CITY OF HUDSON VELOCITY BROADBAND MASTER SERVICES AGREEMENT
GENERAL TERMS AND CONDITIONS
The City of Hudson, Ohio, (hereinafter “Provider”) and Customer, as named on the attached Service Order, hereby agree to the following terms and conditions for Provider’s services to Customer. Exhibit A, the “City of Hudson Velocity Broadband Service Level Agreement” and Exhibit B, the “City of Hudson Velocity Broadband Acceptable Use Policy” are hereby incorporated into and made part of this Agreement.
1. EFFECTIVE DATE, SERVICES, AND SERVICES TERM. This Master Service Agreement, along with the order for service (“Services Order(s)”), any attachments, the policies and procedures found on The City of Hudson’s website: www.hudson.oh.us and any filed tariffs, price lists or schedules, comprise the entire agreement between the parties (“Agreement”) for each service described in the Service Order (the “Service”). This Agreement supersedes any and all prior discussions, representations, memoranda, or agreements; oral or written, between the parties related hereto. Provider reserves the right, in its sole reasonable discretion, to reject any Service Order prior to Provider’s signature. This Agreement is fully binding and enforceable as of the date the Services Order(s) is/are signed by both parties (“Effective Date”). Provider agrees to provide to Customer (subject to availability and adequacy of underlying service) and Customer agrees to procure from Provider, the Services, at the locations set forth for the number of months set forth (“Services Term”) as detailed on the Services Order(s) incorporated as part of this Agreement. If Customer is a tenant at the premises where services covered by this Agreement are being provided, by signing this Agreement, Customer is certifying to Provider that it has the landlord’s consent for the installation of the equipment and facilities necessary for the services covered by this Agreement to be provided. The Services Term commences upon installation of the Services by Provider (“Installation Date”). Installation of Services occurs at the delivery of operating circuits to the demarcation point at the Customer's premise ("Installation of Service"). Provider will use reasonable efforts to install Services on the date agreed upon by the parties; however, Provider does not guarantee that Services will be installed and provisioned on Customer’s desired due date. Upon the expiration of the Services Term, this Agreement and the Services will continue on a month-to-month until terminated by either party on thirty (30) days’ written notice to the other party.
2. RATES, CHARGES, BILLING AND PAYMENT. Rates and charges are described in the Services Order. Provider will notify Customer when Customer's circuit has been delivered and Installation of Service has occurred. Upon Installation of Service, Customer agrees to convert its services and commit to a specific conversion date. Customer further agrees that billing will commence immediately after Installation of Service regardless of the Customer's actual conversion date. Monthly recurring charges (“MRC”) will be billed in advance each month. Non-recurring charges (“NRC”) will be billed on the first invoice after the Installation Date, or if the NRC are incurred after the Installation Date, or are usage based, such charges will be billed on the next invoice thereafter. Payments are due on the Payment Date set forth on the Provider invoice, provided, however, that no Payment Date is less than Net thirty (30) days. Customer must provide payment in full by Payment Date. If Customer believes it has been billed in error or otherwise disputes a charge, Customer must notify Provider within ninety (90) days of the date of the invoice containing the disputed charge. Customer’s notice must specifically detail the dispute and provide supporting documentation for the amount in dispute. Provider will investigate all disputes and notify Customer of the results of its investigation and, if appropriate, credit Customer’s account or notify Customer of denial of the dispute. Provider may assess a late fee equal to the greater of $10.00 or 1.5% per month(not to exceed the maximum rate allowed under state law) on any undisputed balances not paid when due or any disputed balances later found to be correct. Late fees may be assessed, as of the original Payment Date, against any disputed amount denied by Provider. Provider has the option to suspend Services and/or to pursue any and all other legal remedies until payment is made. Termination of Services may follow. Customer will pay any and all costs incurred in collection of rates and charges due and payable, including reasonable attorney’s fees and all collection agency costs, whether or not a suit is instituted. All payments hereunder will be in U.S. currency. Provider shall not be liable for any third party charges arising from or related to the termination of any previous agreement for services or the failure of Customer to terminate any previous agreement for services.
3. POLICIES AND PROCEDURES. Provider may change its policies and procedures found on Provider’s website at www.hudson.oh.us upon thirty (30) days notice to Customer. Use of Provider services after the thirty (30) day notice period shall be deemed consent to the changed policies and procedures.
4. TAXES, SURCHARGES, FEES AND ASSESSMENTS. Customer is responsible for payment of any and all federal, state and local taxes, surcharges, or fees, as may be imposed from time to time (excluding Provider income taxes). Provider will collect all such taxes, surcharges, and fees unless Customer provides Provider with proof of exemption. Customer will indemnify Provider for any and all costs, claims, taxes, charges, and surcharges levied against Provider relative to such exempt status. Surcharges and assessments, which are not required by regulatory agencies, but which Provider is permitted to charge to recover expenses, may be applied. All such charges will be set forth on a detailed invoice.
5. COMPLIANCE WITH LAW. This Agreement is subject to all applicable federal, state, and local laws, regulations, rulings, orders and other actions of governmental agencies (“Rules”), and the obtaining and continuance of any required approvals, authorizations, or tariffs or price lists filed with the FCC or any other governmental agency. Provider will use good faith reasonable efforts to obtain, retain, and maintain such approvals and authorizations. If any such Rule adversely affects the Services or requires Provider to provide Services other than in accordance with the terms of this Agreement, either party may, without liability to the other party, terminate the affected Services upon thirty (30) days prior written notice to the other party.
6. RIGHT OF WAY. At its sole cost and expense, Provider shall be responsible for all public rights of way, public licenses and public easements. At its sole cost and expense, Customer shall be responsible for securing all private rights of way, private licenses and private easements (such as building entries and interior pathways).
7. SERVICES, MAINTENANCE AND UPGRADE OF FACILITIES. Services will meet industry standards. Provider will maintain its facilities and equipment used to provide the Services as set forth in its policies and procedures, at no additional charge to Customer, except where work or service calls result from failure or malfunction in, or improper operation of, Customer’s facilities and/or equipment. In such event, Customer will reimburse Provider for the cost of the required maintenance at Provider’s standard time and material rate plus any taxes imposed upon Provider related to such maintenance, and Customer shall be responsible for the cost of repair or replacement of Provider equipment that is damaged by Customer’s actions or equipment. Provider reserves the right to suspend Service for scheduled maintenance or planned enhancements or upgrades upon twenty-four (24) hours’ notice to Customer or to suspend Service for emergency repairs to Provider’s network without notice to Customer. Provider equipment will remain the sole and exclusive property of Provider or Provider’s assignee. Customer will not tamper with, remove or conceal any Provider identifying plates, tags or labels. Customer will indemnify, hold harmless and defend Provider against any liens placed on Provider equipment due to Customer’s action or inaction. Any lien will be discharged by Customer within ten (10) days of notice of filing. Failure to discharge any such lien is a material breach of this Agreement, and may result in immediate termination. Customer will provide equipment compatible with the Services and Provider’s network and facilities. Customer will bear the costs of any additional apparatus reasonably required to be installed because of the use of Provider’s network or facilities. Provider reserves the right to substitute, change or rearrange any equipment used in delivering Services that does not affect the quality, cost or type of Services. Provider will manage its network in Provider’s sole discretion. Customer will provide all reasonable information, authorizations, and access required by Provider for the purpose of installing Services, performing routine network grooming, maintenance, upgrades, and addressing emergencies.
8. SERVICE INTERRUPTION CREDITS. Credits are available only for business grade customers receiving dedicated bandwidth 50/50 Mbps or higher, subject to the limitation of liability set forth in Section 9 and 10, and shall only be given for disruption of Services in accordance with the City of Hudson Service Level Agreement attached as Exhibit A to this Agreement. No credit shall be owed for any disruption resulting from a Force Majeure event.
9. DISCLAIMER/LIMITED WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND CUSTOMER MAY NOT RELY ON ANY STATEMENT TO THE CONTRARY BY ANY PERSON. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. LIMITED LIABILITY. PROVIDER’S LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS PAID BY CUSTOMER TO PROVIDER DURING THE MONTH OF THE OCCURRENCE OF ANY CLAIM. IN NO EVENT WILL PROVIDER BE LIABLE TO THE CUSTOMER FOR LOSS OF USE, INCOME OR PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS OR HARM TO BUSINESS OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES, REGARDLESS OF THE FORESEEABILITY THEREOF. THIS DOES NOT LIMIT CUSTOMER’S RESPONSIBILITY FOR PAYMENT OF ALL APPROPRIATE CHARGES UNDER THE CONTRACT DOCUMENTS. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE CONTRACT DOCUMENTS.
Provider also shall not be liable for any damages arising out of or relating to: interoperability, interaction, access or interconnection problems with applications, equipment, services, content or networks that arise at or beyond Customer’s demarcation point where such equipment, services, content or networks are not provided by Provider; Service interruptions or lost or altered messages or transmissions (except to the extent service interruption credits are specified in the City of Hudson Service Level Agreement); or unauthorized access to or theft, alteration, loss or destruction of Customer’s, Users’ or third parties’ applications, content, data, programs, information, network or systems.
11. CUSTOMER WARRANTIES. (a) The Customer represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms; (b) Customer represents and warrants that neither its equipment nor facilities will pose a hazard to Provider’s equipment or facilities or create a hazard to Provider’s personnel or customers or the public in general; (c) Customer represents and warrants that its use of the Services will comply and conform with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities; (d) Customer represents and warrants that it will not resell all or a portion of the Service(s) provided by Provider under this Agreement. Customer will indemnify and hold Provider harmless from any and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) related to Customer’s violation of this Section.
12. CONFIDENTIAL INFORMATION. The parties may have access to certain information, the ownership and confidential status of which is highly important to the other party and is treated or designated by one of the parties as confidential (herein referred to as “Confidential Information”). Neither party will disclose the other party’s Confidential Information, directly or indirectly under any circumstances, to any third person without the express written consent of the other party, and neither party will copy, transmit, reproduce, summarize, quote, or make commercial or other use whatsoever of the other party’s Confidential Information, except as may be necessary to perform its duties hereunder or as required by the Rules. Each party will exercise the highest degree of care in safeguarding the other party’s Confidential Information against loss, theft, or other inadvertent disclosure and take all steps necessary to maintain such confidentiality.
13. CPNI. Under federal law, Customer has the right, and Provider has a duty, to protect the confidentiality of information about the amount, type, and destination of Customer’s service usage (“CPNI”). Customer hereby consents to the sharing of Customer’s CPNI or other personal information with Provider and its affiliates, agents and contractors, solely for the purpose of developing or bringing to the Customer’s attention any products or services, or in the event of any merger, sale of some or all of the company assets or acquisition as well as in any insolvency, bankruptcy or receivership proceeding in which CPNI or other personal information would be transferred as one of the business assets of the company. This consent survives the termination of Customer’s service and it valid until revoked by Customer. To remove this consent any time, Customer must notify Provider in writing at City of Hudson, 115 Executive Parkway, Suite 400, Hudson, Ohio 44236 and provide the following information: (1) Customer name, (2) Service billing address, (3) Telephone number including area code, and (4) Service account number. Removing consent will not affect the Customer’s current service.
14. INDEMNIFICATION. Customer will indemnify, hold harmless, and defend Provider, its officers, directors, parent and/or affiliated companies, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever (including reasonable attorney’s fees) arising out of or in connection with Customer’s use of the Services and/or Customer’s end-users or third parties use of the Services, resale, or sharing of the Services. Customer’s indemnification obligations do not apply to claims for damages to real or tangible personal property or for bodily injury or death, which is solely caused by Provider due to Provider’s gross negligence or willful misconduct.
15. DEFAULT/TERMINATION. Customer’s use of the Services provided herein and any equipment associated therewith will not: (a) interfere with or impair service over Provider’s network; (b) impair privacy of any communications over such network; (c) cause damage of any nature to Provider’s assets or customers; (d) be used to frighten, abuse, torment or harass, or create hazards to Provider or its network; (e) violate any provision of the City of Hudson Velocity Broadband Acceptable Use Policy. Provider may immediately suspend or terminate, without liability, the Services for any violation of these provisions. Except as set forth above, if either party violates any provision of this Agreement the non-defaulting party may send the defaulting party written notice detailing the default. The defaulting party will have: (a) ten (10) days from the date of the written notice to cure a payment default, or (b) thirty (30) days from the date of the written notice to cure a non-payment default. If the defaulting party fails to cure, the non-defaulting party may terminate this Agreement and any Services hereunder upon notice or pursue any and all other legal remedies. If Customer terminates this Agreement or all or any part of the Services at any time after the Effective Date, or if Provider terminates this Agreement as a result of Customer’s breach, Provider may charge Customer an early termination fee equal to and including any or all of the following: 100% of the total MRC, surcharges and taxes for the Services Term then remaining, plus any unpaid activation, installation and/or special construction charges, and all other fees or costs, whether previously waived or not, less amounts already paid. Customer acknowledges that Provider’s damages for early termination would be difficult to determine and the termination charge(s) constitutes liquidated damages and are not intended as a penalty but as a mutually-agreed upon amount representing, but not limited to, lost revenue, proportionate or actual third party costs and capital expenditures, and internal costs. All such amounts will become immediately due and payable by Customer to Provider. Customer will not be liable for the early termination fees set forth above if Provider breaches the Agreement or if Customer orders from Provider, at the time of Service termination, services of equal or greater MRC than the Services terminated and the new services are approved by Provider. Separate recovery for the same damages is not permitted under this Agreement by either party.
16. FORCE MAJEURE. Except with respect to Customer’s payment obligations, notwithstanding any other provision of this Agreement, neither party shall be liable to the other party for any delay or failure in performance of the Agreement to the extent such delay or failure in performance is caused by any Act of God, fire, casualty, delay or disruption in transportation, flood, war, explosion, accident, strike, lockout, epidemic, destruction or shut-down of facilities, shortage or curtailment, riot, insurrection, embargo, governmental acts or directives, civil or military authority, any full or partial failure of any third party communications or computer network or any other cause beyond such party’s reasonable control. Any such delay or failure shall suspend the agreement until the Force Majeure ceases; provided, however, if such suspension continues for more than thirty (30) days, Customer may immediately terminate the Agreement upon delivery of written notice to Provider.
17. GENERAL. Except as otherwise permitted herein, any amendment must be in writing and signed by the parties hereto. Electronic or Facsimile copies of this Agreement and any amendments or modification hereto, including electronic or facsimile signatures, will be accepted by the parties as originals. The failure of either party to insist upon the performance of any provision or to exercise any right granted hereunder, will not be construed as a waiver of such provision(s), and the same will continue in full force. If any provision hereof is held to be invalid, void, or unenforceable, the remainder of the provisions will nevertheless remain unimpaired and in effect. All notices to Customer under this Agreement will be in writing and will be made by one or more of the following methods: regular mail, overnight delivery, certified mail, electronic mail, on Customer's invoice, or by facsimile transmission with receipt verification. Notices will be sent to the address of record, and in the event of multiple addresses, to the address of the parent account. In the case of a notice to Provider, all notices under this Agreement will be in writing and will be made by personal delivery, overnight delivery, or certified mail to 115 Executive Parkway, Suite 400, Hudson, Ohio 44236 The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered a condonement of any continuing or subsequent breach of the same provision. Customer may not assign its obligations hereunder without the prior written consent of Provider, which will not be unreasonably withheld. This Agreement will be governed by and interpreted in accordance with the laws for the State of Ohio. Nothing in this Agreement is intended to, or shall be construed, as creating a partnership or any third-party beneficiaries. The provisions of Sections 2, 4, 5, 9, 10, 11, 12, 14, 15, 16 and 17 shall survive termination. Provider reserves the right to revise the terms and provisions of all of its policies and procedures as it deems appropriate and this Agreement is subject to all revisions.
CITY OF HUDSON VELOCITY BROADBAND SERVICE LEVEL AGREEMENT
(applicable ONLY to Dedicated Bandwidth Customers receiving 50/50 Mbps or higher)
1. Network Availability. Provider’s network is defined as all communications equipment, circuits and connections owned and/or operated by Provider for the transmission of customer data. Provider is responsible for maintaining an availability of 99.5% for single path circuit (unprotected) and 99.9% for diverse path circuits (protected) for all components of service that are owned or operated by Provider. This does not include local loop that may be provisioned over another carriers network to reach customer, nor does it include Internet networks that are not owned or operated by Provider such as upstream or peering networks, nor does it include end-user networks of Customer’s downstream customers. Network Availability Objective is defined by the following formula:
Network Availability % = (Total Time – Outage Time) x 100 / Total Time
2. Network Unavailability. An event of “Network Unavailability” occurs when a particular Customer circuit is unable to transmit and receive data on the Provider network for more than five (5) consecutive minutes after Provider records such failure to transmit and receive data in its network management system. Network Unavailability is measured as minutes of outage time per calendar month. The initial five (5) consecutive minutes of any such event is not considered as part of Network Unavailability time. Network Unavailability is measured from the time the trouble ticket is opened, following five (5) consecutive minutes of Customer’s inability to send and receive data, to the time the Customer’s service has been confirmed by Provider to be able to transmit and receive data. Provider shall open a trouble ticket in response to (a) any faults reported by Provider’s Network Management System or (b) upon Customer’s notification of a fault.
3. Packet Delivery. Packet delivery is measured on an ongoing basis every five (5) minutes to adequately determine a consistent average monthly performance level for packets actually delivered between the relevant points of presence (“POPs”). Provider’s packet loss objective on its network, in accordance with the terms of this SLA (hereinafter referred to as “Packet Loss Objective”) is defined in Table 1.
|Network Availability Objective||
99.5% for single path circuit (unprotected)
99.9% for diverse patch circuit (protected)
|Packet Loss Objective||
No greater than 0.5% for single path circuit (unprotected)
No greater than 0.1% for diverse path circuit (protected)
4. Mean Time to Repair Objective. Provider is responsible for maintaining all equipment and cable on the provider network up to the customer demarcation point which is defined as the point of interconnection between the Provider’s customer premise equipment and the Customer. On receipt of a trouble alarm or notification, Provider will initiate action within 60 minutes in response to trouble alarm and commit to a (4) four-hour service restoration if the loss of service is due to an equipment failure. In the event of a cable failure, including fiber-optic cable cut, path or intra-facility cable break or related cable issue, Provider will commit to an (8) eight-hour service restoration for Customer.
5. Credit Requests. Customer’s remedy for loss of connectivity is reestablishment of service and credit for the period of lost connectivity. Subject to verification of trouble ticket and elapsed time of lost connectivity, Provider will credit the customer according to the schedule below. Requests for credits must be in writing and received by Provider no later than seven days from the disruption in service as outlined in the guarantees above. Customers requesting credits must have opened a trouble ticket with the City’s Network Operations Center at the time of the incident. Please allow one week for credit requests to be adequately researched by Provider prior to posting to a customers’ account. Total credits under this SLA are limited to the monthly service charge for the month in which the service does not meet the commitment.
|Loss of Connectivity Increment||Credit on Monthly Recurring Service Charges|
|Exceeding 4 hours||10%|
|Up to 8 hours||20%|
|Each subsequent 4 hour increment||Additional 5% credit, the sum total not to exceed 100% of MRC|
6. Exceptions to Meeting Defined Objectives Due to Excluded Events. The following events shall not be considered as events of Network Unavailability, failure to meet the Packet Loss Objective or failure to meet the Latency Objective (“Excluded Events”):
- a. planned, scheduled or emergency maintenance activities;
- b. problems caused by environmental conditions at the Customer or End User site (such as power supply, climate and housing), Customer’s failure to follow Provider’s procedures, or Customer’s unauthorized changes to Provider’s connectors or equipment;
- c. interruptions arising from the acts or omissions of the Customer or arising from noncompliance with the provisions of this Agreement, including without limitation this City of Hudson Velocity Broadband Master Services Agreement, City of Hudson Velocity Broadband Service Level Agreement and City of Hudson Velocity Broadband Acceptable Use Policy by Customer or any authorized user, or any interruptions due to any party other than the City, or for events happening on Customer’s network, or the network’s or equipment of other third parties accessed on the internet through the service of the City or the City’s facilities.
- d. the failure or malfunction of equipment, applications or systems not owned or controlled by Provider;
- e. any violation of Provider’s City of Hudson Velocity Broadband Acceptable Use Policy resulting in suspension or termination of Services, including, but not limited to, abuse or fraud caused by Customer or End Users;
- f. a force majeure event as described in the City of Hudson Velocity Broadband Master Services Agreement;
- g. if fault repair time is prolonged due to Customer or an End User’s action or inaction;
- h. Customer requested upgrades, rearrangements and/or additions to the Services;
- i. Customer acknowledges that Provider shall supply the Services that are the subject of this Agreement on a commercially reasonable efforts basis and that service failures and interruptions may occur and are difficult to assess as to cause or resulting damages. Customer further acknowledges and understands that the Services do not function in the event of power failure; power or service disruptions or failures may also prevent dialing to emergency service numbers.
CITY OF HUDSON VELOCITY BROADBAND ACCEPTABLE USE POLICY (“AUP”)
IN ORDER TO PROVIDE HIGH QUALITY SERVICE AND TO ENSURE THE INTEGRITY OF PROVIDER’S NETWORK (“SERVICE”), PROVIDER HAS ADOPTED THIS ACCEPTABLE USE POLICY. THE WORD CUSTOMER IS USED HEREIN TO REFER TO ANY PERSON, ENTITY OR BUSINESS ORGANIZATION THAT SUBSCRIBES TO THE SERVICE. BY USING THE SERVICE, CUSTOMER AGREES TO THE TERMS OF THIS ACCEPTABLE USE POLICY. PROVIDER RESERVES THE RIGHT TO IMMEDIATELY TERMINATE THE CUSTOMER’S SERVICE WITHOUT NOTICE, AT PROVIDER’S SOLE DISCRETION, IF CUSTOMER OR OTHERS WHO USE CUSTOMER’S SERVICE, VIOLATE THIS ACCEPTABLE USE POLICY. PROVIDER ALSO RESERVES THE RIGHT TO IMMEDIATELY REMOVE ANY MATERIAL OR INFORMATION THAT VIOLATES THIS POLICY FOR ANY REASON WHATSOEVER AT PROVIDER’ SOLE DISCRETION WITHOUT PRIOR NOTICE.
1. USE. The service provided to the Customer is being provided solely for wholesale use and any unauthorized access by a third party, or any other function of the Service is in violation of this Policy and relieves Provider of any affirmative obligations it may have under the City of Hudson Velocity Broadband Master Services Agreement. Customer will not resell or redistribute, nor allow others to resell or redistribute, access to the Service in any manner, except as expressly provided in any contract for service. The limitation on resale or redistribution of access includes, but is not limited to, providing access to other organizations across the Provider transport service beyond those services listed in the Services Order. Any violation of these policies may lead to termination of Customer’s Service.
2. END USERS. Customer is responsible for ensuring that all end users of the Service comply with this AUP. Provider may disconnect Service if an end user violates this AUP. The Customer must make contact information publicly available, and must respond in a timely manner to any complaints. Provider shall consider any complaints regarding the Customer’s end users to apply to the Customer. The Customer is responsible for any misuse of the Service, whether by authorized or unauthorized end users. Therefore, the Customer must take steps to ensure that others do not gain unauthorized access to the Service. Customer is solely responsible for the security of (i) any device Customer chooses to connect to the Service, including any data stored or shared on that device and (ii) any access point to the Service.
3. NO ILLEGAL OR FRAUDULENT USE. Customer will not use, nor allow others to use, the Service to violate any applicable federal, state, local or international laws (including, but not limited to, the Children’s Online Privacy Protection Act). Customer will not use, nor allow others to use, the Service to commit a crime, act of terrorism, or fraud, or to plan, encourage or help others to commit a crime or fraud, including but not limited to, acts of terrorism, engaging in a pyramid or ponzi scheme, or sending chain letters.
4. NO COPYRIGHT OR TRADEMARK INFRINGEMENT. Customer will not use, nor allow others to use, the Service to send or receive any information which infringes the patents, trademarks, copyrights, trade secrets or proprietary rights of any other person, entity or business organization. This includes, but is not limited to, digitization of music, movies, photographs or other copyrighted materials or software. If Provider receives a notice from a copyright owner alleging a Customer has committed copyright infringement, Provider will notify the Customer of the alleged infringement. If Provider receives more than one notice alleging copyright infringement on the Customer’s part, Customer may be deemed a “repeat copyright infringer.” Provider reserves the right to terminate the accounts and access to the Service of repeat copyright infringers.
5. NO THREATS OR HARASSMENT. Customer will not use, nor allow others to use, the Service to transmit any material that threatens or encourages bodily harm or destruction of property or which harasses, abuses, defames or invades the privacy of any other person or entity.
6. NO HARM TO MINORS. Customer will not use, nor allow others to use, the Service to harm or attempt to harm a minor, including but not limited to using the Service to send pornographic, obscene or profane materials.
7. NO “SPAMMING". Customer will not use, nor allow others to use, the Service to send unsolicited messages or materials, bulk e-mail, or other forms of solicitation (“spamming”). Provider reserves the right, in Provider’s sole discretion, to determine whether such posting or transmission constitutes unsolicited messages or materials. This prohibition against spamming is applicable to mass mailings by Customers in conjunction with third parties and is designed to maintain Service quality for all Customers. Mass mailings are those sent to more than 150 recipients by Customer or in conjunction with a third party to any group of recipients.
8. NO “HACKING". Customer will not use, nor allow others to use, the Service to access the accounts of others or to attempt to penetrate security measures of the Service or other computer systems (“hacking”) or to cause a disruption of the Service to other on-line users. Customer will not use, nor allow others to use, tools designed for compromising network security, such as password-guessing programs, cracking tools, packet sniffers or network probing tools.
9. NO SYSTEM DISRUPTION. Customer will not use, nor allow others to use, the Service to disrupt Provider network or computer equipment owned by other Provider customers. Any static IP address must be authorized and provisioned by Provider.
10. NO IMPERSONATION OR FORGERY. Customer will not impersonate, nor allow others to impersonate, another user, falsify one's user name, company name, age or identity in e-mail or in any post or transmission to any newsgroup or mailing list or other similar groups or lists. Customer will not, nor allow others to, forge any message header of any electronic transmission, originating or passing through the Service.
11. NO EXCESSIVE USE OF BANDWIDTH. If Provider determines, in Provider’s sole discretion, that Customer is using an excessive amount of bandwidth over the Provider network infrastructure for transport or other functions using Provider’s network resources, Provider may at any time and without notice, suspend excessive bandwidth capability or suspend Customer’s access to the Service.
13. NO “VIRUSES”. Customer will not use, nor allow others to use, the Service to transmit computer “viruses,” worms, “Trojan horses” or other harmful software programs. Customer will use standard practices to prevent the transmission of such viruses or other harmful software.
14. INDEMNITY, NO LIABILITY. Provider takes no responsibility and assumes no liability for any content uploaded, transmitted, or downloaded by Customer or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity that Customer may encounter. Provider is only the provider of the facilities and/or services, and shall not be liable for any statements, representations, or content provided by or encountered by our users in any online source.
Customer agrees to indemnify, defend and hold harmless, Provider, its officers, directors, employees, agents, licensors, and suppliers from and against all losses, expenses, damages, and costs, including reasonable attorney’s fees, resulting from Customer’s violation of this AUP.
15. NO WAIVER. The failure by Provider or its affiliates to enforce any provision of this AUP shall not be construed as a waiver of any right to do so at any time.
16. REVISIONS TO POLICY. Provider reserves the right to update or modify this Policy at any time and from time to time with or without prior notice. Continued use of the Service will be deemed acknowledgment and acceptance of the policy. Notice of modifications to this Policy may be given by posting such changes to Provider’s website by electronic mail or by conventional mail.
Technology changes rapidly, and any activity not specifically prohibited herein but determined by Provider, in its sole discretion, to be harmful to other customers or the general operations of the system or network may be halted by Provider. Provided, however, that in no event shall Provider be liable for failing to halt any activity, whether or not specifically proscribed hereunder.