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| CUSTOMER AGREEMENT | ||||||||||||||||||||||||||||||||
Last updated – 10/25/2006 These Service Terms and Conditions
(“AGREEMENT") are agreed to by and between Wisper Telecommunications,
Inc. ("WISPERTEL") and the customer ("USER") as
designated on their Service Request. In consideration of the mutual agreements and covenants set forth herein, the parties agree as follows: Terms of Request for Service Unless other arrangements have been made with WISPERTEL, the request for Service by telephone, mail, or website constitutes a firm order. WISPERTEL will make a good faith effort to provide Service at customer premises using sound engineering and generally accepted installation practices. If, by means of a scheduled on site evaluation, WISPERTEL determines that Service can be provided and USER declines service, USER will be charged a trip fee of $37.50.
If USER has requested service under a Rental or Lease plan, USER agrees to be bound by the provisions of the applicable Rental or Lease Agreement (posted and available on the WISPERTEL website), which is incorporated by reference as if fully set forth herein, including all legal obligations arising there under. Installation USER(s) warrant that they are at least 18 years of age and owns the premises or have received permission from the owner of the premises to make any changes to the premises needed to install the equipment, power the equipment and receive the Service. Additionally, in the case of an apartment or condominium, it is a USER obligation to confirm that the placement of the antenna in a common area is not in violation of any building owner restrictions. USER agrees to allow WISPERTEL or its contractor access to the premises to perform installation, repair, or maintenance activities in support of the Service. USER hereby authorizes WISPERTEL and/or its authorized contractors to install the equipment necessary to provide WISPERTEL wireless Service. USER will be the sole interface between the building owner/manager and WISPERTEL. Any custom installation work that USER requests, including placing cable under carpet, inside molding, through cabinets, attics, interior walls or crawl spaces may require additional charges. WISPERTEL will not be liable for any alterations damage to the premises that result from installation or removal of the equipment or subsequent Acts of God including, but not limited to: holes in roofs and walls, cable wiring, power cabling, antenna mounting brackets, wind or lightning. The USER will additionally provide WISPERTEL with code-compliant 110 VAC, 0.25-0.45 Amps (30-54 Watts) electrical service. USERS wishing to cancel installation of Service within 24 hours of the scheduled install date and time may be liable for payment of a cancellation/rescheduling charge of $37.50. Accounts and Service WISPERTEL shall provide USER with an account (the "Account") on WISPERTEL's network, which will allow USER to access the Internet on the terms set forth herein, as may be amended from time to time by WISPERTEL. USER's Account will include (dependent of account type) access to the World Wide Web, electronic mail ("e-mail"), and other functionality commonly associated with the Internet (collectively, "Service"). WISPERTEL is NOT responsible for any USER's long distance telephone charges. Term and Termination Fees This Agreement will have an initial term as designated on the Service Request. At the end of the term, this Agreement will automatically renew for successive one-month periods unless USER advises WISPERTEL in writing that USER wishes to terminate the Service. It should be noted that upon written notification, WISPERTEL will terminate and cease billing USER for service effective their next assigned Billing Cycle date. WISPERTEL will not credit users for unused days in current Billing Cycle. USER can terminate this Agreement within the first 90 days of Agreement for any reason and receive a full refund for equipment, installation (except for additional labor charges due to complex installation and/or computer configuration issues), and service charges, providing equipment is in good condition and working order. If USER terminates this Agreement
after the first 90 days, but before the end of the term, WISPERTEL
will assess a termination fee not to exceed $200* (*see below for Enterprise
Termination Fees) for the unpaid balance of the term for Services based
upon the number of months left in Service Agreement. WISPERTEL may
at its discretion "buy back" or "credit"
the USER up to 50% of the current sales price for its subscriber equipment
(includes antenna/radio, mounting hardware, junction box and power supply)
provided equipment is in good condition and working order, determination
of reimbursement will be upon inspection of equipment. Painted
units will not be credited. Enterprise Termination Liability (Above Terms Apply) Bundled
Bonded T1: Enterprise
Service Plan: Payment USER shall pay all fees, including the Monthly Service Fee, Equipment Fee, Installation Fee, Activation Fee, and any other fees, as set forth on the Service Order. Some non-contracted fees are subject to change without notice. All Services are prepaid. WISPERTEL will provide Services to USER subject to this Agreement, and USER agrees to pay for the Service when due by valid credit or debit card only. An additional service charge of $2 per month applies to pre-existing customers paying by check. USER authorizes WISPERTEL to perform
a credit check prior to providing any equipment or Services. If USER
fails to pay all valid charges for the Service when due, WISPERTEL
will charge USER interest (1.5% per month) on those charges and a late
fee of 10% of the owed balance. If USER fails to pay WISPERTEL within
30 days of billing date, WISPERTEL has the right to disconnect the
Service without notice and/or send to collection. Upon disconnect,
USER agrees to immediately pay all amounts owed to WISPERTEL. Re-establishment
of Service fees of $50.00 and a penalty of $25 apply to ALL disconnected
accounts. Upon disconnect, a valid credit or debit card will be required
to reinstate service. If payment is not made in full within 60 days,
WISPERTEL has the right to repossess the subscriber unit to offset
monies owed without liability for damage or trespass. USER's accounting cycle begins on the Service commencement date and unless adjusted, this day of the month becomes the "Billing Day". WISPERTEL Billing Days are the 1st, 8th, 16th and 23rd of each month. USERs with Service commencement dates other than the 1st, 8th, 16th and 23rd will have their Billing Day adjusted to the closest of these dates. Except when specified by a yearly or quarterly account type, all accounts are billed monthly on or about their Billing Day. Standard Limited Warranty, Service, Repairs, and Interference The customer premise equipment (antenna unit and associated accessories) provided by WISPERTEL may be purchased, rented, or leased by USER and may be new or reconditioned. WISPERTEL will provide a limited parts and labor warranty for the equipment and the installation thereof during the initial term of 12 months from the date of installation. This warranty excludes any damage resulting from abuse or negligence, or Acts of God, as determined by WISPERTEL. This warranty does not cover any internal networking hardware, LANs, computers or other peripherals. This warranty is in lieu of all other warranties, express or implied including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. Any repair or replacement of the equipment and/or correction of an installation problem following the expiration of this Agreement will be USER's responsibility. Should WISPERTEL damage the premises during the Service installation or maintenance, WISPERTEL will compensate the owner of the premises for reasonable, actual and documented costs of necessary repairs, not to exceed $1,000. If at any time any electrical output,
electromagnetic output, radio frequency or other interference (collectively, "Interference")
resulting from apparatuses on the USER’s property, in the sole
opinion of WISPERTEL, adversely affects the operation of its Service,
upon notification, the USER will immediately suspend operation of apparatus
until the interference has been corrected to the satisfaction of WISPERTEL. USER agrees to be bound by the provisions of WISPERTEL's Acceptable Use Policy (posted and available on the WISPERTEL website), which is incorporated by reference as if fully set forth herein, including all legal obligations arising there under. USER will NOT use WISPERTEL Service to: 1) Operate any Internet Service Provider enterprise, 2) COMPETE in any way with WISPERTEL or 3) RESELL any WISPERTEL service in any way without WISPERTEL's prior written approval. Reasonable Usage USER agrees to comply with any bandwidth usage or other limitations on the Service provided by WISPERTEL in its sole discretion. If WISPERTEL determines that USER is exceeding bandwidth limits, USER will be notified by mail and given 5 days to bring usage within appropriate limits. If excessive use continues after the five-day period, WISPERTEL may take any action it deems necessary including, but not limited to, terminating the Service to ensure that USER’s usage does not adversely affect WISPERTEL's ability to provide Service to other customers. WISPERTEL will notify USER if this occurs by mail or e-mail. Service Level Agreement WISPERTEL guarantees that USER’s data transmission throughput, as measured to the WISPERTEL Internet gateway, will be as follows:
WISPERTEL's goal is to provide each USER access to its network 99.5% of the time. This does not include scheduled maintenance, maintenance window outages or testing time. Access and throughput to specific Internet sites will vary but will not be a result of WISPERTEL network access services. Connectivity and Service Credit If WISPERTEL causes an error, delay, defect, breakdown or failure in Service, which is defined as lasting for more than 4 hours during any calendar month (Service Interruption), an out-of-service credit will be calculated based on a % daily prorated credit (1/30) of any monthly service charge Customer paid for service during the period of Service Interruption, provided Service Interruption lasts for more than four (4) consecutive hours after WISPERTEL receives notice of the interruption from Customer. The maximum credit allowed shall not exceed the Monthly Charge for the service interrupted. No credit shall be available for difficulties such as Customer equipment failure, Internet congestion, or other causes beyond WISPERTEL's reasonable control. The above prorated credit provides Customer's sole remedy for any claim relating to this Service or WISPERTEL. WISPERTEL's records and data shall be the sole basis for all calculations and determinations. Content Responsibility USER understands that neither WISPERTEL nor its network Service supplier is responsible for the content of the transmissions which may pass through the Internet and/or the connectivity Service. USER agrees that it will not use the connectivity Service in ways that violate laws, infringe the rights of others, or interfere with the users, Service, or equipment of the network. For example, end user shall not distribute unsolicited advertising, chain letters, or commercial electronic mail ("spamming"); propagate computer worms or viruses; attempt to gain unauthorized entry to other computers, data or networks; distribute child pornography, obscenity, or defamatory material the Internet; or infringe copyrights, trademarks, or other intellectual property rights. Offensive or Illegal Materials WISPERTEL does not knowingly post illegal content of any kind. There is, however, no monitoring of material posted to WISPERTEL's Web sites, FTP sites, or hosted domains by the USER. Otherwise, WISPERTEL exercises no control over the content of materials accessed through the Internet, including through the WISPERTEL network. Some materials posted by USERs or available through the Internet may be offensive to certain groups of individuals. IP Addresses As a subscriber of the WISPERTEL Internet Service, USER may be assigned an IP address. This address is controlled by WISPERTEL and may be provided to USER during the time that USER uses the WISPERTEL Internet Service. Any IP addresses assigned to USER are controlled by WISPERTEL and are not transferable to any other party. USER will not be allowed to maintain this IP address if USER discontinues use of the WISPERTEL Internet Service. WISPERTEL may change this address at any time without liability without prior notice to USER. WISPERTEL will use reasonable efforts to avoid any disruption to USER by notifying USER at least 7 days via e-mail before changing static IP addresses. Inactive Email Accounts Any email account not accessed for 270 days will be deleted. Accessing an account means checking your email, either through the WisperTel webmail client or via any POP3 email client (e.g. Outlook, Outlook Express, Eudora, Netscape, etc.). Any mail in the affected account will be deleted as well and cannot be recovered. However, if desired the email account can be activated again by a current customer using the email account utility on the WisperTel web site. Equipment Access Although USER may own the radio receiving equipment used to provide Internet access at USER’s premise, USER will not have password access to this equipment. USER may not use any forced means to reset, reverse engineer, modify or change any hardware, software setting or radio location. Export Compliance USER further agrees to comply with U.S. Export Laws concerning the transmission of technical data and other regulated materials via the connectivity Service. Limitation of Liability and Indemnification Neither WISPERTEL nor it subcontractors will be liable for any loss of data or damage to hardware that occurs during installation of or any service performed on USER’s computer in support of WISPERTEL Services. USER agrees that it is their responsibility to completely backup their computer prior to installation. USER further agrees that WISPERTEL and/or its contractors or affiliates are not responsible for any problems with USER’s computer following the installation of or any subsequent service performed on USER’s computer in support of WISPERTEL Service. USER’s exclusive remedy for any and all losses resulting from this installation of equipment and USER’s use of the Service, including WISPERTEL or its subcontractors’ negligence, will be limited to fees paid to WISPERTEL up to the time the damage is discovered. Neither WISPERTEL nor its network Service supplier will be liable for unauthorized access to or alteration, theft or destruction of end user's data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of company's or its network service supplier's negligence. This Service is provided on an "as is" and "as available" basis without warranties of any kind either express or implied, including but not limited to warranties of title, non-infringement or implied warranties of merchantability or fitness for a particular purpose. Neither WISPERTEL nor its affiliates warrant that this Service will be uninterrupted or error free or that any information, software or the material accessible on the Service are free of viruses or other harmful components. WISPERTEL, its affiliates and its subcontractors will not be liable for any indirect, incidental, special, exemplary, punitive or consequential damages of any nature including personal injuries, property damage or loss of business that result in any way from USER’s use or inability to use the Service or to access the Internet or any part thereof, or USER’s reliance on or use of offers, claims, representations, promotions and transactions, information, service or merchandise provided on or through this Internet or the Service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, transmission or any failure of performance. USER agrees to indemnify, defend and hold WISPERTEL, it affiliates and subcontractors harmless from any claims made by third parties arising out of the use of the equipment and/or the Service provided by USER or an authorized user of USER’s account, including the placement or transmission of any message, information, software or other materials on the Internet. These limitations on liability and indemnification provisions inure to the benefit of and apply to: WISPERTEL, subsidiary and affiliated companies, any successor to WISPERTEL's business by way of merger, purchase of assets, or operation of law, and any subcontractors performing work on behalf of WISPERTEL. Survival This Provision, entitled Survival, the Provision above entitled Export Compliance and any provision in all WISPERTEL agreements or policies which references 'Indemnification', 'Limitation of Liability', 'Limitation of Damages,' and 'Warranty Disclaimers' shall survive the termination of the Agreement. Force Majeure If the performance of any obligation hereunder is interfered with by reason of any circumstances beyond WISPERTEL's reasonable control including, but not limited to Acts of God, lightning, wind, power surges or failures, labor strikes and other labor disturbances, or the act or omission of any third party, shall be excused from such performance to the extent necessary, provided that WISPERTEL shall use reasonable efforts to remove such causes of nonperformance. Complete Agreement and Severability This Agreement supercedes any other written or oral agreement, and represents the complete understanding between WISPERTEL and USER. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. This Agreement may be signed, but does NOT have to be signed to be enforced. Proceeding to sign up, either online or by phone, constitutes acceptance of all terms and conditions set forth in this Agreement. Amendment WISPERTEL reserves the right to change the terms and conditions of this Agreement and/or any collateral agreements referenced herein, including the Acceptable Use Policy and the fee schedule, by notifying USER on the WISPERTEL's Web site (linked from home page) or by e-mail at least 30 days in advance of the effective date of the change. Use by USER after the effective date constitutes acceptance of the new terms and conditions. EXECUTION
OF AGREEMENT printable version (Requires Adobe Acrobat Reader) |
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© WisperTel
2007. All rights reserved. |
