1.0 SERVICES AGREEMENT
XtreamInternet, LLC Terms and Conditions
This Agreement (“Agreement”) describes the terms and conditions that govern the provision of services, including broadband Internet access service (“Services”) by XtreamInternet, LLC (“XtreamInternet” or “we”). By using, subscribing to or purchasing XtreamInternet’s products and services, you agree to be bound by the terms and conditions of this Agreement. Customer and XtreamInternet together will be referred to as the Parties.
2.1 XtreamInternet shall provide Customer with the Services in accordance with any Service Request entered into by the Parties. Customer understands and agrees that certain Services may not be available in all of XtreamInternet’s service areas. Unless otherwise set forth, XtreamInternet shall use commercially reasonable efforts to provide the Services seven (7) days a week, twenty four (24) hours a day, excluding scheduled maintenance, required repair and events beyond XtreamInternet’s reasonable control.
2.2 Customer shall request Services by issuing to XtreamInternet a Service Request in the form provided by XtreamInternet, which may change from time to time. Upon XtreamInternet’s acceptance of a proposed Service Request, such proposed Service shall be deemed a “Service Order” hereunder and shall be deemed incorporated into, and made a part of this Agreement by this reference. A proposed Service Order shall be deemed accepted upon the earlier of (a) XtreamInternet’s written acceptance of such proposed Service Order; or (b) XtreamInternet’s commencement of delivery of the Service set forth in the proposed Service Order.
2.0 SERVICES AND SERVICE ORDERS
3.0 SERVICE & EQUIPMENT INSTALLATION
3.1 Customer shall obtain and maintain, or shall ensure that users of the Service (“End User”) shall obtain and maintain, during the Term (as defined below), such consents (including without limitation landlord and land owner consents) as are necessary to timely permit, and shall timely permit, XtreamInternet personnel to install, deliver, operate and maintain the Services and XtreamInternet Equipment (as defined in Section 4 below) at Customer’s facility or home. Customer shall permit XtreamInternet reasonable access to the Customer and to any End User facilities at any time as needed to install, configure, upgrade, maintain or remove the XtreamInternet Equipment and other Services components located at Customer’s home or at an End User’s facilities. Customer shall make and maintain throughout the Term all reasonable site preparations necessary to permit the installation, maintenance and operation of the Services and any XtreamInternet Equipment as specified by XtreamInternet that is required to provide the Services. In addition, Customer shall provide XtreamInternet with space and power as is reasonably necessary for the installation and operation of XtreamInternet Equipment at the Customer location(s) identified in the Service Order.
3.2 Provided that Customer properly performs all necessary site preparation and provides XtreamInternet with all required consents, XtreamInternet shall use commercially reasonable efforts to install the Service in accordance with the requested Service start date indicated on the Service Order. In the event that XtreamInternet is unable to install the Services in accordance with the agreed-upon schedule as a result of (a) Customer’s (or its End User’s) failure to deliver any required materials, support or information to XtreamInternet; or (b) XtreamInternet not being able to obtain access to equipment or software at the installation location necessary for installation of the Services, then Customer shall pay XtreamInternet the additional installation fee as identified on the Service Order for any installation trip made by XtreamInternet and an additional installation fee for each subsequent trip required to perform the Services installation. Customer shall perform interconnection of the Services and XtreamInternet Equipment with Customer’s or an End User’s equipment, unless otherwise set forth in an Attachment or agreed in writing between the Parties.
3.3 Standard installation includes the mounting of an antenna on the outside of the building, the routing of cable(s) by the most direct path, and/or a wireless router on Customer premises. Any deviations from standard installation will result in extra fees as described in Service Order. If Customer does not inform XtreamInternet of any issues within 3 days of installation, Service shall be deemed accepted as installed.
3.4 Customer agrees that XtreamInternet may take pictures of installation for potential use in marketing. No identifying markers will be used. XtreamInternet will respect the privacy of the customer.
4.0 SUPPORT & MAINTENANCE
XtreamInternet shall use commercially reasonable efforts to maintain the XtreamInternet-provided and installed equipment, including as applicable, any cabling, wireless antenna, routers or other items (individually and collectively, the “XtreamInternet Equipment”), on XtreamInternet’s side of the demarcation points used by XtreamInternet to provide the Service. Equipment and Services on Customer’s side of the demarcation points, as well as any other Customer-provided equipment, are the responsibility of Customer. XtreamInternet shall provide a telephone number and email address for inquiries and remote problem support for the Services. All such Customer support shall be provided only to Customer’s designated personnel, as mutually agreed upon by XtreamInternet and Customer. Customer is responsible for all communications and interfaces with its End Users. XtreamInternet shall bill $100 per hour for any service call. If XtreamInternet is determined to be at fault to the issue(s), the service charge will be waived. In no event shall XtreamInternet be responsible for providing support for any network, equipment or software not provided and installed by XtreamInternet or for issues or problems beyond XtreamInternet’s control. Notwithstanding anything to the contrary in the foregoing, XtreamInternet shall use commercially reasonable efforts to restore outages of the Services and shall keep Customer reasonably advised of restoration progress. Customer shall provide routine operational Services support for XtreamInternet Equipment and Services components located at Customer’s or an End User’s facility, including without limitation by performing reboots, as requested by XtreamInternet.
5.0 CUSTOMER OBLIGATIONS AND ACCEPTABLE USE
5.1 Customer agrees not to use or to allow others to use the Service for illegal or inappropriate activities, including but not limited to: invading another person’s privacy; unlawfully using, possessing, posting, transmitting or disseminating obscene, profane or pornographic material; posting, transmitting, distributing or disseminating content that is unlawful, threatening, abusive, harassing, libelous, slanderous, defamatory or otherwise offensive or objectionable; distribute or engage in the mass distribution of unsolicited emails without the consent of the intended recipient; introduce viruses, worms, harmful code and/or Trojan horses on the Internet. Customer shall not resell or redistribute (whether for a fee or otherwise) the Services, or any portion thereof, or make any use of the Services other than for Customer’s purposes, unless otherwise agreed in writing by XtreamInternet prior to such resale or redistribution. Customer shall ensure that its End Users’ use of the Services, if any, shall comply with all applicable laws and regulations and with this Agreement. XtreamInternet may audit Customer’s use of the Services remotely or otherwise, to ensure Customer’s compliance with this Agreement. Users found to engage in activities that XtreamInternet determines, in its sole discretion, are in violation of this Agreement may have their accounts terminated. Violators may also be subject to any appropriate legal action and/or consequences. XtreamInternet reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected illegal activity or civil wrong related to Customer’s use of the Services.
5.2 Customer shall ensure that all XtreamInternet Equipment at Customer’s and Customer’s End Users’ facilities remains free and clear of any and all liens and encumbrances, and Customer shall have sole responsibility for any loss or damage to the XtreamInternet Equipment while at Customer’s or an End User’s facilities. Customer is responsible for ensuring that any Customer equipment used in connection with the Services is protected from fraudulent or unauthorized access. Customer is responsible for all access to and use of the Services (whether or not such use is fraudulent or authorized) and for the payment of all charges incurred on Customer’s Services account, including any charges resulting from fraudulent or unauthorized access to any Customer equipment, until such time as Customer informs XtreamInternet of such fraudulent or unauthorized access. In addition, as between the Parties, Customer is responsible for: (a) all content that is viewed, stored or transmitted via the Services; and (b) all third-party charges incurred for merchandise and services accessed via the Services, if any. Customer shall conform its equipment and software, and ensure that each End User conforms its equipment and software, to the technical specifications for the Services provided by XtreamInternet.
The Agreement shall commence on the earlier to occur of (a) the date of the last signature on the Service Order (the “Effective Date”) or (b) XtreamInternet’s commencement of delivery of the Services set forth in a Service Order, and shall remain in effect for the term specified in the Service Order (the “Initial Term”). Unless otherwise specified in the Service Order, if the Customer continues to receive Services after the expiration of the Initial Term, the Services shall renew on a month-to-month basis on the same terms and conditions (“Renewal Order Term”, collectively with “Term”). The fees for the Renewal Order Term shall be as set forth in Section 7.
Customer shall pay XtreamInternet all recurring and non-recurring charges, fees and taxes (which may include Services installation and activation charges, and equipment and facilities charges) (collectively the “Service Charges”) as set forth on the Service Order in accordance with the following payment terms unless we have a contrary written agreement with you: , with payment due at the end of month. Customer must bring any billing error to XtreamInternet’s attention within thirty (30) days of the date appearing on the applicable invoice or Customer waives its right to a refund or credit associated with such billing error. XtreamInternet reserves the right to change its prices and fees at any time, with or without notice to you. Such changes may be posted on a website owned or controlled by XtreamInternet or through some other form of notice. The late fee shall be the lesser of one and one-half percent (1.5%) per month or the highest rate chargeable by law. XtreamInternet shall have the right, with no prior notice to customer, to disconnect or interrupt service for any amounts overdue in excess of 15 days. If service is interrupted due to non-payment, a $25 fee will be assessed and account must be current before service is restored. Customer shall also be responsible for all costs of collection (including reasonable attorneys’ fees) to collect overdue amounts. If Customer terminates contract early, all outstanding nonrecuuring fees plus Monthly Fee for each remaining month of the initial Term are required to be paid. Upon cancellation, if necessary equipment is not returned to XtreamInternet, an equipment fee of $100 will be assessed. If Customer moves location, a reinstallation fee will be charged. If XtreamInternet fails to present a charge in a timely manner, such failure shall not constitute a waiver of the charges for the fees to which it relates, and Customer shall pay such invoice in accordance with these payment terms. You acknowledge and agree that your use of the Service may include charges to third parties that you may be required to pay separately to those third parties, and you acknowledge that charges may be incurred by you or by anyone else that may have access to your account information.
8.0 PROPRIETARY RIGHTS
All materials including, but not limited to, any XtreamInternet Equipment (including related firmware), software, data and information provided by XtreamInternet, any identifiers or passwords used to access the Services or otherwise provided by XtreamInternet, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by XtreamInternet to provide the Services (collectively “XtreamInternet Materials”) shall remain the sole and exclusive property of XtreamInternet and/or its suppliers. XtreamInternet will maintain or replace any equipment failures at no cost due to warrantable reasons. Any other damage caused by the Customer, or an ‘Act of God’ will be charged a fee for repair or replacement. Nothing herein is intended to convey any right or ownership interest to Customer or any other person or entity in or to such XtreamInternet Materials. Customer shall acquire no interest in the XtreamInternet Materials by virtue of the payments provided for under the Agreement. Customer may use the XtreamInternet Materials solely for Customer’s lawful use of the Services during any applicable Term and the same may not be transferred by Customer to any other person, corporation or entity. Customer may not disassemble, decompile, reverse engineer, reproduce, modify or distribute the XtreamInternet Materials, in whole or in part, or use them for the benefit of any third party. All rights in the XtreamInternet Materials not expressly granted to Customer in the Agreement are reserved to XtreamInternet. Customer shall not open, alter, misuse, tamper with or remove the XtreamInternet Equipment as and where installed by XtreamInternet, and shall not remove any markings or labels from the XtreamInternet Equipment indicating XtreamInternet (or its suppliers) ownership or serial numbers.
9.0 MONITORING, EQUIPMENT UPGRADES AND MODIFICATIONS
XtreamInternet has the right, but not the obligation, to upgrade, modify and enhance the XtreamInternet Equipment (including related firmware) and the Services and take any action that XtreamInternet deems appropriate to protect the Services and its facilities. XtreamInternet may add to, modify or delete any provision of these Terms and Conditions. It is the customer’s responsibility to be aware of the most up-to-date version of these Terms and Conditions. The most recent version can be found on the XtreamInternet web site. Upon the effectiveness of any addition, modification or deletion to these Terms and Conditions, Customer’s continued use of the Services shall constitute Customer’s consent to such addition, modification or deletion, and agreement to continue to be bound by the Agreement. In any event, if XtreamInternet modifies the Services or these Terms and Conditions in a manner that has a material adverse impact on Customer’s ability to use the Services, Customer may, within the thirty (30) day period following the date of such modification, terminate, without penalty, the Service Order relating to the affected Services.
10.1 Either Party may terminate a Service Order: (a) upon thirty (30) days written notice to the other Party of the other Party’s material breach of the Agreement or the applicable Service Order, provided that such material breach is not cured within such thirty (30) day period; (b) immediately, in the event that the other Party liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for general relief from its debtors, initiates any proceeding seeking general protection from its creditors, or is removed or delisted from a trading exchange (each a “Bankruptcy Event”); or (c) immediately, in the event that, after entering into such Service Order, XtreamInternet conducts a site survey and learns that the construction costs shall require a material increase in the Service Charges. In the event that Customer fails to comply with any applicable laws or regulations or the terms of this Agreement, upon thirty (30) days written notice, XtreamInternet may suspend or discontinue any applicable Services in whole or in part without further notice. In addition, XtreamInternet may immediately terminate or suspend Customer’s or its End User’s use of the Services if such use is determined by XtreamInternet, in its sole discretion, to be resulting in a material degradation of the XtreamInternet network, until such time as such degradation has been remedied. In the event of a suspension of Services, XtreamInternet may require the payment of reconnect or other charges before restarting the suspended Services.
10.2 Upon the termination or expiration of the Agreement (including all Service Orders): (a) XtreamInternet’s obligations under this Agreement shall cease; (b) Customer shall promptly pay all amounts due and owing to XtreamInternet for Services delivered prior to the date of termination or expiration, and any deinstallation fees, if any; (c) In the event of Early Termination of Agreement, all outstanding nonrecurring fees plus Monthly Fee for each remaining month of the initial Term are required to be paid; (d) Customer shall promptly cease all use of any software provided by XtreamInternet under the Agreement, and shall return such software to XtreamInternet; and (d) Customer shall return to XtreamInternet or permit XtreamInternet to remove, in XtreamInternet’s discretion, the XtreamInternet Equipment in the same condition as when received, ordinary wear and tear excepted. Customer shall reimburse XtreamInternet for the reasonable and documented costs of the repair or replacement, at XtreamInternet’s discretion, of any XtreamInternet Equipment not returned in accordance with this Section 10.
10.3 In addition, notwithstanding anything to the contrary in this Agreement, in the event this Service Agreement or any Service Order hereunder terminates for any reason other than XtreamInternet’s material breach or a Bankruptcy Event impacting XtreamInternet (as permitted in Sections 10.1(a) or (b)) or as permitted in Section 10.1(c) above, Customer shall, at XtreamInternet’s discretion: (a) promptly pay XtreamInternet the full amount of the Service Charges that Customer would have been charged for the remainder of the Initial Term or the then-current renewal term; or (b) reimburse XtreamInternet for all volume, term or other discounts and credits provided in anticipation of full performance of Customer’s obligations and any unpaid portion of the installation fee set forth in the applicable Service Order(s).
10.4 The provisions of Sections 7 – 9, 10 – 14, 16 and 17-20 shall survive the termination or expiration of this Agreement.
Customer shall defend, indemnify and hold harmless XtreamInternet, its affiliates, its service providers and suppliers and their respective officers, directors, employees and agents, from and against third party claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys’ and other professionals’ fees, arising out of or relating to: (a) the use of the Services, including but not limited to a breach of Section 5 of these Terms and Conditions; or (b) personal injury or property damage caused by the negligence or willful misconduct of Customer or its employees or agents; or (c) inability to reach 911 or other emergency services, the inability to contact a security system or remote medical or other monitoring service.
12.0 DISCLAIMER OF WARRANTY
CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICES AND USES THE SAME AT CUSTOMER’S OWN RISK. XTREAMINTERNET EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICES, AND XTREAMINTERNET EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES, XTREAMINTERNET EQUIPMENT AND XTREAMINTERNET MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY XTREAMINTERNET, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. XTREAMINTERNET DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATE OR INFORMATION OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. EXCEPT AS SET FORTH IN THIS AGREEMENT, XTREAMINTERNET DOES NOT WARRANT THAT ANY SERVICE OR EQUIPMENT PROVIDED BY XTREAMINTERNET SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS VIA THE SERVICES MAY NOT BE SECURE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR AN END USER’S COMPUTER SYSTEM OR EQUIPMENT (INCLUDING NETWORK EQUIPMENT) OR LOSS OF SUCH DATA, MATERIAL OR TRAFFIC DURING, OR THAT RESULTS FROM, CUSTOMER’S OR ITS END USERS’ USE OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S OR END USERS’ SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR ATTEMPTS TO DO SAME, OF SUCH DATA, MATERIAL OR TRAFFIC. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT XTREAMINTERNET’S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER.
13.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL XTREAMINTERNET BE LIABLE TO CUSTOMER, AN END USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER XTREAMINTERNET HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XTREAMINTERNET’S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY)) SHALL BE LIMITED TO THE FEES PAID OR OWED BY CUSTOMER UNDER THE SERVICE ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL XTREAMINTERNET’S AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER. XTREAMINTERNET SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICES, INCLUDING THE INABILITY TO REACH 911 OR OTHER EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE PROVIDER OR ANY FAILURE OR FAULT RELATING TO CUSTOMER-PROVIDED EQUIPMENT, FACILITIES OR SERVICES.
14.0 DISCLOSURE OF CUSTOMER INFORMATION
Customer’s privacy interests, including Customer’s ability to limit disclosure of certain information to third parties, may be addressed by, among other laws, the Federal Telecommunications Act (the “Telecommunications Act”), the Federal Cable Communications Act (the “Cable Act”), the Electronic Communications Privacy Act, and, to the extent applicable, state laws and regulations.
15.0 FORCE MAJEURE
Notwithstanding anything to the contrary in this Agreement, a Party shall have no liability to the other due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, natural disaster, regulation or governmental acts, fire, civil disturbance, weather, or any unauthorized access to or destruction or modification of the Services, in whole or in part (each a “Force Majeure Event”). Notwithstanding anything to the contrary in the Agreement, Customer may terminate the affected Service Order(s) in its entirety and without penalty if a Force Majeure Event continues for more than ten (10) consecutive days and prevents XtreamInternet from delivering the Services under such Service Order(s).
16.0 ENTIRE AGREEMENT
This Agreement sets forth the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between the Parties with respect to such subject matter. XtreamInternet reserves the right to modify Terms and Conditions, with or without notice to you. Such changes will be posted on a website owned or controlled by XtreamInternet
17.0 GOVERNING LAW; JURISDICTION; CLAIMS
The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the law of the State of Colorado (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the District Court for the County of Gunnison, State of Colorado. Each party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the state courts sitting in the County of Gunnison, State of Colorado, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum. Any claim that Customer wishes to assert under this Agreement must be initiated not later than one (1) year after the claim arose.
18.0 SEVERABILITY; WAIVER
In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default under this Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. To be legally binding on XtreamInternet, any waiver must be in writing.
Customer may not assign this Agreement without the prior written consent of XtreamInternet, and any assignment in violation of this section shall be null and void. XtreamInternet may assign its rights and obligations under this Agreement including, without limitation, in whole or in part, to any affiliate without the prior written approval of or notice to Customer. Customer understands and agrees that, regardless of any such assignment, the rights and obligations of XtreamInternet in this Agreement may accrue to, or be fulfilled by, any affiliate, as well as by XtreamInternet and/or its subcontractors.
20.0 NO THIRD PARTY BENEFICIARIES; RELATIONSHIP OF THE PARTIES
There are no third party beneficiaries to this Agreement.
Last updated: Jan 1, 2018