Standard Terms and Conditions for Skyriver Services
The following terms and conditions, shall apply to the Services identified on the Skyriver Service Order Form which taken together shall comprise the entirety of this agreement ("Agreement"). By signing the Service Order Form, Customer acknowledges having reviewed and accepted the Terms and Conditions contained herein. This Agreement shall supersede any prior representations, understanding, or agreements, whether verbal or written.
1. Service Date and Term.
This Agreement and the Term indicated on the Service Order Form shall be effective upon installation of the Equipment (as defined below) and activation of the Services. Services shall be provided for the applicable term set forth on the Service Order Form ("Initial Term"). Skyriver shall make reasonable efforts to make Services available to Customer by the requested installation date. Skyriver shall not be responsible for any damages whatsoever resulting in delays from meeting any requested installation dates. After the expiration of the Initial Term, this Agreement will automatically renew for consecutive one-year terms ("Renewal Term(s)") unless terminated in writing by Skyriver or Customer at least thirty (30) days prior to the end of the then current term.
Unless stated otherwise herein, billing shall commence immediately upon activation of Customer's Services. Customer hereby agrees to pay for all monthly recurring costs, install charges, or any other miscellaneous charges which may be incurred from time to time by the invoice due date. Any amount not received by the due date will be subject to interest or a late charge. Interest will be capped at 10% per annum or the maximum rate allowable by Law, whichever is less and does not accrue until an invoice has been overdue for 30 days.
All Services provided to Customer are provided on a pre-paid basis. As such, payment for all Services shall be due no later than the first day of the service period. All install charges shall be due and payable immediately upon receipt of invoice.
If Customer, for any reason, has not paid any outstanding invoices within thirty (30) days of the invoice due date, Skyriver shall have the sole right to suspend, in whole or in part, the Services provided to Customer, with or without notice. All suspended Services shall incur a one time charge when reactivated and such charge shall be payable immediately upon receipt of invoice. If Customer fails to reactivate suspended services within fifteen (15) days of the suspension date and pay all outstanding invoices in full (plus interest), Skyriver shall terminate Services, remove any Equipment, and charge Customer for any applicable Termination liability as outlined below.
5. Service and Installation.
Skyriver shall provide Customer with the Services and any equipment necessary to receive such Services ("Equipment"). If Skyriver determines that a Customer location is not serviceable under Skyriver's normal installation guidelines, Skyriver may terminate this Agreement without any liability to Customer and without payment due of any kind from Customer, except for any invoices for Services utilized up to the termination date. Customer may use the Services for any lawful purpose, provided that such purpose (a) does not interfere or impair the Skyriver network, Equipment or facilities and complies with all applicable federal, state and local laws, including but not limited to, rules and regulations of the Federal Communications Commission, and (b) complies with the applicable Acceptable Use Policies ("AUP") which are incorporated herein by reference and are available online at www.skyriver.net. Customer shall use the Equipment solely for the purpose of receiving the Services. Customer shall not make any connections to the Equipment which are not expressly authorized in writing by Skyriver or permit tampering, altering, or repair of the Equipment by any person other than Skyriver's authorized personnel. The AUP may be amended from time to time during the Initial Term and Renewal Term(s) of this Agreement. Skyriver shall give Customer fifteen (15) days written notice before the effectiveness of any AUP amendment as applied to Customer. In the event that Customer reasonably determines that an AUP amendment has a material adverse impact on Customer's ability to use the Services as intended, and so notifies Skyriver in writing within fifteen (15) days of receiving said AUP amendment, Customer and Skyriver shall attempt to resolve the matter in good faith. If after such attempt, Customer and Skyriver are unable to resolve the matter to their reasonable mutual satisfaction, then Customer may terminate this Agreement and all associated Service Order Forms without payment due of any kind, except for any invoices for Services utilized up to the termination date. Except as otherwise provided herein, Customer's continued use of the Services following an AUP amendment shall constitute acceptance thereof. Unless provided otherwise herein, Skyriver shall make reasonable efforts to provide the Services in accordance with its applicable Service Level Agreement ("SLA"); however, Skyriver is not responsible for the networks or facilities of third parties which may be necessary to provide the Services, and shall have no responsibility for the maintenance or repair of equipment which it does not furnish.
6. Customer Responsibilities.
Customer is responsible for arranging all necessary rights of access for Skyriver within Customer's premises, including space for cables, conduits, equipment, and roof rights as necessary for Skyriver authorized personnel to install, repair, inspect, maintain, replace or remove any and all Equipment and other facilities provided by Skyriver. Customer shall be responsible for ensuring that Customer's premises are clean and free of debris and otherwise appropriately prepared and maintained for installation and operation of the Equipment. Customer shall use the Services in compliance with all applicable laws and ordinances, as well as applicable leases between Customer and third parties. Customer is responsible for ensuring that Customer's equipment is compatible for the Services selected and with the Skyriver network. Customer shall be solely responsible for any third party charges incurred as a result of or related to use of the Services, including but not limited to, telephone and long distance charges, or rooftop access fees.
Unless provided herein, Customer agrees that Skyriver shall retain all rights, title and interest to facilities and Equipment installed by Skyriver, and that Customer shall not create or permit to be created any liens or encumbrances on Equipment. Internal wiring shall not be considered Equipment, and shall become property of Customer upon installation of Services. Customer shall not modify or relocate Equipment installed by Skyriver. Upon expiration or termination of this Agreement, Customer shall return all Equipment in good condition, ordinary wear and tear from proper use excepted. In the event Equipment is lost, stolen or damaged, Customer shall be responsible for the full replacement value of such Equipment. Skyriver shall repair or replace Equipment at no charge to Customer provided that damage is not due to misuse, abuse, or other disaster, including acts of God. Skyriver shall use its best efforts to remove the Equipment within thirty (30) days of the termination or expiration of this Agreement unless the parties mutually agree otherwise. Customer shall take no action that delays or otherwise interferes with Skyriver's removal of the Equipment.
8. Spam Filtering.
Customer acknowledges that any anti-spam or spam filtering Services provided by Skyriver are not guaranteed to block all undesired email from senders and that Customer may continue to receive such emails. Further, Customer understands and acknowledges that despite the exercise of commercially reasonable efforts on the part of Skyriver, Customer's emails may be delayed or inadvertently lost.
9. Resale of Service.
Customer may not resell any portion of the Services to any other party unless Customer has entered into an authorized reseller program with Skyriver.
If Customer fails to comply with any provision of this Agreement, including but not limited to, failure to make payment as specified, then Skyriver, in its sole discretion, may elect to pursue one or more of the following courses of action: (i) terminate Services whereupon all sums then due and payable shall become immediately due and payable; (ii) suspend all or any part of Services; and/or (iii) pursue any other remedies, including reasonable attorney's fees , as may be provided at law or in equity, including the applicable termination fees. Skyriver shall give Customer a thirty (30) day cure period prior to terminating Services for Customer default subject to the 15-day suspension period described in paragraph 4 where Customer's default is due to non-payment of invoices. In the event of a material breach of the Agreement by Skyriver, Customer may terminate this Agreement and all associated Service Order Forms without payment due of any kind, except for any invoices for Services utilized up to the termination date.
11. IP Addresses.
Skyriver will allocate IP addresses to Customer according to ARIN guidelines. All IP addresses assigned by Skyriver must be relinquished by Customer upon expiration, termination or cancellation of this Agreement. IP Addresses shall be subject to the AUP.
If Customer terminates this Agreement for any reason (except for material breach by Skyriver or pursuant to Customer's termination rights relating to the AUP amendments pursuant to paragraph 5 hereof) before the end of the Initial Term or any applicable renewal term, or if Skyriver terminates this Agreement for Customer's breach of this Agreement or the AUP, Customer will be subject to a termination liability. Termination liability shall equal 100% of the monthly recurring costs for the terminated Services multiplied by the number of full months remaining in the Initial Term and shall be due and payable immediately.
13. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SKYRIVER SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL SKYRIVER BE RESPONSIBLE FOR FAILURE OR ERRORS IN SIGNAL TRANSMISSION, LOST DATA, FILES OR SOFTWARE DAMAGE REGARDLESS OF THE CAUSE. NEITHER SKYRIVER NOR CUSTOMER SHALL BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION OR REMOVAL OF EQUIPMENT UNLESS CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY. UNDER NO CIRCUMSTANCES SHALL SKYRIVER OR CUSTOMER BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST OPPORTUNITY, OR HARM TO BUSINESS) THAT MAY ARISE FROM THIS AGREEMENT OR SERVICES HEREUNDER. CUSTOMER'S SOLE REMEDY FOR ANY OUTAGES, FAILURES TO DELIVER OR DEFECTS IN THE SERVICES SHALL BE LIMITED TO THE REMEDIES PROVIDED IN THE APPLICABLE SLA.
Neither party shall assign or transfer the rights of this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Provided however, that if such transfer or assignment is the result of a change of ownership or sale of all or substantially all assets of the assigning party, such consent shall not be required. This Agreement shall extend to and bind the heirs, personal representative, successors or assigns of the parties hereto.
EXCEPT AS PROVIDED HEREIN, THERE ARE NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE "BEST EFFORT" SERVICES AND SKYRIVER DOES NOT WARRANT THAT SERVICES, EQUIPMENT OR SOFTWARE WILL BE ERROR-FREE OR WITHOUT INTERRUPTION.
Customer and Skyriver shall mutually indemnify, defend and hold harmless one another from all losses or damages arising from or related to bodily injury or physical damage to tangible property caused by the negligence or willful misconduct of the other party. Customer shall indemnify, defend and hold harmless Skyriver from all losses or damages arising from Customer's violation of third party intellectual property rights, all claims of any kind by Customer's end users, or any act or omission of Customer associated with any Service.
17. Viruses, Content and Customer Information.
Software or content obtained from the use of the Services may contain viruses or other harmful features and Customer is solely responsible for protecting its equipment and software from such matters. Through the use of the Services, Customer may obtain or discover content that is offensive or illegal for which Customer assumes the risk and is solely responsible for its access to such content.
This Agreement, along with the documents referenced herein and the Service Order Form constitute the entire agreement between Skyriver and Customer for the Services. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the validity or enforceability of any other provision herein. This Agreement may be modified, waived or amended only by a written instrument signed, physically or electronically, by the parties. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of California. The failure of either party to exercise one or more rights provided in this Agreement shall not be deemed a waiver of the right to exercise such right in the future. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery, electronic delivery, or mail. If delivered by mail, notices should be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the parties at the address identified on the Service Order Form, or as specified by subsequent written notice delivered by the party whose address has changed. Each of the parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such party has the full right, power and authority to enter into and execute this Agreement on such party's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Agreement.
19. Regulatory Authority - Force Majeure.
This Agreement and the obligations of the parties shall be subject to modification necessary to comply with all applicable laws, regulations, court rulings, and administrative orders, as amended. In no event shall either party have any claim against the other for failure of performance if such failure is caused by acts of God, natural disasters, including fire, flood, or winds, civil or military action, including riots, civil insurrection or acts of terrorists or the taking of property by condemnation.
The provisions of the Agreement relating to indemnification from one party to the other party shall survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement which require performance subsequent to the expiration of this Agreement shall also survive such termination or expiration.