquire credit and related Customer information from reporting agencies furnishing such information for the purpose of ascertaining Customer’s credit and payment history. UNSi will use the information acquired to make a determination of the Credit Limit and any other financial conditions pursuant to which UNSi will provide Service to Customer. Customer acknowledges that UNSi’s acquisition of credit information on Customer is not an extension of credit or payment terms to Customer.
- If at any time Customer’s financial condition is not commercially reasonably acceptable to UNSi, Customer’s Credit Limit is exceeded, Customer commits a Credit Default or Other Default (defined below), and/or if Customer suffers a material adverse change in its financial condition, UNSi may, in addition to any other remedies available to it under these General Terms, or at law or in equity: (i) require Customer to provide UNSi with a security deposit or other adequate assurance as a condition of the initial or continued receipt of Services; (ii) require additional financial or credit information regarding Customer; (iii) adjust Customer’s Credit Limit or other payment terms; and/or (iv) decline to accept or process a Service Order. A security deposit may be in the form of cash, irrevocable letter of credit or other financial equivalent, up to an amount equal to the applicable installation charge, plus a specific number of months of actual or estimated monthly recurring or other applicable charges for the Services, as determined in UNSi’s sole discretion.
6. Credit Default; Remedies.
- A “Credit Default” shall occur if (i) Customer fails to make full and timely payment for all amounts due (subject to Section 4 herein governing billing disputes) by the Due Date; (ii) Customer fails to comply with a request for a security deposit or adequate assurance as provided in Section 5, and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable; and/or (iii) if Customer files for bankruptcy of makes an assignment for the benefit of creditors.
- In the event of a Credit Default, UNSi may, in addition to its rights available to it at law or in equity: (i) offset any amounts owed to UNSi by Customer under any agreement against amounts owed to Customer by UNSi; (ii) suspend any or all Services to Customer upon reasonable advance written notice to Customer; and/or (ii) cease accepting or processing Service Orders. If a Credit Default remains uncured for fifteen (15) days following suspension of any or all Services, UNSi may immediately terminate any or all Services upon written notice. If any Services are suspended or terminated as a result of a Credit Default and such Services are subsequently reconnected, Customer will pay all UNSi and third party reconnection charges. If any Service Order(s) are terminated because of a Credit Default, all Early Termination Charges (as defined below) shall apply.
7. Other Default; Remedies.
- An “Other Default” shall occur if Customer or UNSi fails to perform or observe any material term or obligation (excluding events constituting a Credit Default) contained in these General Terms, Service Supplement, SLA, or AUP, and any such failure remains uncorrected for the lesser of thirty (30) calendar days after written notice from the non-defaulting party.
- In the event of an Other Default by Customer, UNSi may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer upon reasonable advance notice to Customer; and/or (ii) cease accepting or processing Service Orders. If an Other Default remains uncured for fifteen (15) days following suspension of any or all Services, UNSi may immediately terminate any or all Services upon written notice. If Services are suspended or terminated as a result of an Other Default and such Services are subsequently reconnected, Customer will pay all UNSi and third party reconnection charges. If any or all Service Orders are terminated because of an Other Default by Customer, all Early Termination Charges (defined below) shall apply.
- In the event of an Other Default by UNSi, Customer’s remedies are limited to its proven direct damages and the right to terminate any or all affected Service Orders without any Early Termination Charges (defined below), unless exclusive remedies are provided in the applicable Service Order, Service Supplement or SLA, in which case Customer’s remedies are exclusively as described therein.
- If Customer uses the Services for any unlawful purpose or in any unlawful manner, or causes UNSi to violate any applicable law, such action shall be an Other Default and UNSi shall have the right immediately to suspend and/or terminate any or all Services hereunder without advance notice to Customer, but shall provide notice of such suspension and/or termination as soon as practical thereafter.
8. Taxes; Exemption Certificate.
- The amounts payable by Customer for Services do not include Taxes. “Taxes” shall mean any and all sales, use, excise, occupational, utility, fees, surcharges, taxes or other similar charges (excluding taxes based upon UNSi’s net income, gross receipt, capital stock or property), imposed, levied, and/or assessed by any federal state, local, international, foreign public, quasi-public, municipal authority or similar governmental entity, however designated, together with all penalties and interested thereon, upon UNSi as a result of UNSi’s sale of Services or Customer’s use of Services. Taxes shall be listed separately on Customer’s invoice. Customer is solely responsible for all Taxes; and Customer shall pay any and all such Taxes paid by UNSi.
- Customer is responsible for Taxes charged to its end-user customers, and for the proper and timely reporting and payment of all Taxes to the appropriate taxing authorities. Customer shall indemnify, defend and hold UNSi harmless from any liability, reporting or expense associated with Taxes.
- If Taxes are assessed to support the federal Universal Service Fund, Common Carrier Service Charges, Payphone Compensation Universal Service Fees, Lifeline Assitance, Telecommunications Relay Services, Access Recovery Fees or any other similar local, state, national, international, or foreign fund, UNSi shall calculate and charge Customer in accordance with applicable regulations of the government authority having jurisdiction, unless Customer is paying such Taxes directly or is otherwise exempt from the payment of such Taxes.
- Customer shall furnish to UNSi valid and appropriate tax exemption certificates for all applicable governmental jurisdictions and authorities for which UNSi performs Customer billing. If Customer fails to provided and/or maintain the exemption certificates, UNSi may charge Customer and Customer shall pay the applicable Taxes as UNSi may be by law required or permitted to collect or pay until such time that Customer provides valid certificates.
- Customer and UNSi will release, defend, indemnify and hold the other harmless from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and attorneys’ fees, expert witness fees, paralegal fees and any other similar expense (collectively a “Claim”), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with these General Terms or the provision of Services hereunder. In the event a Claim relates to the negligence of both parties, the relative burden of the Claim shall be attributed equitably between the parties in accordance with the provisions of comparative negligence.
- Customer will release, defend, indemnify and hold harmless UNSi and its officers, directors, employees, contractors and agents from and against any Claim to the extent such Claim (i) is brought by a downstream customer of Customer or an end user and arises out of an alleged defect in or failure of Service, or (ii) arises out of failure by Customer or downstream customers of Customer or end users to obtain approval, consent, or authorization relating to the content transmitted over UNSi’s network, including without limitation claims relating to any violation of copyright law, export control laws, or that such transmissions are libelous, slanderous, an invasion of privacy or illegal.
- In the event any Claim is brought against an indemnified party, such party shall immediately notify the indemnifying party in writing; and the indemnifying party, upon request, shall assume the defense on behalf of the indemnified party and be solely responsible for all associated expenses related thereto. The indemnifying party shall pay all expenses incurred by and satisfy all judgments rendered against the indemnified party, provided that the indemnifying party shall not be liable for any settlement effected without its prior written consent.
10. Limitations of Liability; Service Credits.
- EXCEPT TO THE EXTENT A PARTY IS REQUIRED TO INDEMNIFY THE OTHER PARTY HEREUNDER AND TO THE EXTENT THAT LIABILITY UNDER ANY APPLICABLE LAW CANNOT BE EXCLUDED, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUES AND/OR COST OF PURCHASING REPLACEMENT SERVICES, ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY’S PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER ANY SERVICE ORDER, ANY SLA OR THE TERMS AND CONDITIONS OF THESE GENERAL TERMS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
- UNSi SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE AMOUNT UNSi HAS COLLECTED FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE CUSTOMER PRESENTS THE CLAIM TO UNSi. FURTHERMORE, IN NO EVENT SHALL UNSi BE LIABLE TO CUSTOMER, EITHER IN CONTRACT OR IN TORT, FOR PROTECTION FROM UNAUTHORIZED ACCESS OF CUSTOMER OR UNSi TRANSMISSION FACILITIES OR CUSTOMER PREMISES EQUIPMENT; OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA FILES, PROGRAMS, PROCEDURE OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
- Unless specifically set forth in a Service Order, UNSi’s sole liability for Service interruptions, outages or other similar performance standard, and Customer’s exclusive remedy therefor, shall be limited to credit allowances expressly provided for in the applicable Service Supplement or SLA. No credit allowances shall be allowed and UNSi shall not be liable for any interruption, outage or deficient performance standard caused by a Force Majeure event (defined in Section 13 of these General Terms).
- UNSi shall not be liable to Customer for losses, damages or claims of any kind resulting from UNSi’s inability to provide Service from any delay in meeting a proposed or scheduled Start of Service Date.
- UNSi shall not be liable for the unavailability or deficient performance of any facilities, services, equipment or systems used in connection with the provision of Services that are under the control of Customer or any third party, even if UNSi has acted as the Customer’s agent in procuring such services, equipment or systems from third parties. Customer’s rights with regard to the unavailability or deficient performance of such facilities, services, equipment or systems not provided by UNSi shall be strictly as provided by the supplying entity.
11. Warranties and Disclaimer of Warranty.
UNSi’S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET FORTH ON THE APPLICABLE SERVICE ORDER OR SERVICE SUPPLEMENT. UNSi DISCLAIMS ALL OTHER WARRANTIES TO CUSTOMER OR ANY OTHER PERSONS OR ENTITIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, QUALITY, BANDWIDTH, AVAILABILITY, PERFORMANCE OR SPEED, AND/OR NON-INFRINGEMENT, FOR ANY SERVICES PROVIDED UNDER THESE GENERAL TERMS OR DESCRIBED IN THESE GENERAL TERMS. UNSi MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SERVICES.
12. Content and Use.
- UNSi does not operate or control the content transported over its telecommunication Services. Customer’s use of the Services and UNSi’s provision of the Services shall be in accordance, and comply, with UNSi’s AUP and any third party provider’s AUP in effect from time to time; and in accordance with all applicable laws, regulations, and rules. UNSi shall not (i) have any liability or responsibility for the content of any communication transported via the Services; (ii) have any obligation or liability to Customer or to any third party for any unlawful or improper use of the Services or violation of the AUP by or through Customer; nor (iii) have any duty or obligation to exercise control over the use of, or the content or information passing through, the Services. UNSi’s AUP is available on UNSi’s website at www.unsi.net, and is incorporated herein by reference.
- Customer shall make no claim against UNSi regarding the content transported over the Services, or respecting any information, product, service, equipment, software or other item(s) ordered through or provided by Customer or by virtue of the Internet.
- In UNSi’s sole judgment, in the event of a violation of this Section or other existing law by Customer or by anyone using the Services, and such violation poses an immediate threat of harm to or destruction of UNSi’s network, or puts UNSi’s network at any risk with any of its providers or other customers, UNSi shall have the immediate right to take any and all steps reasonably necessary to remove such threat, including suspending Services, without notice to Customer. Unless prohibited by law or requested by any form of law enforcement, UNSi will use commercially reasonable efforts to promptly notify Customer of any Service suspension or other action taken.
- Customer and UNSi will release, defend, indemnify and hold harmless the other from and against any Claim arising out of, resulting from or based upon the indemnifying party’s violation of this Section 12.
13. Force Majeure.
Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent performance is beyond its reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, failure of the Internet, cable cut not solely caused by UNSi’s employees or contractors, governmental action (such as any law, order, regulation or request of any governmental entity having jurisdiction over the parties; or any court, civil or military authority or any other instrumentality of one or more of a governmental agency), national emergencies, war, riot, flood, storm, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, shortage of materials or equipment, strikes, or lockouts. If the force majeure event continues for a period of thirty (30) calendar days, then either party may, without incurring liability, terminate the affected Services, except for Customer’s liability for any charges of a third party provider for such termination.
14. Proprietary and Confidential Information.
- a. Except as required by law or stock exchange rule, the terms and conditions of a Service Order and all proprietary information exchanged by the parties and all documents referenced herein (including invoices) are confidential and shall not be disclosed except in accordance with this Section 14.
- “Confidential Information” shall mean all information disclosed in writing by one party to the other party that is clearly marked “CONFIDENTIAL” or “PROPRIETARY” by the disclosing party at the time of disclosure. Notwithstanding the foregoing, all information concerning either party’s traffic volume or distribution, pricing, customer lists and financial information is confidential and proprietary regardless of whether it is so identified and regardless of whether it was disclosed orally or in writing. Confidential Information does not include any information that (i) was already known by the receiving party free of any obligation to keep it confidential at the time of its disclosure; (ii) becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third person without knowledge of any confidential obligation; (iv) is independently acquired or developed without violating any of the obligations under these General Terms; or (v) is approved for release by written authorization of the disclosing party.
- A recipient of Confidential Information shall not disclose the information to any person or entity except for the recipient, its affiliates, employees, contractors and consultants or any combination thereof, who have a need to know such Confidential Information. The recipient may disclose Confidential Information pursuant to a judicial or governmental request, requirement or order; provided that the recipient take all reasonable steps to give the disclosing Party prior notice sufficient to contest such request, requirement or order if permitted.
- Except as provided in this Section 14, Confidential Information shall not be disclosed to any third party without the prior written consent of the owner of the Confidential Information. The recipient shall use Confidential Information only for purposes of these General Terms and shall protect Confidential Information from disclosure using the same degree of care used to protect its own Confidential Information, but in no event less than a reasonable degree of care.
- Confidential Information shall remain the property of the disclosing party and shall be returned to the disclosing party or destroyed upon request of the disclosing party. Either party may make Confidential Information available to its lenders, financial advisors, or both, provided said lenders or financial advisors are bound by written confidentiality agreement(s). Because money damages may be insufficient in the event of a breach or threatened breach of the foregoing provisions, the affected party may be entitled to seek an injunction or restraining order in addition to such other rights or remedies as may be available under these General Terms, at law or in equity, including money damages.
- Customer grants UNSi a limited non-exclusive right and license to use, adapt, display and distribute Customer data only to the extent necessary fo that UNSi may fully perform its testing and analysis of its Services and obligations under these General Terms.
15. Equipment and Software; IP Addresses; Maintenance.
- Unless otherwise agreed by the parties in writing, Customer shall not acquire any ownership rights in any equipment or software (collectively “UNSi Equipment”) that UNSi provides for Customer to use to facilitate Customer’s receipt or use of the Services. UNSi may use any combination of UNSi Equipment it chooses to deliver the Services, whether the UNSi Equipment is for wired, wireless, or any other means of transmission or delivery. UNSi Equipment is personal property of UNSi or its suppliers and is not a part of the location on which it may be situated. Customer disclaims any liens on, claims to, or interest in the UNSi Equipment and the proceeds thereof and agrees not to assert any claim against the UNSi Equipment or proceeds thereof.
- Customer understands that certain UNSi Equipment is or may be financed for UNSi by certain lending institutions and other lenders who may be parties to such agreement (“Lenders”), including the administrative agent who may act on behalf of the Lenders through one or more agreements (as amended or modified from time to time). Upon twenty-four (24) hours prior notice, Customer will permit each Lender, its representatives, or both, to access within business hours UNSi Equipment to which the Lender has rights, to inspect or to remove the UNSi Equipment, and Customer waives any rights to prevent such access or removal.
- Customer shall not make any addition, alteration or remove UNSi Equipment without the written consent of UNSi. Failure by Customer to return or to permit the retrieval of UNSi Equipment within thirty (30) days of disconnection of Services will result in an invoice to the Customer for the replacement value of the non-recovered UNSi Equipment.
- To the extent any software is licensed (or sublicensed) to Customer by UNSi, the software is provided for the limited purpose of facilitating Customer’s use of the Services; and Customer hereby agrees to comply with any software licenses or agreements governing the third party software. Customer shall not engage in, or permit, any additional copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on any software provided by UNSi, all of which are prohibited. Customer shall, as directed by UNSi, return to UNSi or destroy all software provided by UNSi and any related written materials, promptly upon termination of the associated Services for any reason.
- Customer will not acquire any proprietary rights in any IP address or IP address blocks assigned by UNSi. UNSi reserves the right to change or remove any and all such IP addresses or IP address blocks at any time. UNSi will notify Customer thirty (30) days in advance of any such changes. Upon expiration, cancellation or termination of the Service Order for which the addresses were assigned, Customer shall relinquish all IP addresses or IP address blocks assigned by UNSi.
- UNSi is responsible for maintaining its network and equipment. UNSi shall have the right to upgrade, modify and enhance UNSi Equipment from time to time through “downloads” from UNSi’s network or otherwise. In the event UNSi determines that it is necessary to interrupt Services or that there is a potential for Services to be interrupted for the performance of system maintenance, UNSi will use good-faith efforts to notify Customer prior to the performance of such maintenance and will use its best efforts to schedule such maintenance to begin during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system maintenance constitute a failure of performance by UNSi, nor make Customer eligible for any credits or other remedy under these General Terms. If the work requiring maintenance is determined to be caused by some reason other than UNSi’s network or equipment, Customer may be charged for maintenance work requested. Customer shall pay any maintenance charges incurred by UNSi on Customer’s behalf provided the work requiring maintenance is not cause by UNSi’s network or equipment. Non-recurring charges for other ancillary Services, including new order installation, order changes, order expedite and reconfiguration may apply. In the event that an extended demarc is necessary, an additional charge may apply.
16. Customer Responsibilities.
- Customer shall make all necessary preparations and obtain all necessary permissions, rights, and authorizations for the installation, maintenance, removal, and operation of the Services and UNSi Equipment. Customer shall provide UNSi all necessary access to all premises and portions thereof necessary to provide the Services and perform installation, maintenance, removal, and operation of any associated equipment and materials.
- Customer authorizes UNSi to make any preparations necessary for the installation, maintenance, removal, or operations of any equipment used to provide the Services.
- Customer will be solely responsible for maintaining adequate security, including ensuring that precautions are in place to protect user name and password information for Customer’s account. Customer shall be responsible for any unauthorized use of any user name, password or Customer account or information. Customer shall immediately notify UNSi in writing if any user name, password, or other account information is lost, stolen, or otherwise compromised. Customer shall upgrade and maintain any Customer-provided equipment as necessary to support the Services and if requested, provide the necessary space, conduit and electrical power required to maintain the facilities and UNSi Equipment used to provide the Services to Customer.
17. Ordering Process, Access/Site Surveys, Extraordinary Setup Costs.
- A Service Order submitted by Customer and accepted by UNSi shall be executed by the parties pursuant to the terms herein and shall become subject to these General Terms upon execution by both parties. A Service Order may be submitted by email or fax. Electronic submission of a Service Order shall constitute execution by and shall be binding upon Customer, provided Customer has not requested that UNSi void such electronic submission within one (1) day of UNSi’s issuance of the Order Receipt Confirmation (“ORC”). Issuance of an ORC shall be UNSi’s acceptance of the Service Order and counter-execution thereto.
- In the event a Service ordered by Customer cannot be provided by UNSi, UNSi shall notify Customer either by email or fax, with the reasons therefore, in which case UNSi shall have no liability with respect to the Service Order.
- UNSI shall not be liable for any effects of normal Services installation and workmanship, such as holes in walls, which may remain after installation or removal of the UNSi Equipment, except for damage caused by gross negligence or willful misconduct on the part of UNSi. Customer shall provide UNSi and its authorized agents access at all times before and after the Service Term to all premises necessary for installation of Services upon reasonable notice to install, connect, inspect, maintain, repair, replace, alter or disconnect or remove the UNSi Equipment. All such access may be restricted to business hours unless access is requested for emergencies or to attempt to correct Service performance issues, in which case access at all times shall be granted by Customer. UNSi may place equipment and cables on Customer’s premises to facilitate the provision of Services to Customer and to other locations. The access license granted under this Section will survive the expiration of the Service Term or Extension Period until the date that is one year from the date on which Customer first notifies UNSi in writing that Customer is revoking this license, which in no event shall be during the Service Term or Extension Period.
- In the event that a Service Order requires additional costs over and above the costs identified in the Service Order (“Extraordinary Setup Costs”), then UNSi will first seek written approval from Customer and only proceed with the Service Order if written approval from Customer is received for such Extraordinary Setup Costs. Customer may elect, at its sole discretion, not to proceed with a Service Order where Extraordinary Setup Costs are applicable, in which case such Service Order will be deemed cancelled and Customer shall not be liable for any payments related to the Service Order.
- Customer and UNSi agree that the following actions will be taken in sequence to conduct a site survey: (i) Customer shall identify a person at the physical site who is authorized to grant UNSi or its designee access to the site of a prospective site survey (“Access Granting Personnel”); (ii) Customer shall inform the Access Granting Personnel that UNSi or its designee will be contacting them directly to coordinate a site survey; (iii) UNSi or its designee shall contact the Access Granting Personnel and coordinate the timing and other details of a prospective site survey with them; (iv) UNSi shall dispatch its designee to the site to conduct the site survey in accordance with the terms coordinated with the Access Granting Personnel; (v) If UNSi determines that the site is serviceable without any Extraordinary Setup Costs, then UNSi shall proceed with the installation and activation of Services; (vi) if, however, UNSi determines that Extraordinary Setup Costs are necessary in order to render the site serviceable, then such costs, along with serviceability alternatives if available, will be communicated to Customer, Customer shall at its option and in its sole discretion do one of the following within three (3) business days of receipt of such communication from UNSi or be deemed to have accepted the Extraordinary Setup Costs: (x) accept responsibility for the Extraordinary Setup Costs and proceed with the order; (y) accept a proposed alternative serviceability option from UNSi; or (z) cancel the order without incurring any liability.
18. Cancellation or Termination of Services; Early Termination Charges; Effect of Termination.
- Except as otherwise expressly provided in a Service Order, Customer may cancel any Service Order (or portion thereof if such Service Order contains multiple UNSi Services) for convenience after placing such order with UNSi and receipt of an order receipt confirmation, but prior to the Start of Service Date by providing written or electronic notification to UNSi. In such an event, Customer shall pay UNSi an early cancellation charge equal to the following: (i) all costs incurred by UNSi up to the date of such cancellation including but not limited to all termination charges imposed by third party providers, all ordering and installation charges, and all construction charges; plus (ii) one (1) month of UNSi’s monthly recurring charges that are specified on the cancelled Service Order as an administrative charge.
- Except as otherwise expressly provided in a Service Order, Customer may terminate and/or disconnect any Service for convenience after the Start of Service Date but prior to the expiration of the Service Term or Extension Period, as applicable, by providing written notification to UNSi thirty (30) calendar days in advance of the effective date of the termination/disconnection and paying to UNSi an “Early Termination Charge” in an amount equal to: (i) the recurring charges associated with the Service Term or Extension Period, as applicable, less any recurring charges already paid; plus (ii) any non-recurring charges not yet paid by Customer; plus (iii) installation charges discounted or waived at the time Service was installed; plus (iv) any termination liability associated with third party services; and plus (v) the balance of any minimum commitments by Customer, if applicable.
- Customer may terminate and/or disconnect any Service for cause after the Start of Service Date but prior to the expiration of the Service Term or Extension Period, as applicable, if UNSi fails to perform a material obligation under and does not remedy such failure within thirty (30) days following receipt of written notice from Customer reasonably describing the failure. In such an event, Customer may terminate and/or cancel the affected Service Order without any further liability except for the payment of all accrued but unpaid charges up to the date of termination.
- In the event UNSi terminates a Service Order due a Credit Default, Other Default or any other default or breach by Customer of these General Terms, Customer shall be liable for all Early Termination Charges as outlined and determined in accordance with the provisions of Section 18(b) of these General Terms. Customer shall pay UNSi’s reasonable expenses (including reasonable attorneys’ fees) incurred in enforcing UNSi’s rights under this Section 18.
- Upon the date of termination, all of Customer’s rights and UNSi’s obligations to perform the Services will immediately terminate; and Customer’s payment obligations accrued hereunder through the date of termination plus any Early Termination Charges due will become immediately due and payable. Except for payment obligations owed UNSi for Services rendered in accordance with these General Terms prior to the date of termination and Early Termination Charges, Customer shall not incur any charges, penalties, liquidated damages or any other amounts due to exercise of its right to terminate pursuant to these General Terms. The parties will also return to one another upon request any property or information, belonging to the other party or its licensors or agents. After termination, UNSi will retain the IP addresses or address blocks assigned by UNSi.
The parties contemplate and agree that publication of information surrounding the Services may occur through press releases, articles, interviews, marketing materials, online materials, and/or speeches (“Publicity”). Both parties must approve the content of any such Publicity prior to its publication, which approval shall not be unreasonably withheld. Routine references to the fact that Customer is a customer of UNSi including advising others of Customer’s presence in a UNSi POP and the general nature of Services that Customer purchases from UNSi are not considered Publicity for purposes of this section, and Customer and UNSi each authorize the other, during the Service Term and any Extension Period, to make such references.
- Except as provided below, Customer shall not assign or otherwise transfer its rights or obligations under a Service Order without the prior written consent of UNSi. Any such assignment without UNSi’s prior written consent shall be void. Upon notice to UNSi, Customer may assign a Service Order upon a Change of Control, which is defined to include (i) an affiliate of Customer (defined as an entity that controls, is controlled or is under common control); (ii) a sale of all or substantially all of Customer’s assets, to the purchaser of those assets; or (iii) in the event of a merger, acquisition or recapitalization of Customer, to the surviving entity.
- Any Service Order, these General Terms, the Service Supplement, the SLAs and the AUPs shall be governed by the laws of the State of Delaware without regard to choice of law principles.
- No rule of construction requiring the interpretation against the draftsman hereof shall apply in the interpretation of these General Terms.
- The provisions of any Service Order, the terms and conditions of these General Terms, the Service Supplement, the SLAs and the AUPs are only for the benefit of UNSi and Customer, and no third party may seek to enforce or benefit from these provisions.
- If any term or provision of any Service Order, these General Terms, the Service Supplement, the SLAs and the AUPs be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then (i) both parties shall be relieved of all obligations arising under such invalid provision, and the agreement between UNSi and Customer shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent; and (ii) the remainder of the agreement between Customer and UNSi shall be valid and enforceable.
- The failure of either party to enforce any provision of these General Terms, Service Order, Service Supplement, SLA or AUP shall not constitute the permanent waiver of such provision.
- In the event of a default, the prevailing party shall the right to recover its reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of its rights.
- No termination of a Service Order or these General Terms shall affect the rights and obligations of either party: (i) with respect to any payment for Services rendered before termination; or (ii) pursuant to the provisions of these General Terms that, by their sense and context, are intended to survive termination, including without limitation indemnification, confidentiality and limitation of liability.
- It is the express intent and understanding of the parties that, these General Terms and the Service Order hereunder being one integrated agreement and not separate, severable contracts, Customer’s right to early termination of any Service is not a right to “reject”, on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws.
- Customer acknowledges that the provisioning of interstate telecommunications services by UNSi to Customer is contingent upon Customer’s submission to UNSi of a completed attestation form stating either that Customer has properly registered with the Federal Communications Commission (“FCC”), pursuant to 47 CFR 64.1195 (and UNSi’s confirmation of the same), or that Customer is not a telecommunications carrier subject to the FCC’s registration requirements.
- In the event of any inconsistency between or among the these General Terms, a Service Order, or the Service Supplements, these General Terms shall control; except that in the event of any conflict between pricing in a Service Order and elsewhere, the Service Order shall control.
- l. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of delivery or confirmed email or facsimile delivery. If mailed, notice shall be sent via commercial overnight courier. The date of delivery for via overnight courier shall be the date set forth in the courier’s records. The date of delivery via email or facsimile shall be the date the sender receives written confirmation of delivery. To be effective, written notice of any material breach (except payment default) must prominently state that the correspondence is a formal notice of breach and must be sent via commercial overnight courier service. Notices shall be sent to the Parties’ respective addresses set forth on a Service Order.