Waseca
Wireless Internet Service Agreement
This is an agreement between customer and Waseca Wireless, for the
provision of Waseca Wireless internet service. This Agreement may refer to CUSTOMER
or Waseca
Wireless
as a "Party", or CUSTOMER, and Waseca Wireless together as "Parties" to
this agreement.
1. ABOUT
THE SERVICE. The Service provides the CUSTOMER access to the Internet, and its own network.
Connections are made using Waseca Wireless’s provided dedicated connection that routes
through the Waseca Wireless network.
2. WASECA WIRELESS RESPONSIBILITIES. Waseca Wireless will provide 1.
(cpe) Client Premise Equipment, and 1.) Connection to support service; 2.) free technical assistance by phone to the WASECA
WIRELESS Customer Support Center, to obtain technical assistance.
3. CUSTOMER
RESPONSIBILITIES.
3.1 CUSTOMER is solely
responsible for the security of its own internal network, including without
limitation, any defects (i.e. "bugs/viruses") which are imported to
its network through the Internet.
3.2 CUSTOMER represents and
warrants to WASECA WIRELESS that CUSTOMER: (a) will not
Reproduce, publish, or distribute content in connection with the Service
that infringes any third party's trademark, copyright, patent, trade secret,
publicity, privacy or other personal or proprietary right; and (b) will use Service
in compliance with all laws and regulations including, without limitation,
prohibition on the use of telecommunications facilities to transmit illegal,
obscene, threatening, libelous, harassing, other offensive messages, or
otherwise unlawful material. CUSTOMER agrees to indemnify and hold harmless
WASECA WIRELESS, its affiliates, their officers, directors, employees and
agents from and against any liability and costs incurred in connection with any
claim arising out of any breach by CUSTOMER of the representation and warranties contained
in this Section 3.2. WASECA WIRELESS may participate in the defense at its expense.
3.3 CUSTOMER
is solely responsible for creating, managing, editing, reviewing, deleting, and
otherwise controlling the content of messages or
information in connection with Service. WASECA WIRELESS is acting as a passive
conduit only. WASECA WIRELESS gives CUSTOMER complete discretion over the content to be
accessed or distributed in connection with the Service. WASECA WIRELESS has
no obligation, and undertakes no responsibility to determine whether any such content may give
rise to liability to third parties. Not withstanding anything to the contrary herein, if WASECA WIRELESS believes in its sole
discretion that any CUSTOMER use of Service may create liability for WASECA WIRELESS, WASECA WIRELESS may take any
actions, including but not limited to termination of Service that WASECA WIRELESS
believes are prudent to minimize WASECA WIRELESS potential liability.
3.4 Notwithstanding
anything to the contrary herein, if WASECA WIRELESS reasonably believes that
any CUSTOMER
use of Service interferes with other customer’s use, and enjoyment of their
service, or
causes undue burden to WASECA WIRELESS facilities, WASECA WIRELESS may take action,
including termination
of Service.
3.5 WASECA
WIRELESS Acceptable Use Policy is intended to help enhance the use of the
Internet by Preventing unacceptable use. All
users of WASECA WIRELESS’S Internet Services must comply with this Policy. By using WASECA WIRELESS, you confirm your
acceptance of, and agree to be bound by, this Policy which is published at
http://www.wasecawireless.com/Acceptable_Use.htm and which may be changed from time to time.
Publication of changes on the Internet at this address shall constitute notice
to customer
of changes.
4. TERM. This agreement shall become
effective upon execution by both Parties and shall
Expire twelve ____ months from the latest date of execution.
CP INTERNET shall provide CUSTOMER notification of Service availability. Charges
for Service provided hereunder shall commence thirty (30) days after such
notification.
5.
PAYMENT AND CHARGES.
5.1 Customer shall pay WASECA WIRELESS from the date Service
is provisioned on the WASECA WIRELESS Server, as evidenced by WASECA WIRELESS records, a
nonrecurring installation charge and monthly fees as defined below which do not include taxes and/or
surcharges imposed by the law.
INTERNET SERVICE MONTHLY CHARGE: INSTALLATION
CHARGE:
EQUIPMENT DEPOSIT:
5.2
CUSTOMER shall pay
each billing statement by the payment due date on each bill.
Late payments
are subject to a late charge of $5.00 per month.
6. SERVICE
CHANGES.
6.1 MOVES. CUSTOMER may move the
physical location of all or part of Service to another
location within the WASECA WIRELESS region provided the following
conditions for the move
("new service") are met; 1) the new service is provided to CUSTOMER by WASECA WIRELESS;
2) CUSTOMER
advises WASECA WIRELESS that the requested new service replaces existing
Service;
3)
Customer's requests for disconnection of the existing Service and the
installation of the new service
are received by WASECA WIRELESS on the same date;
4) CUSTOMER requests WASECA WIRELESS to install the new service on or prior to
disconnection date of the existing Service; and
5) Customer agrees to sign appropriate agreements and pay all then current
recurring and nonrecurring
charges related to the new service.
6.2 UPGRADES
TO SERVICE. CUSTOMER may request Service upgrades and WASECA WIRELESS
will
supply such upgrades, subject to the following conditions: 1) WASECA WIRELESS commercially
offers
such upgrades and necessary facilities are technically and practically
available; 2) the charges for
upgrades will be charged at the then current rate in accordance with the
remaining term of this Agreement.
Upgrade shall be defined as an increase in Internet access transmission capability. No Termination
Charge
will be assessed for such Service upgrades.
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6.3 WASECA WIRELESS and CUSTOMER agree to execute written amendments to this Agreement or a new Agreement for such changes.
7. SERVICE
LEVEL AGREEMENT (SLA) OBJECTIVES/OUT-OF-SERVICE CREDIT.
7.1
The availability objective for
Service is 99.9%. If WASECA WIRELESS fails to meet this objective during any given
calendar month, an out-of-service-credit will apply for the Service Outage ("Service
Outage") as set forth in Section 7.2 below. A Service Outage is defined as
a period when
CUSTOMER is unable to send or receive data packets to or from the Internet due
to a failure
of WASECA WIRELESS component used to provide Service. A Service Outage period
begins when
the WASECA
WIRELESS team
becomes aware of, or when CUSTOMER reports a Service Outage as documented
by WASECA WIRELESS trouble tracing system. A Service Outage does not include planned
outages or outages caused by CUSTOMERS equipment, transmission circuits between
CUSTOMER and WASECA WIRELESS, busy circuits, any local telephone company or long
distance company network failures, outages on other Internet Service Providers
networks, or other networks not owned or controlled by WASECA WIRELESS, or other causes
beyond WASECA
WIRELESS
reasonable control.
7.2 If Waseca Wireless causes a Service
Outage, an out-of-service credit will be calculated as follows.
•
One (1) 15 minute period of unannounced down time = One day of Service
credit.
• Two (2) 15 minute periods of unannounced downtime occurring in the
same calendar week
(Sunday-Saturday) =
Three days of Service credit.
7.3 CUSTOMER may receive no more than
one such credit for the twenty-four (24) hour period
beginning with the opening of the trouble ticket, even if more than one
outage occurs during that period. CUSTOMER'S total credit in any contract year
shall not exceed thirty (30) days' monthly recurring charge. Residual credits
may not be carried over to subsequent years. THIS CREDIT SHALL BE CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE OUTAGE OR ANY WASECA WIRELESS FAILURE TO
MEET THE SERVICE OBJECTIVES.
8.
TERMINATION
8.1
Either Party may
terminate this Agreement for cause provided written notice specifying the cause
for
termination and requesting correction within thirty (30) days is given the
outer Party and such cause is not corrected within that thirty (30) day
period. Cause is any material breach of the terms of this Agreement. If WASECA
WIRELESS terminates this Agreement for cause, or if CUSTOMER terminates
this agreement in whole or in part WITHOUT cause, CUSTOMER shall pay termination
liability charges. If termination is prior to installation of SERVICE and after
execution
of this Agreement, early termination charges shall be those reasonable expenses
incurred
by WASECA
WIRELESS through
the date of termination.
8.2 If after installation of Service
CUSTOMER requests termination of a portion of its Service,
CUSTOMER shall pay early termination charges
based on: total remaining monthly charges for contract period for Service
terminated, multiplied by eighty percent (80%), plus the balance of all billed
but unpaid recurring and all outstanding nonrecurring charges.
8.3 A
termination charge will be waived when all of the following conditions are met:
1) the customer discontinues their contracted service(s) and signs a new
service agreements) for any other Company provided service(s), 2) the new
service agreements) have a total value equal to or greater than 115% of the remaining
prorated value of the existing agreements) (excluding any special construction charges, applicable
nonrecurring charges, or previously billed but unpaid recurring and/or
nonrecurring charges), 3) the CUSTOMER places orders to discontinue the service
and establish new service at the same time, and 4) a new minimum service period
goes into effect when the new service agreement term begins. New service is defined
as a newly installed service placed under a new service agreements), or newly
installed additions to an existing service agreement(s), but does not include
renewals of expiring service agreements), renegotiations of existing service
agreements) and conversions from month-to-month service to contracted service.
9. LIMITATION OF
LIABILITY. WASECA WIRELESS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY REASON INCIDENTAL, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE,
LOSS OF BUSINESS, LOSS OF PROFIT, OR
LOSS OF INFORMATION OR DATA. IN NO EVENT SHALL WASECA WIRELESS’S LIABILITY TO CUSTOMER FOR ANY DAMAGES RELATED TO SERVICE EXCEED AN AMOUNT EQUAL TO THE APPLICABLE
CREDIT FOR INTERRUPTIONS TO SERVICE AS PROVIDED IN SECTION 7 OF THIS AGREEMENT.
REMEDIES OF CUSTOMER UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
CUSTOMER UNDERSTANDS AND AGREES THAT
EXCEPT AS STATED IN THIS AGREEMENT, NO OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OF
FITNESS FOR A PARTICULAR PURPOSE APPLY.
10. PERSONAL
INJURY; PROPERTY DAMAGE. Each Party shall be responsible for any actual physical damages it directly causes in the course
of its performance under this Agreement, limited to damages resulting from
personal injuries, death, or property damage arising from negligent acts or omissions; PROVIDED HOWEVER, THAT NEITHER PARTY SHALL
BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF
BUSINESS, LOSS OF PROFIT, OR LOSS OF INFORMATION OR DATA.
11. UNCONTROLLABLE
CIRCUMSTANCES. Neither party shall be deemed in violation of this Agreement if it is
prevented from performing any of the obligations under this Agreement by reason
of severe weather and storms; earthquakes or other natural occurrences; strikes
or other labor unrest; power failures; nuclear or other civil or military
emergencies; acts of legislative, judicial, executive or administrative
authorities; or any other circumstances which are not within its reasonable
control.
12. DISPUTE RESOLUTION.
12.1 Other than those claims over
which a regulatory agency has exclusive jurisdiction, all claims,
regardless of legal theory, whenever brought and whether between the
Parties or between one of the Parties to this Agreement and the employees,
agents or affiliated businesses of the other Party, shall be resolved by
arbitration. A single arbitrator engaged in the practice of law and knowledgeable about
the subject matter of the dispute shall conduct the arbitration in accordance
with the then current rules of the American Arbitration Association
("AAA").
12.2 All
expedited procedures prescribed by the AAA shall apply. The arbitrator's
decision shall be final and binding and judgement may be in any court having jurisdiction
thereof.
12.3 Other
than the determination of those claims over which a regulatory agency has
exclusive jurisdiction, federal law (including the provisions of the Federal
Arbitration Act, 9 U.S.C. Sections 1-16) shall govern and control with respect
to any issue relating to the validity of this agreement to arbitrate and the
arbitrages of the claims.
12.4 If
any Party files a judicial or administrative action asserting claims subject to
arbitration, and another Party successfully stays such action and/or compels
arbitration of such claims, the Party filing the action shall pay the other Party's costs and expenses
incurred in seeking such stay or compelling
arbitration, including reasonable attorney's fees.
13. LAWFULNESS. This Agreement and the
Parties' actions under this Agreement shall comply with all applicable federal, state, and local laws, rules, regulations,
court orders, and governmental agency orders. Any provision not in
compliance is void. The laws of the state of Minnesota shall govern this
Agreement WASECA WIRELESS reserves the right of venue selection should legal
action be required in association with this
contract.
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14. SEVERABILITY,
In the event that a court, governmental agency, or regulatory agency with
proper jurisdiction determines that this Agreement
or a provision of this Agreement is unlawful, this Agreement, or that
provision of the Agreement to the extent it is unlawful, shall terminate. If a provision of this Agreement is terminated but the
Parties can legally, commercially and practicably continue without the
terminated provision, the remainder of this Agreement shall continue in effect.
15. GENERAL.
15.1 CUSTOMER
shall not assign or transfer any interest in this Agreement without the prior
written consent of WASECA WIRELESS. WASECA WIRELESS may assign or transfer this
Agreement to any parent, subsidiary, successor or affiliated company without
the prior written consent of CUSTOMER.
15.2 This
Agreement and the Acceptable Use Policy located at http://www.wasecawireless.com/Acceptable_Use.htm constitutes the entire understanding between
CUSTOMER and WASECA WIRELESS with respect to the Service provided herein and
supersedes any prior Agreement or understanding(s).
15.3 This
Agreement benefits CUSTOMER and WASECA
WIRELESS. There are no third party beneficiaries.
15.4 Failure or delay by either Party to
exercise any right, power, or privilege hereunder will not operate as a waiver hereto.
15.5 If
a party returns this Agreement by facsimile machine, the signing party intends
the copy of this authorized signature printed by the receiving facsimile
machine to be its original signature.
16. EXECUTION. The
Parties have read, understand and agree to all of the above terms and
conditions of this Agreement and hereby
execute and authorize this Agreement as of the latest date shown below. Notices
concerning this Agreement may be sent to WASECA WIRELESS’S CUSTOMER billing
address of record or to CUSTOMER'S Address for Notices specified herein, if
any.
By signing below I understand that I (customer) will be charged
(Replacement Value) for equipment that is not returned to Waseca Wireless
within a reasonable time after service termination. I also give Waseca Wireless
permission to bill my credit card for any unpaid balance on my account, which
might include charges for unreturned equipment.
CUSTOMER
WASECA WIRELESS
_____________________________ _____________________________
Authorized Signature Authorized
Signature
_____________________________ __Christapher
James Hasher____
Name Typed or Printed Name Typed or Printed
Date
____________ Date
____________
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