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I: Service. Sale of Hover Networks services is contingent upon Customer subscribing to sufficient broadband data services from Hover Networks or one of it’s broadband partners throughout the term of this contract. Provision of desired level of service is subject to availability.
II: Activation Date/Term. The Activation Date is the date on which service is available to Customer and Customer can receive inbound calls on it’s own phone numbers. Hover Networks will begin billing Customer for service on the Activation Date. The term of this Agreement shall commence on the Activation Date and end on the last day of the calendar month after the contract term length of this Agreement has passed (“Expiration Date”).
III: Payment. All invoices are due and payable according to the payment terms on the Customer’s invoice or statement, but in no event sooner than one month from the date the invoice is sent to Customer. Hover Networks may, in addition to any other remedies available to it, impose a late fee for nonpayment if the account is over ten (10) calendar days past due. Hover Networks may suspend service to accounts over two months past due provided that there is at least one month notice to Customer of possible suspension. However, such interruption does not relieve Customer of the obligation to pay its monthly charges for the remaining term of this Agreement.
IV: Billing. Hover Networks will bill the Customer monthly for service charges up to and including the next month’s charges. All payments are due on invoice receipt.
V: Installation. Customer represents that it is either the owner of the Customer’s premises (the “Premises”), or, in the event Customer is a tenant or other occupant of the Premises, the Customer represents that the Customer has secured permission of the Customer’s landlord/building owner (“Landlord”) for the installation of all equipment to implement the Agreement, including, but not limited to, customer-premise equipment (“CPE”) connected to the Customer’s computers and telephone systems, LAN and telephone jacks installed in wall of Premises, power connections, and lines wired through interior and/or exterior walls of the Premises (the “Equipment”). The Customer shall secure all licenses, permits, rights-of-way and other arrangements necessary for such installation. Customer shall furnish, without charge, space, electrical power, and environmental conditions reasonably required by Hover Networks for provision of the Services. Customer shall allow Hover Networks continuous access and right-of-way to Customer’s Premises for provision and maintenance of the Equipment.
VI: Upgrades / Downgrades of Service. If, during the Term, Customer elects to change its service features and/or options, such as increasing the number of phones (users) , the new monthly rate will be effective on the day the upgrade is applied to the entire month. If any service change requires a technician dispatch or new equipment installation, additional installation fees and equipment charges may apply. Any downgrades in service features and/or options, such as decreasing the number of phones (users), will be approved at the sole discretion of Hover Networks, and the new monthly rate will be effective on the day the downgrade is applied to the entire month. If customers downgrade reduces monhly billing by more than 10% of the running 3 months average, customer will be asked to sign a new contract and commence a new term with Hover Networks, Inc.
VII: Early Termination Liability. If Customer elects to terminate any Services under this Agreement or Hover Networks elects to terminate this Agreement due to Customer violation of any provision of this Agreement, in each case, prior to the expiration or termination of the Term, Customer agrees to pay to Hover Networks the following within thirty (30) days of the effective date of termination: (i) fifty percent (50%) of all non-recurring and monthly recurring charges (Calculated as Historical Monthly Invoice Average) set forth in each Order Form which would otherwise be due through the end of the Term in effect at the time, including all applicable taxes, and (ii) if Customer received Services at a discounted rate under this Agreement, an amount equal to the difference between the advertised retail price and the discounted rate given to Customer under this Agreement, multiplied by the total number of months in the Term. The parties agree that this early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
VIII: Previous Contracts. Customer agrees that Hover Networks is in no way responsible for the termination of any service contracts or agreements with other communications service providers, or any service termination charges that might result from cancellation of said services. Customer agrees to be either (a) fully released from past service contracts, and/or (b) fully aware of and willing to pay any termination charges imposed by and due to other communication service providers.
IX: Hover Networks’ Network. Customer shall be liable for any damages to Hover Networks’ network facilities if caused by (a) negligent or willful acts or omissions of Customer, or Customer’s agents, employees or suppliers; or (b) malfunction or failure of any equipment or facility provided by Customer or its agents, employees or suppliers.
X: Customer-supplied CPE. In cases where Hover Networks may approve the use of existing customer CPE (e.g. routers, switches) for use with services, Customer takes full responsibility for any service degradation, outages, or loss of business caused by the installation, maintenance, or operation of this equipment. Customer will provide Hover Networks full remote and administrative access to such equipment, to allow Hover Networks to ensure service delivery and proper operation of its services. If Hover Networks deems the equipment insufficient to support services at any time, Customer must replace the equipment when requested by Hover Networks. If Customer refuses to replace the equipment at Hover Networks’s request, Customer understands that it will be in violation of this Agreement and subject to any treatment and fees resulting from early termination.
XI: Equipment Sales. Customer understands that any equipment sold by Hover Networks to Customer may be refurbished, in order to minimize costs to the customer. Such equipment will perform as comparable new equipment and will be sufficient to support Hover Networks’s service quality levels. Customer has the right to request new equipment for any or all service components, at the full (and likely higher) price for such equipment.
XIII: Future Taxation. Customer understands that Hover Networks service is an enhanced data service and is not regulated or tariffed by any governmental body, and as such does not incur any associated taxes that must be passed on to the Customer. Hover Networks does incur governmental taxation from tariffed services it uses to provide service, but these taxes are not imposed on Customers. Customer understands that if future legal, governmental, or other related conditions force the imposition of additional taxation on services during the term of this Agreement, Hover Networks may be required to charge additional taxes and/or service fees to Customer. Hover Networks will make every effort to minimize the impact of any such taxes on Customers, if they arise.
XIV: Force Majeure. Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, labor disputes, terrorist activities, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, third party non-performance, equipment failures, transportation difficulties, or other occurrences which are beyond the delayed party’s reasonable control, provided that the delayed party provides the other party with prompt notice of such delay.
XV: Warranty. Hover Networks exercises no control over and accepts no responsibility for the content of the information passing through Hover Networks host computers, network hubs and points of presence (the “Hover Networks Network”). Hover Networks (a) makes no representations or warranties of any kind, whether express or implied, including, for the purposes of illustration, but not limited to, installation of equipment and/or the services and equipment it is providing, and (b) disclaims any warranty of title, merchantability, non-infringement or fitness for a particular purpose. Use of any information obtained via the Hover Networks’ Network is at Customer’s own risk. Hover Networks specifically denies any responsibility for the accuracy or quality of information obtained through its services.
XV: Acceptable Use. Customer agrees to use Hover Networks services only for purposes for which they are intended. Customer shall only access Hover Networks network resources via Hover Networks-approved methods, hardware, and/or software. Hover Networks reserves the right to amend this Agreement, effective upon Customer notification of the revised Agreement.
XVI: Indemnification. Customer agrees to indemnify and hold harmless Hover Networks from any losses, damages, costs or expenses resulting from any third party claim or allegation (“Claim”) arising out of or relating to use of the service, including, for the purposes of illustration, but not limited to, any Claim which, if true, (a) would constitute a violation of the Acceptable Use Policy as defined herein, (b) relates to the quality, performance, and/or systems integrity of the installation or operation of equipment or facilities (e.g., network interface cards, cabling, radios, switches, routers, or phones) in connection with the provision of service under this Agreement, and/or (c) is based on or arises out of a claim that Customer infringes: (i) any third party patent issued from or third party trade secret recognized by any country belonging to the Patent Cooperation treaty; (ii) any third party copyright issued from any country belonging to the Berne Convention; (iii) any third party trademark, service mark, logo or insignia identical to, or likely to cause confusion with such mark owned by the third party (collectively, “Third Party Rights”). Customer shall pay all damages, costs, fees, and other charges incurred by Hover Networks in any such third party actions, which are attributable to the aforementioned Third Party Rights.
XVII: Limitation of Liability. Either party’s liability, whether in contract, tort, or otherwise, shall be limited to direct damages, which shall not exceed the aggregate applicable non-recurring and recurring monthly charges associated with the service (or, in the case of damage to a customer’s computer, the reasonable cost of replacing or repairing that computer); provided however, Hover Networks shall bear no liability for indirect, incidental, special, punitive or consequential damages in connection with the loss of data under any such circumstances. Neither party shall be liable in contract, tort, or otherwise for any indirect, incidental, special, punitive or consequential damages, including, but not limited to, economic loss, loss of use, lost profits, lost revenue, or lost goodwill, that result from the installation by Hover Networks or its authorized representative or agent of equipment and/or facilities in connection with the provision of service, or from customer’s use of the Hover Networks network and the services including, without limitation, any such damages for loss of data resulting from delays, non-deliveries, misdeliveries, the installation of equipment and/or facilities, or service interruptions, regardless of whether such party was apprised of the possibility of such damages. Hover Networks shall not be liable for any act or omission for any other company or any third-party vendor furnishing any portion of service to Customer, including, but not limited to, the installation or use of any equipment owned by or leased by Customer, the installation or use of any equipment supplied to Customer by Hover Networks or any other supplier of equipment to Customer (under warranty, service agreement or otherwise), or any network service contracted by Customer or Hover Networks. Hover Networks will not be responsible for any penalties incurred from existing contractual agreements Customer may have in place with any other carriers.
XIX: Resale. Connectivity and services are provided to Customer and Customer’s organization only. Resale to or use by persons outside the Customer’s Premises or to persons outside the Customer’s organization, is prohibited. Hover Networks may suspend the service or terminate this Agreement on notice of a violation of this Section.
XX: Assignment. Customer may not assign or transfer any of its rights or obligations under this Agreement without the express, prior written consent of Hover Networks. Hover Networks or its affiliates or subcontractors may perform some or all of the services provided hereunder.
XXI: No Waiver. No failure on the part of either party to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any further exercise thereof.
XXII: Dispute Resolution. If a dispute arises between the parties with respect to this Agreement, such claim or dispute shall be settled by arbitration in Buffalo, New York. The parties shall share costs of arbitration equally, unless the award provides otherwise. Judgment upon the award rendered by the arbitrators may be entered into any court of competent jurisdiction and shall be non-appealable and fully enforceable. The parties agree that, except as required by law, the existence, outcome or contents of any arbitration proceeding shall be kept confidential.
XXIII: Confidentiality. The terms of this Agreement shall be held confidential by each party, as shall each party’s confidential or proprietary information (“Confidential Information”). Performance, discounts, and prices under this Agreement, the quality of Hover Networks Network performance, and any data provided by Hover Networks to Customer regarding performance of Hover Networks Network shall be deemed Hover Networks Confidential Information. Neither party shall disclose the other party’s Confidential Information to third parties without the other party’s written consent, except as permitted pursuant to this Section. Each party shall disseminate the other party’s Confidential Information among its employees, affiliates, or agents only on a need-to-know basis and shall use such Confidential Information only for the purpose of performing its obligations hereunder. To the extent a party is required by applicable law, regulation, government agency or court order, discovery request, subpoena, or investigative demand to disclose the terms of this Agreement or the other party’s Confidential Information, such party shall use its reasonable efforts to minimize such disclosure and to obtain an assurance that the recipient shall accord confidential treatment to such Confidential Information, and shall notify the other party contemporaneously of such disclosure. Either party in its discretion may terminate this Agreement for cause and without penalty upon ten (10) days’ written notice in the event of any breach of this Section. The parties acknowledge that monetary damages may be an inadequate remedy for any breach of this Section and that either party may seek injunctive relief or specific performance as a non-exclusive remedy for such breach. The confidentiality obligations set forth in this Section shall survive the termination or expiration of this Agreement for an additional two (2) years.
XXIV: Privacy. Hover Networks will not sell, distribute, or otherwise make public any of the Customer’s business or service information, without prior written consent from the Customer. Hover Networks reserves the right to use any and all service information without associating it specifically to the Customer, e.g. for statistical purposes.
XXV: Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law provisions, applicable federal laws and any applicable tariffs, rules and regulations.
XXVI: Authorized Signature. THE CUSTOMER SIGNER OF THIS AGREEMENT IS AUTHORIZED TO MAKE TELECOMMUNICATIONS DECISIONS AND COMMIT HIS/HER COMPANY TO A SERVICE AGREEMENT.
This Agreement contains the entire understanding between the parties hereto and supersedes all other Agreements of the parties, whether oral or written. Any modification to this Agreement is not binding unless approved in writing by Hover Networks.