DSL & T1 TERMS AND CONDITIONS
1.0 Services. Subject to the terms and conditions of the Agreement, OffspringNet shall provide the Services purchased by Customer (whether Customer purchases such Services on-line, on an Order Form or through OffspringNet’s TeleSales department) ("Services"). Customer shall use the Services without the right of resale or distribution, and strictly in accordance with the applicable law and the Acceptable Use Policy and the Customer Policies, which are available at www.offspring.net (collectively, “Policies” and which form a part of this Agreement). OffspringNet reserves the right to change the Policies upon notice to Customer. If Customer does not agree to the changed Policies, Customer must terminate this Agreement without penalty by providing OffspringNet with written notice within seven (7) days of receipt of the notice of the changed Policies; otherwise any continued use of the Services shall be deemed to be acceptance of the changed Policies. If Customer adds additional services on-line or on an additional Order Form, such new services will be deemed Services and shall be governed by the terms of this Agreement. If the Customer is an individual, Customer represents and warrants he or she is at least 18 years old. Customer shall be solely responsible for the safeguarding of its passwords and may be unable to access its files in the event any password is lost, forgotten or misappropriated. OffspringNet and its suppliers may, from time to time and without liability, interrupt Services for maintenance and other operational reasons, and Customer shall not receive any compensation for such interruptions. OffspringNet reserves the sole and exclusive right to determine or revise its service area, and the right to discontinue any Service or Product without liability. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2.0 Products and Customer Equipment. OffspringNet may deliver to Customer certain software, hardware and documentation, including but not limited to CPE defined below (collectively, "Products"). OffspringNet grants to Customer a personal, non-transferable, non-exclusive, license to use the software and documentation during the Term solely for Customer’s own internal purposes in accordance with this Agreement. OffspringNet will use commercially reasonable efforts to supply and configure the OffspringNet supplied equipment external to Customer’s personal computer and at Customer’s premises (referred to as “Customer Premises Equipment” or “CPE”) to allow Customer to use the Services, unless Customer has chosen to supply its own OffspringNet-qualified CPE subject to the Customer Provided CPE Addendum. OffspringNet is not responsible for the configuration of, or internal equipment for, Customer’s personal computer that may be necessary to make such computer compatible with the Services. For any CPE that Customer purchases through OffspringNet, OffspringNet may supply new or recertified equipment. On new and recertified equipment purchased by Customer through OffspringNet, OffspringNet will provide a one (1) year warranty from the day the Customer’s order is closed (the “Billing Start Date” as defined in the Policies),. At OffspringNet’s discretion, any equipment OffspringNet supplies as replacement equipment (e.g., for warranty purposes) may be new, recertified or refurbished. Any equipment supplied as replacement equipment will carry the remainder of the one (1) year warranty described above. If the CPE malfunction is the result of Customer’s abuse, misuse or reconfiguration of CPE or equipment, OffspringNet will charge Customer for the Field Service Technician visit at the rates set forth in the most current version of the Customer Policies and the cost of any replacement equipment. After expiration of the one (1) year warranty period, OffspringNet will replace such malfunctioning CPE, and Customer will be responsible for the cost of the CPE and the Field Service Technician visit (if applicable), each as set forth in the Customer Policies. OffspringNet may also provide any Product or CPE upgrades at no expense to Customer, and Customer shall use all such upgrades provided by OffspringNet. OffspringNet and its suppliers shall have no obligation or liability in connection with any equipment not purchased through OffspringNet and configured by OffspringNet, or for any abuse, misuse or reconfiguration (including, but not limited to, the addition of software or other devices on the CPE) of any equipment by any party other than OffspringNet.
3.0 Setup. Services are provided over a permanent virtual circuit (“Customer Circuit”) to Customer’s premises. If Customer orders TeleSpeed DSL or TeleXtend T1 services, “Installation” will be deemed to have occurred when: (i) OffspringNet can verify connectivity of the service ordered between the CPE and the OffspringNet DSLAM or other network equipment; and (ii) OffspringNet can verify Internet connectivity from a host on the Customer’s network to a host on the Internet, through a ping test or another applicable connectivity test. If Customer orders TeleSoho or TeleSurfer ADSL services, OffspringNet “Installation” will be deemed to have occurred when the Customer CPE is able to achieve synchronization with the OffspringNet DSLAM or other network equipment. If OffspringNet is unable to successfully install a Service that Customer had originally ordered, OffspringNet will allow Customer to accept a lower speed Service, if available, or Customer may decline the Customer Circuit without a Termination Fee. If Customer declines the Customer Circuit and, if Customer has ordered only that particular service, Customer and/or OffspringNet may terminate this Agreement. Customer will be responsible for any additional, unforeseen construction costs including, without limitation, inside wiring administration and special installation costs. OffspringNet shall obtain Customer’s consent before incurring any such special costs.
4.0 Monitoring. OffspringNet and its suppliers have no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if OffspringNet or its suppliers, in their sole discretion, believes that it is reasonable to do so, including to: (i) satisfy laws, regulations, or governmental or legal requests; (ii) operate the Services properly; or (iii) protect itself and its other users and customers. OffspringNet may immediately remove Customer’s material or information from OffspringNet's servers, in whole or in part, if OffspringNet, in its sole and absolute discretion, determines that such content infringes another party’s property rights, is illegal or that such content violates OffspringNet's Acceptable Use Policy. In addition, OffspringNet may disconnect Customer’s service if OffspringNet believes that Customer is in violation of the Acceptable Use Policy.
5.0 Fees and Payments. Customer shall pay for all Services and Products that OffspringNet furnishes to Customer at the applicable prices set forth in Customer’s order. Customer shall also pay any repair, telephone charges and charges for inspection, installation or repair of wiring performed on Customer’s premises for the additional charges set forth in the Customer Policies. Upon Installation (as defined in Section 3), Customer shall pay all upfront fees and the first month of all monthly fees for Services for which Installation has occurred. OffspringNet shall bill Customer in advance for the Services on the monthly anniversary date of the Effective Date of this Agreement (“Anniversary Date”). For the purposes of TeleSurfer and TeleSoho billing, OffspringNet will begin billing the Customer seven (7) days after OffspringNet has shipped the self-installation kit. If Customer selects either the credit card billing or electronic funds transfer option, OffspringNet will automatically debit such account on the date amounts are due. (Note: Customer may only use a credit card or electronic funds transfer to purchase TeleSurfer services). If Customer selects the invoice option, all payments are due within thirty (30) days of the invoice date, and if Customer fails to pay any bill when due, OffspringNet shall have the right to: (i) debit the Customer’s credit card for the overdue amounts; or (ii) terminate the unpaid Services or the Agreement for breach if Customer has not paid the overdue amounts within fifteen (15) days of receipt of notice of such overdue amounts, and Customer shall be responsible for all applicable Termination Fees. For all late payments, Customer may pay interest on overdue amounts at the lesser of (i) interest at the rate of 1.5% per month on the outstanding balance due; or (ii) the maximum interest charges permitted under applicable law. Returned checks may be charged a $25.00 processing fee.
6.0 Taxes. Customer shall be responsible for and shall pay all applicable federal, state and local taxes, fees, charges, surcharges or other similar exaction (hereinafter called “taxes”) imposed on or with respect to the Services and/or Products that are the subject of this Agreement whether such taxes are imposed directly upon Customer or upon OffspringNet. For purposes of this Section, taxes do not include any taxes that are imposed on or measured by the net income of OffspringNet.
7.0 Term and Termination. The term of this Agreement will run from the Effective Date until the end of the Minimum Term (Minimum Term is "12 months") from the last Installation of a Service. The Services and the obligation to pay for such Services will continue after the end of their respective Minimum Terms on a month-to-month basis, unless either party terminates the Agreement or cancels such Service by providing at least thirty (30) days prior written notice. Either party may terminate this Agreement or a particular Service at any time by providing at least thirty (30) days prior written notice, except that if Customer terminates this Agreement prior the end of the Minimum Term for all Services or cancels a particular Service prior to the end of its Minimum Term, or if OffspringNet terminates a Service or this Agreement for cause prior to the end of the Minimum Term, Customer will be responsible for all applicable termination and/or disconnection fees as described in the Customer Policies (“Termination Fees”). The Termination Fees for TeleSurfer and TeleSoho Services are $250.00 per line, and the Termination Fees for TeleSpeed and TeleXtend Services are $500.00 per line. Modems rented through OffspringNet must be returned if service is terminated. Failure to return modem results in $200.00 charge plus tax. Customer may upgrade to a higher grade of service without an upgrade charge. However, Customer will be responsible for any additional installation and equipment charges that are necessary to effect the upgrade. Likewise, Customer may downgrade without a downgrade charge provided that Customer has met the Minimum Term . However, additional installation and equipment charges will apply if necessary to effect the downgrade request. If Customer downgrades from TeleSurfer or TeleSurfer Plus to TeleSurfer Link, Customer’s Initial Term shall continue, and Customer will be charged Termination Fees if Customer terminates his or its TeleSurfer Link Service during such Initial Term..
8.0 Disclaimers. THE SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. OFFSPRINGNET DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OFFSPRINGNET DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE RELATED CLAIM WILL BE AS SET FORTH IN OFFSPRINGNET’S STANDARD SERVICE LEVEL AGREEMENT (SLA), WHICH IS CONTAINED IN THE CUSTOMER POLICIES AND WHICH ONLY APPLIES TO TELESPEED AND TELEXTEND SERVICES.
9.0 Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER OFFSPRINGNET OR ITS SUPPLIERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, OR FOR ANY LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS REGARDLESS OF THE CAUSE OF ACTION, AND WHETHER OR NOT FORESEEABLE. IN NO EVENT SHALL OFFSPRINGNET’S OR ITS SUPPLIERS' CUMULATIVE LIABILITY EXCEED THE FEES PAID BY CUSTOMER THROUGH THE MONTH IN WHICH THE CLAIM AROSE EVEN IF OFFSPRINGNET IS INFORMED OF THE POSSIBLITY OF SUCH DAMAGES. IN ADDITION, OFFSPRINGNET AND ITS SUPPLIERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES, LOSSES, EXPENSES OR COSTS THAT CUSTOMER SUFFERS AS A RESULT OF: (I) ANY INTERRUPTION OR FAILURE OF THE SERVICES OR PRODUCTS; (II) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET; (III) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR USING THE SERVICES OR ANY LOSS OF DATA DUE TO DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS; (IV) ANYTHING BEYOND THE REASONABLE CONTROL OF OFFSPRINGNET, INCLUDING BUT NOT LIMITED TO ANY INTERUPTION OR FAILURE OF A THIRD PARTY’S SERVICES, SOFTWARE, EQUIPMENT OR NETWORK; (V) ANY UNAUTHORIZED USE OR MODIFICATION OF SERVICES OR PRODUCTS OR COMBINATION OF SERVICES OR PRODUCTS WITH OTHER SERVICES, PRODUCTS OR EQUIPMENT; (VI) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (VII) THE ATTEMPT BY UNAUTHORIZED USERS (E.G., HACKERS) TO OBTAIN ACCESS TO CUSTOMER’S DATA, WEB-SITE, COMPUTERS, OR NETWORKS.
10.0 Confidentiality. Customer acknowledges that the Products contain proprietary and confidential information of OffspringNet and its suppliers. Customer agrees to not disclose the Products to third parties without the prior written consent of OffspringNet and the suppliers identified to Customer in OffspringNet's response to such notice. Customer shall not copy, modify, resell or distribute the Products, create or recreate the source code for the Products, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Products. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products
11.0 Choice of Law and Binding Arbitration. This Agreement
shall be governed by and construed in accordance with the laws of the
State of California without regard to the conflicts of laws principles
thereof. Customer agrees that any Dispute between Customer and OffspringNet
will be resolved exclusively and finally by arbitration administered by
the National Arbitration Forum (“NAF”) and conducted under
its rules, except as otherwise provided below. The arbitration will be
conducted before a single arbitrator, and will be limited solely to the
Dispute between Customer and OffspringNet. The arbitration shall be held
at any reasonable location near Customer’s residence or business
by submission of documents, by telephone, online or in person. Any decision
rendered in such arbitration proceedings will be final and binding on
each of the parties, and judgment may be entered thereon in any court
of competent jurisdiction. Should either party bring a Dispute in a forum
other than NAF, the arbitrator may award the other party its reasonable
costs and expenses, including attorneys’ fees, incurred in staying
or dismissing such other proceedings or in otherwise enforcing compliance
with this Dispute resolution provision. Customer understands that Customer
would have had a right to litigate Disputes through a court, and that
Customer has expressly and knowingly waived that right and agreed to resolve
any Disputes through binding arbitration. This arbitration agreement is
made pursuant to a transaction involving interstate commerce, and shall
be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq.
For the purposes of this section, the term “Dispute” means
any dispute, controversy, or claim arising out of or relating to (i) this
Agreement, its interpretation, or the breach, termination, applicability
or validity thereof. “OffspringNet” includes its subsidiaries,
affiliates, directors, officers, employees, beneficiaries, agents or assigns;
the term “Customer” means you, the original account holder,
its agents, employees, directors, officers, beneficiaries, or heirs. Information
may be obtained from the NAF on line at www.arb-forum.com, by calling
800-474-2371 or writing to P.O. Box 50191, Minneapolis, MN, 55405. Under
California Civil Code Section 1789.3, if Customer is a resident of California,
Customer is entitled to the following specific consumer rights information:
the Complaint Assistance Unit of the Division of Consumer Services of
the Department of Consumer Affairs may be contacted in writing at 1020
N. Street, #501, Sacramento, CA 95814 or by telephone at 916-445-1254
12.0 Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party's reasonable control, including but not limited to acts of God, war, terrorist acts, insurrection, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials.
13.0 General. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint-venturers or agents. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. Customer may not assign this Agreement without the prior written consent of OffspringNet, which consent shall be at OffspringNet's sole discretion. OffspringNet may assign this Agreement. Except as expressly provided herein, no modification to this Agreement shall be effective unless in writing and signed by an authorized representative of OffspringNet. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be effected. Notices to Customer may be sent to the facsimile number, email address or address listed on the Order Form. Notices to OffspringNet should be sent to OffspringNet, ATTN: Sales Operations, 2317 North 7th St., Colorado Springs, CO. 80907. The Order Form, the Policies and these Terms and Conditions contain the entire understanding of the parties with regard to this matter and supersede any prior written or oral communications between the parties with respect to the subject matter of this Agreement. The provisions of Sections 6, 7, and 9, 10, 11, 12 and 14 shall survive any termination of this Agreement.
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