Click here to view a PDF file and print a copy of this contract. Click here for Acceptable Use Policy (AUP) | |
|
SIMPLY BITS LLC TERMS AND CONDITIONS Contractor and Customer agree that the following terms and conditions apply to the design, construction, provision, and use of the Simply Bits LLC network and related products ("Services") referenced in any Attachments to this Agreement signed by Customer and accepted in writing by Contractor. Such attachments, if any, are an integral part of this Agreement.
1. Contract Period: This Agreement is effective when signed by Customer and accepted in writing by Contractor ("Effective Date"). The Contract Period commences on the Effective Date and, unless terminated in accordance with the provisions herein, will continue in effect for 36 months from the Effective Date. Following the expiration of the Contract Period, Customer's contract will automatically renew for the same term unless Contractor receives written notice of cancellation from Customer at least 30 days in advance.
2. Billing and Payment: Customer shall pay Contractor all charges due under this Agreement, without deduction or setoff. All payments shall be mailed to the address stated on the bill. Bills will be issued monthly and are due immediately upon receipt. All setup fees are due before beginning the project. Furthermore, customer agrees to pay any taxes due on the services, unless Customer provides a valid tax exemption certificate.
3. Termination: If Customer fails to pay any outstanding charges within ten (10) days after receipt of written notice from Contractor of delinquency, or if Customer fails to perform or observe any other material term or condition of this Agreement within thirty (30) days after receipt of written notice from Contractor of such failure, Contractor may terminate this Agreement. All such charges that are not previously due and payable shall be payable within thirty (30) days from the date shown on Contractor's invoice.
If Customer chooses to terminate service during the minimum Contract Period as defined in Section 1, the total sum of monthly recurring charges will be due and payable immediately upon Contractor's receipt of Customer's written notice of termination.
4. Customer Responsibilities: Customer shall ensure that all Customer-provided equipment on its premises that connects to the Services will perform according to published technical specifications for such equipment and Contractor's interface specifications and otherwise complies with Contractor's specifications for the Services.
A. Customer shall adhere to the terms and conditions of the Acceptable Use Policy which is posted at http://www.simplybits.com/SBAUP.html.
B. In cases in which Customer and Contractor agree to have Contractor act as Customer's authorized agent for ordering and coordinating local access circuits for a Service outside of this Agreement, a separate Agency Agreement will be executed.
C. Customer is solely responsible for the content of any transmissions using the Services, or any other use of the services, by Customer or by any person or entity Customer permits to access the Services (a "User"). Customer agrees that it and any User will not use the Services for illegal purposes, or to interfere with or disrupt other network users, network services or network equipment. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network. Customer shall defend, indemnify, and hold harmless Contractor (as defined in section 8) from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by any person based upon the content of any transmissions by Customer or any User using the services or any other use of the Services by Customer or any User.
D. Customer shall limit access to and use of the Services to its employees, students, tenants or invited guests. Customer shall not authorize any person to use the Services other than for Customer's business purposes, and shall not resell or otherwise generate income by providing access to the Services to any User.
If Customer permits Users to access the Services, Customer shall defend, indemnify, and hold harmless Contractor from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by any such Users in connection with the Services, regardless of the form of action, whether in contract, tort (including Contractor's active or passive negligence), warranty, or strict liability.
E. To the extent deemed necessary by Customer, customer shall implement security procedures necessary to limit access to the Services to Customer's authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs.
F. Customer is responsible for establishing designated points of contact to interface with Contractor.
G. Customer agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data which is exported from the United States using the Services.
H. Customer understands that Services provided under this Agreement (including internet use) may require registrations and related administrative reports that are public in nature. In addition, Customer agrees that Contractor may include its name; IP, electronic mail, street, and other addresses; and telephone information.
C. All Contractor supplied equipment remains the property of the Contractor unless specified at time of order. Equipment is the responsibility of the Customer with regard to theft, damage, and willful misconduct. Such equipment is not the Customer's responsibility with regard to Acts of God and War.
5. Contractor Responsibilities: Contractor will provide the Services as described in the Attachments. However, Contractor's policy is to continually improve its products and services, and so may from time to time change the Services as provided to Customer under this Agreement. 6. Right to Use: Contractor hereby grants to Customer a personal, nonexclusive, nontransferable license during the term of this Agreement to use, in object code form, all software and documentation ("Licensed Material") which may be furnished to Customer under this Agreement. Customer agrees to use its best efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement. Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the software. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only to support Customer's use of the Services, shall not be reproduced or copied in whole or in part, shall not be removed from the United States, and shall be returned to Contractor at the conclusion of the term of this Agreement. In addition, to the extent Licensed Material includes software or documentation provided by any third party pursuant to a sublicense from Contractor ("Third Party Material"), Customer agrees, as a condition to the right to use such Third Party Material, to abide by the terms and conditions of such sublicense (including such additional end user terms and conditions as shall be required by such sublicense), and Customer shall be bound by such terms and conditions by virtue of its use of such Third Party Material following notice of such terms and conditions.
A. Customer agrees to maintain, at Customer's expense, during the entire time this Agreement is in effect for each Terminal Facility (i) Comprehensive General Liability Insurance in an amount not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury or property damage, (ii) Employers Liability in an amount not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence, and (iii) Workers Compensation in an amount not less than that prescribed by statutory limits. Prior to taking occupancy of the Collocation Space, Customer shall furnish Contractor with certificates of insurance which evidence the minimum levels of insurance set forth herein and which name Contractor as an additional insured.
8. WARRANTY AND LIMITATION OF LIABILITY:
A. FOR PURPOSES OF THIS PARAGRAPH 7, "CONTRACTOR" INCLUDES CONTRACTOR, ANY AFFILIATED AND SUBSIDIARY COMPANIES OF CONTRACTOR, ANY SUBCONTRACTORS AND SUPPLIERS OF THE FOREGOING, AND THE DIRECTORS, EMPLOYEES, OFFICERS, AGENTS, SUBCONTRACTORS AND SUPPLIERS OF ALL OF THEM.
B. CONTRACTOR MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND CONTRACTOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
C. CONTRACTOR SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. CONTRACTOR SHALL NOT BE LIABLE FOR ANY DAMAGE THAT CUSTOMER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER. CONTRACTOR SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF CUSTOMER'S NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY CONTRACTOR WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, CUSTOMER'S SOLE REMEDY SHALL BE (A) IN THE CASE OF SERVICES, REFUND OF A PRO RATA PORTION OF THE PRICE PAID RELATED TO SERVICES WHICH WERE NOT PROVIDED, OR (B) IN THE CASE OF PRODUCTS, REPAIR OR RETURN OF THE DEFECTIVE PRODUCT TO CONTRACTOR FOR REFUND.
E. THESE LIMITATIONS OR LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
F. CONTRACTOR SHALL NOT BE RESPONSIBLE FOR (1) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER, ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS OR LICENSEES, (2) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS, (3)INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET, (4) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET, (5) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS, OR (6) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
G. CONTRACTOR AND CUSTOMER EACH UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AN / OR THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
9. Residential Use of Service: If you have subscribed to Contractor's Residential services, the services are provided to you as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, tele-marketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This also means that you are not to resell or transfer the services to any other person for any purpose, or make any charge for the use of the service, without express written permission from Contractor in advance. You agree that your use of the Service for any commercial or governmental purpose will obligate you to pay Contractor's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. Contractor reserves the right to immediately terminate or modify the Service, if Contractor determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
10. Small Business Use of Service - Prohibition on Resale: If you have subscribed to Contractor's Small Business services, the Service is provided to you as a small business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Contractor in advance. You agree that the Contractor's Small Business Plans do not confer the right to use the service for web hosting, auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting. Contractor reserves the right to immediately terminate or modify the Service, if Contractor determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
12. Emergency Services – Critical Components: 911 Dialing: Customer acknowledges and understands that the Service does NOT support traditional 911 or E911 access to emergency services. Furthermore, Contractor's EQUIPMENT AND SERVICES ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE PRESIDENT OF CONTRACTOR. Life support devices or systems are those which are intended to support or sustain life and whose failure to perform can be reasonably expected to result in a significant injury to the user. Critical components are those whose failure to perform can be reasonably expected to cause failure of a life support device or system or affect its safety or effectiveness. CONTRACTOR'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 OR OTHER EMERGENCY FUNCTIONS AND WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER OR PROPER NETWORK CONNECTION AND FUNCTION.
13. Confidentiality: All tangible technical or business information disclosed by one party to the other party and marked as proprietary shall be deemed the property of the disclosing party and shall be returned upon request. The receiving party shall: (1) hold such information in confidence for three (3) years after any termination of this Agreement; (2) restrict disclosure of such information solely to its employees and employees of its affiliated companies with a need to know; (3) and use a reasonable degree of care (in no event less than the same degree of care as it uses for its own proprietary information) to prevent the unauthorized disclosure, use or publication of such proprietary information.
B. The receiving party shall have no obligation to preserve the confidentiality of any information which: (1) was previously known to the receiving party or any of its affiliated companies free of any confidentiality obligation; (2) is disclosed to third parties by the disclosing party without restrictions; (3) becomes publicly available by other than unauthorized disclosure; (4) was not identified as confidential or proprietary; or (5) is independently developed by the receiving party.
C. The pricing, terms and conditions of this Agreement are proprietary information and shall be treated in confidence. 14. GENERAL: A. IF A DISPUTE ARISES WITH RESPECT TO THIS AGREEMENT, OR ANY SERVICES PROVIDED OR WORK PERFORMED HEREUNDER, EITHER PARTY MAY SUBMIT THE DISPUTE TO A SOLE MEDIATOR SELECTED AND AGREED TO BY THE PARTIES OR, AT ANY TIME, TO MEDIATION BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). IF NOT THUS RESOLVED, IT MAY BE REFERRED BY EITHER PARTY TO A SOLE ARBITRATOR SELECTED AND AGREED TO BY THE PARTIES OR TO AAA ARBITRATION.
THE ARBITRATION SHALL BE GOVERNED BY THE UNITED STATES ARBITRATION ACT AND JUDGMENT ON THE AWARD MAY BE ENTERED BY ANY COURT HAVING JURISDICTION. THE PARTIES SHALL AGREE ON WHAT, IF ANY, DISCOVERY SHALL BE MADE AVAILABLE; IF THE PARTIES FAIL TO AGREE ON THE FORM OF DISCOVERY WITHIN 30 DAYS AFTER THE APPOINTMENT OF THE ARBITRATOR, THERE SHALL BE NO DISCOVERY OR ISSUANCE OF ANY SUBPOENAS. THE ARBITRATOR SHALL NOT LIMIT, EXPAND, OR MODIFY THE TERMS OF THIS AGREEMENT NOR AWARD DAMAGES IN EXCESS OF COMPENSATORY DAMAGES PERMITTED UNDER THIS AGREEMENT, AND EACH PARTY WAIVES ANY CLAIM TO SUCH EXCESS DAMAGES. THE ARBITRATOR SHALL NOT HAVE ANY ABILITY TO AWARD ANY EQUITABLE REMEDIES, AND SHALL BE LIMITED TO REMEDIES AVAILABLE AT LAW. THE ARBITRATOR SHALL NOT HAVE THE RIGHT TO AWARD ANY DAMAGES IN EXCESS OF DAMAGES THAT COULD LAWFULLY BE AWARDED BY A COURT OF COMPETENT JURISDICTION. THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION CONTAINING FINDINGS AND CONCLUSIONS ON ALL SIGNIFICANT ISSUES. A REQUEST BY A PARTY TO A COURT FOR INTERIM PROTECTION SHALL NOT AFFECT EITHER PARTY'S OBLIGATION HEREUNDER TO MEDIATE AND ARBITRATE. EACH PARTY SHALL BEAR ITS OWN EXPENSES AND AN EQUAL SHARE OF ALL COSTS AND FEES OF THE MEDIATION AND/OR ARBITRATION. ANY MEDIATOR OR ARBITRATOR SELECTED SHALL BE COMPETENT IN THE LEGAL AND TECHNICAL ASPECTS OF THE SUBJECT MATTER OF THIS AGREEMENT. THE CONTENT AND RESULT OF MEDIATION AND/OR ARBITRATION SHALL BE HELD IN CONFIDENCE BY ALL PARTICIPANTS. EACH OF WHOM WILL BE BOUND BY AN APPROPRIATE CONFIDENTIALITYAGREEMENT.
B. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF ARIZONA, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES. EXCEPT THAT PARAGRAPH 14 A. SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE UNITED STATES ARBITRATION ACT.
C. Any legal action arising from or in connection with this Agreement, or any Services provided or work performed hereunder, must be brought within one (1) year after the cause of action arises.
D. Neither party shall publish or use any advertising, sales promotions, press releases or other publicity which use the other party's name, logo, trademarks or service marks without the prior written approval of the other party.
E. Nothing in this Agreement shall create or vest in Customer any right, title, or interest in the Services, other than the right to use the Services under the terms and conditions of this Agreement.
F. If any portion of this Agreement is found to be invalid or unenforceable, the remaining portions shall remain in effect and the parties will begin negotiations for a replacement of the invalid or unenforceable portion.
G. This Agreement may not be assigned by either party without the prior written consent of the other. However, Contractor may, without Customer's consent, assign this Agreement or its right to receive payments hereunder to an affiliate or subsidiary. Contractor may subcontract any or all of the work to be performed by it under this Agreement, but shall retain responsibility for the work that is subcontracted.
H. Contractor's performance obligations under this Agreement shall be solely to Customer and not to any third party. Other than as expressly set forth herein, this Agreement shall not be deemed to provide third parties with any remedy, claim, right of action, or other right.
I. CONTRACTOR SHALL NOT HAVE ANY LIABILITY FOR DAMAGES OR DELAYS DUE TO FIRE, EXPLOSION, LIGHTNING, POWER SURGES OR FAILURES, STRIKES OR LABOR DISPUTES, WATER, ACTS OF GOD, THE ELEMENTS, WAR, CIVIL DISTURBANCES, ACTS OF CIVIL OR MILITARY AUTHORITIES OR THE PUBLIC ENEMY, INABILITY TO SECURE PRODUCTS OR TRANSPORTATION FACILITIES, FUEL OR ENERGY SHORTAGES, ACTS OR OMISSIONS OF COMMUNICATIONS CARRIERS OR SUPPLIERS, OR OTHER CAUSES BEYOND ITS CONTROL WHETHER OR NOT SIMILAR TO THE FOREGOING.
J. All formal notices, requests, demands and other communications required or permitted under this Agreement shall be in writing unless otherwise specified in this Agreement and shall be deemed to have been duly made and received when personally served, or when mailed by first class mail, postage prepaid, to the addresses indicated on Page 1 of this Agreement. The parties may change the addresses on ten (10) days' prior written notice. In addition, the parties may provide other notices in connection with the provision of the Services under this Agreement (such as notices relating to service outages and maintenance) by other means, including by telephone, facsimile or electronic mail.
K. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER AND IT SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS, OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, CONCERNING SUCH SERVICES. No change, modification, or waiver of any of the terms of this Agreement shall be binding unless included in a written agreement and signed by both parties. | |