Terms and Conditions for Delivery of Service
Spectrum Networks, Inc. Terms and Conditions updated September 21st 2007:
The terms and conditions in this agreement (“Agreement”) shall govern the services Spectrum Networks Inc. (“Spectrum”) has contracted to provide to you under the Service Order Form (“Order Form”) executed by you.
The initial term (“Initial Term”) of this Agreement commences on the Effective Date indicated on the Order Form and shall continue until the end of the Service Term as defined on the Order Form. After expiration of the Initial Term, this Agreement shall automatically renew on a 12 month basis (“Renewal Term”) unless written notice is given by either party no sooner than one hundred and twenty (120) days and at least thirty (30) prior to the expiration of the Initial Term if no TPF (as defined below) or ninety (90) days prior to the expiration of the Initial Term if TPF is utilized.
Spectrum agrees to provide you services as specified on the Order Form for the Term of this agreement. Services provided by Spectrum may include, but are not limited to; IP version 4 and version 6 transit (Internet access), collocation, private line (any point to point service delivered via any media), and voice services. Spectrum agrees to provide its services to you from the point at which Spectrum’s network connects to your network, hereafter referred to as the “DEMARC” as specified on the Order Form, this “DEMARC” may or may not be located on your premises but will always have the unified characteristic of being dedicated exclusively to a single party which is you. The Service Level Agreement (“SLA”) which you have signed with Spectrum for each connection leading up to the your DEMARC outlines the performance and reliability specifications of Spectrum’s service to be provided and is incorporated in this Agreement by this reference. You have been advised and understand that Spectrum’s service relies on and is limited by the inherent shared nature of the internet and that Spectrum will use its actual best efforts to provide you with the highest speed at which data will pass through networks controlled by third-parties reasonably available. Spectrum will provide all equipment (“Equipment”) and installation services up to and including your “DEMARC” point, but will not be responsible for configuration beyond the “DEMARC.”
Customer Equipment Configuration
It is understood that under the terms of this Agreement, Spectrum is under no obligation to configure any of your equipment. All configurations of your equipment, including Border Gateway Protocol (“BGP”), router configurations, and the like are your sole responsibility. At its discretion Spectrum may, but is not required to, assist you in configuring your equipment to utilize Spectrum’s service. Any assistance which Spectrum may provide is without warranty of any kind and in consideration for such assistance, you expressly waive any and all claims against Spectrum which may arise from such assistance.
You agree to timely pay all fees and other charges billed to your account. Services will be billed by Spectrum in advance on the first day (1st) of the month in which the service is to be used. The invoice on the first of the month will include any base service charges for the month in which it is billed along with any additional usage charges above the customer’s base service charges in the previous month. Payment is due by the last day of the month in which the invoice was sent.
Late Fees and Non-Payment
In the event Spectrum does not receive payment in full by the last day in the month in which service was invoiced, the following will be charged to your account: 1) A two hundred fifty dollar ($250) service late; 2) a fee equal to thirty percent (30%) of the third party fees charged to Spectrum for transmitting your data through networks controlled by third-parties “loop fee;” and interest on the outstanding balance due Spectrum at the rate of 1.5% per month. Service will not be re-established for you without receiving the payment of all arrears and a two hundred fifty dollar ($250) reactivation fee.
First Month Base Service and Activation Fees
You are required to provide Spectrum with your first month service charge and activation fees, as set forth in the Order Form, at execution of the Order Form. Spectrum will not provide any service until such fees have been paid in full.
You acknowledge and agree that: (i) Spectrum is the owner of all Equipment and intellectual property rights related to Spectrum�s services to be delivered to you pursuant to this Agreement; and (ii) Spectrum has not granted you any rights or licenses to such Equipment or intellectual property except as contained in this Agreement. In exchange for the use of such equipment, you accept full responsibility for Equipment located on your premises and agrees to pay the full replacement cost for any Equipment that is lost, stolen, damaged, sold, transferred or in any other way not returned in working order to Spectrum upon termination of this Agreement.
Access to Equipment
By signing the Order Form, you agree to allow Spectrum personnel, and independent contractors acting in behalf of Spectrum, reasonable access to your premises for the purpose of installing, repairing, and removing Spectrum Equipment. In the event your premises are leased from a third party, you also agree that you have obtained appropriate authorization from your landlord for (i) the placement of Equipment on your premises and (ii) reasonable access to Spectrum personnel and independent contractors to install, repair, and remove Equipment.
Use and Abuse of Service
You understand and agree that services provided to you by Spectrum may only be used for lawful purposes; that the you are fully responsible for any data or traffic originating from your customer IP connections; and to assist Spectrum in investigating all uses not permitted by this Agreement (“Abuses”) which Spectrum believes have originated from the your customer IP connections. Abuses include, but are not limited to (i) transmission of unsolicited bulk email (“SPAM”), (ii) transmissions from computers involved in DOS and dDOS attacks, IRC bots, (iii) “Hacking” activity and (iv) any other activity which is generally defined by the global internet community as malicious. Furthermore, if you are utilizing BGP to exchange routing information with Spectrum, you represent and warrant that you have the requisite authority to “route” any IP address space to which you are announcing on the Internet. You also understand that while Spectrum makes an effort to properly filter announcements, you are responsible for all liability resulting from your actions including the incorrect or malicious announcement of a third party’s IP address space.
Spectrum reserves the right to interrupt service for routine maintenance at such times as may be reasonably necessary. You agree that except as set forth in the SLA under “Credit for Loss of Service”, Spectrum will not be liable to you for any consequences of any interruptions to the service, which may render you unable to access the internet.
You acknowledge that Spectrum’s ability to provide its services may be impeded by events or actions outside of Spectrum’s reasonable control, including, without limitation, acts of God, floods, fires, hurricanes, earthquakes, acts of war, labor actions, failure of third party suppliers, changes in applicable laws and regulations, or any similar action or event (“Force Majeure”). You agree that In the event of a Force Majeure, Spectrum shall not be responsible for any failure to provide service and Spectrum agrees that in such an event you will not be liable for payment of the fees otherwise due under this Agreement.
Termination of services
You are entitled to terminate this Agreement at any time upon thirty (30) days advance written notice except where Spectrum utilizes third party facilities for delivery of your services (“TPF”) as indicated on your Order Form in which case you may terminate this Agreement upon ninety (90) days advance written notice. Termination notice must be sent to Spectrum via US Post and will be effective on the third day following any such mailing.
However, if there is any remaining contract term on this Agreement, you will remain responsible for 100% of the loop fees, location charges, and minimum service fees for the remaining duration of the contract, which shall become immediately payable on the termination date which unpaid amount shall be subject to interest at the rate of 1.5% per month if not fully paid within thirty (30) days. These “loop fees,” “location charges” and “minimum service fees” are the charges associated with the actual DEMARC point to the customer and form the basis for cost recovery on dedicated facilities and thus, may not be canceled until the end of the contract term. You understand and agree that Spectrum may terminate this Agreement at any time with written notice delivered to you via US Post thirty (30) days prior to termination which notice will be effective on the third day following any such mailing. Cancellation of this Agreement by Spectrum will not affect your continuing responsibility for all fees relating to your account prior to the date of termination.
Indemnification and liability release
You and your agents, successors and/or assignees expressly agree to indemnify and release Spectrum, its affiliates, subcontractors, suppliers, agents, employees, successors and assignees from any liability for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the installation and/or use of Spectrum’s services and/or Equipment. Furthermore You and your agents, successors and/or assigns releases Spectrum from any liability resulting from use of content on the internet or any other network to which Spectrum connects but is not in control of.
Spectrum warrants only that it shall, subject to the terms and conditions of this Agreement, provide you with the service contracted for. YOU AGREE THAT THE SERVICE AND EQUIPMENT ARE BEING PROVIDED “AS AVAILABLE” AND “AS IS,” WITH ALL FAULTS ACCEPTED. SPECTRUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SPECTRUM MAKES NO WARRANTIES WITH RESPECT TO (i) THE EQUIPMENT, OR (ii) THE SERVICES PROVIDED BY ANY THIRD PARTY. SPECTRUM SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, EVEN IF THE SPECTRUM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE SPECTRUM�S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO SPECTRUM IN ANY SINGLE MONTH UNDER THIS AGREEMENT.
This Agreement, the Order Form, the SLA and any exhibits, addenda and/or amendments signed by both parties, shall constitute the entire understanding of the parties related to the subject matter hereof. In the event of any conflict between either: (a) the Order Form and this Agreement; and/or (b) any Customer purchase order, the Order Form and this Agreement, the terms and conditions of this Agreement shall control.
This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Washington and the United States of America, without regard to their principles of conflicts of law. You agree that any legal action or proceeding relating to your use of our website shall be settled totally and finally by arbitration in King County, Washington or such other location as the Company prescribes, in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association. If you file a claim or counterclaim against Spectrum, you shall do so on an individual basis and not with any other person or party or as part of a class action. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court of competent jurisdiction. The prevailing party shall be entitled to receive from the losing party costs and expenses of arbitration, including legal filing fees. This agreement to arbitrate shall survive any termination or expiration of the Agreement.
The failure of either party at any time to enforce any right or remedy available to it under the Order Form, this Agreement, or the SLA with respect to any breach or failure by either party shall not be construed to be a waiver as such right or remedy with respect to any other breach or failure by either party.
Attorney’s Fees and Cost of Collection
In any dispute whether or not suit is filed including but limited to costs incurred prior to any action, during said action and appeal and collection of any judgment of said action arising out of this Agreement, the substantially prevailing party shall be entitled to an award of its reasonable attorneys’ fees and other costs incurred therein.