Provision of Services: Customer agrees to purchase certain wireless data services, products and/or equipment from Mountain Tower and Network Company, LLC., hereinafter referred to as SHASTABEAM. Customer acknowledges and agrees that SHASTABEAM reserves all rights and property interest in the IP addresses that may be assigned to Customer under this Agreement.
Use of Data Services: SHASTABEAM Data Services are to be used solely by Customers. Customer represents, warrants, and covenants that it will not transmit, re-transmit, store, or otherwise use the Data Services in violation of any federal, state, local laws, or violate any Laws relating to copyright, trademark or other intellectual property or proprietary rights, or any Laws relating to U.S. export, and that it will not post, transmit or re-transmit any unlawful, threatening, or abusive material of any kind. In using the Data Services, Customer agrees that it will comply with SHASTABEAM’s’ current “Acceptable Use Policy” (a copy of which is available upon request) that prohibits such activities as: (i) gaining or attempting to gain unauthorized access to another account, host, or network; and (ii) distributing, posting, or collecting unsolicited, duplicative messages to entities who do not expressly request such messages (“Spamming”). Customer further agrees that it will take appropriate actions against entities to whom it may re-sell the Data Services if such entities are in violation of the Acceptable Use Policy and that Customer will cooperate fully with SHASTABEAM in actions taken by SHASTABEAM to enforce such Acceptable Use Policy. Customer shall not improperly restrict or interfere with use of the Data Services (or of the Internet general) by SHASTABEAM or its affiliates, any SHASTABEAM customer, or any third party. Upon notice from SHASTABEAM, Customer shall promptly remove any hazard, interference or service obstruction that may be caused by hardware or software not provided by SHASTABEAM. SHASTABEAM may, at its option and upon Customer’s request, troubleshoot problems caused by such hardware or software. Such troubleshooting services shall be billed at SHASTABEAMs rates in effect at the time such services are requested.
Data Speeds: The data speeds on SHASTABEAM services are delivered on a “Best Effort” basis. We do not guarantee the speed of the service. Due to the nature of Radio Frequency (RF) technologies used to deliver internet, the service is susceptible to interferences outside the control of Shastabeam. All advertised speed agreements are on an up to basis. Due to the nature of wireless internet services, Shastabeam utilizes unlicensed frequencies to deliver service to customers. Unlicensed wireless is susceptible to interference from outside sources.
Payment: Except as otherwise set forth in this Agreement, rates, charges, and other payments (“Charges”) SHALL BE SET FORTH ON THE APPLICABLE Sales Order and/or any pricing attachment, Customer may pre-pay Charges for each term set forth on the Sales Order, or Customer may pay Charges on a monthly basis. All services are expected to be paid automatically via credit card or bank draft. Monthly charges are invoiced in advance and due on the anniversary date of the service. All services are prepaid for the entire month and no prorating of monthly service is allowed.Charges more than thirty (30) days overdue will accrue interest charges at the lesser of 1.5% per month or the highest rate permitted by law and will be subject to suspension. If Data Services are suspended due to non-payment, customer shall pay any interest charges plus a reconnection fee of $100.00 and agree to auto pay for the service using a credit card or via auto debit from customers bank account.
Early Termination Fee: Customers who enter a term contract shall pay an early termination fee of $275.00 or the remaining balance due on the term of the contract, whichever is less. SHASTABEAM retains the right to collect the termination fee via credit card or via a check held on deposit. Credit card or deposit check must be collected at the time the contract is entered into.
Term: This Agreement shall be effective as of the date signed by SHASTABEAM below and shall remain in full force and effect so long as any Sales Order Form is in effect, unless otherwise terminated in accordance with the terms herein. At the expiration of the initial period, Service is to continue in effect on a month-to-month basis at the then current monthly rate unless terminated by either party upon thirty (30) days prior written notice. Upon termination of Data Services, all IP addresses assigned by SHASTABEAM to Customer shall no longer be available for Customer’s use and SHASTABEAM shall retain the right to use such IP addresses.
Termination: In the event a law prohibits, or actions of a Third Party make delivery of Service impossible, substantially impairs, or makes impractical the provision of Data Services under this Agreement, as determined by SHASTABEAM in its reasonable discretion, SHASTABEAM may terminate this Agreement without liability upon thirty (30) days written notice to Customer, unless earlier termination is required by law. SHASTABEAM may terminate this Agreement, or any Sales Order hereunder, upon Customer’s material breach of this Agreement or Sales Order, but only after having provided Customer with thirty (30) days’ prior written notice and an opportunity to cure which cure is not materially affected during such thirty (30) day period. Customer may terminate this Agreement with respect to any Sales Order subject of a material breach by SHASTABEAM, but only after having provided SHASTABEAM with thirty (30) days’ prior written notice and an opportunity to cure which cure is not materially affected during such thirty (30) day period. Notwithstanding the foregoing, SHASTABEAM may, upon notice, terminate this Agreement, or any Sales Order hereunder, upon customer’s breach of Section 2 herein. SHASTABEAM RESERVES THE RIGHT TO TERMINATE SERVICES AT IT’S SOLE DISCRETION IF THE CONNECTION MAY BE DEEMED INADEQUATE OR CAUSES HARM TO THE SHASTABEAM WIRELESS NETWORK.
Equipment and Software: Customer Premise Equipment and Routers (“CPE”) shall mean equipment that is provided by SHASTABEAM within or under Customer’s control. Customer is responsible for maintaining and operating the CPE, unless otherwise expressly provided under this Agreement. If Customer has not purchased CPE, SHASTABEAM shall retain title to CPE. In the event of termination or cancellation of services, Customer shall promptly return all CPE to SHASTABEAM and/or promptly provide SHASTABEAM with reasonable access to Customers’ facilities to recover the CPE. Shastabeam may elect not to recover the equipment. If Customer requests ShastaBeam to remove the equipment, a service charge may apply. For CPE owned by SHASTABEAM but under Customer’s control, Customer shall protect SHASTABEAMs title and keep the CPE free from all claims, liens, encumbrances, and legal processes and Customer shall notify SHASTABEAM of any claims, liens, encumbrances, or legal processes with respect to the CPE. In the event CPE is damaged, lost, not returned, or stolen, the customer shall pay $399.00 to SHASTABEAM. Should the CPE fail due to normal wear and tear, SHASTABEAM will replace the CPE at no cost to the customer. The CPE is personal property and is not to be regarded as part of the real estate on which it may be situated. If requested by SHASTABEAM, Customer will, at Customer’s expense, furnish a landlord or mortgagee waiver with respect to the CPE. The CPE shall not be removed from any location without the written consent of SHASTABEAM. Customer shall, upon SHASTABEAMs request, affix and maintain plates, tags, or other identifying labels, showing ownership of the CPE in a prominent position on the CPE. The use of the CPE by Customer shall conform to all applicable laws, insurance policies, and warranties of the manufacturer or supplier of the CPE. SHASTABEAM shall have the right to inspect the CPE at the premises where the CPE is located. SHASTABEAM shall not be responsible for CPE that has not been professionally installed and/or serviced and maintained by SHASTABEAM or an approved SHASTABEAM installer or technician. This coverage does not apply to cabling. Impairment of Customer’s use of the Data Services due to non-SHASTABEAM equipment or software shall not relieve Customer of its payment obligation hereunder. SHASTABEAM shall not be responsible for any changes in the Data Services which may cause non-SHASTABEAM equipment or software to become obsolete, to require modification or alteration, or otherwise affect performance of equipment to be used as a gateway to the Data Services, and Customer shall cooperate with SHASTABEAM in setting up the initial configuration for the Customer-provided router’s interface with the Data Services.
Installation and Service: Customer shall make all necessary preparations required to permit installation, maintenance and operation of the CPE and Data Services and will provide SHASTABEAM, and its suppliers of communication services and equipment, reasonable access to Customer’s premises, to perform any activities reasonably required under this Agreement. Customer shall have all non-SHASTABEAM equipment or software available and operable for use with the Data Services or CPE at least five (5) business days prior to the scheduled installation date of the Data Services or CPE. Customer acknowledges that they have the right to authorize installation services to be performed on the service address. Any time Shastabeam performs work for installation of equipment or maintenance of its services, that work is warrantied for a period of 90 days. That work includes rooftop work, roof penetrations, wall penetrations, in-attic wiring, and under house wiring. After the 90-day period, Shastabeam is not responsible for damages associated with the work performed.
Warranties and Remedies: Customer understands that the Internet is not owned, operated, managed by or in any way affiliated with SHASTABEAM and that all content, services, information, and other materials that may be offered, made available, or are accessible on the Internet are offered, made available, or are accessible solely by third parties who are not affiliated with SHASTABEAM or its affiliates. Use of the Internet by Customer, Customer’s customers or any other authorized users is solely at the respective user’s own risk and is subject to all applicable Laws. SHASTABEAM does not warrant that the Data Services will be uninterrupted or error-free, or that any information, software, or other material that may be accessible via the Data Services, is free of viruses, disabling code, worms, or any other harmful components. WITH THE EXPRESS EXCEPTION OF THE REMEDIES SET FORTH IN SECTIONS 6 AND 7 OF THIS AGREEMENT, IN NO EVENT SHALL SHASTABEAM, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY REMEDIES OR DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, INDIRECT, DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER’S OR ITS AUTHORIZED USERS’ RELIANCE ON OR USE OF CONTENT, INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE DATA SERVICES, OR THAT RESULT FROM OR ARE RELATED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF ANY KIND, EVEN IF SHASTABEAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any legal action arising out of this Agreement shall be brought by Customer within a period of one (1) year of the occurrence giving rise to such action or shall be deemed waived.
Indemnification: Customer shall defend, indemnify and hold harmless SHASTABEAM, its affiliates, officers, directors, employees, agents and assigns from and against all claims or actions, threatened claims or actions, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, relating to or arising from: (a) the use of the Data Services or the Internet in general or the placement or transmission of any message, information, software or to other materials or content on the Internet by Customer or its authorized users; (b) willful misconduct or negligent acts of Customer, its authorized users, agents or contractors in connection with this Agreement; (c) infringement of any patent, trademark, copyright or any other proprietary rights arising from or relating to the use of any equipment, software, or system not provided by SHASTABEAM; and (d) the violation of any Laws.
Confidential Information: Customer understands and agrees that nothing in this Agreement shall bestow any proprietary or other intellectual property rights of any kind to, or on behalf of, Customer. Customer understands that the terms of this Agreement and/or any Sales Order or other attachment constitute confidential and proprietary information and shall not be disclosed to any third party without the prior express written consent of SHASTABEAM.
Transfer and Assignment: This Agreement shall be binding on the parties hereto and their respective successors and assigns. Neither party may assign or transfer this Agreement, or any part thereof, without prior written consent of the other, which consent shall not be unreasonably withheld, except that SHASTABEAM may assign its rights and obligations under this Agreement without approval of Customer to an entity that acquires all or substantially all the assets of SHASTABEAM; provided that in no event shall such assignment relieve SHASTABEAM of its obligations under this Agreement.
Notice: All notices, requests, demands or other communications provided for or permitted or required by this Agreement shall be deemed delivered (a) on the same day if hand delivered, (b) by the next business day if sent by overnight courier or by facsimile, or (c) within three (3) days if sent by United States mail.
Miscellaneous: SHASTABEAM reserves the right to decline to provide Data Services to any Customer for any reason. Customer gives permission to SHASTABEAM to check Customer’s credit and shall provide references upon request. This Agreement shall be interpreted in accordance with the laws of the State of California, Shasta County, without reference to its principles of conflicts of law. This Agreement, including any Sales Order (and attachments hereto or thereto) that shall be signed by the parties in the future, constitutes the entire agreement between the parties with respect to the subject matter hereto and supersedes all prior contemporaneous agreements whether written or oral. In the event of a conflict between this Agreement and any Sales Order, the terms of this Agreement shall prevail.
