In consideration of the terms, conditions and covenants listed in this contract (this “Contract”), the Client (as indicated above) and unWired Broadband, Inc. (“unWired”) agree as follows:
This Contract is subject to unWired’s Acceptable Use Policy (“AUP”), which is incorporated by reference herein and which may be modified from time to time at unWired’s sole discretion to improve network conditions, conform to industry standards and respond to legal and economic changes impacting the provision of the Services, as defined below. A copy of the AUP currently in effect may be found at http://www.unwiredbb.com/AUP
PURPOSE: The Client wishes to enter into a recurring contract with unWired for the provision of Internet service (“Services”) for the above-listed Service Address (the “Property”). In order to provide Services to the Property, unWired may install certain equipment and wiring at the Property.
TERMS: The Client agrees that the term of this Contract starts on the date unWired commences the provision of the Services and continues for the “Contract Term,” if any, listed above. The Client further agrees that the Contract shall automatically renew and continue for successive terms of one year (“Extension Terms”), unless Client or unWired provides 30-day notice to unWired prior to the expiration of the Contract Term or any Extension Term, via telephone (559-261-4444), email (email@example.com), or mail to unWired Broadband, Inc., 215 W. Fallbrook Avenue, Suite 203, Fresno, CA 93711, or the address unWired may designate from time to time. If unWired no longer offers the particular service or tier package utilized by the Client following the expiration of the Contract Term or any Extension Term, with 30 days written notice prior to the expiration of the Contract Term or any Extension Term. unWired, shall place the Client in a new service package which most closely approximates the package or tier which the Client previously utilized, unless the Client cancels in accord with this Paragraph. Accordingly, upon early termination of the Contract, Client shall pay ONE HUNDRED PERCENT (100%) of the remaining Monthly Recurring fees under the Contract Term, a sum which Client agrees represents a reasonable approximation of unWired’s damages for early termination and is not a penalty or forfeiture. unWired’s damages in the case of early termination include, but are not limited to, equipment, service and infrastructure costs not reimbursed by designated fees, as well as lost profits. If no contract term is listed above, the Contract shall automatically renew for successive monthly terms unless Client or unWired provides 30-day notice in the manner listed in this Paragraph.
1. unWired Broadband Network, Access and Interconnection:
(a) Responsibilities. unWired Broadband will own and control the telecommunications equipment, cable and facilities installed and operated by unWired Broadband for provision of the Services to Client (“unWired Broadband Network”). The unWired Broadband Network will remain unWired Broadband’s personal property regardless of where located or attached. unWired has the right to upgrade, replace or remove unWired Broadband Network in whole or in part, regardless of where located, so long as the Services continue to perform. unWired Broadband has the right to limit the manner in which any portion of the unWired Network is used to protect its technical integrity. Client may not alter, move or disconnect any parts of the unWired Network and is responsible for any damage to, or loss of, the unWired Network caused by Client’s (or its end users’) breach of this provision, negligence or willful misconduct. unWired Broadband had no obligation to install, maintain, or repair any equipment owned or provided by Client, unless otherwise agreed to in a writing executed by the Parties. If Client’s equipment is incompatible with the Service, Client is responsible for any special interface equipment or facilities necessary to achieve compatibility.
(b) Access. Client must provide unWired Broadband with access to its premises to install and maintain Services and unWired Network. Upon written request, the client will be provided with a certificate of insurance evidencing insurance coverage. Client must provide, at its expense, the following (collectively “Premise Requirements”): (i) appropriate space, power and environmental conditioning; and (ii) reasonable access rights and/or rights or way from third parties, as may be required for installation and maintenance of the unWired Broadband Network at and into Client’s premises. Client must pay a Modification Charge if Client does not provide the Premise Requirements prior to the scheduled installation date. In addition to the Modification Charge, unWired Broadband my charge Client for the reasonable time and materials incurred and documented by unWired Broadband that are incurred because of Client’s failure to timely provide the Premise Requirements plus any third party charges assessed against unWired Broadband. Client must provide unWired Broadband with a contact and/or help desk number that can be reached 24 hours per day/7 days per week.
(c) Demarcation Point, Inside Wiring and Activation Support. unWired Broadband shall be responsible for provisioning Service up to the Demarcation Point and Client is responsible for providing and maintaining any necessary wiring and facilities on Client’s side of the Demarcation Point. “Demarcation Point” means the unWired Broadband designated physical interface between unWired Broadband’s Network and Client’s equipment, which point shall be either 9i) in the case of a Service terminating at a such unWired Broadband premises or (ii) in the case of a Service terminating at Client’s premises, the distribution panel or network interface device located at the common telecommunications (“telco”) demarcation at the Client or end-user premise (e.g., entry point for telco facilities, telco closet or common telco room). If Requested by Client, unWired Broadband may install, co-ordinate or otherwise arrange for installing or obtaining from third parties, facilities on Client’s side of the Demarcation Point (‘Inside Wiring”) and/or assist Client with activation and/or configuring equipment on Client’s side of the Demarcation Point (“Activation Support”). Client agrees to pay Time and Materials rates posted at www.unwiredbb.com for any Inside Wiring and Activation Support performed by unWired Broadband personnel and agrees that unWired Broadband may bill Client for any third party charges it incurs to provide Inside Wiring.
(d) Letter of Authorization / Carrier Facility Agreement. If Client intends to connect Services to facilities that neither it nor unWired Broadband owns, it must provide unWired Broadband with and maintain (for the Service Term) a current letter of authorization and carrier facility assignment as applicable.
2. Installation and Maintenance:
(a) Installation. unWired Broadband will notify Client when the Service has been successfully installed and is available for Client’s use (“Service Date”). Unless Client notifies unWired Broadband by the close of business on the Service Sate that the Service is not operational, the Service Term will commence. If Client so notifies unWired Broadband, the Service Date will not occur and the Service Term will not commence until the Service is operating properly. The Service Date will not be delayed or postponed due to problems with Client’s equipment or Client’s lack of readiness to accept or use Service.
i. Scheduled Maintenance. unWired Broadband will monitor unWired Broadband’s Network 24 hours per day, 7 days per week. Scheduled Maintenance will be performed between the hours of midnight and 6:00 a.m. (local time where the maintenance is being performed) unless another time is agreed to by the Parties for the particular circumstance. unWired Broadband will endeavor to provide Client with at least five business days notice before performing Scheduled Maintenance unless a shorter notice period is required under the circumstances.
ii. Emergency Maintenance. If unWired Broadband has to perform maintenance outside of the Scheduled Maintenance window set forth in Section 2(b)(i) above, then unWired Broadband will provide as much prior notice to Client as is practicable under the circumstances.
3. Charges, Billing, and Payment:
(a) Services are billed on a monthly basis commencing with the Service Activation Date. Services are invoiced in advance, but additional charges are invoiced in arrears. Any installation or other non-recurring charges, which are non-refundable, will appear on the first monthly invoice. Any additional non-recurring charges created beyond the first month will be billed at time of service.
(b) unWired Broadband may require a deposit prior to the provision of any new service as a condition to its obligation to continue to provide Service(s) if Client has a poor credit rating.
(c) Failed to timely pay for Service(s) on two occasions during any six month period.
(d) unWired Broadband will invoice Client for applicable Taxes (defined below) and, whenever possible, will identify such charges as a separate line item on the invoice. Client will be liable for Taxes which are assessed by or paid to an appropriate taxing authority within the applicable statute of limitations period. If Client fails to pay any Taxes properly billed, then as between unWired Broadband and Client, Client will be solely responsible for payment of the Taxes, and penalty and interest.
“Tax” or “Taxes” mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated, imposed, or sought to be imposed, on or with respect to purchases by Client from unWired Broadband for consideration under this Agreement or for unWired Broadband’s use of public streets or rights of way, which unWired Broadband is required or permitted by law or a tariff to collect from Client, provided, however, that the term “Tax” will not include any tax on unWired Broadband’s corporate existence, status, income, corporate property or payroll taxes.
If either Party is audited by a taxing or other governmental authority, the other Party agrees to cooperate reasonably by responding to the audit inquires in a proper, complete and timely manner. unWired Broadband will cooperate, at Client’s expense, with reasonable requests of Client in connection with any Tax contest or refund claim. The Client will ensure that no lien is attached to or allowed to remain on any asset of unWired Broadband as a result of any Tax contest. Client will indemnify and hold unWired Broadband harmless against any liabilities, damages, losses, costs or expenses arising out of such Tax proceedings, including without limitation any additional Taxes, interest, penalties and attorney’s fees.
If Client claims an exemption for any Taxes, Client must provide unWired Broadband with a proper tax exemption certificate as authorized by the appropriate tax authority. Client must pay the applicable Taxes to unWired Broadband until it provides unWired Broadband with a valid tax exemption certificate. If applicable law exempts a Service under this Agreement from a Tax, but does not also provide an exemption procedure, then unWired Broadband will not collect such Tax if Client provides unWired Broadband with a letter signed by one of its officers: (i) claiming a right to the exemption; (ii) identifying the applicable law that allows such exemption and does not require an exemption certificate; and (iii) agreeing to indemnify and hold unWired Broadband harmless from any tax, interest, penalties, loss, coast or expense asserted against unWired Broadband as a result of its not collecting the Taxes from Client.
(e) Payment for all undisputed amounts due under this Agreement must be received by unWired Broadband on or before the due date specified on the bill (“Due Date”). Any payment or portion thereof not received by the Due Date is subject to late charge on the unpaid amount at the lesser of 1.5% per month or the maximum rate permitted by law. All accounts shut off for nonpayment are subject to a reactivation fee of $25.00.
(f) CREDIT CARD AUTHORIZATION; BILLING: Client authorizes unWired to charge Client’s credit card for the Services, and any and all charges due to unWired under the Contract, including any applicable early termination fees. unWired will provide Client with an itemized monthly statement by email describing all charges. If the Client requests monthly statements via U.S. mail, then unWired shall add a $2.00 monthly fee for such service, in addition to the Monthly Recurring rate in this Contract. In the event Client’s credit card, or other method of payment, fails to provide payment to unWired for any reason, Client shall remain liable for amounts due under this Contract, and shall provide another card or method of payment to unWired.
4. Service Levels / Service Outage Credits:
(a) Service Level Agreement (“SLA”). The SLAs provided by unWired Broadband are set forth at www.unwiredbb.com/SLAs. SLAs for “On-Net” connections, which are connections provided unWired and select partners, may include performance guarantees. “Off-Net” connections, which are provided by a local exchange carrier, do not include any service or performance guarantee. The SLAs identify the applicable performance metrics and Service Outage credit tables. If a specific SLA is not identified on the website for a particular Service of the type that includes performance guarantees, the credits for Service Outage exceeding thirty (30) minutes will be calculated on a pro rata basis, i.e. credits will be calculated by multiplying the duration of the Service Outage by the applicable MRC, divided by the monthly period. Notwithstanding anything to the contrary in this Contract or any SLA, Client understands and agrees that any service guarantees, and associated rights and remedies do not apply to Off-Net connections, whether or not specified in any other agreement between Client and unWired.
(b) Service Outage Definition. A “Service Outage” is defined as either: (a) material non-compliance with a specific performance metric in a service level agreement and such non-compliance is caused by unWired Broadband’s Network; or (b) a complete loss of transmission or reception capability for a Service caused by unWired Broadband’s Network.
(c) Reporting and Tracking of Service Outage. If there is a Service Outage, Client must contact unWired Broadband’s Technical Support at 559-261-4444 option 2 and unWired Broadband will open a trouble ticket and provide Client with a trouble ticket number for tracking purposes.
(d) Duration of Service Outage and Application of Credits. For the purpose of calculating applicable credits, a Service Outage begins when Client reports the Service Outage to unWired Broadband’s Technical Support, and ends when the Service is restored. Service Outages do not include outages and failures caused by the equipment, acts or omissions of Client, third parties, Force Majeure events, or outages occurring during scheduled or emergency maintenance. The duration of a Service Outage does not include any time during which unWired Broadband is not allowed access to the premises necessary to restore the Service. Credits for Service Outages are only issued if requested by Client, and such requests must be submitted to unWired Broadband within 30 days from the date Service is restored.
(e) Chronic Trouble Services. If two Client Service Outages have occurred on a particular Service during a 30-day period, and a third Service Outage occurs within thirty days following the second Service Outage, Client may terminate the applicable Service without early termination liability provided that Client supplies unWired Broadband with a written termination notice no later than thirty (30) days following third Service Outage.
(f) Remedies. Notwithstanding anything to be the contrary in this Agreement, the remedies set forth in the service level agreement and in Sections 4(a) and 4(e) of this Agreement constitute Client’s sole and exclusive remedy for Service Outages.
(g) Service Outages Not Caused by unWired Broadband’s Network. If unWired Broadband responds to a service call initiated by Client, and unWired Broadband reasonably determines that the cause of the problem is: (i) not due to unWired Broadband’s Network; or (ii) on Client’s side of the Demarcation Point, Client must compensate unWired Broadband for the service call at unWired Broadband’s then prevailing Time and Materials rates posted at www.unwiredbb.com.
5. Government Regulation – Changes:
(a) This Agreement is subject to all applicable federal, state and local laws, rules and regulations, and each Party must comply with them in performing its obligations hereunder. To the extent any provision herein conflicts with any applicable law, rule or regulation, such law, rule or regulation will supersede the conflicting provision.
(b) unWired Broadband may discontinue or impose additional requirements to the provision of Service, upon 10 days written notice, if necessary to meet regulatory requirements or if such requirements have a material, adverse impact on the economic feasibility of unWired Broadband providing the Service. Client is not responsible for the termination liability set forth in Section 8 below if unWired Broadband discontinues the Service under this subsection.
6. Termination by unWired Broadband:
(a) Termination With Notice. unWired Broadband may disconnect all Service(s) associated with a delinquent account upon ten (10) days written notice for Client’s failure to pay amounts due under this Agreement which remain uncured at the end of the notice period; or (i) Client’s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver; and/or (ii) any governmental prohibition or required alteration of the Services.
(b) Termination Without Notice. unWired Broadband may terminate or suspend Services without notice if: (i) necessary to protect unWired Broadband’s Network; (ii) unWired Broadband has reasonable evidence of Client’s illegal, improper or unauthorized use of Services; or (iii) required by legal or regulatory authority.
(c) Post Termination. Any termination or disconnection shall not relieve Client of any liability incurred prior to such termination or disconnection, or for payment of unaffected Services. unWired Broadband retains the right to pursue all available legal remedies if it terminates this Agreement or disconnects Service(s) in accordance with this Section. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of this Agreement. If unWired Broadband terminates Service in accordance with this section, and Client wants to restore such Service, Client must first pay all past due charges, a reconnection charge and a deposit equal to 2 months’ recurring charges. All requests for disconnection will be processed by unWired Broadband in 30 days or less. Client must pay for Services until such disconnection actually occurs.
7. Termination by Client: Client may terminate this Agreement and/or any Service Order hereunder upon thirty (30) days prior written notice, without incurring termination liability, for unWired Broadband’s (i) breach of any material provision of the Agreement, or any law, rule or regulation that affects Client’s use of Service(s), which remains uncured at the end of the notice period and/or (ii) insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver of similar event.
8. Termination Liability: If unWired Broadband terminates this Agreement or any Service Order(s) pursuant to Section 6 above (other than subsections a(iii) and/or b(iii)), or if Client terminates this Agreement or any Service Order(s) for any reason other than pursuant to Section 7 above, all MRCs associated with the terminated Service(s) for that balance of the applicable Service Term shall become immediately due and payable.
9. Assignment: Neither Party may assign this Agreement without the prior written consent of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (1) unWired Broadband may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c) for purposes of financing; and (2) Client may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Client pursuant to this exception is subject to the following conditions: (i) the proposed assignee satisfies unWired Broadband’s credit and deposit standards; (ii) Client has fully paid for all Services through the date of assignment; and (iii) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
10. Collections: In the event any legal action, court proceeding or arbitration to construe or enforce any term of the agreement, including collection of amounts alleged to be due and owing under the contract and the services rendered pursuant to the contract, shall be commenced and maintained in an appropriate court or other forum in Fresno, California. If any legal action, including arbitration is brought to enforce or interpret the provisions of the contract, including collection of amounts alleged to be due and owing under the contract and the services rendered pursuant to the contract, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, from the other party. These fees and costs are in addition to any other relief to which the prevailing party may be entitled.
11. Dispute Resolution: Any controversy or claim arising out of or relating to this Contract, or the breach thereof, except those involving non-payment of monthly fees or amounts due for the Services which may be adjudicated in court, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Fresno County, California. The arbitration shall be governed by the laws of the State of state of California. The prevailing party shall be entitled to an award of reasonable attorney fees. The parties understand that the arbitration process is final and binding and waives the right have a dispute adjudicated in court; provided, however, that nothing herein shall prevent a party from seeking injunctive or provisional relief in court, or from filing an action to seek payment for the Services. Notwithstanding the foregoing, to the extent that this section applies to a dispute between an individual consumer and a business, the American Arbitration Association Supplementary Procedures for Consumer-Related Disputes (found at www.adr.org) shall supplement, as required by applicable laws, including those affording individual consumers additional due process rights in arbitration, the procedures provided herein, and shall govern in the case of any conflict among applicable procedures.
12. Entire Agreement: This Agreement, together with the Service Order(s) and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the Service Order shall prevail over this Agreement and any applicable tariff shall prevail over both. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties.
13. Governing Law – Litigation: The interpretation of the rights and duties of the Parties and any claim, controversy or dispute arising under or related to this Agreement hall be governed by and subject to the laws of the State of California excluding its principles of conflicts of law. If litigation is commenced to enforce Agreement, the prevailing Party is entitled to reimbursement of its costs and attorneys’ fees from the other Party.
14. Headings: Headings herein are for the convenience only and are not intended to have substantive significance in interpreting this Agreement.
15. Notices: Any notice required under this Agreement must be in writing and be delivered to the receiving Party at the address listed below (i) in person, (ii) by certified mail with return receipt requested, or (iii) by overnight courier. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the party or its representative executes the delivery receipt, if delivered via courier. unWired Broadband must provide such notice to Client’s billing address, and Client must provide such notice to unWired Broadband at 215 W Fallbrook Ste. 203, Fresno CA 93711, except that if Client is disconnecting Services for any reason, it must deliver notice to unWired Broadband either by facsimile to 559-432-2315 or by email to firstname.lastname@example.org. Notice by facsimile or email is deemed given when delivered.
16. No Waiver: Either Party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
17. Public Releases, Use of Name: Neither Party may issue a news release, public announcement, advertisement or other form of publicity regarding this Agreement or the Services provided hereunder without the prior written consent of the other Party. Client my not use unWired Broadband’s name, logo or service mark without unWired Broadband’s prior written consent. unWired Broadband may use Client’s name and logo in materials presented to analysts and investors.
18. Representations and Warranties: Each Party represents and warrants that it, and the person signing on its behalf, is fully authorized to enter into this Agreement. unWired Broadband represents and warrants that the Service will be performed by qualified and trained personnel. unWired Broadband does not guarantee, represent or warrant that the Service(s) will be without interruption. UNWIRED BROADBAND MAKES NO OTHER REPRESNETATIONS OR WARRANTEIS, EXPESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, AND DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR ORDINARY PURPOSE.
19. Severability: If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portion of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties’ original intent.
20. Survival: The terms and conditions of this Agreement will survive the expiration or termination of this Agreement to the extent necessary for their enforcement and for the realization of the benefit thereof by the Party to whose favor they operate.
21. Relationship of Parties; No Third Party Beneficiaries: The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of unWired Broadband, Client, and permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
22. Confidentiality: Each Party may disclose confidential information to the other Party in connection with the Agreement. Confidential information includes this Agreement, Service Orders, Service Level Agreements, all pricing information and any other information that is marked confidential or bears a marking of like import, or that the Party disclosing such information states is confidential and then confirms such confidentiality in writing within ten (10) DAYS (“Confidential Information”). Confidential Information may only be used in connection with performance under this Agreement. Confidential Information may not be disclosed except to those employees or affiliates of the receiving Party who have a need to know, or to consultants or subcontractors of the receiving Party who agree to be bound by this Section. Confidential Information does not include information that is generally available to the public through no wrongful act of the receiving Party or is independently developed by the receiving Party. Upon termination or expiration of this Agreement, the receiving Party will return the Confidential Information or destroy it. The obligations of this provision will survive for five years after the termination or expiration of this Agreement.