Gatespeed Broadband Terms and Conditions
By signing Service Order, Customer agrees to abide by all obligations stated in these terms and conditions.
1. Provision of Services
A. Pursuant to the terms and conditions of this Agreement, Customer agrees to purchase certain data services, products and/or equipment from Gatespeed ("Data Services") as such Data Services are set forth in the Gatespeed service order(s) ("Service Order") and any attachments thereto.
B. Customer acknowledges and agrees that the Data Services provided by Gatespeed may include access to third party networks via Gatespeed from time to time. Gatespeed agrees to announce, as may be required, Customer provided routes to Gatespeed's peers or other transit providers that Gatespeed may use from time to time. Customer also acknowledges and agrees that Gatespeed reserves all rights and property interest in the IP addresses that may be assigned to Customer under this Agreement.
2. Use of Data Services
A. Gatespeed's Data Services are to be used solely by Customer and the entities, if any, to whom Customer re-sells the Data Services. Customer represents, warrants and covenants that it will not transmit, re-transmit, store or otherwise use the Data Services in violation of any violation of any federal, state, local or to, any Laws relating to copyright, trademark or other intellectual property or proprietary rights, or any Laws relating to U.S. export, and that it will not post, transmit or re-transmit any unlawful, threatening or abusive material of any kind.
B. In using the Data Services, Customer agrees that it will comply with Gatespeed's then-current "Network Abuse Policy" (a copy of which is available upon request) that prohibits such activities as: (i) gaining or attempting to gain unauthorized access to another account, host or network; and (ii) distributing, posting or collecting unsolicited, duplicative messages to entities who do not expressly request such messages ("Spamming"). Customer further agrees that it will take appropriate actions against entities to whom it may re-sell the Data Services if such entities are in violation of the Network Abuse Policy and that Customer will cooperate fully with Gatespeed in actions taken by Gatespeed to enforce such Network Abuse Policy.
C. Customer shall not improperly restrict or interfere with use of the Data Services (or of the Internet general) by Gatespeed or its affiliates, any Gatespeed customer, or any third party. Upon notice from Gatespeed, Customer shall promptly remove any hazard, interference or service obstruction that may be caused by hardware or software not provided by Gatespeed. Gatespeed may, at its option an upon Customer's request, troubleshoot problems caused by such hardware or software. Such troubleshooting services shall be billed at Gatespeed's rates in effect at the time such services are requested.
3. Payment.
A. Except as otherwise set forth in this Agreement, rates, charges and other payments ("Charges") SHALL BE SET FORTH ON THE APPLICABLE Service order and/or any pricing attachment ("Pricing Attachment"), Gatespeed may, at its option, increase the service charge to reflect actual tariff charges of its underlying providers and any increases in the local exchange tariff charged to Gatespeed. Customer may pre-pay Charges for each term set forth on the Service order, or Customer may pay Charges on a monthly basis. For customers paying monthly, Charges shall be invoiced monthly in advance and payment is due upon receipt of such invoice, with Charges for the first month's Charges and any Non-recurring charges to be paid upon execution of this Agreement or any subsequent Service Order under this Agreement. If Gatespeed reasonably believes that customer's credit or payment history is problematic, then Gatespeed reserves the right throughout the term to request adequate assurances of payment and to suspend the Data Services until such adequate assurances are received.
B. Charges more than thirty (30) days overdue will accrue interest charges at the lesser of 1.5% per month or the highest rate permitted by law. Gatespeed may suspend Customer's Data Services if payment is not received within thirty (30) days of the payment due date. If Data Services are suspended due to non-payment, customer shall pay, in addition to the interest charges, a restoration fee equal to $1,000, and the pre-payment of six (6) months of monthly recurring Charges (as set forth in applicable the Service Order) for all Data Services, in order to restore Data Services. Any such suspension shall not relieve Customer of the obligation to pay monthly recurring Charges. Notwithstanding the foregoing, Customer shall pay Charges for installation and hardware, which shall be non-refundable, at the time that such Data Services are ordered or restored.
C. In the event that Customer uses non-Gatespeed equipment or software (as defined in Section 6 herein), then the Data Services shall be deemed to have begun on the first business day after the date on which the local service provider connection between the Customer's site and the Gatespeed point-of-presence ("POP") is activated. In the event that Customer uses CPE (as defined in Section 6 herein) provided by Gatespeed, then the Data Services shall be deemed to have begun on the first business day after the later of (i) the date on which the local service provider connection between the Customer's site and the Gatespeed POP is activated, and (ii) the date Gatespeed sends notice to Customer that CPE specified on the Service Order is available for installation.
4. Term
This Agreement shall be effective as of the date signed by Gatespeed below and shall remain in full force and effect so long as any Service Order Form is in effect, unless otherwise terminated in accordance with the terms hereof. Each Service Order shall provide for an initial non-cancelable term, with renewal periods to be defined therein. At the expiration of the initial period of time Service is to be provided as specified in each Service Order Form shall continue in effect on a month-to-month basis at the then current monthly rate unless terminated by either party upon thirty (30) days prior written notice. Upon any termination of Data Services, any and all IP addresses assigned by Gatespeed to Customer (and any end users) shall no longer be available for Customer's use and Gatespeed shall retain the right to use such IP addresses.
5. Termination
A. In the event a law prohibits, substantially impairs or makes impractical the provision of Data Services under this Agreement, as determined by Gatespeed in its reasonable discretion, Gatespeed may terminate this Agreement without liability upon thirty (30) days written notice to Customer, unless earlier termination is required by law.
B. Gatespeed may terminate this Agreement, or any Service Order hereunder, upon Customer's material breach of this Agreement or Service Order, but only after having provided Customer with thirty (30) days prior written notice and an opportunity to cure which cure is not materially affected during such thirty (30) day period.
C. Customer may terminate this Agreement with respect to any Service Order subject of a material breach by Gatespeed, but only after having provided Gatespeed with thirty (30) days prior written notice and an opportunity to cure which cure is not materially affected during such thirty (30) day period.
D. Notwithstanding the foregoing, Gatespeed may, upon notice, terminate this Agreement, or any Service Order hereunder, upon customer's breach of Section 2 herein.
E. Customer acknowledges and agrees that neither this Agreement nor any Service Order is cancelable in whole or in part. If this Agreement or any Service order hereunder is terminated pursuant to Paragraph 5B or 5D above, then Customer shall be responsible for all Charges due and owing up to and through the date of termination, plus an early termination charge equal to the number of months remaining on the then current term set forth in the Service Order(s) (up to a maximum of twelve (12) months for all Data Services) multiplied by all monthly Charges for the Service Order(s) being terminated, plus the difference between any promotional discounts that may have been received and the amount that would have been charged if the shorter term had been entered into initially. Customer acknowledges that the early termination charge is a liquidated damage and not a penalty and that the Charges for Data Services hereunder would be substantially higher but for this provision.
6. Equipment and Software
A. Customer Premise Equipment ("CPE") shall mean equipment that is provided by Gatespeed within or under Customer's control. Customer is responsible for maintaining and operation CPE Customer Premise Equipment), unless otherwise expressly provided under this Agreement. If Customer has not purchased CPE, Gatespeed shall retain title to CPE and Customer shall promptly return all CPE to Gatespeed and/or promptly provide Gatespeed with reasonable access to Customer's facilities in order to recover the CPE, upon termination of this Agreement. For CPE owned by Gatespeed but under Customer's control, Customer shall protect Gatespeed's title and keep the CPE free from all claims, liens, encumbrances, and legal processes and Customer shall notify Gatespeed of any claims, liens, encumbrances or legal processes with respect to the CPE. The CPE is personal property and is not to be regarded as part of the real estate on which it may be situated. If requested by Gatespeed, Customer will, at Customer's expense, furnish a landlord or mortgagee waiver with respect to the CPE. The CPE shall not be removed from any location without the written consent of Gatespeed. Customer shall, upon Gatespeed's request, affix and maintain plates, tags or other identifying labels, showing ownership of the CPE in a prominent position on the CPE. The use of the CPE by Customer shall conform with all applicable laws, insurance policies, and warranties of the manufacturer or supplier of the CPE. Gatespeed shall have the right to inspect the CPE at the premises where the CPE is located.
B. Customer shall, at its, expense maintain each item of CPE in good condition, normal wear and tear excepted. Customer shall not make any addition, alteration, or attachment to the CPE without Gatespeed's prior written consent. Customer shall make no repair, addition, alteration or attachment to the CPE which interferes with the normal operation of maintenance thereof, or might result in the creation of mechanic's or material man's lien.
C. Gatespeed shall not be responsible for the installation, operation, or maintenance of equipment (including without limitation, cabling) not provided by Gatespeed as CPE (collectively, "non-Gatespeed equipment or software"). Impairment of Customer's use of the Data Services due to non-Gatespeed equipment or software shall not relieve Customer of its payment obligation hereunder. Gatespeed shall not be responsible for any changes in the Data Services which may cause non-Gatespeed equipment or software to become obsolete, to require modification or alteration, or otherwise affect performance of equipment to be used as a gateway to the Data Services, and Customer shall cooperate with Gatespeed in setting up the initial configuration for the Customer-provided router's interface with the Data Services.
D. All equipment is sold or otherwise provided to Customer AS IS and WITHOUT WARRANTY of any kind.
E. Customer understands that certain CPE is or may be financed by Gatespeed (and its affiliates) under (1) a Credit Agreement among Gatespeed Broadband, Inc. and certain financial institutions and other lenders who may from time to time be parties to such agreement (the "Lenders"), including Administrative Agent and a collateral Agent who may act on behalf of the Lenders in certain matters and (2) a Security Agreement creating a security interest in favor of the Collateral Agent for the benefit of the Lenders (the "Security Interest") (such documents and any related documents are referred to as the "Loan Documents"). Any portion of the Customer Premise Equipment which is financed under the Loan Documents (the "Financed Equipment") is subject to a security interest in favor of the Lenders. Customer therefore agrees that any Financed Equipment is subject to the Security Interest granted under the Security Agreement and that its rights in the Financed Equipment are subject and subordinate to the Security Interest and the rights of the Collateral Agent under the Security Agreement. Customer agrees that it does not have and will not assert, as against the collateral Agent or any lender, any rights or interest whatsoever in any of the Financed Equipment or in the proceeds thereof, including any rights or interest which might arise in the Customer's under any agreement, law or otherwise. Customer will maintain records of the location of each item of financed Equipment and, if requested, will provide copies of those records to the Collateral Agent or the Administrative Agent. Customer will permit representatives of the Collateral Agent and the Administrative Agent to inspect the Financed Equipment, all related records (and make copies) and the promises upon which Financed Equipment is located and to share that information any Lender and its representatives. Customer agrees that the collateral Agent may terminate Customer's rights in the financed Equipment upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents). In such event, if requested Customer will deliver the Financed Equipment to the Collateral Agent, and the Collateral Agent may (1) with or without legal process and with or without previous notice take possession of any Financed Equipment, (2) without liability for trespass, enter the premises where any Financed Equipment is located for the purpose of taking possession of or removing the same and (3) generally, exercise all rights afforded to a secured party under the Uniform Commercial Code or other applicable law, including the right to dispose of the Financed Equipment at public or private sale for cash, upon credit or for future delivery as the Collateral Agent shall have the right to deliver such Financed Equipment to the purchaser thereof. Any such purchaser will then hold such property absolutely, free from any claim by Customer, and Customer waives all rights to such Financed Equipment which Customer may otherwise have.
7. Installation and Service
A. Customer shall make all necessary preparations required to permit installation, maintenance and operation of the Data Services and will provide Gatespeed, and its suppliers of communication services and equipment, reasonable access to Customer's promises, including free access to all leased telephone lines, to perform any activities reasonably required under this Agreement. Customer shall have all non-Gatespeed equipment or software available and operable for use with the Data Services or CPE at least five (5) business days prior to the scheduled installation date of the Data Services or CPE.
B. In addition to the local access provider charges set forth on the Service Order, Customer shall be responsible for all additional local service provider charges related to Customer's Data Services, including but not limited to: costs of relocation of services once installed, local service provider charges arising as a result of rescheduling of appointments by local service provider representatives, and all local service provider charges incurred for maintenance diagnostics that are determined to be caused by equipment not owned by Gatespeed. Local service shall be provided pursuant to the applicable tariffs.
8. Warranties and Remedies.
A. Customer understands that the Internet is not owned, operated, managed by or in any way affiliated with Gatespeed and that all content, services, information and other materials that may be offered, made available, or are accessible on the Internet are offered, made available, or are accessible solely by third parties who are not affiliated with Gatespeed or its affiliates. Use of the Internet by Customer, Customer's customers or any other authorized users is solely at the respective user's own risk and is subject to all applicable Laws. Gatespeed does not warrant that the Data Services will be uninterrupted or error-free, or that any information, software, or other material that may be accessible via the Data Services, is free of viruses, disabling code, worms, or any other harmful components.
B. Without limiting anything contained herein, Customer further understands that the Internet contains unedited materials, some of which may be sexually explicit or may be offensive to some people and that Customer's access to such materials are at Customer's own risk. Gatespeed has no control over and accepts no responsibility of any kind for such materials.
C. If Customer is dissatisfied with the Service provided under this Agreement, Customer shall have the right to terminate this Agreement, in whole but not in part, in writing, no later than thirty (30) days after installation of the Services and shall not be liable for the early termination fee provided for in Section 5 but shall remain liable for all other terms and conditions herein.
D. EXCEPT AS PROVIDED IN C ABOVE, DATA SERVICES ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF ANY KIND. GATESPEED DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, WITH REGARD TO THE DATA SERVICES, ANY MERCHANDISE, INFORMATION OF SERVICE PROVIDED THROUGH THE INTERNET OR ANY TRANSACTIONS CONDUCTED ON THE INTERNET.
E. WITH THE EXPRESS EXCEPTION OF THE REMEDIES SET FORTH IN SECTIONS 5.C AND 9.B OF THIS AGREEMENT, IN NO EVENT SHALL GATESPEED, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY REMEDIES OR DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, INDIRECT, DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER'S OR ITS AUTHORIZED USERS' RELIANCE ON OR USE OF CONTENT, INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE DATA SERVICES, OR THAT RESULT FROM OR ARE RELATED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF ANY KIND, EVEN IF GATESPEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
F. Any legal action arising out of this Agreement shall be brought by Customer within a period of one (1) year of the occurrence giving rise to such action or shall be deemed waived.
9. Credits for Service Outages.
A. In accordance with this Section 9, Customer shall be eligible to receive a pro-rated credit of amounts pre-paid, if any, in the event that Customer experiences a problem such that it is temporarily unable to utilize the Gatespeed backbone network and a trouble ticket has been opened as a direct result of such problem (an "Outage"). Outages during scheduled Gatespeed maintenance periods or caused by equipment, facilities or circumstances outside the reasonable control of Gatespeed are excluded from the definition of Outage.
B. Customer shall be eligible to receive the following pro-rated credits of amounts pre-paid in the event of an Outage with the following duration (whether cumulative or contiguous) during any calendar month: (i) Outage of 4 hours = one day's credit; (ii) Outage of 24 hours = one week's credit; (iii) Outage of one week or more = one month's credit. In order to be eligible to receive such credits, Customer must notify Gatespeed in writing within sixty (60) days of the occurrence of the Outage. To the maximum extent applicable by law, Customer's sole and exclusive remedy for such Outage shall be to receive the credit(s) as described herein.
10. Indemnification
Customer shall defend, indemnify and hold harmless Gatespeed, its affiliates, officers, directors, employees, agents and assigns from and against all claims or actions, threatened claims or actions, liabilities, costs and expenses, including but not limited to reasonable attorney's fees, relating to or arising from: (a) the use of the Data Services or the Internet in general or the placement or transmission of any message, information, software or to other materials or content on the Internet by Customer or its authorized users; (b) willful misconduct or negligent acts of Customer, its authorized users, agents or contractors in connection with this Agreement; (c) infringement of any patent, trademark, copyright or any other proprietary rights arising from or relating to the use of any equipment, software, or system not provided by Gatespeed; and (d) the violation of any Laws.
11. Confidential Information
Customer understands and agrees that nothing in this Agreement shall bestow any proprietary or other intellectual property rights of any kind to, or on behalf of, Customer. Customer understands that the terms of this Agreement and/or any Service Order or other attachment constitute confidential and proprietary information and shall not be disclosed to any third party without the prior express written consent of Gatespeed.
12. Transfer and Assignment.
This Agreement shall be binding on the parties hereto and their respective successors and assigns. Neither party may assign or transfer this Agreement, or any part thereof, without prior written consent of the other, which consent shall not be unreasonably withheld, except that Gatespeed may assign its rights and obligations under this Agreement without approval of Customer to an entity that requires all or substantially all of the assets of Gatespeed; provided that in no event shall such assignment relieve Gatespeed of its obligations under this Agreement.
13. Notice
All notices, requests, demands or other communications provided for or permitted or required by this Agreement shall be deemed delivered (a) on the same day if hand delivered, (b) by the next business day if sent by overnight courier or by facsimile, or (c) within three (3) days if sent by United States mail.
14. Miscellaneous
A. Gatespeed reserves the right to decline to provide Data Services to any Customer for any reason. Customer gives permission or Gatespeed to check Customer's credit, and shall provide references upon request.
B. This Agreement does not establish a license for either party to use the other's names, logos, trademarks, service marks, brands or any other proprietary rights.
C. A failure by Gatespeed to insist upon strict compliance with any of the terms of this Agreement in any instance shall not be construed as a waiver of such terms in the future. If any provisions of this Agreement shall be hold to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties. This Agreement shall be interpreted in accordance with the laws of the State of California, Santa Clara County, without reference to its principles of conflicts of law.
D. This Agreement, including any Service Orders (and attachments hereto or thereto) which shall be signed by the parties in the future, constitutes the entire agreement between the parties with respect to the subject matter hereto and supersedes any and all prior to contemporaneous agreements whether written or oral. In the event that filed and effective tariffs of Gatespeed or its affiliates shall apply to the Data Services or any portion thereof, then such tariffs shall govern with respect to such Data Services. In the event of a conflict between this Agreement and any Service Orders, the terms of this Agreement shall prevail. This Agreement cannot be modified except in writing signed by both parties with any handwritten modifications to be of no force and effect.