BUSINESS SERVICES CUSTOMER TERMS AND CONDITIONS
The Customer named on the [reseller] Business Service Order Agreement and [reseller] Telecom “[reseller]” agree that the terms and conditions on the [reseller] Business Service Order Agreement and these terms and conditions constitute the agreement (the “Agreement”) for the provision of the Services selected by Customer and designated on a Service Order. Services may include [reseller] Business and Hospitality commercial high-speed internet services (“Internet”) and [reseller] Business and Hospitality commercial digital voice services, including enhanced voice, toll free and trunk services (“Voice”) (each a “Service” and collectively “Services”).
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services. Additional terms and conditions apply to the Internet and the Voice Service and should be reviewed in either the “ADDITIONAL TERMS APPLICABLE TO INTERNET SERVICE” section, or the “ADDITIONAL TERMS APPLICABLE TO VOICE SERVICE” section, as applicable.
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under common control with [reseller].
Agreement: These terms and conditions and the Service Order Agreement executed by Customer.
[reseller] Equipment: Any and all facilities, equipment or devices provided by [reseller] or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by [reseller], shall not be considered [reseller] Equipment.
Confidential Information: All information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Licensed Software: Computer software or code provided by [reseller] or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Party: A reference to [reseller] or the Customer; and in the plural, a reference to both companies.
Service(s): The Internet, Toll Free Trunk and Voice services provided by [reseller] to Customer described in one or more Service Order(s). All Services are for commercial use only, except as otherwise expressly permitted herein.
Service Commencement Date: The date(s) on which [reseller] first makes Service available for use by Customer. A single Service Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
Service Order: A request for [reseller] to provide the Services to Service Location(s) submitted by Customer to [reseller] (a) on a then-current [reseller] form designated for that purpose or (b) if available, through a [reseller] electronic order processing system designated for that purpose.
Service Order Agreement: The agreement under which all Service Orders are submitted to [reseller].
Service Location(s): The Customer location(s) where [reseller] provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order.
Tariff: A federal or state [reseller] tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Charges that may be imposed by [reseller] if, prior to the end of the applicable Service Term (a) [reseller] terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Service Order shall equal, in addition to all amounts payable by Customer in accordance with Section 5.3, seventy-five percent (75%) of the remaining monthly fees that would have been payable by Customer under the Service Order if the Services described in the Service Order had been provided until the end of the Service Term. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount paid by [reseller] in connection with Custom Installation, as that term is defined in Section 2.7, for the Services provided by [reseller] under the Service Order.
ARTICLE 2. DELIVERY OF SERVICES
2.1 Orders. Customer shall submit to [reseller] a properly completed Service Order to initiate Services to a Service Location(s). A Service Order shall become binding on the parties when (i) it is specifically accepted by [reseller] either electronically or in writing, (ii) [reseller] begins providing the Services described in the Service Order or (iii) [reseller] begins Custom Installation (as defined in Section 2.7) for delivery of the Services described in the Service Order, whichever is earlier. When a Service Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
2.2 Speed. [reseller] makes no representation regarding the speed of the Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
2.3 Access. Customer, at no cost to [reseller], shall secure and maintain all necessary rights of access to Service Location(s) for [reseller] to install and provide the Services, unless [reseller] has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the [reseller] Equipment used to provide the Services within the Service Location(s). [reseller] and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from [reseller], Customer shall provide all required access to [reseller] and its authorized personnel.
2.4 Service Commencement Date. Upon installation and connection of the necessary facilities and equipment to provide the Services, or in the case of Voice, the day Voice Service is activated, [reseller] shall notify Customer that the Services are available for use, and the date of such notice shall be called the “Service Commencement Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
2.5 [reseller] Equipment. [reseller] Equipment is and shall remain the property of [reseller] regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time [reseller] may remove or change [reseller] Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any [reseller] Equipment or permit others to do so, and shall not use the [reseller] Equipment for any purpose other than that authorized by the Agreement. [reseller] shall maintain [reseller] Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at [reseller]’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the [reseller] Equipment. Customer is responsible for damage to, or loss of, [reseller] Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of [reseller]. Customer agrees not to take any action that would directly or indirectly impair [reseller]’s title to the [reseller] Equipment, or expose [reseller] to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following [reseller]’s discontinuance of the Services to the Service Location(s), [reseller] retains the right to remove the [reseller] Equipment including, but not limited to, that portion of the [reseller] Equipment located within the Service Location(s). To the extent [reseller] removes such [reseller] Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.
2.6 Customer-Provided Equipment. [reseller] shall have no obligation to install, operate, or maintain Customer-Provided Equipment. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the cable modem, route and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by [reseller]’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.
2.7 Engineering Review. Each Service Order submitted by Customer shall be subject to an engineering review by [reseller]. The engineering review will determine whether the cable plant must be extended, built or upgraded in order to provide the ordered Services at the requested Service Location(s), or whether Service installation has to be expedited to meet the Customer’s requested Service Commencement Date (”Custom Installation”) . [reseller] will provide Customer written notification in the event Service installation at any Service Location will require an additional one-time installation fee (“Custom Installation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Service Order with respect to the affected Service Location(s).
2.8 Administrative Web Site. [reseller] may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). [reseller] may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify [reseller] if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and [reseller] shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. [reseller] shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. [reseller] may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.
ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Charges. Customer shall pay [reseller] one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Service Order(s) or invoiced by [reseller]. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of [reseller] Equipment, per-call charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services such as measured and per-call charges, (as explained below in the Voice Additional Terms) may be invoiced after the Service has been provided to Customer. Except as otherwise indicated herein or on the applicable Service Order(s), monthly recurring charges for Internet Services shall not increase during the initial Service Term.
3.2 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by [reseller]. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone based services, purchasing or subscribing to other offerings via the Internet or interactive options on Public View Video, Video, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated herein or on the Service Order(s), [reseller] will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to [reseller] for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to [reseller] within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, [reseller] may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. [reseller] shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
3.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by [reseller]. No acceptance of partial payment(s) by [reseller] shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.5 Payment by Credit Card. Upon Customer’s written request and [reseller]’s acceptance of such request, [reseller] will accept certain credit card payments for charges generated under the Agreement. By providing [reseller] with a credit card number, Customer authorizes [reseller] to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that [reseller] stop charging the credit card. Customer agrees to provide [reseller] with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If [reseller] is unable to charge Customer's credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by [reseller]. [reseller] may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide [reseller] with credit information requested by [reseller]. Customer authorizes [reseller] to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to [reseller] will be true and correct. [reseller], in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, [reseller] may require Customer to make a deposit (in an amount not to exceed an estimated two-month's charge for the Services) as a condition to [reseller]’s provision of the Services, or as a condition to [reseller]’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by [reseller] as security for payment of Customer's charges. If the provision of Service to Customer is terminated, or if [reseller] determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer's account or will be refunded to Customer, as determined by [reseller].
3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
3.8 Other Government-Related Costs and Fees. [reseller] reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether [reseller] or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer.. These obligations may include those imposed on [reseller] or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that [reseller] or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. For example, Voice customers are charged a monthly regulatory recovery fee to help defray [reseller]’s contributions to municipal, state, and federal programs including, without limitation, universal service, telecom relay services for the visually/hearing impaired, and 911/E911 programs and infrastructure. This regulatory recovery fee is not a tax, and it is not government-mandated. Taxes and other government-related fees and surcharges may be changed with or without notice,
3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to [reseller] for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to [reseller], all disputed amounts shall become immediately due and payable to [reseller].
3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, [reseller] may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any [reseller] Equipment that Customer fails to return in accordance with the Agreement. If [reseller] is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned [reseller] Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to [reseller] under the Agreement or at law or in equity.
3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. [reseller] may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. [reseller] reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.