Terms Of Service Agreement
Master Service Agreement
This Master Service Agreement (“Agreement”) sets forth the terms and conditions by which InnovativeAir, LLC (“InnovativeAir”) agrees to provide communication services to Customer. The parties agree as follows:
1. DEFINITIONS In addition to terms defined elsewhere and industry standard terms, where capitalized, the following words and phrases used herein shall be defined as follows:
1.1. Acceptance Date: The beginning data of the Service Term and the date billing commences for the Service. The Acceptance Data is the earlier of: (i) when testing following installation of a Service has been successfully completed and Customer agrees that the Service is working properly; (ii) when Customer accesses and utilizes the Service: or (iii) five days past the Service Installation Date if testing is complete but Customer has failed to accept.
1.2. Default: Circumstances which may lead to termination of this Agreement as described in Section 5, including but not be limited to: (i) any material breach of any term of this Agreement, (ii) an assignment for the benefit of creditors; (iii) a voluntary filing of bankruptcy; or (iv) any proceedings filed against the party under any law relating to creditor’s rights in general provided such proceeding is not dismissed within 90 days of its filing.
1.3. Emergency Maintenance: Maintenance which, if not performed promptly by InnovativeAir, could result in a serious degradation or loss of Service to InnovativeAir customers.
1.4. Planned Service Interruption: Any Service Outage caused by scheduled maintenance, planned enhancements or upgrades to the InnovativeAir Network.
1.5. Point of Presence (“POP”): A specific location where Customer terminates and/or originates Service.
1.6. Premises: The address, to which Service is provided.
1.7. Service(s): “Service(s)” will mean the communication service ordered by Customer and provided by InnovativeAir pursuant to a Service Order provided by Customer, subject to the terms and conditions of this Agreement and the applicable Service Addendum.
1.8. Service Installation Date: The date InnovativeAir designates for installation of Service following receipt of a complete and accurate Service Order.
1.9. Service Order: A document provided by InnovativeAir to the Customer to sign in agreement, in the form of either a sales order or a service order which identifies the type of Service desired and provides all information necessary for InnovativeAir to provide the service to Customer, including but not limited to the following: quantity and type of Service; location served; Point of Termination; protocols; Service Term; and the date Customer would like Service to be installed and activated.
1.10. Service Term: The period of time Customer has requested that the Service be provided, as identified on each Service Order. If the Service Term is not stipulated in the Service Order, a Monthly term will apply. Following each Service Term, the Services will continue on a month-to-month term unless terminated by either party by providing five (5) days prior written notice to the other party.
2. SERVICE DESCRIPTION
2.1. InnovativeAir will provide communications Service to Customer pursuant to a Service Order issued to the Customer to sign and return to InnovativeAir, and in accordance with these terms and conditions and any applicable Service Addendum. InnovativeAir reserves the right, in its sole reasonable discretion, to reject any Service Order.
2.2. InnovativeAir will provide Services to Customer using InnovativeAir owned and managed facilities in conjunction with facilities of InnovativeAir’s partners. InnovativeAir reserves the right to substitute, change or rearrange any equipment used in delivering Services that does not affect the quality, cost or type of Services.
2.3. Unless otherwise provided herein, Customer is responsible to provide equipment compatible with the Service and InnovativeAir’s network and facilities. Customer will bear the cost of any additional equipment or protective apparatus (e.g. surge protectors) reasonably required to be installed because of the use of InnovativeAir’s network or facilities by Customer or Customer’s authorized users (“End Users”). Any wiring required to extend a communications termination and/or demarcation at the Customer or End User premises is not the responsibility of InnovativeAir, and InnovativeAir is not responsible for the costs thereof past the Point of Demarcation or the Radio Ethernet port or InnovativeAir owned router port after installation.
2.4. Customer’s use of the Services provided herein and any equipment associated therewith will not: (i) interfere with or impair service over InnovativeAir’s network or facilities; (ii) impair privacy of any communications over such network or facilities; (iii) cause damage of any nature to InnovativeAir’s assets; or (iv) be used to frighten, abuse, torment or harass another. At the time Customer becomes or is made aware of the interference, Customer shall immediately take all necessary action to discontinue any event of interference. Notwithstanding any other provision herein, in the event Customer is in breach of this Section, InnovativeAir may suspend the affected Service until the equipment or wrongful conduct is modified to prevent said interference. In most circumstances InnovativeAir will provide 24 hours notice of such interference to Customer and suspend the Service if Customer fails to cure the interference within such 24 hour period. However, if the interference is a threat to the integrity of InnovativeAir’s network, in InnovativeAir’s sole discretion, InnovativeAir may suspend the affected Service immediately. Customer’s failure to diligently pursue and cure such interference within a reasonable time of such suspension will be deemed a material breach of this Agreement.
2.5. InnovativeAir will manage its network in InnovativeAir’s sole discretion. Customer will provide all reasonable information and authorizations required by InnovativeAir for the purpose of installing Services, performing routing, network grooming, maintenance, upgrade and addressing emergencies. Customer will cooperate in good faith and follow through with any coordination efforts required in a timely manner.
2.6. InnovativeAir will maintain a point-of-contact for Customer to report a Service Outage to InnovativeAir twenty-four (24) hours a day, seven (7) days a week. When Customer believes that a Service Outage has occurred, Customer must contact InnovativeAir’s support center at 801-653-3450 to identify the Service degradation and initiate an investigation of the cause of the Service Outage (“Trouble Ticket”). Responsibility for Trouble Ticket initiation rests solely with Customer. Once the Trouble Ticket has been opened, the appropriate InnovativeAir departments will initiate diagnostic testing and isolation activities to determine the source and severity of the degradation in Service. If there is degradation of Service, InnovativeAir and Customer will cooperate to restore Service. If the cause of service degradation is a failure of InnovativeAir’s Equipment or facilities, InnovativeAir will be responsible for the repair. If the degradation is caused by a factor outside the control of InnovativeAir, InnovativeAir will cooperate with Customer to conduct testing and repair activities at Customer’s cost and at InnovativeAir’s standard technician rates.
3.1. This Agreement shall commence on the Effective Date of this Agreement and shall remain in effect through the Service Term of each Service Order issued hereunder (“Term”).
3.2. Each Service Order is effective upon execution, and the Service Term of each Service order begins on the Acceptance Date of the applicable Service. Following expiration of the Service Term, the Service Order shall continue in effect on a month to month basis until terminated by either party with a least five (5) days advance written or email notice to the other party which may be initiated with a verbal request (but still confirmed with email or paper notice).
4. CUSTOMER CHANGES, CANCELLATION, TERMINATION
4.1. Customer may change or cancel a Service Order without incurring termination charges by submitting a Change Order or providing written notification of cancellation to InnovativeAir at least five (5) business days prior to the Service Installation Date. Customer will be liable to InnovativeAir for a reasonable administrative fee associated with any such change or cancellation, as determined by InnovativeAir on an individual case basis.
4.2. If Customer changes a Service Order less than five (5) days prior to the Service Installation Date but prior to installation, the change will be deemed a termination of the original Service Order and submission of a new Service Order with the change incorporated. The ordering process will start over and Customer will be liable to InnovativeAir for a reasonable administrative fee.
4.3. If Customer cancels a Service Order less than five (5) days prior to the Service Installation Date but prior to installation, such cancellation will be deemed a termination of such Service and will be subject to Section 5.3.
4.4. You may agree to notify InnovativeAir of any change of occupancy or ownership or tenancy. If you vacate Premises, this Agreement will be subject to termination and InnovativeAir will have the right to disconnect Services and recover property owned by InnovativeAir.
5. DEFAULT AND TERMINATION
5.1. Either party may terminate this Agreement without incurring termination liability if the other party is in Default (“Defaulting Party”), provided that: (i) prior written notice is given to the Defaulting Party specifying the circumstances which may lead to Default and allowing fifteen (15) days to cure such circumstances, or a longer period of time if mutually agreed (“Cure Period”), and (ii) the Defaulting Party fails to cure the circumstances within the Cure Period.
5.2. Notwithstanding the Cure Period referenced in Section 5.1, Customer’s failure to comply with the terms of Section 6 of this Agreement shall be deemed a Default and upon such a Default InnovativeAir may immediately suspend and/or terminate this Agreement or any individual Service Order.
5.3. If a Service is terminated either by Customer without cause, or by InnovativeAir for cause or Customer’s breach identified in Section 5.2, Customer will pay InnovativeAir an amount equal to the following: (i) any unpaid amounts for Services provided through the date of termination, and (ii) one hundred percent (100%) of the monthly recurring charge (“MRC”) for the remainder of the Service Term.
5.4. It is agreed that InnovativeAir’s damages in the event of early termination will be difficult or impossible to ascertain. These provisions are intended, therefore, to establish liquidated damages in the event of termination and are not intended as a penalty.
6. PAYMENT FOR SERVICES
6.1. Customer will pay all undisputed charges related to the Services, beginning on the applicable Acceptance Date. Invoices are due upon receipt or the first of the month for recurring payments. When the Acceptance Date falls on a day other than the first day of the month, the charges will be determined by prorating the monthly payment by the number of days during which Service was provided. InnovativeAir reserves the right to adjust the rates and charges for any renewal term hereof by providing five (5) days notice to Customer prior to the end of the current Service Term. Payments are considered late after the tenth (10) day of the month and are subject to any penalties and suspension of service thereafter. All payments will be in United States currency.
6.2. If Customer does not make payment of undisputed charges within the period specified in Section 6.1 above, InnovativeAir may suspend Service immediately to cure all undisputed amounts. Following such a suspension, InnovativeAir may condition reinstatement of Service on one or more of the following events: (i) payment of all charges then due, including any late fees and interest charges; (ii) satisfactory assurance (such as a deposit) of Customer’s ability to pay for Service, and (iii) an advance payment for the cost of reinstating Service. If Customer fails to timely cure the nonpayment, Customer will be deemed to have terminated the Service as of the effective date of the suspension and will be in default of this Agreement pursuant to Section 5.2.
6.3. Customer will be liable for payment of all fees regarding insufficient funds, bounced checks or other bank fees relating to problems in payment processing up to the maximum applicable charge as allowed by law.
6.4. In the event Customer disputes any billing by InnovativeAir, Customer will (i) pay all charges not disputed, and (ii) notify InnovativeAir of the dispute in writing, providing the billing identification, address, any Trouble Ticket number and an explanation of the issue in dispute. No charges may be disputed more than sixty (60) days after the date such charges are invoiced. Payment will not prejudice Customer’s right to dispute charges, so long as they are disputed in the manner and within the time specified in this Section. The parties will cooperate in good faith to resolve any such disputes within a thirty (30) day period after the dispute is submitted to InnovativeAir. If the dispute is not resolved during this period, then either party may seek dispute resolution in accordance with Section 18. If a disputed amount is determined to be a legitimate charge, Customer will pay such amount within ten (10) calendar days of such determination, including any additional dispute fees. Results of nonpayment may result in any available legal credit collection actions as allowed by the law.
6.5. Pursuant to section 6.4 above, InnovativeAir reserves the right to send outstanding balances on accounts to a collections agency. Any fees incurred by InnovativeAir in this process will be added to the total outstanding balance owed by the customer. Such fees are generally 35% of the outstanding balance. Once an account has been sent to collections, it is out of the hands of InnovativeAir and disputes must be settled with the collections agency. Customer is also responsible for any court costs, attorney fees and any other fees associated with the collections agency and the recovery of outstanding balance(s).
7. EQUIPMENT OWNERSHIP, RECOVERY
7.1. InnovativeAir Equipment will remain the sole and exclusive property of InnovativeAir or InnovativeAir’s assignee, and nothing contained herein will give or convey to Customer any right, title or interest whatsoever in such InnovativeAir Equipment, which will at all times be and remain personal property notwithstanding that it may be or become attached to or embedded in realty. Customer will not tamper with, remove or conceal any InnovativeAir identifying plates, tags or labels, Customer hereby grants to InnovativeAir the right to recover InnovativeAir provided equipment from Customer’s premises upon termination of the Agreement.
7.2. Neither party will adjust, align or attempt to repair the other party’s telecommunications equipment except as expressly authorized in advance in writing by the other party. Neither party’s telecommunications equipment will be removed or relocated by the other party.
7.3. Customer will indemnify, hold harmless and defend InnovativeAir against any liens placed on InnovativeAir Equipment due to Customer’s action or inaction. Any lien will be discharged by Customer within ten (10) days of notice of filing. Failure to discharge any such lien is a material breach of this Agreement, and may result in immediate termination.
7.4. You grant to InnovativeAir or any appointed subcontractors an irrevocable license to enter into or onto your Premises during normal business hours, Monday through Saturday, in order to install, repair, replace or remove Equipment. This license will be effective whether or not you are present during the service call. This license will survive termination or cancellation of this Agreement and will run with the land and inure to the parties' successors and assigns.
7.5. Any equipment not returned by the Customer will result in Customer liability for all costs of said equipment. Equipment that is not returned within 30 days may result in all available legal credit collection actions as allowed by the law.
8. InnovativeAir WARRANTIES
8.1. InnovativeAir represents and warrants to Customer that it has the right to provide Customer the Service specified herein, and that it is an entity, duly organized, validly existing and in good standing under the laws of Utah, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms.
8.2. The warranties and remedies set forth in this Agreement constitute the only warranties and remedies with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. CUSTOMER WARRANTIES
9.1. The Customer represents and warrants that it is an entity, duly organized validly existing and in good standing under the laws of its origin, with all requisite power to enter in to and perform its obligations under this Agreement in accordance with its terms.
9.2. Customer represents and warrants that neither its equipment for facilities will pose a hazard to InnovativeAir’s Equipment or facilities or create a hazard to InnovativeAir’s personnel or customers or the public in general.
9.3. Customer represents and warrants that its use of the Service will comply and conform with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities.
10. INDEMNIFICATION InnovativeAir will indemnify and hold Customer harmless from and against any and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) for damages to any property, or injury to or death of any person to the extent arising out of any act or omission of InnovativeAir. Customer will indemnify and hold InnovativeAir harmless from and against any and all loss, liability, claim, demand, damage and expense (including reasonable attorney’s fees) to the extent arising out of any act or omission of Customer or End User. The provisions of this Section shall survive the termination of Services and any Service Order(s) issued hereunder.
11. LIMITATION OF LIABILITY InnovativeAir’S LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ASSOCIATED WITH THE INSTALLATION, PROVISION, TERMINATION, MAINENANCE, REPAIR OR RESTORATION OF SERVICES, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS PAID BY CUSTOMER TO InnovativeAir DURING THE CONTRACT TERM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR HARM TO BUSINESS. EACH PARTY HEREBY RELEASES THE OTHER PARTY, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS FROM ANY SUCH CLAIM. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE TERMINATION OF THE AGREEMENT, THE SERVICES AND ANY SALES ORDER(S) ISSUED HEREUNDER.
12. FORCE MAJEURE In the event that either party’s performance is delayed, prevented obstructed, or inhibited because of any act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shutdown of facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, any full or partial failure of any communications or computer network or any cause beyond such party’s reasonable control, the party’s performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence. The occurrence of such an event will not constitute grounds for a declaration of default by either party hereunder.
13. NOTICES All notice provided pursuant to the Agreement will be issue in electronic form (“Email”) and shall be deemed delivered on the next day after the sending of the notice.
14. CONFIDENTIAL INFORMATION
14.1. The parties agree that proprietary and/or confidential information (“Confidential Information”) is defined as: (i) information in written, electronic or other tangible form that is clearly marked or labeled “Proprietary” or “Confidential” or words of similar import; or (ii) information orally disclosed that the disclosing party specifically identifies as confidential at the time of disclosure, or thereafter confirms through written documentation or Email provided within thirty (30) days of disclosure to be proprietary and/or confidential.
14.2. In the course of performance hereunder, the parties may have access to certain information, the ownership and confidential status of which is highly important to the other party. Neither party will disclose the other party’s Confidential Information, directly or indirectly under any circumstances or by any means, to any third person without the express written consent of the other party, and neither party will copy, transmit, reproduce, summarize, quote, or make commercial or other use whatsoever of the other party’s Confidential Information, except as may be necessary to perform its duties hereunder. Each party will exercise the highest degree of care in safeguarding the other party’s Confidential Information against loss, theft, or other inadvertent disclosure and take all commercially reasonable steps necessary to maintain such confidentiality to the same extent it protects its own Confidential Information.
14.3. Notwithstanding, information is not Confidential Information if it: (i) is or becomes publicly available through no fault or breach of this Agreement by either of the parties; (ii) is intentionally released in writing to the general public by the party disclosing the information; (iii) is lawfully obtained from third parties without breaching any provision of any non-disclosure agreement; (iv) is previously known or developed by the receiving party independently of the disclosing party; or (v) must be disclosed pursuant to or as required by law, provided that sufficient notice is given to the disclosing party of any such requirement or request to permit the disclosing party to seek an appropriate protective order or exemption from such requirement or request, unless such notice is prohibited by said order. These exceptions shall be narrowly construed and shall not be interpreted by the receiving party as justification for disregarding the obligations of confidence set forth in this Agreement merely because individual portions of the Confidential Information may be found to be within one or more exception, or because the Confidential Information is implied by but not specifically disclosed in information falling within the exception.
14.4. Neither party will use the name, service marks, trademarks, or trade secrets of the other party or any of its affiliates for any purpose, including, but not limited to, press releases, without the other party's written consent.
14.5. The provisions of this Section will survive the termination of the Services and any Service Orders issued hereunder.
15. WAIVER The failure of either party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision or any provisions herein, and the same will continue in full force. The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered a waiver of any continuing or subsequent breach of the same provision.
16. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, exclusive of any choice of law provisions.
17. ASSIGNMENT Customer may not assign its obligations hereunder without the prior written consent of InnovativeAir; such consent will not be unreasonably withheld. Customer may, however, assign its rights hereunder to a company which purchases all or substantially all of its assets; provided that Customer provides to InnovativeAir written agreement of the purchaser to be bound by all terms and conditions of this Agreement, including purchaser’s agreement to cure all prior defaults of the Customer under this Agreement. Any assignment or transfer of this Agreement by either party shall be subject to the other party’s rights and obligations herein, and any assignee or transferee shall continue to perform such obligations to the other party and shall, correspondingly, be entitled to the benefits of this Agreement pursuant to the terms and conditions hereof.
18. DISPUTE RESOLUTION Except as otherwise specifically provided in or permitted by this Agreement, all disputes, and differences of opinion or controversies arising in connection with this Agreement shall first be resolved through good faith negotiation to arrive at an agreeable resolution. If, after negotiating in good faith for a period of sixty (60) calendar days or any agreed further period, the parties are unable to resolve the dispute, then the parties may seek resolutions by exercising any rights or remedies available to either party at law or in equity.
19. SEVERABILITY OF PROVISIONS In the event any provision in this Agreement is held invalid, illegal or unenforceable, the unaffected provisions shall remain in full force and effect. The parties shall negotiate in good faith to substitute for such invalid, illegal or unenforceable provision a mutually acceptable provision consistent with the original intentions of the parties.
20. RULES OF CONSTRUCTION
20.1. Unless expressly defined herein, words having well-known technical or trade meanings shall be so construed. All listing of items shall not be taken to be exclusive, but shall include other items, whether similar or dissimilar to hose listed, as the context reasonably require.
20.2. Except as set forth to the contrary herein, any right or remedy of either party will be cumulative and without prejudice to any other right or remedy, whether or not contained herein.
20.3. Except as set forth in this Agreement, nothing in this Agreement is intended to provide any legal rights to anyone not an executing party of this Agreement. Except as otherwise stated, this Agreement does not provide and is not intended to provide third parties with any remedy, claim, liability, reimbursement, cause of action, or other privilege.
20.4. This Agreement has been fully negotiated between and jointly drafted by the Parties.
21. ENTIRE AGREEMENT This Agreement and any documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous agreements, representations, statements, negotiations, and undertakings written or oral. This Agreement and any of the provisions hereof may not be amended, altered or added to in any manner except by a written document signed by an authorized representative of each party. In the event of a conflict between the provisions of this Agreement and those of any Service Addendum or Service Order, unless specifically otherwise agreed, the provisions of the Agreement shall prevail and such Addendum or Service Order will be interpreted accordingly.
Wireless Customer Agreement Service Addendum
This InnovativeAir, LLC (“InnovativeAir”) Wireless Customer Agreement (" Agreement") is entered into between InnovativeAir, and the Customer ("Customer" or "you"). The parties agree to the following Terms and Conditions.
1.1. You authorize InnovativeAir or its authorized contractors to install a customer premise unit, software, wiring and other equipment ("Equipment"), at the address you provide ("Premises") to InnovativeAir Wireless service ("Services").
1.2. To provide Services, InnovativeAir is required to complete the installation of various equipment ("Installation") at your Premises. The standard Installation includes but is not limited to the installation of the antenna, router and the routing of cable, as applicable ("Equipment") by the path deemed acceptable by InnovativeAir or authorized contractor to your device. Any custom installation work that you request, including placing cable under carpet, through cabinets, through interior walls or inside molding, will require an additional charge that must be paid at the time the installation work is performed. InnovativeAir will not be liable for any alterations to Premises that result from the installation or removal of Equipment, including but not limited to, any holes in walls, cable wiring or antenna mounting brackets. For Services, InnovativeAir will also configure the device IP settings. You must provide and maintain the devices including computer(s) necessary to receive Services, including a working Ethernet port.
1.3. You warrant that you own Premises to which Services will be provided, or you have obtained the valid consent of the owner for any necessary changes to Premises or with Premises wiring that arise out of the installation, maintenance, repair and removal of Equipment. In addition, Customer has reviewed any restrictive covenants or homeowners restrictions ("Restrictions") to confirm that Customer may place an antenna on Premises. If it is later determined that the installation of the RF Equipment violates any Restrictions or that Customer failed to obtain appropriate permission, InnovativeAir may terminate this Agreement and discontinue Services. Customer agrees to hold harmless InnovativeAir for any damages or losses caused by your (i) failure to comply with the Restrictions or (ii) failure to secure appropriate permission. InnovativeAir may in its discretion, require evidence that Customer has obtained appropriate permission.
1.4. Any action necessary to retain signal 30 days or more after installation is completed will be billed to customer (ie. tree growth, additional building on Premise or near premise affecting signal etc).
2.1. InnovativeAir retains ownership of all equipment installed on premise including radio, interconnecting cable, antenna and power supply unless explicitly stated in the Service Order as a sale of equipment. Equipment will be recovered within a thirty (60) day period after Termination of Service.
3.1. InnovativeAir will support all equipment up to Point of Termination including radio and/or InnovativeAir supplied router, interconnecting cable, antennas if applicable and power supply. Support for all other connecting equipment is the responsibility of the Customer unless otherwise stated in the customer Service Order. Point of Termination is where the Ethernet cable originates from the outside Demarcation point (ie. Radio Ethernet port).
3.2. The time of an outage is started when a customer opens a trouble ticket with the InnovativeAir Customer Support Center at 801-653-3450 ("Support"). When Support receives a call, Support will use various software tools to verify that an individual customer is down. The outage stops when the Service is functioning properly and the trouble ticket is closed. "Network Unavailability" consists of the number of minutes that the InnovativeAir Network was not available to the Customer. A Support representative is guaranteed to reply to a trouble ticket within a seventy two (72) hour time period. Time to complete trouble ticket will fall within guaranteed Uptime parameters.
3.3. Support hours are limited to business hours unless otherwise specified in the customer Service Order.
3.4. InnovativeAir assumes no responsibility for the operation, maintenance or repairs of your computers, computer peripherals, or existing wiring unless specified on a Service Order.
3.5. InnovativeAir will not support file and print sharing or other local area network functionality unless otherwise stated on the customer Service Order.
4.1. InnovativeAir will provide Services to you subject to the terms and conditions of this Agreement and any applicable tariffs.
4.2. You represent and warrant you are at least 18 years of age, appreciate and understand the words and terms of this agreement and verify and acknowledge that Services are being installed with your permission in your home, business, or designated location.
4.3. InnovativeAir may revise, modify or discontinue any or all aspects of Services, including but not limited to Services and Equipment prices, any applicable tariffs, and any terms and conditions in this Agreement.
4.4. You will install, operate, and maintain any hardware or software not provided by InnovativeAir ("Customer-provided"). InnovativeAir is not responsible for the information transmitted or received on any hardware or software provided by you.
4.5. You will ensure that any hardware or software you provide is compatible with Services. If this hardware or software impairs your use of Services, you will continue to pay InnovativeAir for Services. If InnovativeAir notifies you that hardware or software provided by you impairs or is likely to impair Services, you agree to eliminate the impairment. InnovativeAir may suspend Services until the impairment is corrected. At your request, InnovativeAir may troubleshoot difficulties caused by hardware or software provided by you at InnovativeAir’s then current standard list prices.
4.6. InnovativeAir is not liable if any changes in the Services cause any hardware or software provided by you to become obsolete, require alteration, or affect performance of the hardware or software.
4.7. To prepare for Services you will at your expense, prepare your site(s) to comply with InnovativeAir’s installation and maintenance specifications; pay InnovativeAir any applicable charges to relocate any installed Services; provide InnovativeAir and its suppliers reasonable access to Premises to perform any required acts; and be responsible for cabling that connects equipment not provided by InnovativeAir to Services.
4.8. If you change your address, you will notify InnovativeAir of your new address before the move and you will remain liable for all of its obligations under this Agreement. You agree to pay the standard InnovativeAir transfer charges plus any additional payments required for installation of Equipment at Customer's new location.
4.9. InnovativeAir reserves the right to charge additional fees for on-site technical support.
5. PAYMENT TERMS
5.1. You agree to pay for Services and all other charges described in this Agreement, including the Service Order, and to comply with all of the terms and conditions of this Agreement. You will pay InnovativeAir’ invoice(s) in U.S. currency by the invoice due date. You will pay any applicable sales, use, excise and like taxes if applicable and as stated separately on each invoice.
5.2. If you fail to pay any amounts owing to InnovativeAir within 10 days, InnovativeAir will have the right to disconnect your Services. Upon disconnection, you agree to pay all amounts owing to InnovativeAir. A reconnect fee will apply for continuing Services after a disconnection.
5.3. Subject to availability, InnovativeAir may offer to you additional services, subject to terms and conditions of the then current InnovativeAir price list.
5.4. No credit is due or refund supplied for cancellation of service before the end of the month.
6. ACCEPTABLE USE POLICY
6.1. When you use Services for Internet access, you may not:
6.2. restrict or inhibit any other user from using the Internet;
6.3. post or transmit any unlawful, threatening, abusive, libelous, defamatory, vulgar, obscene, indecent, pornographic, profane, hateful, bigoted, or otherwise objectionable information of any kind, including without limitation any transmissions, constituting or encouraging, conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation U.S. export control laws and regulations;
6.4. post or transmit any information or software that contains a virus or other harmful component;
6.5. post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through Services for commercial purposes;
6.6. upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other materials, or other proprietary right, or derivative works without obtaining permission of the copyright owner or right holder;
6.7. upload, post, publish, reproduce, transmit or distribute in any way any component of the Services or derivative works, as Services are copyrighted as a collective work under U.S. copyright laws;
6.8. remove or alter copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;
6.9. avoid, bypass, remove, deactivate or circumvent by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;
6.10. send unsolicited e-mail that causes complaints from the recipients of the unsolicited e-mail;
6.11. send large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as "spamming" or "mail bombing");
6.12. make any unauthorized attempt to gain access to any account or computer resource not belonging to that user (also known as "spoofing");
6.13. obtain or attempt to obtain Services by any means or device with intent to avoid payment;
6.14. unauthorized access, alteration, destruction, or any attempt, of any information of any InnovativeAir customers or end-users by any means or device;
6.15. knowingly engage in any activities that will cause a denial of Services (e.g., synchronized number sequence attacks) to any InnovativeAir customers or end-users;
6.16. use InnovativeAir 's products and services to interfere with the use of the InnovativeAir network by other customers or authorized users;
6.17. violate the law or aid another in any unlawful act;
6.18. resell your Services or any other InnovativeAir service to any third parties without prior express written consent; or
6.19. any other activity added to InnovativeAir acceptable use policy, found online at www.InnovativeAir.net which is hereby incorporated by reference.
6.20. You agree that you will not permit or assist others to abuse or fraudulently use Services, including, but not limited to, unauthorized or attempted access, alteration, or destruction of another InnovativeAir customer's information, or using Services that cause interference with another customer's or authorized user's use of the InnovativeAir network. Illegal and unauthorized attachments to its facilities are costly to InnovativeAir and may create interference and a degradation of Services to other customers. InnovativeAir will be obligated to seek legal redress and assist in the criminal prosecution in matters involving illegal and unauthorized connections and attachments and injury to its wiring or facilities.
6.21. You agree to stop any malicious traffic that causes other customer loss of service at sole discretion of InnovativeAir.
7.1. Except for information, products or services clearly identified as being supplied by InnovativeAir, InnovativeAir does not operate or control any information, products or services on the Internet.
7.2. The Internet contains unedited materials that may be offensive or objectionable to you. You access such these materials at your own risk. InnovativeAir has no control over and accepts no responsibility for these materials.
7.3. YOU UNDERSTAND THAT YOU MAY BE HELD LIABLE BOTH UNDER CIVIL AND CRIMINAL LAW FOR INFRINGEMENTS OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. YOU MAY BE HELD LIABLE FOR ALL ACTUAL DAMAGES AND PROFITS, ATTORNEY'S FEES, COSTS, OR THE COURT MAY AWARD STATUTORY DAMAGES UNDER THE COPYRIGHT ACT. CRIMINAL LIABILITY CAN ALSO INCLUDE FINES AND IMPRISONMENT.
7.4. InnovativeAir may deny you access to all or part of the Services without notice if you engage in any conduct or activities that InnovativeAir in its sole discretion believes violates any of this Agreement's terms and conditions. If InnovativeAir denies you access to Services because of a violation, you will have no right (1) to access through InnovativeAir any materials stored on the Internet, or (2) to access third party services, merchandise or information on the Internet through InnovativeAir , and InnovativeAir will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility to any consequences resulting from lack of notification.
7.5. InnovativeAir has no obligation to monitor Services. You agree that InnovativeAir has the right to monitor Services electronically from time to time, and you consent to InnovativeAir access, use and disclosure of any information as necessary to satisfy any law, regulation or other governmental request, to operate Services properly, to improve Services, or to protect itself or its customers. InnovativeAir reserves the right to refuse or to remove any information or materials, in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Agreement.
8. UPTIME, BANDWIDTH & LATENCY
8.1. InnovativeAir provides that there will be percentage of uptime as averaged over a calendar month as described in the customer Service Order.
8.2. InnovativeAir Network is guaranteed to be capable of forwarding IP packets, at a minimum average throughput as measured in kilobits per second downstream and upstream, a percentage of time, as averaged over a calendar month as described in the customer Service Order. This denotes availability of bandwidth and does not constitute a Committed Information Rate. Overuse of bandwidth will result in bandwidth restrictions that may impact overall throughput in a given calendar month.
9. IP ADDRESSING
9.1. Customer will be issued an IP as per customer Service Order which will specify whether options are available for static public IP assignment.
9.2. InnovativeAir may assign to you on a temporary basis a Public or Private Internet Protocol Address from the address spaces assigned to InnovativeAir ("IP Address"). You acknowledge that the IP Address is the property of InnovativeAir and is assigned to you as a service by InnovativeAir, and is not portable. InnovativeAir reserves the right at its sole discretion to change the IP Address assignment at any time during the Term of this Agreement without prior notice and without liability. InnovativeAir will use reasonable efforts to avoid any disruption to you resulting from any renumbering requirement by notifying Customer via their primary email account before the change. You agree that the IP Address provided by InnovativeAir will be returned to InnovativeAir on the termination date of this Agreement.
10. 30 DAY MONEY BACK GUARANTEE
10.1. InnovativeAir will provide a 30-day money back guarantee on all InnovativeAir solutions. If within the first 30 days of completion of the Service Order, the "Company" is not satisfied with the InnovativeAir service, InnovativeAir will refund monies paid to InnovativeAir by the "Company".
10.2. There are no provisions in this agreement implied or contractual that allow for a remittance of monthly money paid to InnovativeAir on the basis of non-compliance of guarantees except for the 30-day money back guarantee.