Pursuant to this agreement (Agreement) entered into between WAVELINX, and the customer identified on the reverse hereof (Customer), WAVELINX agrees to provide and Customer agrees to purchase the services and/or equipment (Services and/or Equipment) hereof or in addenda attached hereto (each a Service Description), at the prices and on the terms and conditions stated herein and in such (i) the requested service commencement date (Service Date), the agreed duration of the Customer's purchase (Term), the monthly service charge (Service Charge), installation charges and any other charges, and (4) other pertinent information.
Service Commencement and Term of Service. WAVELINX will use reasonable efforts to make the Services available by the Service Commencement Date subject to delays caused by Force Majeure events. With respect to each Service Description, the Term shall begin on the latter of the Requested Service Date or the day following the date of which WAVELINX notifies the Customer the Service is ready for use. (Service Commencement Date) and shall continue for the applicable Term. At the expiration of the Term, this agreement shall continue in effect with respect to the Service on a month to month basis, until cancelled by either party on thirty (30) days notice; provided, however that the Service Charge during such period shall be the then prevailing monthly rate charged by WAVELINX to new customers. Customer shall be liable for maintaining rights-of-way and facilities required for access to Wavelinx's network to Customers premises, as well as necessary space and other facilities for WAVELINX and Customer equipment.
Payment Customer agrees to pay all costs of installation on the Service Commencement Date, or as billed by WAVELINX. The monthly Service Charge shall be due in advance on the Service Commencement Date and on the first day of each subsequent month of the Term. The first Service Charge shall be prorated from the Service Commencement Date through the end of the calendar month in which the Service Commencement Date occurs. Any amount not received within (30) days of the due date shown on the applicable bill will be subject to a late charge of the lesser of 1-1/2 % per month or the maximum rate allowed by law. Customer agrees to pay any sales, use, gross receipt, excise, access, bypass or other local, state and Federal taxes or charges imposed on or based upon the provision, sale or use of the Services provided. WAVELINX reserves the right to increase the monthly Service Charge at any time during the Term if Customer's use of shared bandwidth exceeds normal business usage.
Force Majeure WAVELINX shall not be liable for any delay or failure of performance or equipment due to causes beyond its control, including, but not limited to, acts of God, fire, flood, explosion or other catastrophes; any law, order, regulation, direction, action or request of any local, state or Federal government claiming jurisdiction over WAVELINX, or of any department, agency, commission, bureau, corporation or other instrumentality of any one or more of these local, state or Federal governments or of any military authority; preemption of existing service in compliance with national emergencies, insurrections, riots, wars, unavailability of rights of ways or materials, or strikes, lockouts or work stoppages.
Default If Customer fails to comply with any provision of this Agreement, including, but not limited to failure to make payment when due, then WAVELINX, at its sole option, may elect to pursue one or more of the following courses of action: (i)terminate this agreement whereupon all sums then due and payable and all future monthly and other charges hereunder shall become due and payable, discounted to present value at six percent (6%); (ii) suspend all or any part of Services, and/or (iii) pursue any other remedies as may be provided at law or in equity.
Limitations of Liability Customer agrees that it's sole and exclusive remedy for any failure of Wavelinx's performance hereunder shall be the credit allowances for interruptions provided herein. In no event shall WAVELINX be liable for any damages, special, consequential, direct, indirect, incidental, actual or punitive, or for any lost profits. WAVELINX makes no warranties or representations, expressed or implied, either in fact or operation by law, statutory or otherwise, as to the description, quality, merchantability, completeness or fitness for any purpose of any Service, or as to any other matter, all of which warranties are hereby excluded and disclaimed. It is expressly agreed that WAVELINX assumes no responsibility for security of Customer's electronic files, databases, communications, or other property of Customer.
Termination Customer, at its sole option, may terminate this Agreement for any reason, provided, however, that all sums then due and payable plus all future monthly charges hereunder shall become immediately due and payable to WAVELINX (discounted to present value at 6%). WAVELINX may terminate this Agreement at its convenience by providing Customer ninety (90) days notice of termination in writing. Either party may terminate this Agreement without liability if WAVELINX is prohibited from furnishing service , or if any material rate or term contained herein is substantially changed by final order of a court administrative agency or other tribunal of competent jurisdiction.
Service Interruptions . Except as specified below, Customer shall receive a credit allowance equal to 1/30 of the monthly service charge for each full day that a service interruption continues beyond 24 hours after the service interruption is reported to WAVELINX. Credit allowances shall not apply to interruptions: (i) Customer and/or its employees, contractors, subcontractors, vendors or agents; (ii) due to failure of power or other equipment provided by Customer or others; (iii) during any period in which WAVELINX is not allowed access to the Service premises; (iv) due to maintenance and repair operations scheduled in advance with Customer; (v) caused by fiber cuts or any other wiring cuts on the premises of Customer; (vi) caused by an outage in Customer's internal network, internal wiring, Private Branch Exchange(PBX) or multiplexers; (vii) caused by an outage in Customers long distance providers network or switching equipment; or ((viii) caused by competing frequencies beyond the control of WAVELINX.
Indemnifications. WAVELINX, its affiliates, and each of their respective owners, directors, employees, officers and agents shall be indemnified, defended and held harmless by Customers against all claims, suits, proceedings, expenses, losses, liabilities or damages (collectively Claims) arising from the use of Services pursuant to this Agreement involving (i) claims for third party, including patrons or customers of Customer, arising out of, resulting from or related to the Customer's resale or attempted resale of the Services; (ii) claims for libel, slander, invasion of privacy, or any infringement of copyright or other intellectual property rights arising from any communication using the Service; ((iii) all other claims arising out of any act or omission of Customer or patrons of Customer, in connection with the Service made available to Customer or the Terms of this Agreement. Customer agrees to defend WAVELINX against any such Claims and to pay, without limitations, all litigation costs, reasonable attorney fees and court costs, and any other damage awarded or resulting from any such Claim.
Equipment If this agreement is terminated for any reason, all WAVELINX equipment issued for use by the Customer for whatever purpose, will remain the property of WAVELINX and be returned immediately.
This agreement may be modified, waived or amended only by written instrument signed by the party against which enforcement thereof is sought, shall be binding on the parties' respective successors and assigns, and constitutes the entire Agreement between WAVELINX and Customer. The failure of either party to give notice of default or to enforce or insist upon compliance with any other terms or conditions of this Agreement shall not constitute a waiver of any term or condition hereof, and the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance shall not constitute a waiver or extension of time with respect to any matter, including future application of the same provision. Neither WAVELINX nor Customer may assign any of the rights, privileges or obligations conveyed under this Agreement without first obtaining the written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that WAVELINX shall have the right, without Customer's consent, to assign this Agreement and/or any of it's rights hereunder to any affiliate of WAVELINX or pursuant to a merger, stock sale or sale or exchange of substantially all the assets of WAVELINX. Customer agrees not to disclose any of the terms or conditions of this Agreement to any third party without WAVELINX's prior written consent.