1.1 Initiation and Service. Hover Networks will begin installation, initiation and Service only after it receives and accepts the following: (1) a duly executed Proposal; (2) Customer’s subscription to sufficient broadband data services from Hover Networks or one of its broadband partners for the Term of this Agreement and (3) any amounts payable in advance in accordance with the Proposal or the applicable Order Form. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, or oral, written or public comments made by Hover Networks with respect to future functionality or features. The provision of Services under this Agreement is subject to availability. Hover Networks or its affiliates or subcontractors may perform some or all of the Services provided hereunder.
1.2 Installation. Customer represents that it is either the owner of Customer’s premises (“Premises”) or, in the event that Customer is a tenant or other occupant of the Premises, the Customer represents that the Customer has secured the permission of Customer’s landlord or building owner (“Landlord”) for installation of all equipment to implement this 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. Customer shall secure all licenses, permits, rights-of-way and other arrangements necessary to such installation. Customer shall furnish, without charge, space, electrical power and environmental conditions reasonably required by Hover Networks for provision of the Services. The Customer shall allow Hover Networks continuous access and right-of-way to the Premises for provision and maintenance of the Services and Equipment.
1.3 Service Fees. Customer agrees to pay all monthly service charges, installation charges, set-up charges, usage-based charges, rental fees and other charges and fees (collectively, “Service Fees”) agreed to in the Proposal and each Order Form in the manner indicated therein.
1.4 Invoicing. Hover Networks will invoice Customer the Service Fees following the Service Activation Date unless otherwise indicated in the Proposal or the Order Form. The “Service Activation Date” means the date on which Hover Networks determines that Customer is able to originate and terminate communications services on the Hover Networks’ network. Services shall be deemed accepted by Customer on the Service Activation Date. Hover Networks will notify Customer in accordance with the information provided by Customer or in the Website customer portal. Customer will be invoiced monthly in advance for non-usage-based charges and in arrears for all usage-based charges.
1.5 Payment. Unless otherwise stated in the Proposal or the Order Form, Service Fees are due thirty (30) days from the date of the invoice. All Service Fees are quoted in United States currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
1.6 Suspension of Service. If any Customer account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), Hover Networks reserves the right to suspend or disable the Services, without liability to Hover Networks, until such account is paid in full and Customer understands and agrees that it will be in violation of this Agreement and subject to any treatment and fees resulting from early termination as a result of its non-payment.
1.7 Taxes and Regulatory Fees. Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, other than Hover Networks’ income taxes, with respect to the Services ordered. In addition to any taxes imposed by governments or regulatory agencies, Hover Networks reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Fees”). Any imposition, modification or increases in Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon prior notice to Customer.
2. Other Networks; Approval and Usage. Service may include the ability to transmit data through third party networks, public and private. Customer acknowledges that use of or presence of third party networks may require approval of the owners or operators of such third party networks and will be subject to any acceptable usage policies such third party networks may establish. Hover Networks will not be liable for any failure to obtain such approval or any violation by Customer of such policies. Customer understands that Hover Networks does not own or control third party networks, and agrees that Hover Networks shall not be responsible or liable for the performance or non-performance of third party networks or within interconnection points between the Service and third party networks.
3. Term of the Agreement. This Agreement commences on the day that Hover Networks Service is live and active and continues until all Services expire or this Agreement is terminated as provided herein.
3.1. Term of Services. The Service is offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Service Activation Date of the first location (the “First Location”). Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term, or any other term mutually agreed by the parties in the Order Form (each, a “Renewal Term”) unless and until either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services (the Initial Service Term and any Renewal Term collectively referred to as the “Term”). If at any time during the Term, Customer moves or orders Services for additional geographic locations (“Locations”), Customer shall promptly notify Hover Networks and Hover Networks will issue a new Order Form detailing the Service Fees for such Locations. Additional installation and move fees may apply. Unless specifically agreed to in the Order Form, Service Fees for new Locations shall be the Hover Networks prevailing rates at the time. The Service Term for any such additional Locations shall be coterminous with the Initial Service Term of the First Location or any Renewal Term in effect at the time.
3.2. Upgrades/Downgrades in 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.
3.3. Early Termination. 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) 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 ($39.99) 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.
3.4. Previous Contracts. Customer agrees that Hover Networks is in no way liable or responsible for the termination of any service contracts, equipment rental agreements or other agreements with other communications service providers or third parties, or any service or other termination charges that may result from cancellation of said agreements or services. Customer agrees to be either obtain a full release from such agreements and/or is fully aware of and willing to pay any termination charges imposed by and due to other third parties. In no event shall Hover Networks be liable for any penalties incurred or suffered by Customer from the contractual agreements Customer may have in place with any other communications service providers or third parties.
4. Rules of Use. Customer must at all times comply with the Hover Networks Acceptable Use Policy found at www.hovernetworks.com/acceptable-use-policy. If Hover Networks becomes aware of Customer’s violation of the Acceptable Use Policy or illegal use of Hover Networks Services, facilities, network or third party networks accessed through Hover Networks network or Hover Networks otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Hover Networks or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Acceptable Use Policy or illegal use, Hover Networks may immediately suspend the Service without further liability to Hover Networks. Further, upon notice to Customer, Hover Networks may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of the Service that could result in any harm or damage to the Hover Networks network, any third party network(s), Hover Networks’ premises, any equipment of Hover Networks or any other Hover Networks’ customer. Hover Networks may update its Acceptable Use Policy from time to time.
5. Service Levels. Hover Networks’ VoIP Services will be available to Customer at least 99.99% of the time in a calendar month (“Network Availability”). Network unavailability occurs during a Service Outage on Hover’s Switch where customer is unable to make and receive phone calls. Upon Customer’s request, Hover Networks, Inc. shall issue credits for each Service Outage, calculated by multiplying the percentage specified in the table below by the MRC for the non-performing Service.
Duration of Service / Outage Percentage Credit
Less than 15 minutes (99.99% availability) / No Credit
15 minutes up to 4 hours / 15% of the MRC
4 hours up to 8 hours / 20% of the MRC
8 hours up to 12 hours / 25% of the MRC
12 hours up to 16 hours / 30% of the MRC
16 hours up to 24 hours / 45% of the MRC
24 hours or greater / 60% of the MRC
5.1. SLA and TTR for Access Providers. Any access SLA or TTR is specific to the Access Provider to include Hover Networks provided T-1 which is resold from EarthLink.
6. E911 Service. Hover Networks E911 Service is a mandatory component of all Hover Networks Services. Hover Networks E911 Service enables Customer to communicate with emergency services by dialing 911. By signing an Order Form, Customer acknowledges and agrees however that Hover Networks 911 Service is different in important ways from traditional landline 911 and cellular/wireless 911. Hover Networks E911 services may not be sufficient to meet the needs of Customer. Customer acknowledges that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs and to make any arrangements necessary to access such services. Customer therefore acknowledges and agrees that the Service does not support traditional 911 or E911 access to emergency services. Customer shall inform all employees, staff, users, and other third persons who may be present at Customer’s physical location(s) where Customer uses the Service of the non-availability of traditional 911 or E911 dialing and access from the Service and Equipment. Customer understands and acknowledges that the 911 Service may not work if: (i) there is a power outage; (ii) Customer’s broadband connection is disrupted or congested for any reason or if Services are terminated or suspended for any reason; (ii) until Customer initiates billing service with Hover Networks or if Customer moves its service address without modifying it in the Hover Networks portal; (iii) Customer moves its phones to a new location without alerting Hover Networks; (iv) Customer uses the Service as remote use without modifying the user personal address setting in the Hover Networks portal; (v) the telephone number programmed on the IP phone is from a different geographic rate center than where the IP phone is physically located; (vi) Customer incorrectly filled out its address verification form; (vii) Customer uses a pc-based IP phone; or (viii) the telephone number programmed on the IP phone begins with a toll free prefix (822, 833, 844, 855, 866, 877, 880, 881, 882, 888). Customer expressly assumes the risks associated with the E911 limitations. Customer agrees and acknowledges that Hover Networks has entered into this Agreement with Customer and is providing the Service in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, and that the same form an essential basis of the agreement between the parties.
7. Equipment. If so indicated on any Order Form, Customer shall purchase or rent equipment, including but not limited to, phones, switches and routers, from Hover Networks. Such purchased or rented equipment shall be listed on the Proposal or Order Form and/or on any other form signed by Customer (such purchased or rented equipment, the “Equipment”). Customer understands that any Equipment provided by Hover Networks to Customer may be refurbished in order to minimize costs to Customer. Such Equipment will perform as comparable new equipment and will be sufficient to support Hover Network’s service quality levels. Customer has the right to request new Equipment for any or all service components at the full price for such Equipment.
7.1 Purchase of Equipment. The purchase price for any purchased Equipment shall be as provided for under the relevant Order Form(s). Customer shall be solely responsible for the use, care and replacement of any purchased Equipment.
7.2 Rental of Equipment. The monthly rental charges for the rental of any Equipment (All Inclusive Offers) shall be as provided for under the relevant Order Form(s). Customer acknowledges and agrees that all rented Equipment shall at all times be the sole property of Hover Networks. Customer agrees to use the rented Equipment solely in connection with the Service and otherwise solely in the manner for which the rented Equipment is intended to be used. Customer agrees to use the rented Equipment solely at the address of Customer set forth of the Order Form(s) and not to remove any rented Equipment from such address. Upon any expiration or termination of the Agreement, (i) all rented Equipment shall be returned to Hover Networks in good working order (ordinary wear and tear excepted), and Customer shall permit Hover Networks to enter upon the premises of Customer to remove the rented Equipment; or (ii) Customer may purchase the rented Equipment from Hover Networks at the rates listed in the Proposal. Customer shall be liable for damaged, destroyed or lost Equipment up to the full replacement cost for that Equipment plus any applicable taxes. Hover Networks may withhold from any Customer deposit an amount equal to the aggregate replacement cost of the Equipment. Failure to return rented Equipment within ten (10) business days of termination of this Agreement will result in the Customer being charged a late return fee of up to the full replacement cost of such Equipment. All amounts payable under this Section 7.3 shall be paid within thirty (30) days of the effective date of the expiration or termination of this Agreement, and any amounts that are more than thirty (30) days late will accrue interest at a rate of one and one-half percent (1-½%) per month, or the highest rate allowed by applicable law, whichever is lower. Nothing in the Agreement shall modify, amend or limit in any respect any of Hover Networks’ rights under any guaranty of any of Customer’s obligations under this Agreement.
7.3. Customer-Supplied Equipment. In cases where Hover Networks may approve the use of existing CPE (e.g., routers, switches, etc.) for use with the Services, Customer takes full responsibility for any service degradation, outages or loss of business caused by the installation, maintenance or operation of such 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 such equipment insufficient to support the Services at any time, Customer agrees to replace such equipment promptly upon request. If Customer refuses to replace such equipment upon Hover Networks’ request, Customer understands and agrees that it will be in violation of this Agreement and subject to any treatment and fees resulting from early termination.
8. Confidentiality. As used herein, “Confidential Information” means all confidential or proprietary information of Hover Networks or its affiliates disclosed to the Customer as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Customer, subsequent to disclosure by Hover Networks; or (d) has been otherwise lawfully known or received by the Customer as evidence by written records of Customer. The Customer shall not disclose or use any Confidential Information of Hover Networks for any purpose outside the scope of these Terms, except with Hover Networks’ prior written permission. The Customer agrees to keep confidential all Confidential Information disclosed to it by Hover Networks, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Customer is compelled by law to disclose Confidential Information of Hover Networks, it shall provide Hover Networks with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Hover Networks’ cost, if Hover Networks wishes to contest the disclosure. The Customer agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, Hover Networks shall be further entitled to seek injunctive relief.
10. Resale. Customer represents and warrants that it will be the end user of the Services. Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving Hover Networks’ prior written consent.
11.1 Disclaimer of Warranties. Except as expressly provided herein, Customer acknowledges and agrees that the Services and Equipment are provided on an “As Is”, as available basis. Other than as expressly provided herein, Hover Networks DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Hover Networks does not warrant that the Services or Equipment will meet the Customer’s requirements or that the operation of the Services will be uninterrupted or error-free. Further, Hover Networks does not warrant that all errors in the Services can be corrected.
11.2 Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that Hover Networks does not and cannot control the flow of data between the Hover Networks network and third party networks. Such flow depends on the performance of third party networks and the services provided or controlled by third parties. Action or inactions caused by these third party networks can produce situations in which Hover Networks customers’ connections may be impaired or disrupted. Although Hover Networks will use commercially reasonable efforts to remedy and avoid such events, Hover Networks cannot issue any warranties over these third party networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 11.1 ABOVE, HOVER NETWORKS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
11.3 Limitation of Liability. IN NO EVENT SHALL HOVER NETWORKS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT HOVER NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. HOVER NETWORKS’ AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However and notwithstanding the provisions of this Section 11.3, the Customer agrees that Hover Networks will not be liable for breach-of-contract damages that Hover Networks could not reasonably have foreseen on entry into this Agreement. No action against Hover Networks arising out of this Agreement may be brought by the Customer more than one (1) year after the cause of action has arisen.
11.4 Indemnification. Customer agrees to indemnify and hold Hover Networks and its affiliates and their respective officers, directors, shareholders, employees, agents, representatives, successors and assigns harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Hover Networks by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of the Hover Networks Acceptable Use Policy; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Hover Networks; (iv) any claim by any customer of Customer, user, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment; (v) violation of any law or regulation by Customer, any user, or any Customer employee, contractor, or agent; (vii) any violation by Customer of any third party’s intellectual property rights, (vii) the quality, performance and/or systems integrity of the installation or operation of the Services or Equipment, or (viii) any absence, failure, or outage of the Service, including, without limitation, emergency 911 calling and/or inability of Customer or any Customer employee, third person or party, or user of the Service to be able to call 911 or to access emergency service personnel.
12. Force Majeure. Hover Networks will be not liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, labor shortage or dispute, governmental act or failure of any third-party service or network.
13. No Lease. Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Hover Networks or in any personal property or server space leased by Hover Networks (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
14. Government Regulations. Customer will not use the Hover Networks network or the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations to whose jurisdiction Customer is subject.
15. Assignment. Customer may not assign its rights or delegate its duties under the Agreement either in whole or in part (whether by operation of law, change of control, merger or otherwise) without the prior written consent of Hover Networks. This Agreement and any or all of its rights and obligations hereunder are assignable by Hover Networks. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
17. Choice of Law. The Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws principles. In the event of any controversy or claim arising from or related to this Agreement, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Any and all disputes, controversies and claims arising out of or relating to this Agreement or any Order Form, including its/their validity, shall be handled, determined, and resolved in the state and federal courts located in Erie County, New York.
18. Entire Agreement. This Agreement, as amended, supplemented or modified from time to time, represent the complete agreement and understanding of the parties with respect to the subject matter hereof and supersede, to the extent of any conflict, any other agreement or understanding, written or oral, between the parties with respect to the subject matter hereof. In the event of an inconsistency between the terms and conditions of the Proposal, these Terms of Service and the Order Form(s) now or hereafter appended hereto, the terms of the Order Form shall govern. This Agreement may be modified only through a written instrument signed by or on behalf of both parties. Notwithstanding the prior sentence, Customer agrees and acknowledges that Hover Networks may unilaterally amend this Agreement to comply with applicable laws and regulations. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement and that each person whose signature appears on this Agreement is duly authorized to execute such document on behalf of the respective party.
19. 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.
20. Severability. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.
21. Surviving Provisions. The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties’ entering into this Agreement will survive the termination of the Agreement and will apply even if the Agreement is found to have failed of its essential purpose.