WWISP, Inc. Standard Terms and Conditions
Customer hereby agrees to i) all the rates, terms and conditions of the Agreement for Service and/or WWISP Circuit Order Form, signed by the Customer , including these Standard Terms and Conditions incorporated therein (the "Agreement"); and/or ii) the rates, terms and conditions of the state and federal tariffs of WWISP, Inc. ("WWISP") to the extent that state and/or federal tariff do not otherwise apply, in each case as the same exist or may be modified in the future by WWISP, including limitations on WWISP's liabilities. By posting updated versions of this Agreement on the Service, WWISP may modify the terms of this Agreement, and may discontinue or revise any or all other aspects of the Service in its sole discretion and without prior notice. All such changes shall become effective upon posting of the revised Agreement on the Service, as to Service used by you after the date of such changes. The updated, on-line version of this Agreement shall supersede any prior paper or disk based copies of this Agreement that may have been in any related materials provided by WWISP. It is your responsibility to check this Agreement regularly to determine whether this Agreement has been modified. If you do not agree to any modification of this Agreement, you must immediately stop using the Service. The rates and charges for the Service shall be as set forth in your registration package or otherwise in accordance with WWISP's rate schedule as in effect from time to time, and shall be provided to you upon request. You will be billed in advance for the term of service you have chosen, one-time, monthly, quarterly, or yearly. The Service is intended only for the non-residential use of Customer, its authorized agents and employees, and may not be resold without the prior written consent of WWISP.
Initial Term and Renewal Term (together "Term")
The initial term of a Service provided under the Agreement ("Initial Term") shall commence on the date the Service first becomes available to Customer; or (ii) if Customer purchases more than one service, the date the final Service becomes available to Customer. Customer agrees to an Initial Term as indicated on the Agreement. Upon expiration of the Initial Term (if one year or longer), the Agreement shall automatically renew on the same terms and conditions (including, without limitation, the rates) for successive one (1) year terms (each one (1) year term, a "Renewal Term") unless either party notifies the other of its intention to terminate the Agreement at the end of the Initial Term or Renewal Term, as the case may be, which such notice (the "Notice") shall be in writing and provided to the other party at least thirty (30) days prior to expiration of the Initial Term or the Renewal Term, as the case may be. In the event of such Notice, the Agreement shall terminate upon the expiration of the Initial Term or Renewal Term, as the case may be. Customer shall notify WWISP in writing if the Customer contact person is changed. WWISP reserves the right to reject any Customer termination request received from any person other than the designated Customer contact person.
If Customer is not satisfied with any Service provided by WWISP under the Agreement, Customer shall provide written notice specifying the performance deficiency in the Service and allow WWISP twenty (20) business days ("Notice Period") to bring the deficient performance to customarily acceptable industry performance standards ("Cure"), or if not capable of Cure within such notice period, make reasonable progress toward such Cure during the Notice Period. The written notice must cite this provision and reasonably detail the deficient performance. Should the parties agree in writing that WWISP failed to Cure or make progress toward such Cure within the Notice Period, WWISP will terminate the applicable Service upon request of Customer received by WWISP at least thirty (30) days prior to the termination becoming effective and Customer shall be responsible for paying all accrued charges for any Service used by Customer through the date of termination.
CUSTOMER shall provide all necessary preparations required to comply with WWISP's installation, maintenance and operational specifications; and will be responsible for all the costs of relocation of services once installed by WWISP, and/or it's vendors; and will provide WWISP and its suppliers of communication services and equipment, reasonable access to the customer's premises to perform any acts required by this agreement. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT WWISP HAS NOT MADE ANY GUARANTEES OR PROMISES WITH REGARD TO THE EXACT DATE OF THE COMPLETE INSTALLATION AND OPERATIONAL STATUS OF CUSTOMER. CUSTOMER SHOULD NOT TERMINATE ANY OTHER NETWORK OF ALTERNATIVE SERVICE CURRENTLY IN USE PRIOR TO INSTALLATION BEING COMPLETED. In the event Service is unsuccessfully installed at the customer location, that is to say that WWISP cannot achieve synchronization with LEC facilities and WWISP network, the contract will be null and void.
Termination and Service Performance Notices
Any Customer notice of termination of the Agreement or any Service hereunder, or notice of deficient performance under the Performance provision, must be submitted by mail, registered, or certified mail, return receipt requested to WWISP, Inc., Attn: Billing, 2200 Riverchase Center, Suite 500, Birmingham, AL 35244; or by email with confirmed receipt by WWISP, to email@example.com; or by facsimile transmission, with confirmed receipt by WWISP, to 1-205-942-4040. Any Termination notice must be received by WWISP at least thirty (30) days prior to the termination becoming effective. In the event of Termination of the Agreement, WWISP may deny Customer further access to any and all services hereunder without liability on the part of WWISP to the Customer, and WWISP may enter Customer's premises and repossess all CPE and software provided to Customer. Customer will provide WWISP full and free access to the CPE and/or software for this purpose. WWISP may cancel the agreement because of any breach of the terms and conditions of this agreement as stated herein, or at any time by giving the customer 30 days advance written notification of cancellation. WWISP may cancel the service for excessive slow payment or non-payment. In the event that WWISP cancels the agreement for non-payment the customer remains obligated by the term of the agreement.
If Customer terminates the Agreement after execution by Customer and before the expiration date of the Initial Term or Renewal Term, as applicable, even if prior to commencement of Service, Customer shall incur a Discontinuance Charge calculated as the sum of the following: (i) the total of all unpaid monthly recurring charges that could be charged under the Agreement for the remainder of the Initial Term or Renewal Term, as applicable; (ii) any waived installation charges; (iii) the cost of any Incentives (defined below); and (iv) any miscellaneous charges incurred for dedicated access, including but not limited to engineering fees, expedite fees, carrier and local exchange service order fees, change order charges, miscellaneous configuration charges, etc. ("Dedicated Access Fees"). Because damages resulting from early termination would be difficult to determine, the parties agree that the Discontinuance Charge is a reasonable approximation of such damage and shall be considered a liquidated damage and not a penalty.
Use of Service
Customer may not resell any Service without WWISP's consent or use, or attempt to use, any Service for any fraudulent, unlawful, improper, harassing, excessive, harmful, or abusive purpose ("Improper Uses"), or so as to adversely or negatively impact WWISP's customers, employees, business, ability to provide quality service, reputation, or network, or any other person. WWISP may determine on a case-by-case basis what constitutes Improper Uses. Improper Uses may include, without limitation: (a) using an automatic dialer or program; (b) sending unsolicited messages or calls; (c) attempting to interfere with the access of any user, host, or network; (d) identity theft; (e) attempting to decipher, decompile, or reverse engineer any software; (f) posting or transmitting unlawful, infringing, or objectionable content as determined by us; (g) Caller ID spoofing; (h) probing, or attempting to tamper with or harm WWISP's systems, network, or customers; or (i) reselling or attempting to resell any aspect of the Service, whether for profit or otherwise. Customer shall indemnify and hold WWISP harmless for any costs incurred by WWISP relating to such Improper Uses. If WWISP suspects a violation of this provision, WWISP may: (i) begin legal action; (ii) suspend or terminate Service immediately and without prior notice; (iii) suspend or terminate service provided to Customer under any other agreement with us; and (iv) cooperate with law enforcement in prosecuting offenders. Customer agrees to cooperate with WWISP in investigating suspected violations. WWISP may terminate Customer's Service or change Customer's rate plan at any time, with notice, if WWISP determines, in WWISP's sole discretion, that Customer's use of the Service is excessive, unusually burdensome, or unprofitable to WWISP.
"Incentive(s)" include, but are not limited to, free or discounted services under a term discount, waiver of any fees (i.e., installation charges, loop charges), waived rental or other charges for the use of equipment, etc. If Customer cancels any Service provided under an Incentive in full or in part, then Customer shall pay any fees Customer would have incurred without the Incentive. Likewise, Customer shall pay the then current rate for any equipment received under an Incentive (i.e., data CPE: multiplexers, CSU/DSU, routers, switches, phones, etc.) and/or, at WWISP's discretion, allow WWISP to retrieve the equipment from the Customer's premise during normal business hours.
Idle Internet Circuit Charge (if applicable)
Customer shall accept the internet connection no more than ten (10) business days after the circuit has been installed or within ten (10) business days of a reasonable attempt by WWISP to install the Service. If the Service is not accepted within this time frame, an Idle Internet Circuit Charge of up to $250 will be assessed and applied to the Customer's account on a monthly basis until the Internet Service is accepted. Acceptance is denoted by the completed installation of all Internet Services ordered. Upon acceptance of the Internet Service, the monthly charge will cease.
Internet Access (if applicable)
Customer Premise Equipment (if applicable)
In the event WWISP furnishes customer premise equipment of any sort ("CPE") and to Customer for use in connection with the Services, it shall be deemed to be billed to customer with all right, title and interest remaining with WWISP. Except for the right to use such provided CPE during the term thereof, the CUSTOMER shall have no rights therein. WWISP provided CPE must be returned at the end of the term of this agreement in the same condition as it was delivered to CUSTOMER, less normal wear and tear. CUSTOMER is responsible for any damage to CPE that is not deemed "normal" wear and tear by WWISP. CUSTOMER will be responsible for reasonable repair or replacement cost of CPE is returned damaged. Should Customer return any item of CPE that has been used or taken out of its box, Customer will pay WWISP a Restocking charge, equal to 20% of the item's sale value. Customer shall provide all consumables (e.g., paper, toner, ink) used by any CPE. WWISP, through its employees or other repair personnel, will provide maintenance as required to keep CPE in good operating condition as a result of Customer's normal use. Any manufacturer's warranties or maintenance contracts will be for the benefit of WWISP. WWISP reserves the right to substitute another type of CPE of similar functionality at its discretion. Any substituted CPE or repair and replacement parts may be new or like new. Customer shall provide WWISP or other repair personnel reasonable access to the CPE. Customer agrees to assume and bear the entire risk of any partial or complete loss with respect to the CPE from any and every cause whatsoever including theft, loss, damage, (including damage caused by Acts of God, or Force Majeure), destruction or governmental taking, whether or not such loss is covered by insurance or caused by any fault or neglect of Customer. If Customer's CPE is so equipped, wireless service within Customer's premise, is available to Customer's device only when it is within the operating range of the CPE. Connection speed is an estimate and is no indication of the speed at which Customer's device or the Service sends or receives data. Actual connection speed will vary based on device configuration, compression, distance, network congestion, interference and other factors. The accuracy and timeliness of data received is not guaranteed; delays or omissions may occur. WWISP may, but does not have to, change or improve the CPE by, among other things, changing or upgrading the 802.11b/g standard. If Customer is receiving CPE as part of Service, no rental cost will be charged to Customer, and payment of such charge shall relieve Customer of liability for Acts of God, including lightning, power surge, fire, wind, flood and earthquake. Damage caused by power surge, fire, and flood, which is not the result of an Act of God, is specifically excluded from coverage. Customer agrees to give WWISP prompt notice of any damage to or loss of any CPE, or any abandonment or relocation from Customer's premise. CPE furnished by WWISP remains the property of WWISP. For WWISP-furnished CPE that cannot be recovered from Customer's site, Customer will pay WWISP the listed purchase price for such CPE. Customer shall pay any charges at WWISP's normal time and materials rates for installation of or work on any inside wiring by WWISP in Customer's premises. CUSTOMER SHALL DEFEND AND INDEMNIFY WWISP FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, (INCLUDING REASONABLE ATTORNEYS FEES) ARISING OUT OF THE PURCHASE, POSSESSION, OPERATION, CONDITION, RETURN, USE OR MISUSE OF THE CPE, THE SOFTWARE OR BY OPERATION OF LAW, EXCLUDING, HOWEVER ANY OF THE FOREGOING RESULTING SOLELY AND DIRECTLY FROM THE NEGLIGENT OR WILLFUL ACTS OF WWISP TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON CUSTOMER UNDER UNIFORM COMMERCIAL CODE SECTIONS 2A-303, 2A-401, 2A-402 AND 2A-508 THROUGH 2A-522; PROVIDED HOWEVER THAT THE FOREGOING WAIVER WILL IN NO EVENT IMPAIR OR DIMINISH ANY RIGHT OR REMEDY OTHERWISE CONFERRED UPON CUSTOMERUNDER THE AGREEMENT.
CPE and Software not provided by WWISP
Physical equipment and or software products that are NOT provided by WWISP are the responsibility or the CUSTOMER. WWISP will not be responsible for the installation and/or service on equipment and/or software not provided by WWISP. CUSTOMER is responsible for the use and compatibility of hardware and software not provided by WWISP. In the event CUSTOMER uses hardware and/or software that impairs CUSTOMER'S use of WWISP services, CUSTOMER shall nonetheless be liable for regular payments to WWISP upon notice from WWISP, that the hardware and/or software not provided by WWISP, is causing, or, in the sole opinion of WWISP, likely to cause hazard, interference or obstruction, CUSTOMER shall eliminate the hazard, interference or obstruction at once. CUSTOMER will, if necessary, pay WWISP to troubleshoot problems caused by such equipment and/or software not provided by WWISP. WWISP will not be responsible if any changes in hardware or software causes equipment not provided by WWISP to become obsolete, require modification or alteration, or in any other way affect the total performance of WWISP on an end-to-end basis and protect the WWISP backbone network and those networks attached to WWISP network. In the case of CUSTOMER owned hardware and/or software connected to the WWISP Network, CUSTOMER is responsible for any and all service on the equipment. WWISP at its option may supply technical services in the form of consulting and/or service to WWISP customers at the rate of $90.00 per hour for telephone support and $150 per hour for on-site support their request. WWISP has the right to refuse any such technical services at its sole opinion. ON LEASED TELEPHONE LINES, NO MATTER THE LEASING PARTY, WWISP MUST HAVE FREE AND OPEN ACCESS TO SUCH LINES. This will allow WWISP's operations personnel to test and isolate any type of trouble that CUSTOMER and/or WWISP might experience providing Service.
Software (if applicable)
Customer may be required to use special software to use some of the Services and software may be embedded in some of the CPE used by Customer. Customer is granted a limited, non-exclusive, non-transferable license under the software manufacturer's copyrights to use the software (in executable code form) as specifically configured by the software manufacturer solely in connection with WWISP's Services. All rights not specifically granted to Customer herein are expressly reserved by WWISP and/or the software manufacturer. The installation, operation, maintenance, repair or removal of any software, program, or other hardware ("Service Related Products") related to the Services on Customer's computer(s), network(s) or other hardware may result in service outage, loss or damage to that equipment or any data, information or files on Customer's equipment. Customer agrees to be solely responsible for all data and software back up and to otherwise protect Customer's computer and network data, information and files. Customer assumes all responsibility for impacts, loss or damage to Customer's computer or network hardware, data, information, files, peripherals, mobile devices, or Service Related Products associated with installing, operating or removing any Service Related Products. Any warranty covering Customer's computer, network or other equipment may become void when Customer opens computer or equipment to install any Service Related Products, whether or not Customer elects to install and run any of those Service Related Products. WWISP does not commit or warrant that Customer's installation or use of any Service Related Products will permit Customer to access, operate, or use any Service. Customer will perform regular backups using the Software and will report any errors in executing such backups promptly by fax or e-mail to software manufacturer. Customer will arrange for and maintain communication services used to connect to software manufacturer's site. The security mechanisms implemented by the software manufacturer may have inherent limitations and Customer is solely responsible for determining this mechanism sufficiently meets Customer's security and operational needs. The Customer is responsible for any communication costs associated with the connection between the Customer site and software manufacturer's site. Customer further agrees that it shall not place any data or program on the Server or CPE that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Customer shall defend, indemnify and hold WWISP and the software manufacturer harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (e) use the Software to process data or provide any service bureau activity for any third party; or (f) otherwise use or copy the Software, except as expressly allowed by this provision. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of or on the Software. Any additional terms and conditions that are applicable to the use of such software may be found on the applicable software or CPE manufacturer's website, and Customer agrees to abide by all such terms and conditions.
Taxes and other Fees
In addition to the charges for Customer's Services, Customer is responsible for all federal, state and local sales, use and excise taxes and any new or increased fees, assessments, taxes or other charges for the Services, including any Universal Service Fund charges that may apply. Customer is responsible for long distance, collect call, mobile usage and any other charges that may be billed to Customer after Customer's Service end date. Customer is also responsible for any charges from third parties that arise when Customer uses Customer's phone number as a billing mechanism for third-party services (such as 900 or other information charges). Should Customer request any third-party services, Customer agrees that WWISP may release Customer's name and billing information to that third party so that it can bill Customer directly for those services.
All product and service marks contained on or associated with the Service that are not WWISP marks are the trademarks of their respective owners. References to any names, marks, products or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply WWISP's endorsement, sponsorship or recommendation of the third party, information, product or service.
Shared Tenant Service Provider Agreement
If Customer intends to resell or rebill WWISP Services, Customer hereby certifies that it has all necessary state, federal, legal and regulatory authority to resell or rebill any telecommunication services to its tenants or customers. In no event will WWISP directly bill any tenant or other customer of Customer. If Customer is found to be in violation of any federal, state or local law or regulation for reselling or rebilling telecommunications services, Customer shall indemnify WWISP for any related claims by any third party against WWISP, including attorneys' fees and costs. All such indemnity obligations of Customer shall survive termination or expiration of the Agreement.
Should Customer fail to pay any invoiced item within thirty (30) days of the date of invoice, WWISP reserves the right to cease providing the Service invoiced until such time as the invoice is paid. Such interruption of Service shall not be a breach of the Agreement, and shall not afford Customer any relief outlined in the Agreement or any other document. If, after ten (10) days written notice to Customer, the invoice shall remain unpaid, WWISP, at its election, may declare Customer in default. If Customer defaults, all amounts remaining to be paid under the Term of the Agreement shall immediately become due and payable, including the Discontinuance Charge. The remedies contained in this paragraph are cumulative and in addition to all other rights and remedies available to WWISP under the Agreement, by operation of law or otherwise. In addition, in the event of default, Customer shall pay WWISP for installation and removal of any CPE in the amount of 20% of selling price to customer, per unit (i.e., per CPE router); such amount shall be immediately due and payable. Further, WWISP, at its option, may, upon written notice thereof, take immediate possession of any and all of the items of CPE owned by WWISP, wherever situated, and for such purpose enter upon any premises without liability for so doing and sell, dispose of, hold, use or lease any items of CPE which have not been fully paid for as WWISP in its sole discretion may decide. If WWISP is unable to retrieve any items of CPE, Customer shall be invoiced for the full, then current sales price of such CPE.
Disclaimer of Emergency 9-1-1 services
IF CUSTOMER USES VoIP (VOICE over INTERNET PROTOCOL)-BASED PHONES, CUSTOMER IS ADVISED THAT EMERGENCY 9-1-1 SERVICE MAY NOT FUNCTION OR BE AVAILABLE TO CUSTOMER WITH THE LOSS OF ELECTRICAL POWER OR IF THE BROADBAND CONNECTION IS NOT OPERATIONAL. EMERGENCY 9-1-1 SERVICE WILL NOT BE AVAILABLE AT ANY REMOTE LOCATION IF INTERNAL USERS ARE ALLOWED TO USE THEIR VoIP-BASED PHONES REMOTELY. CUSTOMER'S SIGNATURE ON THE AGREEMENT WILL BE CUSTOMER'S ACKNOWLEDGMENT THAT WWISP HAS ADVISED CUSTOMER OF THESE LIMITATIONS AND THAT CUSTOMER ACCEPTS THE SERVICES WITH THESE LIMITATIONS. WWISP WILL ALSO PROVIDE LABELS TO CUSTOMER THAT ALERT USERS TO THE LIMITATIONS. THE FEDERAL COMMUNICATIONS COMMISSION RECOMMENDS THAT CUSTOMER PLACE THESE LABELS ON OR NEAR THE TELEPHONE AND OTHER EQUIPMENT ASSOCIATED WITH CUSTOMER'S VoIP-BASED PHONES.
Installation and/or set-up fees for Services are required to be paid at the time Services are ordered. THESE CHARGES ARE NON-REFUNDABLE. If service is interrupted for non-payment the CUSTOMER will be responsible for any service reactivation fees from the TELCO and WWISP, in addition to any overdue charges. No circuits will be restored until all charges are paid in full and WWISP may take up to (30) days to restore service after payment. CUSTOMER will pay all sales and use taxes as well as all duties or levies on products and services. CUSTOMERS THAT ARE DELINQUENT IN PAYMENT WILL BE SUBJECT TO MONTHLY PENALTIES AS FOLLOWS: A LATE FEE IN THE AMOUNT OF 10% WILL BE ASSESSED TO EACH ACCOUNT THAT IS DELINQUENT, WITH A MINIMUM LATE FEE CHARGE OF $5.00. DELINQUENT ACCOUNTS ARE ACCOUNTS THAT HAVE OUTSTANDING MONIES OWED TO WWISP FOR 30 DAYS OR LONGER. THE 10% PENALTY WILL BE ASSESSED TO THE DOLLAR AMOUNT THAT IS PAST DUE BY EACH 30 DAY PERIOD.
If Customer believes an invoice contains an incorrect charge, Customer has sixty (60) days from the date of the first invoice that contains the charge to notify WWISP or Customer waives any right to dispute the charge. To notify WWISP, please contact the Billing at 205-942-4700, or in writing to WWISP, Inc., Attn: Billing, 2200 Riverchase Center, Suite 500, Birmingham, AL 35244; or by email with confirmed receipt by WWISP, to firstname.lastname@example.org; or by facsimile transmission, with confirmed receipt by WWISP, to 205-942-4040. WWISP may require Customer to describe the dispute in writing. Any written communications concerning charges must be sent to. If Customer accepts a credit to resolve an issue, Customer agrees the issue is fully resolved.
Customer acknowledges that it has not been induced to enter into the Agreement by any representation or warranty not set forth in the Agreement.