ISP Terms & Conditions
BUSINESS SERVICES TERMS AND CONDITIONS
This Business Services Agreement (Agreement) is entered into by and between Commercial Connectivity Services and the business customer identified below (Customer).
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under common control with Commercial Connectivity.
Agreement: Consists of all Service Orders executed by Customer and accepted by Commercial Connectivity along with these Business Services Customer Terms and Conditions.
Commercial Connectivity Equipment: Any and all facilities, equipment or devices provided by Commercial Connectivity or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Licensed Software: Computer software or code provided by Commercial Connectivity or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Party: A reference to Commercial Connectivity or the Customer; and in the plural, a reference to both companies.
Service(s): The Video, Internet, and Voice services provided by Commercial Connectivity to Customer described in one or more Service Order(s). All Services are subject to availability.
Service Commencement Date: The date(s) on which Commercial Connectivity first makes each Service available for use by Customer.
Service Order: A written request for Commercial Connectivity to provide the Services to identified Service Location(s).
Service Order Agreement: The agreement under which all Service Orders are submitted to Commercial Connectivity.
Service Location(s): The Customer location(s) where Commercial Connectivity provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order.
Termination Charges: Charges that may be imposed by Commercial Connectivity if, prior to the end of the applicable Service Term (a) Commercial Connectivity terminates Services for cause or (b) Customer terminates any Service without cause.
ARTICLE 1. SERVICES
1.1 Service Orders. Customer shall complete and deliver a signed Service Order to initiate Service at a Service Location(s). A Service Order shall become binding on the parties when (i) it is counter-signed by Commercial Connectivity either electronically or in writing or (ii) Commercial Connectivity begins providing the Services described in the Service Order, whichever is earlier. All Service Orders shall be deemed part of, and shall be subject to, the terms of this Agreement.
1.2 Speed. Commercial Connectivity makes no representation regarding the speed of the Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
1.3 Access. Customer shall provide Commercial Connectivity access to all Service Location(s) over which it has control for Commercial Connectivity to install and provide the Services. As necessary, Customer shall also provide an environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Commercial Connectivity Equipment used to provide the Services within the Service Location(s).
1.4 Commercial Connectivity Equipment. Commercial Connectivity Equipment is and shall remain the property of Commercial Connectivity regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time Commercial Connectivity may remove or change Commercial Connectivity Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Commercial Connectivity Equipment or permit others to do so, and shall not use the Commercial Connectivity Equipment for any purpose other than that authorized by the Agreement. Customer is responsible for damage to, or loss of, Commercial Connectivity Equipment caused by its acts or omissions. At the end of the service term or upon the breach hereof, Commercial Connectivity retains the right to remove the Commercial Connectivity Equipment including, but not limited to, that portion of the Commercial Connectivity Equipment located within the Service Location(s).
1.5 Customer-Provided Equipment. Customer alone shall be responsible for providing, installing, maintaining, repair, operation and replacement of all wiring and equipment and facilities on the Customer’s side of the cable modem, route and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services.
ARTICLE 2. CHARGES, BILLING AND PAYMENT
2.1 Charges. Customer shall pay Commercial Connectivity all charges associated with the Services, as set forth or set forth in the applicable Service Order(s) or invoiced by Commercial Connectivity. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges maintenance and repair charges, and applicable federal, state, and local taxes, fees and surcharges. Customer shall also be responsible for paying or reimbursing Commercial Connectivity for charges assessed third party service providers for services they provide that are separate and apart from the amounts charged by Commercial Connectivity.
2.2 Changes in Monthly Recurring Service Charges. Commercial Connectivity may increase the monthly recurring charges for Services following thirty (30) days prior written notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing.
2.3 Payment. Except as otherwise agreed in a Service Order(s), Commercial Connectivity will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to Commercial Connectivity for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to Commercial Connectivity within such period will 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 prorated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, Commercial Connectivity may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. Commercial Connectivity shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
2.4 Taxes and Fees. Taxes and fees, including regulatory fees of all kinds (Taxes) are in addition to charges and fees due to Commercial Connectivity for Services provided hereunder. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees.
2.5 Disputes. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice by the invoice due date. All disputes must be submitted in writing and shall include all documentation substantiating Customer’s claim, to Commercial Connectivity within sixty (60) days following Customer’s receipt of the applicable invoice. Commercial Connectivity shall respond to the dispute within thirty (30) days of receipt. The Parties shall each appoint a senior executive to negotiate a resolution of the dispute. If the parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to Commercial Connectivity, all disputed amounts shall become immediately due and payable to Commercial Connectivity.
2.6 Past-Due Amounts. Any undisputed payment not made when due shall be subject to a late charge of one-and-a-half percent a month or the highest lawful rate, whichever is higher. If Commercial Connectivity is required to use a collection agency or attorney to collect any amount owed by Customer, Customer shall pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Commercial Connectivity under the Agreement or at law or in equity.
2.7 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
2.8 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Commercial Connectivity may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Notwithstanding and without limiting the scope or effect of the previous, Commercial Connectivity reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.
ARTICLE 3. TERM
3.1 Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Service Order entered into under this Agreement. The term of a Service Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these terms and conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date.
3.2 Service Order Renewal. Upon the expiration of any Service Term, this Agreement and each applicable Service Order shall automatically renew for successive periods of one (1) year unless prior written notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the then current Service Term.
ARTICLE 4. TERMINATION OF AGREEMENT AND/OR A SALES ORDER
4.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order or this Agreement, in whole or part, at any time during the Service Term upon sixty (60) days prior notice to Commercial Connectivity, and subject to payment to Commercial Connectivity of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of any and all Commercial Connectivity Equipment. Such termination shall be effective sixty (60) days after Commercial Connectivity’s receipt of the termination notice.
4.2 Termination for Cause.
(a) If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, Commercial Connectivity may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services.
(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Service Order materially affected by the breach.
(c) A Service Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
(d) Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
4.3 Effect of Expiration or Termination of the Agreement or a Service Order. Upon the expiration or termination of a Service Order for any reason: (i) Commercial Connectivity may disconnect the applicable Service; (ii) Commercial Connectivity may delete all applicable data, files, electronic messages, voicemail or other information stored on Commercial Connectivity’s servers or systems; (iii) if Customer has terminated the Service Order prior to the expiration of the Service Term for convenience, or if Commercial Connectivity has terminated the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, Commercial Connectivity may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit Commercial Connectivity access to retrieve from the applicable Service Locations any and all Commercial Connectivity Equipment (however, if Customer fails to permit access, or if the retrieved Commercial Connectivity Equipment has been damaged and/or destroyed other than by Commercial Connectivity or its agents, normal wear and tear excepted, Commercial Connectivity may invoice Customer for the full replacement cost of the relevant Commercial Connectivity Equipment, or in the event of minor damage to the retrieved Commercial Connectivity Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to Commercial Connectivity.
4.4 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Commercial Connectivity may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects Commercial Connectivity’s ability to provide the Services herein.
ARTICLE 5. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
5.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY COMMERCIAL CONNECTIVITY OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF COMMERCIAL CONNECTIVITY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE COMMERCIAL CONNECTIVITY EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
5.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH RESPECT TO THE SERVICES, COMMERCIAL CONNECTIVITY EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMMERCIAL CONNECTIVITY DOES NOT WARRANT THAT THE SERVICES, COMMERCIAL CONNECTIVITY EQUIPMENT, OR LICENSED SOFTW ARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, COMMERCIAL CONNECTIVITY EQUIPMENT, OR LICENSED SOFTW ARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, COMMERCIAL CONNECTIVITY EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
5.3 COMMERCIAL CONNECTIVITY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, COMMERCIAL CONNECTIVITY EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
5.4 IN NO EVENT SHALL COMMERCIAL CONNECTIVITY, OR ITS ASSOCIATED PARTIES, 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) 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.
5.5 IN NO EVENT SHALL COMMERCIAL CONNECTIVITY, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer- Equipment; inability to obtain access to the Service Locations; failure of any television signal at the transmitter; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
5.6 The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance (“Fail Safe Activities”). These Fail-Safe Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from Fail-Safe Activities.
5.7 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Commercial Connectivity and its affiliates and agents is limited to the maximum extent permitted by law.
ARTICLE 6. INDEMNIFICATION
6.1 Subject to Article 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Commercial Connectivity Equipment, and Licensed Software; and (ii) any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, Commercial Connectivity Equipment, and Licensed Software.
6.2 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 7 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 7. BINDING ARBITRATION
All disputes that cannot be resolved through an informal dispute resolution process between the parties shall be resolved exclusively through an arbitration process administered by the American Arbitration Association at its offices located in or about Los Angeles, California.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License to Software. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Commercial Connectivity, including, without limitation, end-user license agreements for the Licensed Software. Commercial Connectivity and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Commercial Connectivity; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
8.2 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by Commercial Connectivity, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from Commercial Connectivity or other owner of such material, is prohibited.
8.3 No Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses. Commercial Connectivity shall have the right to reclaim each of these items at the close of the parties’ relationship and Customer shall cooperate fully in the recovery process.
ARTICLE 9. CONFIDENTIAL INFORMATION AND PRIVACY
9.1 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
9.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
9.3 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
9.4 Commercial Connectivity Privacy Policies. Commercial Connectivity’s privacy policy is incorporated herein by reference. A copy of the Policy is available at: www.commercialconnectivity.com
ARTICLE 10. PROHIBITED USES
10.1 Resale. Except as otherwise provided in the General Terms and Conditions, 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.
10.2 Use Policies. Customer agrees to ensure that all uses of the Commercial Connectivity Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. Commercial Connectivity reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Commercial Connectivity (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Commercial Connectivity’s ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of Commercial Connectivity personnel or third parties. Furthermore, the Services shall be subject to one or more Acceptable Use Policies (“AUP”) that may limit use. The AUP and other policies concerning the Services are posted on Commercial Connectivity’s web site(s) at business. Commercial Connectivity.com/customer- notifications/acceptable-use-policy (or any successor URL) or on another web site about which Customer has been notified, and are incorporated to this Agreement by reference. Commercial Connectivity may update the use policies from time to time, and such updates shall be deemed effective seven (7) days after the update is posted
10.4 Monitoring. Commercial Connectivity shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that Commercial Connectivity and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. Commercial Connectivity reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in Commercial Connectivity’s sole discretion, is unacceptable, undesirable or in violation of this Agreement. online, with or without actual notice to Customer.
10.3 Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, Commercial Connectivity shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of Commercial Connectivity, and then to notify Customer of the action that Commercial Connectivity has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 11. SERVICE CREDITS
11.1 Credit Allowances. Unless otherwise addressed in a service level agreement attached to this Agreement, Commercial Connectivity will allow a pro-rata credit against future payment of the net monthly recurring charge (exclusive of nonrecurring charges, other one- time charges, per call charges, measured charges, regulatory fees and surcharges, taxes, and other governmental and quasi- governmental fees) for a Service Interruption, except as specified below or as may otherwise be legally required (“Credit”). “Service Interruption” shall mean a break in transmission that renders the Service unusable for transmission and reception. For the purposes of calculating a Credit allowance, the Service Interruption period begins when the Customer reports an interruption in the portion of the Service to Commercial Connectivity, a trouble ticket is opened, and the Service is released to Commercial Connectivity for testing and repair. The Service Interruption ends when the affected portion of the Service has been restored and Commercial Connectivity has closed the trouble ticket. Service Interruption time does not include interruptions of less than thirty (30) minutes’ duration. Credits will be as follows: unavailability, delay or other degradation in the Services or any Commercial Connectivity failure to meet the objectives of the Services. The total number of credit allowances per month shall not exceed the total monthly recurring charge for the affected Service. Credit allowances will not be made for less than $1.00, unless required under applicable law. To qualify, Customer must request the Credit from Commercial Connectivity within 30 days of the Service Interruption.
11.2 Exceptions to Credit Allowances. A Service Interruption shall not qualify for the Credits set forth herein if such Service Interruption is related to, associated with, or caused by: scheduled maintenance events; Customer actions or inactions; Customer-provided power or equipment; any third party not contracted through Commercial Connectivity, including, without limitation, Customer’s users, third-party network providers; any power, equipment or services provided by third parties; or an event of force majeure as defined in this Agreement, unless otherwise provided under applicable law. The remedies set forth in this Article 11 shall be Customer’s sole and exclusive remedy for any Service Interruption in the Services, outage, Services Sales Operations, with a copy to: sales@commercialconnectivity.com
All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
ARTICLE 12. INSURANCE
12.1 Commercial Connectivity shall maintain during the Initial Term or any Renewal Term commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.
12.2 The liability limits under these policies shall be, at a minimum, one million ($1,000,000) dollars per occurrence, with a combined single limit for bodily injury and property damage liability.
ARTICLE 13. MISCELLANEOUS
13.1 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
13.2 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, Commercial Connectivity may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, Commercial Connectivity may partially assign its rights and obligations hereunder to any party that acquires from Commercial Connectivity all or substantially all of the assets of a cable franchise(s) in which the Services is deployed to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
13.3 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Commercial Connectivity, Customer also agrees to sign written assurances and other export-related documents as may be required for Commercial Connectivity to comply with U.S. export regulations.
13.4 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing address; notices to Commercial Connectivity shall be sent to: 13352 Riverside Dr. #140 Sherman Oaks CA 91423
13.5 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.
13.6 Survival. The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Service Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Service Order.
13.7 Choice of Law/Jurisdiction. The laws of the State of California shall govern the construction, interpretation, and performance of this Agreement without regard to choice of law concepts.
13.8 No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
13.9 No Waiver. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
13.10 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
13.11 Entire Understanding. The Agreement constitutes the entire understanding of the parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of Commercial Connectivity may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of Commercial Connectivity who has not been specifically authorized to make such modifications shall be binding upon Commercial Connectivity. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.