SERVICE TERMS AND CONDITIONS
Last updated: November 25, 2023
1.0 SERVICES AGREEMENT
2.0 SERVICES AND SERVICE ORDERS
2.1 XtreamInternet shall provide Customer with the Services in accordance with any service order (each a “Service Order”) entered into and executed by the Customer. 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 (each 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 become effective upon the earlier of (a) the Service Order being signed by Customer and XtreamInternet, or (b) XtreamInternet’s commencement of delivery of the Service set forth in the proposed Service Order. For the avoidance of doubt, no Service Request shall be performed by XtreamInternet unless a Service Order is accepted by XtreamInternet as outlined herein. XtreamInternet makes no representation regarding the speed of the Internet service available to any Customer or End User. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of clients using a single connection. Applicable only to certain business Customers: In the event that the Service Order includes the provision of wireless access points to provide Internet connectivity to third party End-Users within the Service Location(s) (“WiFi Service”), such WiFi Service is provided pursuant to the Terms and Conditions herein and the supplemental WiFi Service Terms and Conditions attached hereto (“WiFi Terms and Conditions”). WiFi Service will terminate simultaneously upon termination of Customer’s Internet Services.
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 Agreement Term (as defined below), such consents (including without limitation landlord and landowner 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 3.4 below) at such Customer location(s) where XtreamInternet provides the Services (the “Service Location(s)”). Customer shall permit XtreamInternet and its authorized personnel reasonable access to the Customer Locations 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 the Service Location(s). Customer shall make and maintain throughout the Agreement Term all reasonable site preparations at any applicable Service Location reasonable or 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 an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the XtreamInternet Equipment used to provide the Services within the Service Location(s). XtreamInternet 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.
3.2 Provided that Customer properly performs all necessary site preparation, complies will all terms of the Agreement, 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 be responsible for performing interconnection with the Services and XtreamInternet Equipment with Customer’s or an End User’s equipment, unless otherwise agreed in writing between the Parties.
3.3 Standard installation equipment by XtreamInternet, its contractors, or its third-party service providers will depend on the service type. 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. “XtreamInternet Equipment” shall mean any and all facilities, equipment or devices provided by XtreamInternet or its authorized contractors at the Customer’s location that are used to deliver any of the Services, including, but not limited to, all terminals, wires, cabling, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Inside telephone wiring shall not be considered XtreamInternet Equipment, regardless of whether or not installed by XtreamInternet. All XtreamInternet Equipment shall remain the property of XtreamInternet regardless of where installed within the Customer’s location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any XtreamInternet Equipment or permit others to do so, and shall not use the XtreamInternet Equipment for any purpose other than that authorized by the Agreement. XtreamInternet shall maintain XtreamInternet Equipment in good operating condition during the Agreement Term; provided, however, that such maintenance shall be at XtreamInternet expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the XtreamInternet Equipment. Customer is responsible for any damage to, or loss of, XtreamInternet 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), or for any other reason or no reason at all, unless caused by the gross negligence or willful misconduct of XtreamInternet. Customer agrees not to take any action that would directly or indirectly impair XtreamInternet’s title to the XtreamInternet Equipment, or expose XtreamInternet to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following XtreamInternet discontinuance of the Services to the Service Location(s), XtreamInternet retains the right to remove the XtreamInternet Equipment including, but not limited to, that portion of the XtreamInternet Equipment located within the Service Location(s). To the extent XtreamInternet removes such XtreamInternet Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.
3.5 XtreamInternet shall have no obligation to install, operate, or maintain any facilities, equipment or devices supplied by Customer (“Customer-Provided Equipment”). Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all Customer Provided Equipment, including but not limited, all inside telephone wiring and equipment and facilities on the Customer’s side of the demarcation point. 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 XtreamInternet’s employees or authorized contractors when the difficulty or trouble report relates to or results from Customer-Provided Equipment. XtreamInternet shall not be responsible to the Customer if changes in any of the facilities, operations or procedures of XtreamInternet utilized in the provision of Service render any Customer-Provided Equipment or other equipment provided by a Customer obsolete or require modification or alteration of such equipment or system or otherwise affect its use or performance.
3.5 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.
3.5 Customer acknowledges that products or services manufactured, licensed, or otherwise provided by a third party (each a “Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with the Services. Third-Party Products may be subject to separate terms and conditions.
4.0 SUPPORT & MAINTENANCE
XtreamInternet shall use commercially reasonable efforts to maintain the XtreamInternet Equipment. Customer-Provided Equipment is 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 at its standard hourly rates set 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 reasonable 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 the Service Location(s), including without limitation, 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 Services 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; monitoring or evaluating the availability, performance or functionality of the Services for any competitive purpose, or perform or assist any other party to perform any benchmarking on the Services; copy any portion of the Services; modify, translate, adapt or otherwise create derivative works or improvements of the Services; reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; rent, lease, lend, sell, sublicense otherwise make available the Services, or any features or functionality of the Services, to any third party for any commercial reason; remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or use a false identity on the Services, misrepresent your identity, impersonate any person, create a profile for anyone other than you, or use or attempt to use another account. Title and intellectual property rights to the Services are owned by XtreamInternet, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from XtreamInternet or other owner of such material, is prohibited. 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. End Users or Customers found to engage in activities that XtreamInternet determines, in its sole discretion, are in violation of this Agreement may have their accounts terminated immediately and without prior notice. Violators may also be subject to any legal action or remedy available to XtreamInternet. 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. If for any reason, XtreamInternet determines that Customer or its End Users have failed to follow these rules, we reserve the right to prohibit any and all current or future use of the Services by them. If XtreamInternet has reason to suspect, or learn that anyone is violating the Agreement, it may investigate and/or take legal action as necessary including bringing a lawsuit for damages caused by the violation.
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 at the Service Location(s). Customer is responsible for ensuring that any Customer-Provided Equipment used in connection with the Services is protected from fraudulent or unauthorized access. Customer is solely responsible for maintaining the confidentiality of its account username and password accessed to utilize or pay for the Services and for restricting access to Customer’s devices and Customer hereby agrees to accept responsibility for all activities, charges, and damages that occur under Customer’s account. If Customer discovers any unauthorized use of its account, or other known account-related security breach, Customer must report it to XtreamInternet immediately. Customer agrees that it is responsible for anything that happens through an account related to the Services or payment for the use thereof until Customer closes Customer’s account or prove that Customer’s account security was compromised due to no fault of Customer’s own. XtreamInternet cannot and will not be liable for any loss or damage arising from your failure to comply with this section. 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, or (b) XtreamInternet’s commencement of delivery of the Services set forth in a Service Order(the 'Effective Date”), and shall remain in effect for the term specified in the Service Order (the “Agreement Term”) unless otherwise terminated pursuant to Section 10 below. Unless otherwise specified in the Service Order, if the Customer continues to receive Services after the expiration of the Agreement Term, XtreamInternet may, in its sole discretion, provide the Services on a month-to-month basis and the Agreement Term shall be deemed extended for such month-to-month period(s) and Customer shall pay for such Services at XtreamInternet’s then-current rates.
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, together with the Monthly Fees, Reactivation Fees, and any other fees or expenses due for XtreamInternet’s Services, support, or maintenance, 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 beginning of each month (the “Monthly Fees”). Customer must bring any billing error to XtreamInternet’s attention within thirty (30) days of the date appearing on the applicable invoice or Customer shall be deemed to have waived its right to a refund or credit associated with such billing error. XtreamInternet may charge interest on any past due amounts at the rate of one and one-half percent (1.5%) per month or the highest rate chargeable by law. If Service is interrupted due to non-payment (pursuant to Section 10.1), a reactivation fee will be assessed onto the Customer (“Reactivation Fee”) charged at XtreamInternet’s then-current ratees and the Customer’s 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 the Agreement early, and such termination is not authorized by Section 10 below, all outstanding nonrecurring Service Charges plus Monthly Fees for each remaining month of the Agreement Term are required to be paid by Customer within thirty (30) days following such termination. Upon termination or expiration of this Agreement, if XtreamInternet Equipment is not returned to XtreamInternet within ten (10) days, an equipment fee will be assessed to Customer on a weekly basis at XtreamInternet’s then-current rates. 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. XtreamInternet reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time. Regardless of the cause, XtreamInternet reserves the right to charge the final price after checkout, including without limitation all applicable transaction taxes.
8.0 PROPRIETARY RIGHTS
All materials including, but not limited to, the Services, 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. 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 Agreement 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, use them for the benefit of any third party, or in any way not permitted under this Agreement. All rights in the XtreamInternet Materials not expressly granted to Customer in the Agreement are reserved to XtreamInternet, including all Third-Party Products are and will remain with the respective rights holders in the Third-Party Products. Customer shall not open, alter, misuse, tamper with or remove the XtreamInternet Equipment as and where installed by XtreamInternet or its authorized personnel, 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, in its sole discretion, add to, modify or delete any provision of this Agreement from time to time. If changes occur, XtreamInternet will notify Customer by email to the email affiliated with Customer’s account. Updated versions will never apply retroactively and will give the date they go into effect. It is the Customer’s responsibility to be aware of the most up-to-date version of the Agreement. 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 and acceptance to such addition, modification or deletion, and agreement to continue to be bound by the Agreement.
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. Either Party may terminate this Agreement: If (i) either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, (ii) immediately, in the event of a Bankruptcy Event. Notwithstanding the foregoing, if Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of any undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, XtreamInternet may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, late fee, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. XtreamInternet may terminate a Service Order at any time with 10 (ten) days written notice if Customer threatens, harasses, or employs vulgar and/or inappropriate language toward XtreamInternet’s personnel, including but not limited to, its employees, representatives, contractors or agents.
10.2 Upon the termination or expiration of a single Service Order: (a) obligations under that applicable Service Order shall immediately cease, (b) Customer shall immediately pay all amounts due under such Service Order, (c) Customer shall cease all use of any software provided by XtreamInternet under the Service Order, 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.
10.3 Upon the termination or expiration of the Agreement, all Service Orders shall immediately terminate, and: (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) Customer shall 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 Section 10.2 or this Section 10.3.
10.4 In addition, notwithstanding anything to the contrary in this Agreement, in the event the Agreement is terminated by Customer for any reason other than XtreamInternet’s material breach or a Bankruptcy Event impacting XtreamInternet (as permitted in Section 10.1), 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 Agreement 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).
Customer shall defend, indemnify and hold harmless XtreamInternet, its affiliates, and its and its affiliates officers, directors, employees, agents, successors, authorized dealers, authorized distributors, and authorized resellers, and permitted assigns (each, an “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (“Losses”) awarded against an Indemnified Party in a final judgment arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”) arising out of or resulting from Customer’s (a) breach of any representation, warranty or obligation of this Agreement; (b) negligence, willful misconduct, abuse, misappropriation, misuse or more culpable act or omission by or on behalf of Customer or any of its representatives or End Users with respect to the Services or otherwise in connection with this Agreement; (c) death or bodily injury resulting from Customer’s acts or omissions, (d) failure to comply with applicable laws; (e) use or combination of the Services by or on behalf of Customer or any of its representatives or End Users with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by XtreamInternet nor authorized by XtreamInternet in this Agreement and the documentation or otherwise in writing; or (f) use of the Services by or on behalf of Customer or any of its representatives or End Users that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to Nomic’s instructions.
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 SET FORTH IN SECTION 4, THE SERVICES, XTREAMINTERNET SERVICES, 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, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. NO ADVICE OR INFORMATION GIVEN BY XTREAMINTERNET, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES, AGENTS, OR CONTRACTORS SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE FOREGOING, 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 THAT DATE OR INFORMATION OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME, AND XTREAMINTERNET SHALL NOT BE RESPONSIBLE FOR LOSS OF CONTENT, LOSS OF DATA, LOSS OF BUSINESS REVENUE. 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 ANDTHAT XTREAMINTERNET IS NOT RESPONSIBLE FOR ANY SERVICES, MATERIALS, OR OTHER OFFERINGS PROVIDED BY THIRD PARTY SERVICE PROVIDERS, WHETHER INCORPORATED INTO THE SERVICES OR OTHERWISE. XTREAMINTERNET MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
13.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL XTREAMINTERNET BE LIABLE TO CUSTOMER, TO AN END USER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL 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)) EXCEED THE AMOUNT IN FEES PAID OR OWED BY CUSTOMER UNDER THE SERVICE ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE SIX(6) MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. 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 THE CUSTOMER-PROVIDED EQUIPMENT, FACILITIES OR SERVICES. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
14.0 DISCLOSURE OF CUSTOMER INFORMATION
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 reasonable control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, natural disaster, pandemics, endemics, 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 sixty (60) 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. Any amendments to this Agreement will take effect only upon a written Amendment signed by both parties.
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 without giving effect to any choice or conflict of law provision or rule. 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 Douglas, 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 Douglas, 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. 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
This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
21.0 RELATIONSHIP OF THE PARTIES
The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
22.0 NO WAIVER.
No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
The headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
24.0 COMPLIANCE WITH LAWS.
Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
25.0 SURVIVAL OF LIMITATIONS.
All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
You consent to accept and receive communications from us, including but not limited to through e-mail, text message, and phone call. You may opt-out of receiving marketing communications by following the unsubscribe options we provide to you but some transactional messages are deemed to be part of the Services.
27.0 ENTIRE UNDERSTANDING.
The Agreement constitutes the entire understanding of the parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any Service Order, or restrictive endorsements or other statements on any form of payment, that contradicts these Standard Terms and Conditions shall be void and of no force or effect, unless such provision explicitly states that it overrides a specific term or provision of these Standard Terms and Conditions. Only specifically authorized representatives of XtreamInternet may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of XtreamInternet who has not been specifically authorized to make such modifications shall be binding upon XtreamInternet. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.
If you have any questions regarding these Standard Terms and Conditions, please contact us at [email protected].