Master Service Agreement
This
Master Service Agreement (“Agreement”) sets forth the terms and conditions by
which Rapidwave, LLC (“Rapidwave”) agrees to provide communication services to
Customer. The parties agree as follows:
1.
DEFINITIONS In addition to terms defined elsewhere and
industry standard terms, where capitalized, the following words and phrases
used herein shall be defined as follows:
1.1. Acceptance Date: The beginning data of the Service
Term and the date billing commences for the Service. The Acceptance Data is the
earlier of: (i) when testing following installation of a Service has been
successfully completed and Customer agrees that the Service is working
properly; (ii) when Customer accesses and utilizes the Service: or (iii) five
days past the Service Installation Date if testing is complete but Customer has
failed to accept.
1.2. Default: Circumstances
which may lead to termination of this Agreement as described in Section 5,
including but not be limited to: (i) any material breach of any term of this
Agreement, (ii) an assignment for the benefit of creditors; (iii) a voluntary
filing of bankruptcy; or (iv) any proceedings filed against the party under any
law relating to creditor’s rights in general provided such proceeding is not
dismissed within 90 days of its filing.
1.3. Emergency Maintenance: Maintenance
which, if not performed promptly by Rapidwave, could result in a serious
degradation or loss of Service to Rapidwave customers.
1.4. Planned Service Interruption: Any Service Outage caused by scheduled maintenance, planned
enhancements or upgrades to the Rapidwave Network.
1.5. Point of Presence (“POP”): A specific location where Customer terminates and/or
originates Service.
1.6. Premises: The address, to which Service is provided.
1.7. Service(s): “Service(s)” will mean the communication
service ordered by Customer and provided by Rapidwave pursuant to a Service
Order provided by Customer, subject to the terms and conditions of this
Agreement and the applicable Service Addendum.
1.8. Service Installation Date: The date Rapidwave designates for installation of
Service following receipt of a complete and accurate Service Order.
1.9. Service Order: A
document provided by Rapidwave to the Customer to sign in agreement, in the
form of either a sales order or a service order which identifies the type of
Service desired and provides all information necessary for Rapidwave to provide
the service to Customer, including but not limited to the following: quantity
and type of Service; location served; Point of Termination; protocols; Service Term;
and the date Customer would like Service to be installed and activated.
1.10. Service Term: The
period of time Customer has requested that the Service be provided, as
identified on each Service Order. If the Service Term is not stipulated in the
Service Order, a Monthly term will apply. Following each Service Term, the
Services will continue on a month-to-month term unless terminated by either
party by providing five (5) days prior written notice to the other party.
2.
SERVICE
DESCRIPTION
2.1. Rapidwave will provide communications Service to
Customer pursuant to a Service Order issued to the Customer to sign and return
to Rapidwave, and in accordance with these terms and conditions and any
applicable Service Addendum. Rapidwave reserves the right, in its sole reasonable
discretion, to reject any Service Order.
2.2. Rapidwave will provide Services to Customer using Rapidwave
owned and managed facilities in conjunction with facilities of Rapidwave’s
partners. Rapidwave reserves the right to substitute, change or rearrange any
equipment used in delivering Services that does not affect the quality, cost or
type of Services.
2.3. Unless otherwise provided herein, Customer is
responsible to provide equipment compatible with the Service and Rapidwave’s
network and facilities. Customer will bear the cost of any additional equipment
or protective apparatus (e.g. surge protectors) reasonably required to be
installed because of the use of Rapidwave’s network or facilities by Customer
or Customer’s authorized users (“End Users”). Any wiring required to extend a
communications termination and/or demarcation at the Customer or End User
premises is not the responsibility of Rapidwave, and Rapidwave is not responsible
for the costs thereof past the Point of Demarcation or the Radio Ethernet port
or Rapidwave owned router port after installation.
2.4. Customer’s use of the Services provided herein and any
equipment associated therewith will not: (i) interfere with or impair service
over Rapidwave’s network or facilities; (ii) impair privacy of any communications
over such network or facilities; (iii) cause damage of any nature to Rapidwave’s
assets; or (iv) be used to frighten, abuse, torment or harass another. At the
time Customer becomes or is made aware of the interference, Customer shall
immediately take all necessary action to discontinue any event of interference.
Notwithstanding any other provision herein, in the event Customer is in breach
of this Section, Rapidwave may suspend the affected Service until the equipment
or wrongful conduct is modified to prevent said interference. In most
circumstances Rapidwave will provide 24 hours notice of such interference to
Customer and suspend the Service if Customer fails to cure the interference
within such 24 hour period. However, if the interference is a threat to the
integrity of Rapidwave’s network, in Rapidwave’s sole discretion, Rapidwave may
suspend the affected Service immediately. Customer’s failure to diligently
pursue and cure such interference within a reasonable time of such suspension
will be deemed a material breach of this Agreement.
2.5. Rapidwave will manage its network in Rapidwave’s sole
discretion. Customer will provide all reasonable information and authorizations
required by Rapidwave for the purpose of installing Services, performing routing,
network grooming, maintenance, upgrade and addressing emergencies. Customer
will cooperate in good faith and follow through with any coordination efforts
required in a timely manner.
2.6. Rapidwave will maintain a point-of-contact for Customer
to report a Service Outage to Rapidwave twenty-four (24) hours a day, seven (7)
days a week. When Customer believes that a Service Outage has occurred,
Customer must contact Rapidwave’s support center at 801-705-9097 to identify
the Service degradation and initiate an investigation of the cause of the
Service Outage (“Trouble Ticket”). Responsibility for Trouble Ticket initiation
rests solely with Customer. Once the Trouble Ticket has been opened, the
appropriate Rapidwave departments will initiate diagnostic testing and
isolation activities to determine the source and severity of the degradation in
Service. If there is degradation of Service, Rapidwave and Customer will
cooperate to restore Service. If the cause of service degradation is a failure
of Rapidwave’s Equipment or facilities, Rapidwave will be responsible for the
repair. If the degradation is caused by a factor outside the control of Rapidwave,
Rapidwave will cooperate with Customer to conduct testing and repair activities
at Customer’s cost and at Rapidwave’s standard technician rates.
3.
TERM
3.1. This Agreement shall commence on the Effective Date of
this Agreement and shall remain in effect through the Service Term of each
Service Order issued hereunder (“Term”).
3.2. Each Service Order is effective upon execution, and the
Service Term of each Service order begins on the Acceptance Date of the
applicable Service. Following expiration of the Service Term, the Service Order
shall continue in effect on a month to month basis until terminated by either
party with a least five (5) days advance written or email notice to the other
party which may be initiated with a verbal request (but still confirmed with
email or paper notice).
4.
CUSTOMER CHANGES,
CANCELLATION, TERMINATION
4.1. Customer may change or cancel a Service Order without
incurring termination charges by submitting a Change Order or providing written
notification of cancellation to Rapidwave at least five (5) business days prior
to the Service Installation Date. Customer will be liable to Rapidwave for a
reasonable administrative fee associated with any such change or cancellation,
as determined by Rapidwave on an individual case basis.
4.2. If Customer changes a Service Order less than five (5)
days prior to the Service Installation Date but prior to installation, the
change will be deemed a termination of the original Service Order and
submission of a new Service Order with the change incorporated. The ordering
process will start over and Customer will be liable to Rapidwave for a
reasonable administrative fee.
4.3. If Customer cancels a Service Order less than five (5)
days prior to the Service Installation Date but prior to installation, such
cancellation will be deemed a termination of such Service and will be subject
to Section 5.3.
4.4. You may agree to notify Rapidwave of any change of
occupancy or ownership or tenancy. If you vacate Premises, this Agreement will
be subject to termination and Rapidwave will have the right to disconnect
Services and recover property owned by Rapidwave.
5.
DEFAULT AND
TERMINATION
5.1. Either party may terminate this Agreement without
incurring termination liability if the other party is in Default (“Defaulting
Party”), provided that: (i) prior written notice is given to the Defaulting
Party specifying the circumstances which may lead to Default and allowing fifteen
(15) days to cure such circumstances, or a longer period of time if mutually
agreed (“Cure Period”), and (ii) the Defaulting Party fails to cure the
circumstances within the Cure Period.
5.2. Notwithstanding the Cure Period referenced in Section
5.1, Customer’s failure to comply with the terms of Section 6 of this Agreement
shall be deemed a Default and upon such a Default Rapidwave may immediately
suspend and/or terminate this Agreement or any individual Service Order.
5.3. If a Service is terminated either by Customer without
cause, or by Rapidwave for cause or Customer’s breach identified in Section 5.2,
Customer will pay Rapidwave an amount equal to the following: (i) any unpaid
amounts for Services provided through the date of termination, and (ii) one hundred
percent (100%) of the monthly recurring charge (“MRC”) for the remainder of the
Service Term.
5.4. It is agreed that Rapidwave’s damages in the event of
early termination will be difficult or impossible to ascertain. These
provisions are intended, therefore, to establish liquidated damages in the
event of termination and are not intended as a penalty.
6.
PAYMENT FOR
SERVICES
6.1. Customer will pay all undisputed charges related to the
Services, beginning on the applicable Acceptance Date. Invoices are due upon
receipt or the first of the month for recurring payments. When the Acceptance
Date falls on a day other than the first day of the month, the charges will be
determined by prorating the monthly payment by the number of days during which
Service was provided. Rapidwave reserves the right to adjust the rates and
charges for any renewal term hereof by providing five (5) days notice to
Customer prior to the end of the current Service Term. Payments are considered
late after the tenth (10) day of the month and are subject to any penalties and
suspension of service thereafter. All payments will be in
6.2. If Customer does not make payment of undisputed charges
within the period specified in Section 6.1 above, Rapidwave may suspend Service
immediately to cure all undisputed amounts. Following such a suspension, Rapidwave
may condition reinstatement of Service on one or more of the following events:
(i) payment of all charges then due, including any late fees and interest
charges; (ii) satisfactory assurance (such as a deposit) of Customer’s ability
to pay for Service, and (iii) an advance payment for the cost of reinstating
Service. If Customer fails to timely cure the nonpayment, Customer will be
deemed to have terminated the Service as of the effective date of the
suspension and will be in default of this Agreement pursuant to Section 5.2.
6.3. Customer will be liable for payment of all fees
regarding insufficient funds, bounced checks or other bank fees relating to
problems in payment processing up to the maximum applicable charge as allowed
by law.
6.4. In the event Customer disputes any billing by Rapidwave,
Customer will (i) pay all charges not disputed, and (ii) notify Rapidwave of
the dispute in writing, providing the billing identification, address, any Trouble
Ticket number and an explanation of the issue in dispute. No charges may be
disputed more than sixty (60) days after the date such charges are invoiced.
Payment will not prejudice Customer’s right to dispute charges, so long as they
are disputed in the manner and within the time specified in this Section. The
parties will cooperate in good faith to resolve any such disputes within a
thirty (30) day period after the dispute is submitted to Rapidwave. If the
dispute is not resolved during this period, then either party may seek dispute
resolution in accordance with Section 18. If a disputed amount is determined to
be a legitimate charge, Customer will pay such amount within ten (10) calendar
days of such determination, including any additional dispute fees. Results of
nonpayment may result in any available legal credit collection actions as
allowed by the law.
7.
EQUIPMENT
OWNERSHIP, RECOVERY
7.1. Rapidwave Equipment will remain the sole and exclusive
property of Rapidwave or Rapidwave’s assignee, and nothing contained herein
will give or convey to Customer any right, title or interest whatsoever in such
Rapidwave Equipment, which will at all times be and remain personal property
notwithstanding that it may be or become attached to or embedded in realty.
Customer will not tamper with, remove or conceal any Rapidwave identifying
plates, tags or labels, Customer hereby grants to Rapidwave the right to
recover Rapidwave provided equipment from Customer’s premises upon termination
of the Agreement.
7.2. Neither party will adjust, align or attempt to repair
the other party’s telecommunications equipment except as expressly authorized
in advance in writing by the other party. Neither party’s telecommunications
equipment will be removed or relocated by the other party.
7.3. Customer will indemnify, hold harmless and defend Rapidwave
against any liens placed on Rapidwave Equipment due to Customer’s action or
inaction. Any lien will be discharged by Customer within ten (10) days of
notice of filing. Failure to discharge any such lien is a material breach of
this Agreement, and may result in immediate termination.
7.4. You grant to Rapidwave or any appointed subcontractors
an irrevocable license to enter into or onto your Premises during normal
business hours, Monday through Saturday, in order to install, repair, replace
or remove Equipment. This license will be effective whether or not you are
present during the service call. This license will survive termination or
cancellation of this Agreement and will run with the land and inure to the parties'
successors and assigns.
7.5. Any equipment not returned by the Customer will result
in Customer liability for all costs of said equipment. Equipment that is not
returned within 30 days may result in all available legal credit collection
actions as allowed by the law.
8.
RAPIDWAVE WARRANTIES
8.1. Rapidwave represents and warrants to Customer that it
has the right to provide Customer the Service specified herein, and that it is
an entity, duly organized, validly existing and in good standing under the laws
of
8.2. The warranties and remedies set forth in this Agreement
constitute the only warranties and remedies with respect to this Agreement. SUCH
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
9.
CUSTOMER
WARRANTIES
9.1. The Customer represents and warrants that it is an
entity, duly organized validly existing and in good standing under the laws of
its origin, with all requisite power to enter in to and perform its obligations
under this Agreement in accordance with its terms.
9.2. Customer represents and warrants that neither its
equipment for facilities will pose a hazard to Rapidwave’s Equipment or
facilities or create a hazard to Rapidwave’s personnel or customers or the
public in general.
9.3. Customer represents and warrants that its use of the
Service will comply and conform with all applicable federal, state and local
laws, administrative and regulatory requirements and any other authorities
having jurisdiction over the subject matter of this Agreement and it will be
responsible for applying for, obtaining and maintaining all registrations and
certifications which may be required by such authorities.
10. INDEMNIFICATION Rapidwave
will indemnify and hold Customer harmless from and against any and all loss,
liability, claim, demand, and expense (including reasonable attorneys’ fees)
for damages to any property, or injury to or death of any person to the extent
arising out of any act or omission of Rapidwave. Customer will indemnify and
hold Rapidwave harmless from and against any and all loss, liability, claim,
demand, damage and expense (including reasonable attorney’s fees) to the extent
arising out of any act or omission of Customer or End User. The provisions of
this Section shall survive the termination of Services and any Service Order(s)
issued hereunder.
11. LIMITATION OF LIABILITY RAPIDWAVE’S
LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ASSOCIATED WITH THE
INSTALLATION, PROVISION, TERMINATION, MAINENANCE, REPAIR OR RESTORATION OF
SERVICES, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS PAID
BY CUSTOMER TO Rapidwave DURING THE CONTRACT TERM. IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR
HARM TO BUSINESS. EACH PARTY HEREBY RELEASES THE OTHER PARTY, ITS SUBSIDIARIES
AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES,
AND AGENTS FROM ANY SUCH CLAIM. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE
TERMINATION OF THE AGREEMENT, THE SERVICES AND ANY SALES ORDER(S) ISSUED
HEREUNDER.
12. FORCE MAJEURE In
the event that either party’s performance is delayed, prevented obstructed, or
inhibited because of any act of God, fire, casualty, delay or disruption in
transportation, flood, war, strike, lockout, epidemic, destruction or shutdown
of facilities, shortage or curtailment, riot, insurrection, governmental acts
or directives, any full or partial failure of any communications or computer
network or any cause beyond such party’s reasonable control, the party’s
performance will be excused and the time for the performance will be extended
for the period of delay or inability to perform resulting from such occurrence.
The occurrence of such an event will not constitute grounds for a declaration
of default by either party hereunder.
13. NOTICES All
notice provided pursuant to the Agreement will be issue in electronic form
(“Email”) and shall be deemed delivered on the next day after the sending of
the notice.
14. CONFIDENTIAL INFORMATION
14.1. The parties agree that proprietary and/or confidential
information (“Confidential Information”) is defined as: (i) information in
written, electronic or other tangible form that is clearly marked or labeled
“Proprietary” or “Confidential” or words of similar import; or (ii) information
orally disclosed that the disclosing party specifically identifies as
confidential at the time of disclosure, or thereafter confirms through written
documentation or Email provided within thirty (30) days of disclosure to be
proprietary and/or confidential.
14.2. In the course of performance hereunder, the parties may
have access to certain information, the ownership and confidential status of
which is highly important to the other party. Neither party will disclose the
other party’s Confidential Information, directly or indirectly under any
circumstances or by any means, to any third person without the express written
consent of the other party, and neither party will copy, transmit, reproduce,
summarize, quote, or make commercial or other use whatsoever of the other
party’s Confidential Information, except as may be necessary to perform its
duties hereunder. Each party will exercise the highest degree of care in safeguarding
the other party’s Confidential Information against loss, theft, or other
inadvertent disclosure and take all commercially reasonable steps necessary to
maintain such confidentiality to the same extent it protects its own
Confidential Information.
14.3. Notwithstanding, information is not Confidential
Information if it: (i) is or becomes publicly available through no fault or
breach of this Agreement by either of the parties; (ii) is intentionally
released in writing to the general public by the party disclosing the
information; (iii) is lawfully obtained
from third parties without breaching any provision of any non-disclosure
agreement; (iv) is previously known or developed by the receiving party
independently of the disclosing party; or (v) must be disclosed pursuant to or
as required by law, provided that sufficient notice is given to the disclosing
party of any such requirement or request to permit the disclosing party to seek
an appropriate protective order or exemption from such requirement or request,
unless such notice is prohibited by said order. These exceptions shall be
narrowly construed and shall not be interpreted by the receiving party as
justification for disregarding the obligations of confidence set forth in this
Agreement merely because individual portions of the Confidential Information
may be found to be within one or more exception, or because the Confidential
Information is implied by but not specifically disclosed in information falling
within the exception.
14.4. Neither party will use the name, service marks,
trademarks, or trade secrets of the other party or any of its affiliates for
any purpose, including, but not limited to, press releases, without the other
party's written consent.
14.5. The provisions of this Section will survive the termination
of the Services and any Service Orders issued hereunder.
15. WAIVER The
failure of either party to insist upon the performance of any provision herein
or to exercise any right or privilege granted to it hereunder will not be
construed as a waiver of such provision or any provisions herein, and the same
will continue in full force. The various rights and remedies given to or
reserved by either party herein or allowed by law, are cumulative, and no delay
or omission to exercise any of its rights will be construed as a waiver of any
default or acquiescence, nor will any waiver of any breach or any provision be
considered a waiver of any continuing or subsequent breach of the same
provision.
16. GOVERNING LAW This Agreement shall be governed by and
construed in accordance with the laws of the State of
17. ASSIGNMENT Customer
may not assign its obligations hereunder without the prior written consent of Rapidwave;
such consent will not be unreasonably withheld. Customer may, however, assign
its rights hereunder to a company which purchases all or substantially all of
its assets; provided that Customer provides to Rapidwave written agreement of
the purchaser to be bound by all terms and conditions of this Agreement, including
purchaser’s agreement to cure all prior defaults of the Customer under this
Agreement. Any assignment or transfer of this Agreement by either party shall
be subject to the other party’s rights and obligations herein, and any assignee
or transferee shall continue to perform such obligations to the other party and
shall, correspondingly, be entitled to the benefits of this Agreement pursuant
to the terms and conditions hereof.
18. DISPUTE RESOLUTION Except as otherwise specifically
provided in or permitted by this Agreement, all disputes, and differences of
opinion or controversies arising in connection with this Agreement shall first
be resolved through good faith negotiation to arrive at an agreeable
resolution. If, after negotiating in good faith for a period of sixty (60)
calendar days or any agreed further period, the parties are unable to resolve
the dispute, then the parties may seek resolutions by exercising any rights or
remedies available to either party at law or in equity.
19. SEVERABILITY OF PROVISIONS In the event any provision in this Agreement is held invalid,
illegal or unenforceable, the unaffected provisions shall remain in full force
and effect. The parties shall negotiate in good faith to substitute for such
invalid, illegal or unenforceable provision a mutually acceptable provision
consistent with the original intentions of the parties.
20. RULES OF CONSTRUCTION
20.1. Unless expressly defined herein, words having
well-known technical or trade meanings shall be so construed. All listing of
items shall not be taken to be exclusive, but shall include other items,
whether similar or dissimilar to hose listed, as the context reasonably
require.
20.2. Except as set forth to the contrary herein, any right
or remedy of either party will be cumulative and without prejudice to any other
right or remedy, whether or not contained herein.
20.3. Except as set forth in this Agreement, nothing in this
Agreement is intended to provide any legal rights to anyone not an executing
party of this Agreement. Except as otherwise stated, this Agreement does not
provide and is not intended to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other privilege.
20.4. This Agreement has been fully negotiated between and
jointly drafted by the Parties.
21. ENTIRE AGREEMENT This
Agreement and any documents referenced herein constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
any and all prior or contemporaneous agreements, representations, statements,
negotiations, and undertakings written or oral. This Agreement and any of the
provisions hereof may not be amended, altered or added to in any manner except
by a written document signed by an authorized representative of each party. In
the event of a conflict between the provisions of this Agreement and those of
any Service Addendum or Service Order, unless specifically otherwise agreed,
the provisions of the Agreement shall prevail and such Addendum or Service
Order will be interpreted accordingly.
Wireless
Customer Agreement Service Addendum
This Rapidwave, LLC (“Rapidwave”) Wireless Customer Agreement (" Agreement") is entered into between Rapidwave, and the Customer ("Customer" or "you"). The parties agree to the following Terms and Conditions.
1. INSTALLATION
1.1. You authorize Rapidwave or its authorized contractors to install a customer premise unit, software, wiring and other equipment ("Equipment"), at the address you provide ("Premises") to Rapidwave Wireless service ("Services").
1.2. To provide Services, Rapidwave is required to complete the installation of various equipment ("Installation") at your Premises. The standard Installation includes but is not limited to the installation of the antenna, router and the routing of cable, as applicable ("Equipment") by the path deemed acceptable by Rapidwave or authorized contractor to your device. Any custom installation work that you request, including placing cable under carpet, through cabinets, through interior walls or inside molding, will require an additional charge that must be paid at the time the installation work is performed. Rapidwave will not be liable for any alterations to Premises that result from the installation or removal of Equipment, including but not limited to, any holes in walls, cable wiring or antenna mounting brackets. For Services, Rapidwave will also configure the device IP settings. You must provide and maintain the devices including computer(s) necessary to receive Services, including a working Ethernet port.
1.3. You warrant that you own Premises to which Services will be provided, or you have obtained the valid consent of the owner for any necessary changes to Premises or with Premises wiring that arise out of the installation, maintenance, repair and removal of Equipment. In addition, Customer has reviewed any restrictive covenants or homeowners restrictions ("Restrictions") to confirm that Customer may place an antenna on Premises. If it is later determined that the installation of the RF Equipment violates any Restrictions or that Customer failed to obtain appropriate permission, Rapidwave may terminate this Agreement and discontinue Services. Customer agrees to hold harmless Rapidwave for any damages or losses caused by your (i) failure to comply with the Restrictions or (ii) failure to secure appropriate permission. Rapidwave may in its discretion, require evidence that Customer has obtained appropriate permission.
1.4. Any action necessary to retain signal 30 days or more after installation is completed will be billed to customer (ie. tree growth, additional building on Premise or near premise affecting signal etc).
2. EQUIPMENT
2.1.
Rapidwave
retains ownership of all equipment installed on premise including radio,
interconnecting cable, antenna and power supply unless explicitly stated in the
Service Order as a sale of equipment. Equipment will be recovered within a
thirty (60) day period after Termination of Service.
3.
SUPPORT
3.1.
Rapidwave
will support all equipment up to Point of Termination including radio and/or
Rapidwave supplied router, interconnecting cable, antennas if applicable and
power supply. Support for all other connecting equipment is the responsibility
of the Customer unless otherwise stated in the customer Service Order. Point of
Termination is where the Ethernet cable originates from the outside Demarcation
point (ie. Radio Ethernet port).
3.2.
The time of an outage is started
when a customer opens a trouble ticket with the
3.3.
Support hours are
limited to business hours unless otherwise specified in the customer Service
Order.
3.4. Rapidwave assumes no responsibility for the operation, maintenance or repairs of your computers, computer peripherals, or existing wiring unless specified on a Service Order.
3.5. Rapidwave will not support file and print sharing or other local area network functionality unless otherwise stated on the customer Service Order.
4. SERVICES
4.1. Rapidwave will provide Services to you subject to the terms and conditions of this Agreement and any applicable tariffs.
4.2. You represent and warrant you are at least 18 years of age, appreciate and understand the words and terms of this agreement and verify and acknowledge that Services are being installed with your permission in your home, business, or designated location.
4.3. Rapidwave may revise, modify or discontinue any or all aspects of Services, including but not limited to Services and Equipment prices, any applicable tariffs, and any terms and conditions in this Agreement.
4.4. You will install, operate, and maintain any hardware or software not provided by Rapidwave ("Customer-provided"). Rapidwave is not responsible for the information transmitted or received on any hardware or software provided by you.
4.5. You will ensure that any hardware or software you provide is compatible with Services. If this hardware or software impairs your use of Services, you will continue to pay Rapidwave for Services. If Rapidwave notifies you that hardware or software provided by you impairs or is likely to impair Services, you agree to eliminate the impairment. Rapidwave may suspend Services until the impairment is corrected. At your request, Rapidwave may troubleshoot difficulties caused by hardware or software provided by you at Rapidwave’s then current standard list prices.
4.6. Rapidwave is not liable if any changes in the Services cause any hardware or software provided by you to become obsolete, require alteration, or affect performance of the hardware or software.
4.7. To prepare for Services you will at your expense, prepare your site(s) to comply with Rapidwave’s installation and maintenance specifications; pay Rapidwave any applicable charges to relocate any installed Services; provide Rapidwave and its suppliers reasonable access to Premises to perform any required acts; and be responsible for cabling that connects equipment not provided by Rapidwave to Services.
4.8. If you change your address, you will notify Rapidwave of your new address before the move and you will remain liable for all of its obligations under this Agreement. You agree to pay the standard Rapidwave transfer charges plus any additional payments required for installation of Equipment at Customer's new location.
4.9. Rapidwave reserves the right to charge additional fees for on-site technical support.
5. PAYMENT TERMS
5.1.
You agree to pay
for Services and all other charges described in this Agreement, including the
Service Order, and to comply with all of the terms and conditions of this
Agreement. You will pay Rapidwave’ invoice(s) in
5.2. If you fail to pay any amounts owing to Rapidwave within 10 days, Rapidwave will have the right to disconnect your Services. Upon disconnection, you agree to pay all amounts owing to Rapidwave. A reconnect fee will apply for continuing Services after a disconnection.
5.3. Subject to availability, Rapidwave may offer to you additional services, subject to terms and conditions of the then current Rapidwave price list.
5.4. No credit is due or refund supplied for cancellation of service before the end of the month.
6. ACCEPTABLE USE POLICY
6.1. When you use Services for Internet access, you may not:
6.2. restrict or inhibit any other user from using the Internet;
6.3. post or transmit any unlawful, threatening, abusive, libelous, defamatory, vulgar, obscene, indecent, pornographic, profane, hateful, bigoted, or otherwise objectionable information of any kind, including without limitation any transmissions, constituting or encouraging, conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation U.S. export control laws and regulations;
6.4. post or transmit any information or software that contains a virus or other harmful component;
6.5. post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through Services for commercial purposes;
6.6. upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other materials, or other proprietary right, or derivative works without obtaining permission of the copyright owner or right holder;
6.7. upload, post, publish, reproduce, transmit or distribute in any way any component of the Services or derivative works, as Services are copyrighted as a collective work under U.S. copyright laws;
6.8. remove or alter copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;
6.9. avoid, bypass, remove, deactivate or circumvent by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;
6.10. send unsolicited e-mail that causes complaints from the recipients of the unsolicited e-mail;
6.11. send large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as "spamming" or "mail bombing");
6.12. make any unauthorized attempt to gain access to any account or computer resource not belonging to that user (also known as "spoofing");
6.13. obtain or attempt to obtain Services by any means or device with intent to avoid payment;
6.14. unauthorized access, alteration, destruction, or any attempt, of any information of any Rapidwave customers or end-users by any means or device;
6.15. knowingly engage in any activities that will cause a denial of Services (e.g., synchronized number sequence attacks) to any Rapidwave customers or end-users;
6.16. use Rapidwave 's products and services to interfere with the use of the Rapidwave network by other customers or authorized users;
6.17. violate the law or aid another in any unlawful act;
6.18. resell your Services or any other Rapidwave service to any third parties without prior express written consent; or
6.19. any other activity added to Rapidwave acceptable use policy, found online at www.rapidwave.net which is hereby incorporated by reference.
6.20. You agree that you will not permit or assist others to abuse or fraudulently use Services, including, but not limited to, unauthorized or attempted access, alteration, or destruction of another Rapidwave customer's information, or using Services that cause interference with another customer's or authorized user's use of the Rapidwave network. Illegal and unauthorized attachments to its facilities are costly to Rapidwave and may create interference and a degradation of Services to other customers. Rapidwave will be obligated to seek legal redress and assist in the criminal prosecution in matters involving illegal and unauthorized connections and attachments and injury to its wiring or facilities.
6.21. You agree to stop any malicious traffic that causes other customer loss of service at sole discretion of Rapidwave.
7. INFORMATION
7.1. Except for information, products or services clearly identified as being supplied by Rapidwave, Rapidwave does not operate or control any information, products or services on the Internet.
7.2. The Internet contains unedited materials that may be offensive or objectionable to you. You access such these materials at your own risk. Rapidwave has no control over and accepts no responsibility for these materials.
7.3. YOU UNDERSTAND THAT YOU MAY BE HELD LIABLE BOTH UNDER CIVIL AND CRIMINAL LAW FOR INFRINGEMENTS OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. YOU MAY BE HELD LIABLE FOR ALL ACTUAL DAMAGES AND PROFITS, ATTORNEY'S FEES, COSTS, OR THE COURT MAY AWARD STATUTORY DAMAGES UNDER THE COPYRIGHT ACT. CRIMINAL LIABILITY CAN ALSO INCLUDE FINES AND IMPRISONMENT.
7.4. Rapidwave may deny you access to all or part of the Services without notice if you engage in any conduct or activities that Rapidwave in its sole discretion believes violates any of this Agreement's terms and conditions. If Rapidwave denies you access to Services because of a violation, you will have no right (1) to access through Rapidwave any materials stored on the Internet, or (2) to access third party services, merchandise or information on the Internet through Rapidwave , and Rapidwave will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility to any consequences resulting from lack of notification.
7.5. Rapidwave has no obligation to monitor Services. You agree that Rapidwave has the right to monitor Services electronically from time to time, and you consent to Rapidwave access, use and disclosure of any information as necessary to satisfy any law, regulation or other governmental request, to operate Services properly, to improve Services, or to protect itself or its customers. Rapidwave reserves the right to refuse or to remove any information or materials, in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Agreement.
8. UPTIME, BANDWIDTH & LATENCY
8.1.
Rapidwave provides that there will
be percentage of uptime as averaged over a calendar month as described in the
customer Service Order.
8.2. Rapidwave Network is guaranteed to be capable of forwarding IP packets, at a minimum average throughput as measured in kilobits per second downstream and upstream, a percentage of time, as averaged over a calendar month as described in the customer Service Order. This denotes availability of bandwidth and does not constitute a Committed Information Rate. Overuse of bandwidth will result in bandwidth restrictions that may impact overall throughput in a given calendar month.
9. IP ADDRESSING
9.1.
Customer
will be issued an IP as per customer Service Order which will specify whether
options are available for static public IP assignment.
9.2. Rapidwave may assign to you on a temporary basis a Public or Private Internet Protocol Address from the address spaces assigned to Rapidwave ("IP Address"). You acknowledge that the IP Address is the property of Rapidwave and is assigned to you as a service by Rapidwave, and is not portable. Rapidwave reserves the right at its sole discretion to change the IP Address assignment at any time during the Term of this Agreement without prior notice and without liability. Rapidwave will use reasonable efforts to avoid any disruption to you resulting from any renumbering requirement by notifying Customer via their primary email account before to the change. You agree that the IP Address provided by Rapidwave will be returned to Rapidwave on the termination date of this Agreement.
10.
30 DAY
MONEY BACK GUARANTEE
10.1. Rapidwave
will provide a 30-day money back guarantee on all Rapidwave solutions. If
within the first 30 days of completion of the Service Order, the
"Company" is not satisfied with the Rapidwave service, Rapidwave will
refund monies paid to Rapidwave by the "Company".
10.2.
There are no provisions in this
agreement implied or contractual that allow for a remittance of monthly money
paid to Rapidwave on the basis of non-compliance of guarantees except for the
30-day money back guarantee.