Business Service Terms And Conditions
The Customer named on the Business Service Application (“Application”) and/or Service Order (“Service Order”) and All West Communications, Inc., All West/Utah, Inc., All West/Wyoming, Inc. (collectively “All West,” “we,” or “our”) agree that these terms and conditions constitute the agreement (“Agreement”) for the provision of the Services selected by Customer and designated on a signed Application or Service Order. Services may include business telephone lines, commercial high speed internet and/or broadband service (“Broadband”), commercial digital voice over internet protocol services (“VoIP”), business long distance service, and commercial cable television services (“CATV”), collectively “Services”. The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services. Additional terms and conditions may apply to the Broadband, VoIP, Long Distance, and CATV Service, as contained herein.
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
1.1 “Affiliate” shall mean an entity that now or in the future, directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, “control” shall mean the ownership of (i) greater than fifty percent (50%) of the voting power to elect the directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company.
1.2 “Agreement” shall mean these terms and conditions and the Application or Service Order signed by the Customer.
1.3 “All West Equipment” or “Facilities” shall mean any and all equipment, facilities, or devices provided by All West or any of its Affiliate used to deliver the Services, including but not limited to, gateways, modems, routers, set-top boxes, DVRs, VoIP ATA equipment, digital adapters, remote controls, converters, switches, embedded software, terminals, conduit, fiber optic cable, optronics, wires, lines, circuits, ports, data service units, cabinets, and racks, and other equipment provided or leased to you by All West.
1.4 “Confidential Information” shall mean all information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential,” or which reasonably should be known by the receiving party to be proprietary or confidential. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information, and invoices, as well as the parties’ communications regarding such items.
1.5 “Customer Commit Date” shall mean the date that Service will be available to Customer, as set forth in the Service Order or Application or such other written notice from All West to Customer. Notwithstanding anything in this Agreement or any Service Order to the contrary, any Customer requested date for delivery of Service will not be effective unless and until confirmed in writing by All West through the delivery to Customer of the Customer Commit Date.
1.6 “Customer Provided Equipment” shall mean all facilities, equipment, or devices supplied by Customer for use in connection with the Services.
1.7 “Customer Premises” shall mean the Customer location where All West provides the Services.
1.8 “Excused Outage” shall mean any outage, unavailability, delay or other degradation of Service related to, associated with or caused by: scheduled maintenance events; Customer actions or inactions; Customer provided power or equipment; any third party, excluding any third party directly involved in the operation and maintenance of the All West network but including, without limitation, Customer’s end users; third party network providers; traffic exchange points controlled by third parties; any power, equipment or services provided by third parties; or, an event of force majeure as defined in Section 7.1.
1.9 “Gateway” shall mean data center space owned or leased by All West or any of its Affiliates for the purpose of, among other things, locating and collocating communications equipment.
1.10 “Licensed Software” shall mean the computer software or code, if any, provided by All West or required to use the Services, including, but not limited to, associated documentation, and all updates thereto.
1.11 “Local Loop” shall mean the connection between Customer Premises and an All West gateway or other facility.
1.12 “Megabit per second” or “Mbps” shall mean a unit of data rate equal to 1 million bits per second.
1.13 “Party” shall mean All West or Customer, and in the plural, a reference to both All West and Customer.
1.14 “Service” shall mean any All West service described in a Service Order or the Customer’s Application.
1.15 “Service Commencement Date” shall mean the first to occur of (i) the date set forth in any Connection Notice, unless Customer notifies All West that the Service is not functioning properly as provided in Section 3.1 (or, if two or more Services are designated as “bundled” or as having a “sibling relationship” in any Service Order or Application, the date set forth in the Connection Notice for all such Services); and (ii) the date Customer begins using the Service.
1.16 “Service Levels” shall mean the specific remedies All West provides regarding installation and performance of Service as may be set forth in a particular Service Level Agreement signed by the Parties.
1.17 “Service Level Agreement” or “SLA” shall mean a schedule signed by both Parties from time to time and expressly incorporated into this Agreement, setting forth terms and conditions specific to a particular Service, Facilities or other tools made available by All West.
1.18 “Service Term” shall mean the duration of time (measured starting on the Service Commencement Date) for which Service is ordered, as specified in the Service Order or Application. The Service Term shall continue on a month-to-month basis after expiration of the stated Service Term, until terminated by either All West or Customer upon thirty (30) days’ written notice to the other.
1.19 “Tariff” shall mean a federal or state All West tariff and the successor documents of general applicability for which Services are ordered, as specified in a Service Order or Application.
1.20 “Termination Charges” shall mean charges that may be imposed by All West if, prior to the end of the applicable Service Term All West terminates Services for cause, or Customer terminates services without cause. Termination Charges shall be as set forth in Section 3.12 below.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Applications or Orders. To order any Service, Customer shall submit a signed Application or Service Order requesting Service. The Application or Service Order and its backup detail must include a description of the Service, the non-recurring charges and monthly recurring charges for Service and the applicable Service Term. An Application or Service Order shall become binding on the parties when (i) it is specifically accepted by All West either electronically or in writing; (ii) All West begins providing the Services described in the Application or Service Order; or (iii) All West begins a Custom Installation (as defined in Section 2.) for delivery of the Services described in the Application or Service Order, whichever is earlier. When an Application or Service Order becomes effective it shall be deemed a part of, and shall be subject to, the Agreement.
2.2 Credit Approval and Deposits. Customer will provide All West with credit information as requested, and delivery of Service is subject to credit approval. All West may require Customer to make a deposit or deliver another form of security as a condition to All West’s acceptance of any Service Order, or as a condition to All West’s continuation of Service. The deposit will be held by All West as security for payment of Customer’s charges. When Service to Customer is terminated, the amount of the deposit will be credited to Customer’s account and any remaining credit balance will be refunded. Any deposit paid by Customer pursuant to this Section 2.2 will be held by All West in accordance with the applicable law governing such deposit.
2.3 Access to Customer Premises. Customer shall allow All West access to the Customer Premises to the extent reasonably determined by All West for the installation, inspection and scheduled or emergency maintenance of All West Equipment or Facilities relating to the Service. All West shall notify Customer at least two (2) business days in advance of any regularly scheduled maintenance that will require access to the Customer Premises or that may result in a material interruption of Service. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises. In the event Customer fails to do so, Customer shall reimburse All West for the actual and reasonable cost of repairing or replacing any Facilities damaged or destroyed as a result of Customer’s failure. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions on the Customer Premises. In the event All West’s technicians determine, in their sole discretion, that the Premises are unsafe, unsanitary, or pose a danger to the All West technician, the All West technician may decline to enter the Premises until such time as the Premises are determined to be safe and sanitary. Your failure to maintain the Premises in a safe and sanitary condition may be determined to be a breach of your obligations hereunder, and may be grounds for termination of services as provided herein.
2.4 All West Facilities. Except as otherwise agreed, title to all Facilities shall remain with All West regardless of where installed within the Customer Premises. All West will provide and maintain the Facilities in good working order. Customer shall not, and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Facilities, without the prior written consent of All West. The Facilities shall not be used for any purpose other than that for which All West provides them. Customer shall not take any action that causes the imposition of any lien or encumbrance on the Facilities. At any time All West may remove or change All West Equipment at our discretion in connection with providing the Services. In no event shall All West be liable to Customer or any other person for interruption of Service or for any other loss, cost or damage caused by or related to improper use or maintenance of the Facilities by Customer or any third party gaining access to the Facilities by Customer in violation of this Agreement, and Customer shall reimburse All West for any damages incurred as a result thereof. Customer agrees (which agreement shall survive the expiration, termination or cancellation of any Customer Order) to allow All West to remove the Facilities from the Customer Premises:
(A) after termination, expiration or cancellation of the Service Term of any Service in connection with which the Facilities were used; or
(B) for repair, replacement or otherwise as All West may determine is necessary or desirable, but All West will use reasonable efforts to minimize disruptions to the Service caused thereby.
2.5 Customer-Provided Equipment. All West may, but shall be under no obligation to, install certain Customer-Provided Equipment upon installation of Service, but All West shall not be responsible for the operation or maintenance of any Customer-Provided Equipment. All West undertakes no obligations and accepts no liability for the configuration, management, performance or any other issue relating to Customer’s routers or other Customer-Provided Equipment used for access to or the exchange of traffic in connection with the Service. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance, or repairs attempted or performed by All West’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.
2.6 Installation Engineering Review. Each Application or Service Order submitted by Customer shall be subject to an engineering review by All West, in All West’s sole discretion. The engineering review, if any, shall determine whether the All West must install additional infrastructure, cabling, electronics or other materials in the provision of the Service to the Customer Premises, or whether installation of the Services has to be expedited to meet the Customer’s requested Service Commencement Date (“Custom Installation”). All West will provide Customer written notification in the event installation of the Services at any Customer Premises will require an additional one-time installation fee or non-recurring charge (“Custom Installation Fee”). Customer will have five (5) days from the receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Application and/or Service Order with respect to the affected Customer Premises.
ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Commencement of Billing. Upon installation and testing of the Service ordered in any Application or Service Order, All West will deliver to Customer a Connection Notice. Upon receipt of the Connection Notice, Customer shall have a period of seventy-two (72) hours to confirm that the Service has been installed and is properly functioning. Unless Customer delivers written notice to All West within such seventy-two (72) hour period that the Service is not installed in accordance with the Customer Order and functioning properly, billing shall commence on the applicable Service Commencement Date, regardless of whether Customer has procured services from other carriers needed to operate the Service, and regardless of whether Customer is otherwise prepared to accept delivery of ordered Service. In the event that Customer notifies All West within the time period stated above that the Service is not installed and functioning properly, then All West shall correct any deficiencies in the Service and deliver a new Connection Notice to Customer, after which the process stated herein shall be repeated.
3.2 Charges. The Application or Service Order will set forth the applicable non-recurring charges and recurring charges for the Service, including any Custom Installation Fees. Unless otherwise expressly specified in the Application or Service Order, any non-recurring charges shall be invoiced by All West to Customer upon the Service Commencement Date. However, in the event such Service requires Custom Installation, such Application or Service Order may include (as specified therein) Customer Installation Fees or other non-recurring charges that are payable by Customer in advance of the Service Commencement Date, as mutually agreed between the parties. In the event Customer fails to pay such Custom Installation Fees or other non-recurring charges within the time period specified in the Application or Service Order, All West may suspend installation of the Service (without any liability, including but not limited to liability for Service Level credits) until receipt of such Custom Installation Fee or other non-recurring charges, and thereafter, All West may issue a new Customer Commit Date. If Customer requests and All West approves (in its sole discretion) any changes to the Application or Service Order after acceptance by All West, including, without limitation, the Customer requested date for delivery of Service or Service Commencement Date, additional non-recurring charges and/or monthly recurring charges not otherwise set forth in the Customer Order may apply.
3.3 Third Party Charges. Customer may incur charges with third-party service providers such as accessing on-line services, purchasing or subscribing to offerings via the Internet or interactive options on your All West cable Services that are separate and apart from the amounts charged by All West. Customer agreed that all such charges, including all applicable taxes, are Customer’s sole responsibility. Additionally, Customer is solely responsible for protecting the security of credit card information provided to third parties in connection with such transactions..
3.4 Payment of Invoices. Except as otherwise provided herein or on the Application or Service Order, All West will invoice Customer on a monthly basis, in advance, for all monthly recurring service charges, All West Equipment charges, and fees. All other charges will be billed monthly in arrears. Customer shall make payment to All West for all invoiced amounts within twenty-five (25) days after the date of the invoice. Any amounts not paid to All West within such period shall be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for Services, from the date of installation to the first day of the new billing.
3.5 Partial Payment. All West does not waive its rights to collect the full balance owed to it by accepting partial payment. All West will apply the partial payment to the outstanding charges in the amounts and proportions it determines, as solely determined by All West.
3.6 Payment by Check. If Customer makes payment by check, Customer hereby authorizes All West to collect the check electronically. Customer further agrees that it will not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on accompanying checks or payments accepted by All West, and any such notations have no legal effect. Customer shall be assessed a service charge up to the full amount permitted by law for any check or other payment used to pay for the Services that has been rejected by the bank or other financial institution.
3.7 Payment by Credit Card. Upon Customer’s written request and All West’s acceptance of such request, All West may accept certain credit card payments for charges generated under this Agreement. By providing All West with a credit card number, Customer authorizes All West to charge the card for all charges generated under this Agreement until, (i) this Agreement is terminated, or (ii) Customer provides sixty (60) days prior notice requesting that All West stop charging the credit card. Customer shall provide All West with updated credit card or alternative payment information on a timely basis. A $15.00 fee will be charged on any credit card that is declined, and Services may be terminated or suspended. Customer agrees to pay all amounts due, including late payment charges or bank charges, upon demand.
3.8 Late Payments. Any past due amount shall be subject to a late payment charge of 1.5% per month.
3.9 Taxes and Fees. All charges for Service are net of Applicable Taxes (as defined below). Except for taxes based on All West’s net income, Customer will be responsible for all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges, however designated, imposed on, incident to, or based upon the provision, sale or use of the Service (collectively “Applicable Taxes”). If Customer is entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting All West with a valid exemption certificate (in a form reasonably acceptable to All West). All West will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by All West to Customer only for the period following All West’s receipt of such exemption certificate.
3.10 Regulatory and Legal Changes. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, All West and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within thirty (30) days after All West’s delivery of written notice requesting renegotiation, then (a) All West may pass such increased costs through to Customer, and (b) if All West elects to pass such increased costs through to Customer, Customer may terminate the affected Service without termination liability by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.
3.11 Disputed Invoices. If Customer reasonably disputes any portion of an All West invoice, Customer must pay the undisputed portion of the invoice and submit written notice of the claim (in a form reasonably requested by All West) for the disputed amount. All claims must be submitted to All West in writing within sixty (60) days from the date of the invoice for those Services. Customer waives the right to dispute any charges not disputed within such sixty (60) day period. In the event that the dispute is resolved against Customer, Customer shall pay such amounts plus interest at the rate referenced in Section 3.8.
3.12 Termination Charges.
(A) Customer may cancel a Service following All West’s acceptance of the applicable Application or Service Order and prior to the Customer Commit Date upon prior written notice to All West (in a form reasonably requested by All West). In the event that Customer does so, or in the event that the delivery of such Service is terminated by All West as the result of an uncured default by Customer pursuant to Section 4.2 of this Agreement, Customer shall pay All West a cancellation charge equal to the sum of:
i. any third party cancellation/termination charges related to the installation and/or cancellation of Service;
ii. the non-recurring charges (including any non-recurring charges that were waived by All West at the time of the Application or Service Order) for the cancelled Service; and
iii. one (1) month’s monthly recurring charges for the cancelled Service.
Customer’s right to cancel any particular Service under this Section 3.12(A) shall automatically expire and shall no longer apply upon All West’s delivery to Customer of a Connection Notice for such Service.
(B) In addition to Customer’s right of cancellation under Section 3.12(A) above, Customer may terminate Service prior to the end of the Service Term upon thirty (30) days’ prior written notice to All West (in a form reasonably requested by All West). In the event that, after either the original Customer Commit Date (if Customer requests and All West agrees to a delay in delivery of a particular Service) or Customer’s receipt of the Connection Notice for a particular Service (whichever occurs first) and prior to the end of the Service Term, Customer terminates Service or in the event that the delivery of Service is terminated by All West as the result of an uncured default by Customer pursuant to Section 4.2 of this Agreement, Customer shall pay All West an Early Termination Charge equal to the sum of:
i. all unpaid amounts for Service provided through the date of termination;
ii. any third party cancellation/termination charges related to the installation and/or termination of Service;
iii. the non-recurring charges (including any non-recurring charges that were waived by All West at the time of the Customer Order) for the cancelled Service, if not already paid; and
iv. the percentage of the monthly recurring charges for the terminated Service calculated from the effective date of termination as (a) 100% of the remaining monthly recurring charges that would have been incurred for the Service for months 1-12 of the Service Term, plus (b) 50% of the remaining monthly recurring charges that would have been incurred for the Service for months 13 through the end of the Service Term. If Customer pays for Service based on a per minute usage rate, as opposed to a fixed monthly recurring rate, the “monthly recurring charges” shall be calculated as the average of Customer’s last three (3) months’ Service charges.
(C) The parties acknowledge that the cancellation or termination charges set forth in this Section 3.12 are a genuine estimate of the actual damages that All West will suffer and are not a penalty.
3.13 Fraudulent Use of Services. Customer shall indemnify, defend and hold All West harmless from and against any and all claims, liabilities, obligations, losses, actions, causes of action, costs and expenses (including attorneys’ fees) resulting from, or arising out of, in whole or in part, the fraud, misuse, abuse and unauthorized use of the Services by Customer, its agents, representatives, employees, independent contractors, consultants, subscribers or any party or person. In the event any such fraud, misuse, abuse or unauthorized use of the Services by Customer, its agents, representatives, employees, independent contractors, consultants, subscribers or any party or person, Customer shall be responsible for payment of the full amount of the invoice submitted to Customer by All West pursuant to Section 3 hereof. Fraud shall not be the basis for disputing any invoice under Subsection 3.10 hereof. Nothing contained herein shall impose any obligation or liability on the part of All West to take any action with respect to fraudulent usage of the Services.
ARTICLE 4. TERM AND TERMINATION
(A) This Agreement shall terminate upon the expiration of or other termination of the final existing Application or Service Order entered into under this Agreement. The term for any Service shall comment on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service, as set forth in the Application or Service Order. Unless otherwise stated in these terms and conditions, if an Application or Service order does not specify a term of service, the initial Service Term shall be one (1) year from the Service Commencement Date.
(B) Except as otherwise set forth herein, All West shall deliver the Service for the entire duration of the Service Term, and Customer shall pay all charges for delivery thereof through the end of the Service Term.
4.2 Default By Customer. If (i) Customer makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary petition in bankruptcy or other insolvency protection against Customer is filed and not dismissed within sixty (60) days; (iii) Customer fails to make any payment required hereunder when due, and such failure continues for a period of three (3) business days after written notice from All West, (iv) Customer fails to observe and perform any material term of this Agreement (other than payment terms) and such failure continues for a period of thirty (30) days after written notice from All West; or (v) Customer’s use of Service materially exceeds Customer’s credit limit, unless within one (1) business day’s written notice thereof by All West, Customer provides adequate security for payment for Service; then All West may: (A) terminate this Agreement and any Customer Order, in whole or in part, in which event All West shall have no further duties or obligations thereunder, and/or (B) subject to Section 5.1, pursue any remedies All West may have under this Agreement, at law or in equity.
4.3 Default By All West. If (i) All West makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary petition in bankruptcy or other insolvency protection against All West is filed and not dismissed within sixty (60) days; or (iii) All West fails to observe and perform any material term of this Agreement (other than as provided in Section 4.4 and Article 6) and such failure continues for a period of thirty (30) days after written notice from Customer; then Customer may: (A) terminate this Agreement and/or any Customer Order, in whole or in part, in which event Customer shall have no further duties or obligations thereunder, and/or (B) subject to Section 5.1, pursue any remedies Customer may have under this Agreement, at law or in equity.
4.4 Other Rights of Termination.
(A) In lieu of any Service Level credits for installation delays which may be provided for in the Application or Service Order, if All West’s installation of Service is delayed for more than thirty (30) business days beyond the Customer Commit Date for reasons other than an Excused Outage, Customer may terminate and discontinue the affected Service upon written notice to All West and without payment of any applicable Early Termination Charge or cancellation charge; provided such written notice is delivered prior to All West delivering to Customer the Connection Notice for the affected Service. This Section 4.4(A) shall not apply to any Service where All West (or a third party contractor engaged by All West) is constructing Facilities in or to the Customer Premises necessary for delivery of such Service.
(B) Customer may terminate and discontinue affected Service prior to the end of the Service Term without payment of any applicable Early Termination Charge if: (i) such Service is Unavailable (as defined below) on two or more separate occasions of more than eight (8) hours each in any calendar month (“First Unavailability Event”); and (ii) following written notice thereof from Customer to All West within the thirty (30) day period following the First Unavailability Event, the same Service is Unavailable for more than twelve (12) hours at any time in any calendar month within the three (3) calendar month period following the First Unavailability Event. For purposes of the foregoing, “Unavailable” shall mean a total interruption in Service, except for any interruption that is an Excused Outage. The duration of any interruption will commence when Customer reports an outage to the All West Customer Service and Support Organization (1-866-711-2663) and will end when the Service is operative. Customer may only terminate Service that is Unavailable, and must exercise its right to terminate any affected Service under this Section, in writing, within thirty (30) days after the event giving rise to a right of termination hereunder.
4.5 Termination of Service for Cause
(A) Nonpayment of Deposit or Prepayment. All West may, upon non-receipt of requested Deposit or additional Pre-payment funds, or an increase or change in deposit/pre-payment within 48 hours of its request to customer, or timeframe left on balance sufficient to pay for current and projected charges, whichever is lesser, and such time period shall not expose All West to providing services without a secured form of payment, discontinue the Services without incurring any liability.
(B) Nonpayment of Service. All West may upon non- receipt of payment as prescribed in this agreement, or in addition, relevant Annex(es), discontinue Services without incurring any liability, if any Customer Invoice is Past Due, or payment is not received in time or manner as prescribed. If Customer has sufficient balance in account, to cover additional services, Customer may request to continue service until balance is depleted. All West will not discontinue service without notice if Customer has sufficient funds to cover additional usage, and Customer is not in default.
(C) Other Causes. All West may, upon seven (7) days prior written notice, discontinue the Services in the event of a breach of this Agreement by Customer, fraudulent use of the Services by Customer, fraud or other misrepresentation in any submission of information to All West by Customer, or violations of the prohibited uses set forth in the Section in this Agreement or other Annex(es).
(D) Bankruptcy. All West may immediately discontinue or suspend delivery of the Services to Customer if Customer files for bankruptcy or reorganization or Customer fails to discharge an involuntary petition within thirty (30) days after such filing, or if Customer otherwise becomes insolvent.
(E) Termination Charges. In the event that Customer terminates the Services in breach of the terms of this Agreement prior to the end of the agreed term, in addition to all other remedies available to All West at law, in equity, or pursuant to this Agreement, Customer will pay the Early Termination Charges as set forth in Section 3.12 herein.
(F) Rights and Obligations. Upon termination of this Agreement, all rights to the Services granted to Customer or its authorized user under this Agreement will immediately ceases and terminate. Termination of this Agreement does not release Customer from the obligation to pay and all accrued charges under this Agreement, unless otherwise expressly provided in this Agreement.
(G) Withdraw of Services. Notwithstanding anything else herein or in the Agreement to the contrary, unless otherwise specifically provided in writing in the Application or Service Order, All West reserves the right, in its sole discretion to discontinue the provision of the Services at any time during the Service Term of the Agreement or any Renewal Term upon thirty (30) days prior written notice to Customer.
(H) DID Numbers After Termination. Upon the termination of this Agreement, Customer may retain control of any non-shared DID numbers provided by All West to Customer; provided, however, that Customer will be solely responsible to contact the underlying provider of such non-shared DID numbers to transfer control to Customer and Customer will be solely responsible for any additional costs incurred by Customer or All West related to such non-shared DID numbers.
ARTICLE 5. LIABILITIES AND INDEMNIFICATION
5.1 No Special Damages. Notwithstanding any other provision hereof (other than Section 5.3), neither party shall be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including, without limitation, damages for lost profits, lost revenues or the cost of purchasing replacement services) arising out of the performance or failure to perform under this Agreement or any Customer Order. Nothing in this Agreement shall be construed as limiting the liability of either party for personal injury or death resulting from the negligence of a party or its employees.
5.2 Disclaimer of Warranties; Limitation of Liability. ALL WEST MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN ANY APPLICABLE SERVICE LEVELS AGREEMENT SIGNED BY BOTH PARTIES. WITHOUT LIMITING THE FOREGOING, ALL WEST DOES NOT WARRANT THAT THE SERVICES, ALL WEST EQUIPMENT OR FACILITIES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, ALL WEST EQUIPMENT OR FACILITIES WILL MEET CUSTOMER’S REQUIREMENTS. ALL WEST’S LIABILITY UNDER THIS AGREEMENT OR ANY APPLICATION OR SERVICE ORDER ATTACHED HERETO, OR ASSOCIATED HEREWITH, SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE SERVICE OUTAGE CREDITS DESCRIBED IN ANY SLA BETWEEN THE PARTIES. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. IN NO EVENT SHALL ALL WEST, OR ITS AFFILIATES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) THE INTEROPERABILITY, INTERACTION, OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
5.3 Indemnification. Each party shall indemnify the other from any claims by third parties and expenses (including legal fees and court costs) respecting damage to tangible property, personal injury or death caused by such party’s negligence or willful misconduct.
ARTICLE 6. SERVICE LEVELS
6.1 Service Interruptions and Delivery. Customer acknowledges and agrees that the Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment. In addition, All West will not be held liable for interruptions in service due to equipment failure, equipment or facility shortages, labor strikes, acts of God, power outages, power surges, or other causes beyond All West’s reasonable control. In all other cases of an interruption of the Services, Customer shall be entitled upon a request made within sixty (60) days of such interruption, to a pro-rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically set forth in Customer’s Application or Service Order, or specifically provided by law. Unless otherwise specifically provided, such credit shall not exceed the fixed monthly charges for the month of such Services interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES. Any credits provided by All West are at All West’s sole discretion and in no event shall constitute or be construed as a course of conduct by All West. To report issues related to Service performance, Customer may contact All West Customer Service by calling toll free in the U.S. 866-ALL-WEST or such other numbers for All West Customer Service. In order for All West to investigate any reported issues, Customer agrees to provide All West with supporting information as reasonably requested by All West, which may include (as applicable), without limitation, circuit ID, circuit end-point(s), IP address(es), originating phone number and terminating phone number. If Customer has Service Level Agreement in writing signed by both parties, in the event of a failure to deliver Service in accordance with the Service Levels, Customer’s sole remedies are contained in (a) the Service Levels applicable (if any) to the affected Service, and (b) Section 4.4 above.
6.2 Service Level Credits. If Customer has a Service Level Agreement in writing, in the event All West does not achieve a particular Service Level in a particular month, All West will issue a credit to Customer as set forth in the applicable SLA upon Customer’s request. To request a credit, Customer must contact All West Customer Service or deliver a written request (in a form reasonably requested by All West) pursuant to Section 7.4 within thirty (30) days of the end of the month for which a credit is requested. All West Customer Service may be contacted by calling toll free in the U.S. 1-866-711-2663 or such other numbers for All West Customer Service on www.allwest.com . Service Outage Credits shall be governed in accordance with the executed SLA.
ARTICLE 7. GENERAL TERMS
7.1 Force Majeure. Except for payment obligations hereunder, neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event All West is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay All West for the affected Service for so long as All West is unable to deliver the affected Service.
7.2 Assignment and Resale. Customer may not assign its rights and obligations under this Agreement, the Application, Service Order, or any SLA without the express prior written consent of All West, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all charges due under this Agreement. Customer may not resell the Service to any third party, without the express prior written consent of All West, in All West’s sole discretion.
(A) Service may be provided to Customer pursuant to this Agreement by an Affiliate of All West, including, without limitation, an Affiliate authorized to provide Service in a country other than the country within which this Agreement has been executed. If the Application or Service Order requires the delivery of Service in a jurisdiction where, in order for such Application or Service Order to be enforceable against the parties, additional terms must be added, then the parties shall incorporate such terms into the Application or Service Order (preserving, to the fullest extent possible, the terms of this Agreement). Notwithstanding any provision of Service to Customer pursuant to this Agreement by an Affiliate of All West, All West shall remain responsible to Customer for the delivery and performance of the Service in accordance with the terms and conditions of this Agreement.
(B) The parties acknowledge and agree that Customer’s Affiliates may purchase Service under this Agreement; provided, however, any such Customer Affiliate purchasing Service hereunder agrees that such Service is provided pursuant to and governed by the terms and conditions of this Agreement. Customer shall be jointly and severally liable for all claims and liabilities arising under this Agreement related to Service ordered by any Customer Affiliate, and any event of default under this Agreement by any Customer Affiliate shall also be deemed an event of default by Customer. Any reference to Customer in this Agreement with respect to Service ordered by a Customer Affiliate shall also be deemed a reference to the applicable Customer Affiliate.
(C) Notwithstanding anything in this Agreement to the contrary, either party may provide a copy of this Agreement to its Affiliate or such other party’s Affiliate for purposes of this Section 7.3, without notice to, or consent of, the other party.
7.4 Notices. Notices hereunder shall be in writing and sufficient and received if delivered in person, or when sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service (or other applicable postal delivery service), addressed as follows:
IF TO ALL WEST:
For billing inquiries/disputes, requests for Service Level credits and/or requests for disconnection of Service (for other than default):
ALL WEST COMMUNICATIONS, INC
50 W 100 North
Kamas, UT 84036
IF TO CUSTOMER: at address identified in Application or Service Order.
or at such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. All such notices shall be deemed to have been given on (i) the date delivered if delivered personally, (ii) the business day after dispatch if sent by overnight courier, (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable postal delivery service), or (iv) the date of transmission if delivered by facsimile or electronic mail (or the business day after transmission if transmitted on a weekend or legal holiday). Notwithstanding the foregoing, any notices delivered by All West to Customer in the normal course of provisioning of Service hereunder shall be deemed properly given if delivered via any of the methods described above or via electronic mail to the address listed on any Customer Order.
7.5 Data Protection. During the performance of this Agreement, it may be necessary for All West to transfer, process and store billing and utilization data and other data necessary for All West’s operation of its network and for the performance of its obligations under this Agreement. The transfer, processing and storing of such data may be to or from the United States. Customer hereby consents that All West may (i) transfer, store and process such data in the United States; and (ii) use such data for its own internal purposes and as allowed by law. This data will not be disclosed to third parties.
7.6 Contents of Communications. All West shall have no liability or responsibility for the content of any communications transmitted via the Service, and Customer shall defend, indemnify and hold All West harmless from any and all claims (including claims by governmental entities seeking to impose penal sanctions) related to such content or for claims by third parties relating to Customer’s use of Service. All West provides only access to the Internet; All West does not operate or control the information, services, opinions or other content of the Internet. Customer agrees that it shall make no claim whatsoever against All West relating to the content of the Internet or respecting any information, product, service or software ordered through or provided by virtue of the Internet.
7.7 Confidential Information. For a period of two (2) years from the date of disclosure thereof, each Party shall maintain the confidentiality of all Confidential Information provided to it by the other Party hereto. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect the Confidential Information it receives hereunder as it accords to its own Confidential Information. The above requirements shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, is already publicly available through no breach of this Agreement or has been previously independently developed by the receiving Party. This Agreement shall not prevent any disclosure of Confidential Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of this required disclosure. Each Party acknowledges that its breach or threatened breach of this Section may cause the Disclosing Party irreparable harm, which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Receiving Party agrees that equitable relief, including temporary or permanent injunctions, is an available remedy in addition to any legal remedies to which the Disclosing Party may be entitled. At the request of the Disclosing Party upon termination of this Agreement or at any time or from time to time thereafter, the Receiving Party shall, as promptly as practicable and in all cases within five (5) days of such request, deliver to Disclosing Party all proprietary information of Disclosing Party then in Receiving Party’s possession or under Receiving Party’s control or, in lieu thereof, Receiving Party may destroy all of Receiving Party’s copies of such proprietary information and certify to Disclosing Party in writing that such destruction has been accomplished.
7.8 Non-Disclosure. Any information or documentation disclosed between the parties during the performance of this Agreement shall be subject to the terms and conditions of this Agreement or any applicable non-disclosure agreement then in effect between the parties.
7.9 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, U.S.A., without regard to its choice of law rules.
7.10 Entire Agreement. This Agreement, including any SLA(s), Application, or Service Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service, which are of no further force or effect.
7.11 Amendment. This Agreement, the Application, any SLA or Service Order, may only be modified or supplemented by an instrument in writing executed by a duly authorized representative of each party. Without limiting the generality of the foregoing, any handwritten changes to an Application or Service Order shall be void unless acknowledged and approved in writing by a duly authorized representative of each party.
7.12 Policy Changes. All West will provide the Customer with ten (10) days written prior notice of any and all changes in policy and technical issues that might affect Customer’s compliance with this Agreement.
7.13 Order of Precedence. In the event of any conflict between this Agreement and the terms and conditions of any Application, Service Order, and/or SLA, the order of precedence is as follows: (1) the SLA, (2) the Service Order, (3) the Application, and (3) this Agreement.
7.14 Survival. The provisions of this Article 7 and Articles 3, 5 and 6 and any other provisions of this Agreement that by their nature are meant to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
7.15 Relationship of the Parties. The relationship between Customer and All West shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, without limitation, for federal income tax purposes.
7.16 No Waiver. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
7.17 Severability. If any provision of this Agreement shall be declared invalid or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and shall not affect the remaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreement is declared invalid or unenforceable under applicable law, the parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective benefits and burdens imposed on each party under this Agreement as originally executed.
7.18 Third Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by each party hereto and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.19 Export Law. Customer acknowledges and agrees that any products, software, and technical information provided pursuant to this Agreement may be subject to United States export laws and regulations, and that any distribution, transfer, or transmittal of the products, services, software, or technical information shall be in compliance with United States export laws and regulations. Customer shall, if requested by All West, sign a written assurance or other export-related documentation as may be required for All West’s compliance with United States export laws or regulations.
7.20 Tariffs. Notwithstanding anything to the contrary in the Agreement, All West is required to, or may elect to file tariffs with regulatory agencies for certain Services. In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forth in the applicable Service Order shall be treated as individual case based arrangements to the maximum extent permitted by law, and All West shall take such steps as are required by law to make the rates and other terms enforceable. If All West voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that All West is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either party, the affected party may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.
7.21 Governing Law and Venue. This Agreement and your use of the Services, All West Equipment and Facilities will be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of the State of Utah, without regard to its conflicts of law provisions. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement, or your use of the Services, the All West Equipment, and Facilities, will be filed only in the state or federal courts located in Salt Lake or Summit Counties, State of Utah, and you further agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
7.22 Compliance with Laws. Each of the parties agreed to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
ARTICLE 8. USE OF SERVICES
8.1 Use Policies. Customer agrees to ensure that all uses of the Services and/or All West Equipment or Facilities installed at the Customer Premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether or not authorized by Customer, comply with applicable laws, rules, regulations, and written or electronic instructions for use.
8.2 Prohibited Uses.
(A) Resale. Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof without express written consent from All West.
(B) Use of Services in Violation of Law. In general All West prohibits use of the Services for any activity that violates federal, state, local, or international law.
ARTICLE 9. ADDITIONAL PROVISIONS APPLICABLE TO BROADBAND SERVICES.
9.1 Broadband Services. In addition to the General Terms and Conditions above, the following conditions are specifically applicable to Broadband Services:
9.2 Installation. An All West Service Technician will consult with Customer and/or building owner on acceptable locations for ONT, Gigacenter, modem(s), etc. Additional installation fees may be applicable. Inside wiring and jack work may be provided at an additional charge, if requested by Customer. If it is not possible for us to provide service, you will be released from this agreement. All West reserves the right to deny installation of our services for any reason.
9.3 Protective Measures. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for accuracy of data input and output, and for maintaining means external to All West for reconstruction or retrieval of any lost data. Customer agrees to assess its own needs for protective measure, and agrees to implement, where necessary, voltage spike protection, sufficient grounding measures as per National Electric Code, computer equipment insurance, virus detection, and security and system administration policies. Customer agrees that All West is not liable to Customer for loss or damage to Customer Provided Equipment or Customer data. All West specifically disclaims all responsibility for files on All West’s servers, and assumes no responsibility for any damages caused by Customer’s inability to use the Services.
9.4 Password Security. Customer is responsible for the confidentiality of all Customer passwords. All West will change access to the account upon notification by Customer that Customer’s password has been lost, stolen, otherwise compromised.
9.5 Service Calls. If All West is called to the Customer Premises and it is determined that the problem is other than the Broadband Service and/or the broadband interface, a service fee may be incurred and paid by Customer.
9.6 Customer Responsibilities.
(A) Customers remain solely and fully responsible for the content of any material posted, hosted, downloaded/uploaded, created, accessed or transmitted using the Services. All West has no responsibility for any material created on the All West network or accessible using Services, including content provided on third-party websites linked to the All West network.
(B) By posting or submitting any content or other materials to the Sites, including any audio or video files, classified advertisements or personal information (collectively “Customer Content”), Customer affirms, represent and warrant that (i) Customer owns or otherwise control all right, title and interest in and to Customer Content, including the copyright thereto; (ii) none of Customer Content is defamatory, libelous, obscene or pornographic; and (iii) use of Customer Content as provided in these Terms of Service will not violate any legal rights, of any third party. Customer hereby grants All West and its designees a worldwide, royalty-free, non-exclusive, transferable, sublicensable license (the “License”) to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, and prepare derivative works of Customer Content in connection with the conduct of All West’s business in any formats and through any media channels. All West may monitor Customer Content as it appears on the Sites and may edit or delete Customer Content at any time and for any or no reason without your permission.
(C) Customer is responsible for taking prompt corrective action(s) to remedy a violation of this Agreement and to help prevent similar future violations.
(D) Customer is solely responsible for the protection of its identity. All West does not verify the security of any internet site. Customer’s use of personal information while on the internet places Customer at risk of identity theft.
(E) Customer will indemnify, defend, reimburse, and hold All West or any parent, subsidiary, affiliate, officer, director, employee, or agent of All West, harmless from and against any and all liabilities, claims, and expenses of any type or nature, including costs and attorneys’ fees, that arise from the exercise of the License set forth above or from Customer’s use of the Services.
9.7 Prohibited uses of All West Broadband/Internet Services. Prohibited uses include, but are not limited to:
(A) Using All West Services to post, store, transmit, or disseminate unlawful material, including without limitation, child pornography, any content, data or other material which is libelous, obscene, hateful, unlawful, threatening, reaction or ethnically offensive, defamatory or which in any way constitute or encourages conduct that would constitute a criminal offense.
(B) Using All West Services to disseminate material which violates copyright or Services may be subject to protection under privacy, publicity, or other personal rights and intellectual property rights. Customer shall not use the All West network or Services in any manner that would infringe, dilute, misappropriate, or otherwise violate such rights. You assume all risk regarding whether material is in the public domain.
(C) Pyramid or other illegal soliciting schemes.
(D) Fraudulent activities, including but not limited to, impersonating any person or entity, or forging anyone’s digital or manual signature.
(E) Using All West Services to send SPAM, which includes, but is not limited to, sending unsolicited email messages, bulk commercial advertising or informational announcements; sending electronic messages that do not accurately identify the sender, the sender’s return address, the email address of origin, or other information contained in the subject line or header; sending email messages that are excessive or intended to harass or annoy others; continue to send email messages to a recipient that has indicated he/she does not wish to receive them; or sending malicious email.
(F) Customer is responsible for any misuse of the Services that originates from Customer’s account, even activities committed by any customer, employee, agent, representative, guest or anyone who obtains access to the account. Customer must ensure that others do not gain unauthorized access to the Services.
(G) The Services may not be used to breach the security of another user, or to attempt access to anyone’s computer, software or data, without the knowledge and consent of that person. The Services may not be used in any attempt to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account that you are not expressly authorized to access, probing the security of other networks, or any other action aimed at the unauthorized interception of data or harvesting of email addresses. Use or distribution of tools designed for compromising security, such as password guessing programs, cracking tools, packet sniffers or network probing tools is strictly prohibited.
(H) Customer may not knowingly upload or distribute files the contain viruses, spyware, Trojan horses, worms, time bombs, cancel bots, corrupted files, root kits or any other similar software or programs that may damage the operation of another’s computer, network system or other property, or be used to engage in modem or system hi-jacking.
(I) Customer may not allow others access to and of the Services without the express written consent of All West, which may be granted or withheld in All West’s sole discretion.
(J) All West prohibits the use of open wireless internet local area connections without the express written consent of All West. Modems and routers that broadcast wireless Internet without wireless security enabled is in violation of this policy. All West reserves the right to bill Customer a premium fee to allow unsecured wireless local area connections.
(K) Use of distribution lists in electronic mail or other mass electronic mailings is subject to prior written approval of All West, which will be granted or withheld is sole discretion. Without limiting the foregoing, All West does not allow use of the email system to distribute advertisements, solicitations or any other form of marketing/sales commonly referred to as spamming.
(L) The use of list, blind copies, relaying to addresses via email is an unacceptable use of the Services.
9.8 Content. All West has no obligation to monitor content of any materials distributed or accessed using the Services. However, All West may monitor content of any such materials as necessary to comply with applicable laws, regulations, or other governmental or judicial requests; or to protect All West, out network, and our customers.
9.9 Investigation. All West reserves the right to investigate suspected violations of this Agreement, including the gathering of information from Customer or other users involved, and the complaining party, if any, and examination of material on All West’s servers and network. During an investigation, All West may suspend the account or accounts involved and/or remove material which potentially violates this Agreement.
9.11 Provision of Service. Subject to the terms and conditions herein, Broadband Services are intended for commercial use only.
ARTICLE 10. ADDITIONAL PROVISIONS APPLICABLE TO VoIP SERVICES.
10.1 VoIP Services. In addition to provisions 1 through 8 above, the following terms and conditions are applicable to VoIP Services.
10.2 Description of VoIP Services. VoIP services allow the Customer to make or receive telephone calls over the internet to or from the public switched telephone network. The Analog Terminal Adapter (ATA) is a device that allows you to connect a normal public switched telephone network telephone to the Internet in order to make or place telephone calls. The nature of VoIP telephone calls, while appearing similar to traditional telephone calling services, creates unique limitations and circumstances, and Customer acknowledges, understands, and agrees that differences exist between traditional telephone service and VoIP telephone services, including the lack of traditional 911 emergency services.
10.3 911 and E-911 Calls. Prior to the initialization of the Services, on the Application for Services, Customer shall provide accurate name and address information where the ATA and the Services will be utilized (also known as “Registered Location”) for the purpose of updating the E-911 Data Base. If Customer’s Registered Location provided on the Application or Service Order does not convert to a valid Master Street Address Guide (also known to as the “MSAG”) address for your locality, All West will notify you and stop all processing of the order until you provides an MSAG-compatible address.
10.4 Accuracy of Registered Location Information. Customer assumes all responsibility for the accuracy of the Registered Location that is provided to All West for entry into the E-911 Data Base. Customer bears the responsibility to notify All West of any changes to the Registered Location. Customer agrees to indemnify and hold All West harmless from any claims, damages, or suits related to the accuracy of data provided by you for inclusion in the E-911 Data Base. Customer shall provide (and update as necessary) All West with accurate information related to E-911 Service, including, but not limited to: location of individual telephone stations and a description of its facilities, equipment and software for the Services. Customer acknowledges and agrees that it will not use All West’s services from any location other than the Registered Location, and that Customer will not use the ATA from any location other than the Registered Location. It is Customer’s responsibility to update the physical location information where the service is being used, or where the ATA is being used, if it differs from the prior Registered Location.
10.5 Limitation to 911 and E-Service. Customer acknowledges and understands that access to emergency services through 911 and E-911 calls is limited; that the VoIP Service supports E-911 (where available); and that access to emergency service is available only if the service is operated from the Registered Location, and then only if Customer has an active connection to the service. Customer acknowledges and understands that if there is a service outage (even related to extended power outages) for any reason, such outage may prevent all voice service, including 911 dialing.
10.6 Service Outages Due to Power Failure or Disruption. Dependent upon Customer’s location, network backup power systems may be in place during the event of a power failure. Customer’s device, as set forth herein, may also provide limited battery backup. Customer shall consult with All West to determine whether or not Customer’s device has battery backup.
10.7 Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all All West VoIP Service, including 911 Dialing, from functioning.
10.8 Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Customer’s ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 dialing feature, may not function. You acknowledge that All West is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
10.9 Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 dialing, from functioning. SUCH OUTAGES MAY OCCUR FOR A VARIETY OF REASONS, INCLUDING, BUT NOT LIMITED TO, THOSE REASONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.
10.10 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
10.11 Time. Customer also acknowledge that it may take All West up to seven (7) days to get the correct address information to E-911 database and that during that time the E-911 Data Base may have the wrong address information. Customer should be prepared to give the local emergency operator answering the 911 call, Customer call back number and exact location.
10.12 Limitation of Liability and Indemnification. Customer shall indemnify and hold All West, its affiliates, directors, officers, employees and agents from and against all claims, demands, actions, causes of action, damages, liabilities, losses and expenses (including reasonable attorneys’ fees) incurred as a result of any act or omission, representation or statement by Customer, its affiliates, directors, officers, employees or agents related to E-911 services.
10.13 Release. Customer agrees to release, indemnify, defend, and hold harmless All West from any and all losses, claims, demands, damages, expenses, suits or other action or any liability whatsoever including, without limitation, costs and attorneys’ fees, suffered, made, instituted, or asserted by you and your users against All West arising out of, or related to, 911/E-911 service, including, but not limited to, the delivery of 911/E911 calls to emergency call centers, the delivery of the end user’s call back number and location information, and/or providing information to customers of the capabilities and limitations of 911/E-911 services.
10.14 Devices. All West requires the use and/or rental of VoIP devices, including, but not limited to a Multi-media Terminal Adapter (“MTA”), an ATA, or other IP connection device to be used in conjunction with the All West VoIP Services.
(A) Device with battery backup. Battery backup on qualifying devices is limited. Excessive use during a power outage will result in shortened life of the internal battery. The device will provide indication of low battery voltage. Customer should contact All West for instructions or replacement. Failure of network power backup systems or the MTA internal backup system during a power failure or disruption will prevent all service, including 911 dialing, from functioning.
(B) Device without battery backup. Devices that do not have a battery backup cannot support 911 dialing in event of a power failure or disruption. If there is an interruption in the power supply, the All West VoIP Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, Customer may need to reset or reconfigure the device prior to utilizing the All West VoIP Service, including 911 dialing.
10.15 Prohibited Uses of All West VoIP. Prohibited uses of All West VoIP Services include, but are not limited to:
(A) Using All West VoIP Services in any way that is threatening , abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior.
(B) Using All West VoIP Services with auto-dialers.
(D) Use of fax machines for fax broadcasting or fax blasting.
(E) Extensive call forwarding or use of call forwarding or conference features to act as a bridge to chat lines or other conferencing facility.
(F) Operating a call center.
(G) Transmission or reception of broadcasts over teleconferencing facilities.
(H) Transmission or reception of recorded material or communications which do not consist of standard residential voice calling involving life dialog between individuals.
(I) Utilization of All West VoIP service for monitoring services, data transmissions, or transcription services.
(J) Transmissions or reception of broadcasts.
(K) Resale of the All West VoIP Services to others.
ARTICLE 11. ADDITIONAL PROVISIONS APPLICABLE TO LONG DISTANCE SERVICE
11.1 Long Distance Services. In addition to provisions 1 through 8 above, the following terms and conditions are applicable to Long Distance Services:
11.2 All West Long Distance Plan. Customer must have or purchase local business telephone service from All West. Domestic, direct-dialed long distance minutes will be billed at a flat rate of 6 cents per minute. Customer may select a pre-paid plan as may be set forth in the Application or Service Order. Calls are billed in one minute increments; partial minutes are charged as full minutes. Rates exclude taxes, fees, surcharges, installation charges and other charges. Availability, rates, terms and conditions are subject to change.
11.3 Prohibited Use of Business Long Distance Services. Prohibited use of Business Long Distance Services include, but are not limited to:
(A) Long distance or local toll access to the Internet or for business purposes such as telemarketing, auto-dialing, or commercial or broadcast facsimile (FAX) where any of these calls would be long distance or local toll calls.
(B) If Long Distance is used for unauthorized purposes, or if qualifying services are removed from the account, All West may immediately suspend, restrict or cancel your Services.
ARTICLE 12. ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO CATV SERVICES
12.1 CATV Services. In addition to provisions 1 through 8 above, the following terms and conditions are applicable to CATV Services.
12.2 Limitation on Redistribution. Customer hereby acknowledges and agrees that All West does not have the absolute right to distribute pay-per-view video programming and certain premium video services to commercial establishments. Customer, therefore, agrees that it shall not exhibit nor assist in the exhibition of any such programming unless explicitly authorized to do so in advance, in writing by All West and the applicable program or event distributor. In requesting such authorization, Customer shall identify itself as a commercial establishment. Customer shall not, and shall not permit any other person to (i) copy, record, duplicate, alter, make, manufacture any recording or other reproductions of video and/ or CATV service provided hereunder; or (ii) transmit video and/or CATV Service outside of the Customer Premises. Violation of this provision may subject Customer to criminal penalties under United States copyright and/or trademark law. Customer agrees not to move any All West Equipment from another location to any Customer Premises.
12.3 Commercial Use. Customer shall not, and shall not authorize or permit any other person to (i) charge an admission fee or cover charge to the Customer Premises at the time video and/or CATV services are begin performed therein; (ii) permit physical activity, such as dancing, or similar forms of entertainment in conjunction with the performance of video and/or CATV services unless Customer has obtained all necessary licenses and authorizations from the content owners or copyright owners; (iii) insert any commercial announcements into the video and/or CATV services, or interrupt any video and/or CATV services for the making of commercial announcements, except that public address commercial announcements may be made concerning goods or services sold or offered to the public at the Customer Premises provided no compensation is paid to, or received by Customer.
12.4 Additional Licenses. Customer acknowledges and agrees that Customer may be responsible for additional music licensing or copyright fee for music contained in any or all of the video and/or CATV services.
12.5 Provision of Service. CATV Service is for private commercial viewing venues only, and is not for use in public viewing areas such as bars, restaurants, fitness centers, or residential addresses. Customer acknowledges and agrees that All West has the right at any time to preempt, without prior notice, specific programs. All West may, in its sole discretion, make additions, changes, deletions, or modifications to its channel line-up without liability to Customer.
12.6 Additional Televisions. Customer agrees not to add additional television sets or disturb, alter or remove any portion of the All West Equipment. Any unauthorized connection or tampering with the CATV service or All West Equipment shall be cause for immediate disconnection and legal action. All West shall be entitled to recover damages, including reasonable attorneys’ fees and costs.
ARTICLE 13. ADDITIONAL PROVISIONS APPLICABLE TO HOSTED PBX SERVICE
13.1 Hosted PBX Services. In addition to provisions 1 through 8, and 10 above, the following terms and conditions are applicable to Hosted PBX Services.
13,2 Description of Hosted PBX Services. Hosted PBX Service is a private branch exchange (PBX) phone system that provided to Customer by All West that consists of: (1)Turnkey implementation of the All West provided Hosted PBX solution and network services; (2) Provision of Hosted PBX manufacturer hardware and software applications, telephone handset(s) and related applications (collectively “Equipment”) at Customer specified service location(s) (“Premises”); (3)Furnishing of voice and data access, local, and long distance services; (4) the service and support of Leased Equipment at such Premises; (5) Remote moves, adds, and changes; (6) Proactive monitoring and alerting. The Hosted PBX Service provided basic voice service calling features with each telephone number ordered.
13.3 Service Elements.
A. Telephone Lines. All West will provide telephone lines to Customer as set forth in the Application and/or Service Order. Where Customer is being provisioned with local services that are tariffed, applicable state tariffs which may be modified by All West from time to time in accordance with law, will govern the provision of local service furnished as part of the Hosted PBX Service. All local service related rates, charges, and surcharges apply to the voice portion of the Hosted PBX Service.
B. Telephone Numbers. All West will provide telephone numbers to Customer. Where Customer desires to provide and/or port its own telephone numbers to the Hosted PBX Service, All West shall be entitled, in its reasonable discretion, to reject any telephone numbers proposed to be supplied by Customer. Based on the information provided by Customer, and subject to the provisions regarding VoIP Service contained in Section 10 above (such as E911 Service Limitations, All West will register telephone numbers provided to Customer for use in connection with the Hosted PBX Service with the appropriate 911 authority.
C. Calling Features. All West will provide calling features based on seat type selected and identified in the customer agreement.
D. IP Addresses. If necessary, All West will provide a mutually agreeable number of public IP address assignments to Customer for use solely in connection with the Hosted PBX Service. Customer shall not obtain any property or other proprietary interest in any IP address assignments provided hereunder, and All West may, at any time, withdraw or reclaim IP addresses and provide alternative IP address assignments for use in connection with the Hosted PBX Service.
E. Maintenance. During the term All West will provide maintenance and repair for the Hosted PBX Services. In the event the Equipment is leased from All West, All West will provide maintenance and repair of the Leased Equipment during the term, provided the Leased Equipment is used in compliance with All West’s normal operating instructions and not abused or modified by Customer. Maintenance and support of Leased Equipment includes fault isolation and diagnosis, hardware replacement for defective hardware, and software updates for defective software. Maintenance and support does not include moves and changes or installation of additional Equipment,; help configuring applications after installation; support of user-defined applications; diagnosis or support of equipment or software other than supported Equipment provided by All West in connection with the Hosted PBX Service; data recovery services; support of Equipment that has had its serial numbers altered, defaced or deleted; or support or repair resulting from the following: 1) combination or integration of non-All West furnished Equipment, software, or facilities with supported Equipment; 2) a change in the environment in which the supported Equipment was installed; 3) actions of non-All West or All West authorized contractor personnel; or 4) conditions outside of All West’s reasonable control.
F. Professional Services. All labor apart from installation, configuration, and training as specified in the Application and/or Service Order will be considered Professional Services. If all West agrees to provide Professional Service, these services may be provided pursuant to a fixed charge negotiated between All West and Customer. Otherwise, All West’s standard rate for Professional Services applies. All West has no obligation to provide such Professional Services and may recommend third party resources outside of All West.
G. Long Distance Services. Hosted PBX Service include an allotment of inbound and outbound domestic long distance calling minutes as set forth in the Application and/or Service Order.
13.3 Provisioning Preparation. Based on information from the Customer and available product features and capabilities, All West will configure the Hosted PBX Service for Customer (including but not limited to, call-flow configuration) prior to the installation of the Hosted PBX Services, provided however that Customer shall have sole responsibility with respect to Customer Provided Equipment (as defined herein), and other networks, systems, equipment, facilities, or property not provided by All West. Customer acknowledges and agrees that Customer is solely responsible for obtaining all local permits, landlord consents, access licenses and permissions, letters of authorization; and other consents and waivers necessary for the installation and activation of all network, systems, facilities, and equipment necessary for All West to provide the Hosted PBX Service and for Customer to make use of the Hosted PBX Service.
13.4 Inside Wiring and Connections. All West will install all All West provided bandwidth services to the network interface and/or demarcation point (“demarc”). If Customer requires or requests a demarc be extended, additional charges will apply as set forth on the Application and/or Service Order. Customer is responsible for providing any necessary internal wiring or extension to all All West Equipment required to use the Hosted PBX Service.
13.4 Pricing and Price Changes. Cancellation of Hosted PBX Service by Customer after such service is ordered, but prior to availability will result in early termination charges. Charges to an accepted Hosted PBX configuration prior to installation will result in configuration charges.
13.5 Equipment. Customer acknowledges that the delivery of the Hosted PBX Service will require the installation of customer premise equipment, such as routers, handsets, switches (“Equipment”). Customer has the option of leasing such Equipment from All West for a recurring monthly charge; purchasing the Equipment from All West for a one-time non-recurring charge; or providing its own Equipment.
A. All West Leased Equipment. All Equipment provided and owned by All West, which the Customer leases from All West (“Leased Equipment”), shall remain, at all times, the property of All West. Upon termination of the Hosted PBX Service, Customer’s right to use the Leased Equipment will immediately end and Customer shall return the Leased Equipment to All West. Leased Equipment provided by All West shall only be used in conjunction with the Hosted PBX Service and Customer is not authorized to use the Equipment for any other purpose. Leased Equipment may be new or recertified. All West will not be responsible for managing any Leased Equipment longer than the time period for which the manufacturer of any such device supports the hardware and software on such device. In the event this time period expires prior to the end of the Customer’s contract term, All West reserves the right to replace such Leased Equipment with equipment having similar feature sets.
B. Equipment Purchased from All West. Customer may purchase the Equipment from All West for a one-time non-recurring charge per device as set forth in the Application and/or Service Order. In the event Customer requests replacement Equipment, Customer will be required to purchase new Equipment at the current rates. Warranty support for purchased Equipment will not be handled by All west, and should be addressed directly with the device manufacturer.
C. Customer Provided Equipment. Unless otherwise approved by All West, only equipment provided by All west will be permitted to connect to the underlying Hosted PBX Service. All West will review requests for connection of other Equipment on an individual case basis, and permission will be given at All West’s sole discretion. All West will not be liable or responsible for any installation, testing, troubleshooting, repair, integration, support or maintenance regarding any Customer provided Equipment used in connection with the Hosted PBX Service. Customer understands that it may experience quality of service or degradation issues resulting from the Hosted PBX Service being used with these devices. Customer represents and warrants that they possess all required rights, including software and/or firmware licenses, to use any equipment that All West has not provided to Customer.
13.6 Electronic Monitoring. All West may electronically monitor the Hosted PBX system including Leased Equipment for remote diagnostics and corrective actions; to determine applicable charges; and, to verify compliance with applicable software license terms and restrictions. Customer shall provide All West with any necessary dial-up connection and other assistance for remote access.
13.7 Customer Local Area Network (LAN). Customer acknowledges that the Hosted PBX Service may vary based on Customer’s LAN infrastructure. Customer is responsible for the design, management, performance, and on-going service and support of their corporate and/or remote office LANs. All West may, in its sole discretion, offer Professional Services to assist Customer in configuration of Customer LAN elements. In no case will All West be held responsible for any interruptions in Customer’s business, or failure of Customer’s LAN or equipment as a result of this assistance, if provided.
13.8 Customer remains responsible for its own network security and security violation response procedures.
14.3 Customer Proprietary Network Information (CPNI). CPNI is a subcategory of protected customer information defined by federal law as information about a consumer’s account, including usage and billing of telecommunications services. Those services are offered by providers of traditional local, long distance, and wireless services, as well as providers of Voice over Internet Protocol (VoIP) services to consumers. CPNI includes what services you subscribe to, how you use them, and what you are charged for them. It does not include your name, address, telephone number, or other types of information such as information about your telephone equipment or Internet access services. All West is required to treat CPNI confidentially, and we do. The FCC regulates when and how CPNI can be shared and used.
(A) Marketing rules. The FCC has categorized consumer CPNI into three distinct service groups: local, long distance, and wireless service. The CPNI that a carrier can use to market its services to its customers – without their approval – depends on what service groups the customer already buys from. Carriers are permitted to use CPNI for marketing similar products within a service group. For example, if Customer subscribes to All West’s local service, All West is allowed to use that local service information to sell Customer additional local service products and services.
(B) Approval rules. All West obtains Customer approval to use CPNI across service groups in two different ways. In some circumstances, we ask for customer consent. In other words, we may ask Customers to “opt-in” to our use of CPNI across service groups. In most circumstances, however, All West informs Customers that CPNI will be used unless they instruct us not to. In these cases, the Customers must specifically “opt-out” to our use of CPNI across service groups. We can ask for long-term approval (that lasts until it is withdrawn) or we can ask for approval each time we interact with a customer (short-term approval).
(C) Rules on non-marketing uses of CPNI. All West is allowed to use consumer CPNI for various non-marketing purposes without specific customer approval. These activities include installing, providing, billing for, and collecting for Services. All West may also use CPNI without specific approval to protect our rights or property or those of our Customers or other carriers and to address fraud, abuse or unlawful subscriptions to or use of our services.
(D) Access rules. Before speaking with a caller about account information, All West takes steps to authenticate the identity of the caller and confirm that he or she is authorized to have access to information on the account. All West does not discuss account information with anyone other than the account holder. Per FCC rules, All West will not discuss call detail information with Customers over the telephone unless the Customer provides specific information about the calls in question, such as in the context of a billing inquiry, or unless the Customer provides their specific password. All West will not release CPNI in a retail store unless our Customer presents a valid photo ID. Additionally, our Customers cannot access online account information using only account information or generally known information. Rather, online account access is restricted through security code and password requirements.
14.4 How All West Collects Information And How We Use It. All West collects information in three primary ways:
(A) Customer gives it to us when Customer purchases or interacts with All West about a product or service we offer or provide;
(B) All West collects it automatically when Customer visit our websites or use our products and services; and
(C) All West obtains it from other sources such as credit agencies.
14.6 Using All West Services. When Customer uses our Services, you must provide certain Personally Identifiable Information for us to properly provide you with the Services. All West collects and stores this Personally Identifiable Information and any modifications that either you or we make to that information. All West may disclose User Information (i) to provide you Services that you request and provide you with the best customer experience possible; (ii) to answer questions you may have about the Services you purchase; (iii) to communicate with your regarding Service updates, offers and promotions, and deliver customized content and advertising to you; (iv) to address network integrity and security issues; (v) to obtain a credit report; (vi) to provide local directory and directory assistance; (vii) to law enforcement or other governmental officials as required by law, if appropriate, for your protection, safety, or in connection with an investigation or prosecution of possible unlawful activity, in which cases we may be required to disclose the information without your consent or knowledge as required by federal and/or state statutes and regulations; (viii) in connection with a sale or merger of All West; or (ix) for other legally permissible purposes. We may also share aggregate anonymous data relating to the transactions on the website and use of the Service for marketing, research and other purposes.
14.9 How we protect Customer information. All West employs and maintains technology and security measures designed to protect User Information. When you submit sensitive information via our website, that information is subject to a variety of protections both on-line and off-line, including password protected systems and firewalls. Sensitive and private data exchange between the website and its users happens over a SSL secured communication channel and is encrypted and protected with digital signatures. However, no data transmission over the Internet can be guaranteed to be 100% secure.
14.10 Third party websites. Customer may find advertising or other content on our website that link to the sites and services of our partners, suppliers, advertisers, sponsors, licensors and other third parties. We do not control the content or links that appear on these sites and are not responsible for the practices employed by websites linked to or from our website. In addition, these sites or services, including their content and links, may be constantly changing. These sites and services may have their own privacy policies and customer service policies. Browsing and interaction on any other website, including websites which have a link to our Site, is subject to that website’s own terms and policies. We are not responsible or liable for the actions or policies of third parties.
This is an equal opportunity provider and employer.
If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Form, Found online at http://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form. You may also write a completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410, by fax (202) 690-7442 or email at email@example.com