Sling Broadband Terms & Conditions V1.0
ARTICLE 1: ORDERS FOR AND DELIVERY OF SERVICE
1.1 Services. The Service Order Form(s) and other attachments incorporated into this Agreement detail the price, location and other information about the service(s) to be provided by Sling Broadband to Customer (“Services”). An initial Service Order Form (“SOF”) is attached. To order additional Services during the term of this Agreement, Customer shall complete a SOF for each additional Service or location requested.
1.2 Submission and Acceptance of Customer Order(s). Customer may issue one or more service orders describing Bandwidth Speed, Access Ports, IP Allocation, and/or other services in a form designated by Sling Broadband known as “Service Order Form”. The Service Order Form shall contain the duration for which Service is ordered known as “Service Term”. Sling Broadband will notify Customer of acceptance (in writing or electronically) of the Customer’s Service Order and the date by which Sling Broadband will install Service known as the “Customer Commit Date”; If Customer submits Customer Order Form electronically, Customer shall assure that any passwords or access devices are available only to those having authority to submit Service Order Forms.
1.3 Credit Approval and Deposits. Customer will provide Sling Broadband with credit information as requested. Sling Broadband may require Customer to make a deposit as a condition of Sling Broadband’ acceptance of any Customer Order or continuation of: a) any usage-based Service; or b) any non-usage based Service where Customer fails to timely make any payment due hereunder or Sling Broadband reasonably determines that Customer has had an adverse change in financial condition Deposits will not exceed 2 months’ estimated charges for Service and will be due upon Sling Broadband’ written request. When Service is discontinued, the deposit will be credited to Customer’s account and the balance (if any) will be refunded.
1.4 Customer Premises. If access to non-Sling Broadband facilities is required for the installation, maintenance or removal of Sling Broadband equipment, Customer shall, at its expense, secure such right of access, and shall arrange for the provision and maintenance of Electrical Power, Electrical Battery Backup System(s) and/or Electrical Surge Suppression as needed for the proper operation of such equipment.
1.5 Scheduled Maintenance and Local Access. Scheduled maintenance will not normally result in Service interruption. If scheduled maintenance requires Service interruption, Sling Broadband will (i) provide Customer 48-hours written notice via email, (ii) work with Customer to try to minimize Service interruptions, and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time.
1.6 Installation Requested Information. In order to install Customer’s Service, Sling Broadband may need Customer to provide Sling Broadband with certain information to enable the Services to be provisioned. Customer will be required to provide the requested information in a timely fashion. Time is of the essence. If Sling Broadband does not receive the requested information in a commercially reasonable time frame, and Customer terminates the Agreement, Customer will continue to be responsible for all Non-Recurring and Early Termination Charges as applicable.
ARTICLE 2: BILLING AND PAYMENT
2.1 Commencement of Billing. Sling Broadband will deliver written or electronic notice to Customer upon installation of Service, at which time billing will commence (“Service Commencement Date”), regardless of whether Customer is prepared to accept delivery of Service. If Customer notifies Sling Broadband within 3 days after delivery of the Connection Notice that Service is not functioning properly (and such Service is not functioning properly), Sling Broadband will correct any deficiencies and, upon Customer’s request, credit Customer’s account in the amount of 1/30 of the applicable Monthly Recurring Charges hereby known as “MRC” for each day the Service did not function properly.
2.2 Payment of Invoices and Disputes. Invoices are sent via email monthly and are due and payable on the first of each month. Invoices are sent to the email address designated by Customer at billing.slingbroadband.coml, at a minimum of twenty days in advance, and Customer agrees that they shall be responsible for updating their email address as needed or submitting a ticket request via billing.slingbroadband.com. Payments received after the invoice due date shall be considered late; and shall be subject to a ten (10) percent late fee on the total outstanding amount. SOF charges are billed in advance and service calls charges are billed in arrears. Billing for partial months is prorated. Past due amounts shall bear interest at the greater of 1.5% per month or at the highest rate allowable by law. Customer shall be responsible for all charges covering Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer shall pay the undisputed amount and submit written notice via ticket system of the disputed amount (with details of the nature of the dispute and the Service(s) and invoice(s) disputed) within (60) sixty days from the date of invoice was generated, otherwise all charges shall be considered approved and accepted by Customer. If the dispute is resolved in favor of Sling Broadband, LLC, Customer shall pay such amounts plus interest from the date the invoice was originally due. Until a dispute is resolved by Sling Broadband, LLC, Customer is obligated to continue making monthly payment for invoiced Service. If Customer’s payment is returned to Sling Broadband, LLC for any reason, Customer shall be subject to a returned payment fee of $50.00 (USD) or 5% whichever is greater. Wire transfer fees are subject to a $25 (USD) incoming wire transfer-processing fee for each received wire.
2.3 Taxes and Fees. Except for taxes based on Sling Broadband’ net income, Customer will be responsible for all taxes and fees that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of Service (whether imposed on Sling Broadband or any affiliate of Sling Broadband). Such charges may be shown on invoices as cost recovery fees. Charges for Service are exclusive of taxes. Customer may present Sling Broadband a valid exemption certificate and Sling Broadband will give effect thereto prospectively.
2.4 Regulatory and Legal Changes. If any change in applicable law, regulation, rule or order materially affects delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties are unable to reach agreement within 30 days after Sling Broadband’ delivery of written notice requesting renegotiation: (a) Sling Broadband may pass any increased costs relating to delivery of Service through to Customer, and (b) if Sling Broadband does so, Customer may terminate the affected Service without termination liability by delivering written notice to Sling Broadband within 30 days.
2.5 Termination before Billing Commencement and/or service delivery. If a Customer terminates a Service order form at will and not as otherwise allowed pursuant to this Agreement, Customer shall be liable for to Sling Broadband for twelve (12) months of the monthly recurring charges. In addition, Customer will be required to compensate Sling Broadband for any additional installation or construction related costs incurred by Sling Broadband which exceed the twelve (12) month’s MRC liability. Customer herby agrees that the charges in this Section are a genuine estimate of Sling Broadband’s actual damages and are not a penalty.
2.5.1 If Service is terminated after Billing Commencement and/or Service Commencement Date, Customer will be subject to early termination charges equal to one hundred percent (100%) of the monthly recurring charges times the number of months remaining in the service term, if any; plus one hundred percent (100%) of any and all waived installation fees and/or third-party provisioning and/or construction costs if terminated within initial service term (“Early Termination Charges”). Customer agrees to pay all such Early Termination Charges within thirty days of Customer’s notice of termination or immediately upon receipt of Sling Broadband’s last invoice to Customer (“Final Invoice”). All requests to terminate Services must be submitted in writing to Sling Broadband 30 days prior to the termination effective date. Customer herby agrees that the charges in this Section are a genuine estimate of Sling Broadband’s actual damages and are not a penalty.
2.6 Collection Costs: If sling broadband is required to use a collection agency or attorney to collect money owed by Customer, Customer agrees to pay the reasonable costs of collection. These costs include but are not limited to any collection agency’s fees, reasonable attorneys’ fees, and arbitration or court costs.
2.7 Reconnection Fees and Related Charges. Should Customer wish to resume a Service after any suspension, sling broadband may require Customer to pay a reconnection fee. Should Customer wish to reinstate any or all Services after disconnection, sling broadband may require Customer to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
2.8 Suspension/Disconnect: If Customer fail to pay the full amount due for any or all of the Services then Sling Broadband, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Services Customer receive.
2.9 Fees Not Considered Interest or Penalties: Sling Broadband does not anticipate that Customer will fail to pay for the Services on a timely basis, and sling broadband do not extend credit to customers. Any fees, charges, and assessments due to late payment or nonpayment are not interest, credit service charges, or finance charges or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when sling broadband set such fees, charges, and assessments, because sling broadband cannot know in advance: (a) whether Customer will pay for the Services on a timely basis, if ever; (b) if Customer do pay late, when Customer will actually pay; and (c) what costs sling broadband will incur because of Customer late payment or non-payment.
ARTICLE 3: DEFAULT; REMEDIES
3.1 It shall be a default hereunder if (i) Customer fails to pay any monies due in accordance with the service order form, additional rent or other sum of money within five (5) days after receiving written notice from Sling Broadband; (ii) Customer fails to comply with any other provision of this agreement or any other agreement between Sling Broadband and Customer within five (5) days after of written notice from Sling Broadband; (iii) the agreement hold hereunder demised shall be taken on execution or other process of law in any action against Customer; (iv) Customer fails to promptly take possession of, open for, and continuously operate its business in the Premises when the Premises are delivered to it and thereafter during the term hereof (it being intended that a vacating by Customer shall be a default hereunder); (v) Customer becomes insolvent or unable to pay its debts as they become due, or Customer notifies Sling Broadband that it anticipates either condition; (vi) Customer files, or takes any action to, or notifies Sling Broadband that Customer intends to, file a petition or proceeding under any section or chapter of the Federal Bankruptcy Act, as amended, or under any similar law or statute of the United States or any State or territory thereof; or a petition or proceeding is filed against Customer under any such Federal or State law or statute or Customer or any creditor of Customer notifies Sling Broadband that it knows such a petition or proceeding will be filed or Customer notifies Sling Broadband that it expects such a petition or proceeding to be filed; (vii) a receiver or trustee is appointed for Customer’s agreement hold interest in the Premises or for all or a substantial part of the assets of Customer; (viii) Customer or any guarantor of Customer’s obligations under this agreement provides to Sling Broadband materially false or misleading financial or other information regarding Customer and/or any such guarantor, or (ix) there is a default in any other contract, license, occupancy or other agreement with Customer or any entity related to any of them or related to the Building, including, but not limited to, that certain License Agreement of event date herewith between Sling Broadband and Customer. No action taken by Sling Broadband in response to a Customer default, such as making payments owed by Customer or making repairs or taking other actions to ameliorate the consequences of a Customer default or otherwise, shall operate to, or be deemed to cure or waive, any Customer default or impair any remedy of Sling Broadband on account of such Customer default.
3.2 Upon the happening of any of the events set forth in sub-section (3.1) above of this Article 3, Sling Broadband may (i) cancel and terminate service(s) on Customer Order and dispossess Customer; (ii) without terminating service(s) on Customer Order, terminate the possession of Customer hereunder and declare all amounts due under Article 2 section 5 of this agreement; (iii) enter upon the Premises and do whatever Customer is obligated to do under the terms of the Customer Order, and Customer agreess to reimburse Sling Broadband on demand for all expenses which Sling Broadband incurs in effecting compliance with Customer’s obligations under this Agreement and Customer further agrees that Sling Broadband shall not be liable for any damages resulting to the Customer from such action; (iv) Restrict Customer’s employees, agents, subcontractors, and other affiliates of Customer’s to escorted access to the facility by one of Sling Broadband’ personnel. .
3.3 Customer grants Sling Broadband a lien pursuant to Florida Statute 713.58 against Customer’s Equipment for labor or services rendered by Sling Broadband.
3.4 All such remedies of Sling Broadband are cumulative and not exclusive, and in addition, Sling Broadband may pursue any and all other remedies permitted by law and available in equity. Forbearance by Sling Broadband to enforce one or more of the remedies herein provided upon a Customer default shall not be deemed or construed to constitute a waiver of such default or any other or future default.
3.5 Termination by Sling Broadband. If Customer does not pay all undisputed charges by the Due Date, Customer will have five (5) days from the Due Date to cure any late payments before Sling Broadband may exercise its right, subject to any state or federal regulations, to discontinue providing the Services to Customer with or without notice. Sling Broadband reserves the right to terminate this Agreement if it determines in its reasonable business judgment that it will not continue to provide such Services under this Agreement. In that event, Sling Broadband will provide no less than thirty (30) days prior notice of such termination.
ARTICLE 4: LIABILITIES AND SERVICE LEVELS
4.1 No Special Damages. Neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement or any Customer Service Order.
4.2 No Warranty. SLING BROADBAND PROVIDES THE SERVICES AS IS. IN CONNECTION WITH THE SERVICES, SLING BROADBAND (A) MAKES NO WARRANTIES WHETHER EXPRESS OR IMPLIED, AND (B) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN THE EVENT THAT SLING BROADBAND PROVIDES CUSTOMER WITH PRODUCTS IN CONJUNCTION WITH THE SERVICES, FOR EXAMPLE THIRD PARTY SOFTWARE PRODUCTS, SLING BROADBAND ALSO PROVIDES SUCH PRODUCTS AS IS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. SLING BROADBAND SHALL HAVE NO LIABILITY FOR FAILURE OF ANY PRODUCT OR SERVICE IT PROVIDES. SLING BROADBAND DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION RESIDING ON SLING BROADBAND’ EQUIPMENT OR TRANSMITTED THROUGH ITS FACILITIES. USE OF ANY INFORMATION OBTAINED VIA SLING BROADBAND’ SERVICES IS AT CUSTOMER’S OWN RISK. SLING BROADBAND SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.
4.3 Release from Liability for Damages Arising from Certain Causes: Sling Broadband shall not be liable to Customer for, and Customer hereby releases Sling Broadband from, any and all liability for loss or damage to any property or person occasioned by theft, fire, act of God, public enemy, injunction, riot, strike, insurrection, war, terrorist action, court order, requisition, or order of governmental body or authority or by any other cause beyond the control of Sling Broadband, and from liability for water, smoke or other damage and similar consequential damages to the Premises or to Customer’s personnel from any cause whatsoever, except in the event of Sling Broadband gross negligence or willful misconduct.
4.4 Attorneys’ Fees. In any action brought by either party hereto against the other to recover any sum due under this agreement, or for any breach of any covenant of this agreement, the prevailing party in such action shall be entitled to recover from the other all costs, including reasonable attorney’s fees, incurred by the prevailing party in the action. In any case in which either party hereto shall be entitled to recover attorney’s fees from the other under the terms of this agreement, such recovery shall include such fees at the trial level, on appeal, in bankruptcy or other insolvency proceedings and otherwise.
4.5 SLING BROADBAND MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCTS ARE, THEREFORE, SOLD TO CUSTOMER “AS IS” AND “WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF THE PRODUCTS IS WITH CUSTOMER. FURTHER, SLING BROADBAND MAKES NO WARRANTY AND HEREBY DISCLAIMS ALL WARRANTIES AGAINST INTERFERENCE WITH CUSTOMER ENJOYMENT OF THE PRODUCTS AND AGAINST INFRINGEMENT WITH RESPECT TO THE PRODUCTS. SLING BROADBAND IS NOT THE MANUFACTURER OF THE PRODUCT. IN THE EVENT THAT THE MANUFACTURER HAS PROVIDED A WARRANTY WITH THE PRODUCT (WHETHER EXPRESS OR IMPLIED), SLING BROADBAND DOES NOT ADOPT, WILL NOT HONOR AND HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.5.1 If a disclaimer of warranties with respect to the Products is not permitted under applicable law, then, to the maximum extent permitted by applicable law, all warranties on the Products shall be limited in duration to the period commencing on the date of Customer receipt of the Products and expiring (i) two years after such date or (ii) when Customer sell or otherwise transfer ownership of the Products to any other person or entity.
IN NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY (INCLUDING WITHOUT LIMITATION TORT, CONTRACT OR OTHERWISE) SHALL SLING BROADBAND HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES OR PERSONAL INJURY (INCLUDING DEATH), RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, CUSTOMER PURCHASE OR USE OF THE PRODUCTS, OR THE INSTALLATION, REPAIR OR SERVICING OF THE PRODUCTS BY SLING BROADBAND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON AN ASSERTION THAT THE USE OF THE PRODUCTS BY CUSTOMER OR ANY OTHER PERSON OR ENTITY INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.THE MAXIMUM LIABILITY OF SLING BROADBAND ARISING FROM OR RELATING TO THIS AGREEMENT, CUSTOMER PURCHASE OF THE PRODUCTS, OR ANY SERVICES PERFORMED WITH RESPECT TO THE PRODUCTS, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF THE PRODUCTS AND OR SERVICES.The limitations of liability set forth above shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Similarly, some states do not allow the limitation or exclusion of incidental or consequential damages. In such states, the liability of SLING BROADBAND shall be limited to the maximum extent permitted by law.
ARTICLE 5: TERMS AND CONDITIONS
5.1 Applicability: This Service Schedule is applicable only where Customer orders Internet Access (broadband Service) and associated services
5.2 Unauthorized Devices or Tampering: Customer agrees not to attach any unauthorized device to Sling Broadband Equipment or the Services. If Customer make any unauthorized connection or modification to Sling Broadband Equipment or the Services or any other part of our wireless network, sling broadband may terminate Customer Service and recover such damages as may result from Customer actions. Unless expressly authorized by sling broadband, Customer agrees not to install anything to intercept or receive any of the Services offered over our wireless network or to assist any person in intercepting or receiving any of the Services offered over our wireless network. Customer also agree that Customer will not attach anything to the Inside Wiring, Sling Broadband Equipment or Customer Equipment, whether installed by Customer or sling broadband, which singly or together impairs the integrity of our wireless network or degrades our wireless network’s signal quality or strength or creates signal leakage.
5.4 Customer hereby agree that sling broadband may recover damages from Customer for tampering with any Sling Broadband Equipment or any other part of our wireless network or for receiving unauthorized Service(s). Customer agrees that it would be difficult if not impossible to calculate precisely the lost revenue resulting from Customer receipt of unauthorized Service(s) or the alteration or improper use of Sling Broadband Equipment. Customer therefore agree to pay sling broadband as liquidated damages, the sum of $500.00 per device used to receive the unauthorized Services in addition to our cost to replace any altered, damaged or unreturned Sling Broadband Equipment or other equipment owned by Sling Broadband, including any incidental costs. The unauthorized reception of the Services may also result in criminal fines and/or imprisonment.
5.5 Access To Customer Premises: Customer agrees to allow sling broadband and our agents the right, to enter at reasonable times Customer property upon which the Services and/or Sling Broadband Equipment will be provided (the “Premises”), for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Services and/or Sling Broadband Equipment used to receive any of the Services. Customer warrant that Customer are either the owner of the Premises or that Customer have the authority to give sling broadband access to the Premises. If Customer are not the owner of the Premises, Customer are responsible for obtaining any necessary approval from the owner to allow sling broadband and our agents into the Premises to perform the activities specified above. In addition, Customer agrees to supply sling broadband or our agent, if sling broadband ask, the owner’s name, address and phone number and/or evidence that the owner has authorized Customer to grant access to sling broadband and our agents to the Premises.
5.6 Maintenance And Ownership Of Equipment: Sling Broadband Equipment. Customer agrees that except for the wiring installed inside the Premises (“Inside Wiring”), all Sling Broadband equipment belongs to sling broadband or other third parties and will not be deemed fixtures or in any way part of the Premises. Sling Broadband Equipment includes all new or reconditioned equipment installed, provided or leased to Customer by sling broadband or our agents, including but not limited to, cabling or wiring and related electronic devices, CPE (Customer Premise Equipment “Customer Wimax or Wi-Fi Radio Device), Routers, Switches, any other hardware and all software or “downloads” to Sling Broadband Equipment. Customer agrees to use Sling Broadband Equipment only for the Services pursuant to this Agreement. We may remove or change the Sling Broadband Equipment at our discretion at any time the Services are active or following the termination of Customer Service(s). Customer agrees to allow sling broadband access to the Premises for these purposes. Customer may not sell, lease, abandon or give away the Sling Broadband Equipment, or permit any other provider of video, high speed data or telephone services to use the Sling Broadband Equipment. The Sling Broadband Equipment may only be used in the Premises. At Customer request, sling broadband may relocate the Sling Broadband Equipment in the Premises for an additional charge, at a time agreeable to Customer and sling broadband. CUSTOMER UNDERSTAND AND ACKNOWLEDGE THAT IF CUSTOMER ATTEMPT TO INSTALL OR USE THE SLING BROADBAND EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE PREMISES, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. Customer agrees that Customer will not allow anyone other than Sling Broadband employees or agents to service the Sling Broadband Equipment. We suggest that the Sling Broadband Equipment in Customer possession be covered by Customer homeowners, renters, or other insurance. Customer will be directly responsible for loss, repair, replacement and other costs, damages, fees and charges if Customer do not return the Sling Broadband Equipment to sling broadband in an undamaged condition.
5.7 Customer Equipment: Responsibility: Sling Broadband has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Customer elect to use in connection with the Services or Sling Broadband Equipment (the “Customer Equipment”.)
5.8 Non-Recommended Configurations: Customer Equipment that does not meet Sling Broadband’s minimum technical or other specifications constitutes a “Non-Recommended Configuration.” NEITHER SLING BROADBAND NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICES. CUSTOMER ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, CUSTOMER, CUSTOMER PREMISES OR SLING BROADBAND EQUIPMENT. NEITHER SLING BROADBAND NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. Sling Broadband reserves the right to deny Customer customer support for the Services and/or terminate Service(s) if Customer use a Non-Recommended Configuration.
5.9 Inside Wiring. Customer may install Inside Wiring, such as additional cable wiring and outlets, provided it does not interfere with the normal operations of our cable network. If Customer have sling broadband install Inside Wiring, sling broadband will charge Customer for that service. Regardless of who installed it, sling broadband considers the Inside Wiring Customer property or the property of whomever owns the Premises. Accordingly, Customer are responsible for the repair and maintenance of the Inside Wiring, unless Customer and Sling Broadband have agreed otherwise in writing. (If Customer do not own the Premises, contact Customer landlord or building manager about the repair or maintenance of Inside Wiring.) If Customer have sling broadband repair or maintain the Inside Wiring, sling broadband will charge Customer for that service.
5.10 Customer agrees that the Services and the Sling Broadband Equipment will be used only by the Customer and the employees of Customers business with Customer at the same address and only for business and commercial purposes only, unless otherwise specifically authorized by sling broadband in writing. Customer will not use the Sling Broadband Equipment at any time at an address other than the Premises without our prior written authorization. Customer agrees and represent that Customer will not resell or permit another to resell the Services in whole or in part. Customer will not use or permit another to use the Sling Broadband Equipment or the Service(s), directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted Sling Broadband policy applicable to the Services. Use of the Sling Broadband Equipment or Services for transmission, communications or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited.
5.11 Customer acknowledge that Customer are accepting this Agreement on behalf of all persons who use the Sling Broadband Equipment and/or Services and that Customer shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable Sling Broadband policies including, but not limited to, acceptable use and privacy policies. Customer further acknowledge and agree that Customer shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. Customer agrees to indemnify, defend and hold harmless Sling Broadband and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the use of the Services, the Sling Broadband Equipment and/or the Customer Equipment or the breach of this Agreement or any of the applicable Sling Broadband policies by Customer or any other user.
Acceptable Use Policy: The Sling Broadband Acceptable Use Policy (“AUP”) and other policies concerning BROADBAND SERVICE are posted on the Service’s Web site at www.Sling Broadband.com (or an alternative Web site if sling broadband so notify Customer). Customer further agrees that Sling Broadband may modify the AUP or other policies from time to time. Notwithstanding anything to the contrary in this Agreement, CUSTOMER ACKNOWLEDGE AND AGREE THAT THE TERMS OF THE AUP AND ANY OTHER APPLICABLE SLING BROADBAND POLICIES MAY BE PUT INTO EFFECT OR REVISED FROM TIME TO TIME WITHOUT NOTICE BY POSTING A NEW VERSION OF THE AUP OR POLICY AS SET FORTH ABOVE. CUSTOMER AND OTHER USERS OF THE SERVICE SHOULD CONSULT THE AUP AND ALL POSTED POLICIES REGULARLY TO CONFORM TO THE MOST RECENT VERSION.
5.12 Prohibited Uses of BROADBAND SERVICE. Customer agrees not to use BROADBAND SERVICE for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, “Web hosting” or other similar applications, for any business enterprise, or as an end-point on a non-Sling Broadband local area network or wide area network. Customer agrees to indemnify, defend and hold harmless Sling Broadband and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of any breach of this Section including, but not limited to, any claims based on or arising out of any material violation of any applicable law.
5.13 Sling Broadband has the right to access, maintain, remove, replace, or take any other action in connection with the CPE at any time for any reason. At all times Customer shall: (1) refrain from physically tampering with or modifying CPE, or authorizing others to do the same; and (2) provide Sling Broadband with reasonable, sufficient, and necessary access to Customer’s facilities in order for Sling Broadband to fulfill its obligations under this Agreement. Customer shall provide Sling Broadband reasonable and necessary access to Sling Broadband’s CPE at all reasonable times in the event Sling Broadband needs to retrieve its CPE during, or upon the expiration of this Agreement. Customer also agrees to cooperate with Sling Broadband in any communications with the landlord at the Premises if requested by Sling Broadband, even after the termination of this Agreement, so that Sling Broadband may retrieve physical possession of the CPE. Customer shall be responsible for any and all damage to the CPE caused by Customer or its end users. Furthermore, Sling Broadband will not be responsible for any interference or interruption in Services that are related to or caused by customer-provided equipment. Customer is responsible for the initial and ongoing configuration of any equipment provided by Customer. If this equipment is not compatible or may not be used with the Services Customer has selected, and Customer terminates this Agreement or the Service, Customer will be responsible for all Non-Recurring Charges for the Services that are noted on Customer’s Service Order Form, as well as any 3rd party costs Sling Broadband may have incurred.
ARTICLE 6: IP SERVICE TERMS
6.1 Applicability. This Service Schedule is applicable only where Customer orders Sling Broadband IP Service. Sling Broadband IP Service may be designated as Premium Blended bandwidth, or Value Plus bandwidth in customer orders, order acceptance, service delivery, and/or billing (and related) documents.
6.2 Definitions. Any capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.
6.2.1 “Back-Up Port” shall mean any Sling Broadband High Speed IP Service port other than the Primary Port that is configured to send/receive traffic only in the event that the applicable Primary Port becomes unavailable to send or receive traffic. The Back-Up Port must be identified as such in the Customer Order and provisioned on a Sling Broadband router or switch (within the same Sling Broadband Facility) that is separate from the Primary Port.
6.2.2 “Committed Data Rate” shall mean the minimum data rate committed by Customer and set forth in the Customer Order (expressed in Megabits per second (Mbps)).
6.2.3 “Primary Port” shall mean any Sling Broadband High Speed IP Service port that is configured to send/receive Customer’s Sling Broadband High Speed IP Service traffic during normal network operations, as identified in the applicable Customer Order.
6.2.4 “Backup Port” shall mean any Sling Broadband High Speed IP Service port that is configured to send/receive Customer’s Sling Broadband High Speed IP Service traffic during times when Primary port is unavailable, as identified in the applicable Customer Order.
6.2.5 “Receive Traffic” shall mean traffic from any origination point that is received by Customer from the Sling Broadband network.
6.2.6 “Send Traffic” shall mean traffic from any origination point that is sent by Customer onto the Sling Broadband network.
6.3 Service Description. Sling Broadband High Speed IP Service is an IP transit service (including dedicated IP access port(s)) providing access to the Sling Broadband IP network and the global Internet. Sling Broadband High Speed IP Service is available through Ethernet interfaces. Sling Broadband High Speed IP Service is available in a “Standard” configuration or a “Protected” configuration. Standard Sling Broadband High Speed IP Service is configured with a single Primary Port and no Backup Port. Protected Sling Broadband High Speed IP Service is configured with both a Primary Port and a Backup Port.
6.4 Charges. Customer may elect to be billed based on a Committed Data Rate or at a Fixed Rate. The manner of billing selected will be set forth in each Customer Service Order.
6.4.1 Committed Data Rate charges for Sling Broadband High Speed IP Service consist of four (4) components: (a) a non-recurring installation charge per port; (b) a monthly recurring port charge (if applicable); (c) a monthly recurring charge based on the Committed Data Rate; and (d) monthly usage charges to the extent usage in a particular month exceeds the Committed Data Rate.
The Committed Data Rate shall apply to either a particular Sling Broadband High Speed IP Service port or in the aggregate to more than one Sling Broadband High Speed IP Service ports provided hereunder, as stated in the applicable Customer Order(s) for such ports. The “Aggregate CDR: billing option (as defined below) is not available for all port interface speeds. The following shall apply (as applicable):
220.127.116.11 If the Committed Data Rate applies to a particular Sling Broadband High Speed IP Service port, Customer’s per port usage of Sling Broadband High Speed IP Service (both Send Traffic and Receive Traffic) across such port will be sampled every five (5) minutes for the previous five (5) minute period. At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic samples for such port shall be discarded. The highest of the resulting ninety-fifth (95th) percentile value for Send Traffic or Receive Traffic for such port will be compared to the Committed Data Rate applicable to the port. If the ninety-fifth (95th) percentile of either Send Traffic or Receive Traffic is higher than the applicable Committed Data Rate, Customer will, in addition to being billed for the Committed Data Rate, be billed at this ninety-fifth (95th) percentile level for any usage in excess of such Committed Data Rate at the contracted-for price per Megabit.
18.104.22.168 If the Committed Data Rate applies in the aggregate to more than one Sling Broadband High Speed IP Service ports (an “Aggregate CDR”) as set forth in the Customer Order for such ports, Customer’s usage of Sling Broadband High Speed IP Service (both Send Traffic and Receive Traffic) will be sampled every five (5) minutes for the previous five (5) minute period for each such port. At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic samples shall be discarded for each port. The higher of the resulting ninety-fifth (95th) percentile value for Send Traffic or Receive Traffic for each such port will be added together to determine Customer’s aggregate usage and such aggregate usage will be compared to the Aggregate CDR. If such aggregate usage is higher than the Aggregate CDR, Customer will, in addition to being billed for the Aggregate CDR, be billed for any aggregate usage in excess of the Aggregate CDR at the contracted-for price per Megabit. Unless otherwise agreed in writing by the parties, Aggregate CDRs apply only to the ports listed in the Customer Order. If Customer orders additional ports in a separate subsequent Customer Order(s), the Aggregate CDR stated in the new Customer Order shall be as stated therein for the ports set forth in such Customer Order. Alternatively, if Customer seeks to have the ports previously subject to an Aggregate CDR also contribute to the Aggregate CDR set forth in the new Customer Order(s), the new Customer Order(s) may provide for an increase in the Aggregate CDR for all such ports.
6.4.2 Fixed Rate charges for Sling Broadband High Speed IP Service consist of two (2) components: (a) a non-recurring installation charge per port; and (b) a monthly recurring port charge.
6.5 IP Addresses. IP addresses that may be assigned on a temporary basis from Sling Broadband to Customer from Sling Broadband are non-portable and are the sole property of Sling Broadband. Sling Broadband reserves the right to change the IP address assignments at any time. IP addresses allocated by Sling Broadband must be returned to Sling Broadband in the event service is discontinued. Customer agrees that it will have no right to IP addresses upon termination of this Agreement and that any change required of Customer after termination shall be the sole responsibility of Customer.
6.6 Resale Restriction. Notwithstanding anything to the contrary in the Agreement, Customer is prohibited from reselling any Sling Broadband High Speed IP Service or any ports provided pursuant to this Service Schedule to a third party without the express written consent of Sling Broadband.
NOTE: Section 6.7 Does not apply to customer service plans which include a static protocol (“IP”) address(es) as a component of BROADBAND SERVICE
6.7 Sling Broadband will provide Customer with dynamic Internet protocol (“IP”) address(es) as a component of BROADBAND SERVICE, and these IP address(es) can and do change over time. Customer will not alter, modify, or tamper with dynamic IP address(es) assigned to Customer or any other customer. Customer agrees not to use a dynamic domain name server or DNS to associate a host name with the dynamic IP address(es) for any commercial purpose. Customer also agree not to use any software that provides for static IP address(es) on or in conjunction with any computer(s) or network device connected to BROADBAND SERVICE. If applicable, Sling Broadband will release and/or recover the dynamic IP address(es) when the Service or this Agreement is disconnected, discontinued, or terminated.
6.8 Responsibility for Content. Customer acknowledge that there is some content and material on the Internet or otherwise available through BROADBAND SERVICE which may be offensive to some individuals, may be unsuitable for children, may violate federal, state or local laws, rules or regulations or may violate Customer protected rights or those of others. We assume no responsibility for this content or material. Anyone who accesses such content and material does so at his or her own risk. NEITHER SLING BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO ACCESS TO SUCH CONTENT OR MATERIAL BY CUSTOMER OR OTHERS. Questions or complaints regarding content or material should be addressed to the content or material provider. Customer acknowledge that software programs are commercially available that claim to be able to restrict access to sexually explicit or other objectionable material on the Internet. We make no representation or warranty regarding the effectiveness of such programs.
6.9 Monitoring of Postings and Transmissions. Sling Broadband shall have no obligation to monitor postings or transmissions made in connection with BROADBAND SERVICE. However, Customer acknowledge and agree that Sling Broadband and its agents have the right to monitor, from time to time, any such postings and transmissions, including without limitation e-mail, newsgroups, chat, IP audio and video, and Web space content. Sling Broadband may also use and disclose them in accordance with the Sling Broadband High-Speed Internet Acceptable Use Policy and other applicable policies, and as otherwise required by law or government request. We reserve the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in our sole discretion, is unacceptable, undesirable or in violation of this Agreement. Eavesdropping. Our facilities are used by numerous persons or entities including, without limitation, other subscribers to BROADBAND SERVICE. As a result, there is a risk that Customer could be subject to “eavesdropping.” This means that other persons or entities may be able to access and/or monitor Customer use of BROADBAND SERVICE. This risk of eavesdropping exists not only with our facilities, but also on the Internet and other services to which access is provided as a part of BROADBAND SERVICE. If Customer post, store, transmit, or disseminate any sensitive or confidential information, Customer do so at Customer sole risk. NEITHER SLING BROADBAND NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO SUCH ACTIONS BY CUSTOMER. Customer acknowledge that software programs are commercially available that claim to be capable of encryption or anonymization. We make no representation or warranty regarding the effectiveness of these programs. FTP/HTTP Service Setup. Customer acknowledge that when using BROADBAND SERVICE there are certain applications such as FTP (File Transfer Protocol) or HTTP (Hyper Text Transfer Protocol) which may be used by other persons or entities to gain access to Customer’s Equipment. Customer are solely responsible for the security of the Customer Equipment or any other equipment Customer choose to use in connection with the Service, including without limitation any data stored on such equipment. NEITHER SLING BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATING TO THE USE OF SUCH APPLICATIONS BY CUSTOMER, OR THE ACCESS BY OTHERS TO THE CUSTOMER EQUIPMENT OR OTHER EQUIPMENT OF CUSTOMERS.
6.10 File and Print Sharing. BROADBAND SERVICE may function in some ways as a Local Area Network (LAN) with each Customer constituting a node on the network. As such, users outside of the Premises may be able to access the Customer Equipment and other equipment connected in some way to the Customer Equipment. In addition, some available software includes capabilities that will permit other users to gain access to the Customer Equipment and other equipment connected in some way to the Customer Equipment, and to the software, files and data stored on such equipment. Unless Customer are subject to a BROADBAND SERVICE service plan that expressly provides otherwise, sling broadband recommend that Customer connect only a single computer to BROADBAND SERVICE and that Customer disable file and print sharing and other capabilities that allow outside users to gain access to the Customer Equipment. Customer acknowledge that if Customer fail to follow these recommendations and choose to run these applications, Customer should take appropriate security measures, and that Customer do so at Customer sole risk. NEITHER SLING BROADBAND NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATING TO ACCESS BY OTHERS OF THE CUSTOMER EQUIPMENT OR ANY OTHER EQUIPMENT CONNECTED IN SOME WAY TO THE CUSTOMER EQUIPMENT, OR TO THE SOFTWARE, FILES AND DATA STORED ON SUCH EQUIPMENT. Facilities Allocation. Sling Broadband reserves the right to determine, in its discretion, and on an ongoing basis, the nature and extent of its facilities allocated to support BROADBAND SERVICE, including, but not limited to, the amount of bandwidth to be utilized and delivered in conjunction with BROADBAND SERVICE.
6.11 Cookies. Customer acknowledge that accessing certain Web sites through BROADBAND SERVICE may result in a “cookie” being placed on Customer computer system. Cookies are small files stored on a computer’s hard drive to simplify and improve a user’s Web experience. If Customer don’t want them placed on Customer computer system, it is Customer responsibility to disable or restrict the placement of cookies through whatever procedures are available on Customer browser.
ARTICLE 7: SERVICE MAINTENANCE PROCEDURES
7.1 Scheduled Maintenance. Routine maintenance and repair of the Customer Connection (“Scheduled Maintenance”) shall be performed by or under the direction of Sling Broadband, at Sling Broadband’ reasonable discretion.
7.2 Unscheduled Maintenance. Non-routine maintenance and repair of the Customer Fibers that is not included as Scheduled Maintenance (“Unscheduled Maintenance”) shall be performed by or under the direction of Sling Broadband. Unscheduled Maintenance shall consist of:
7.2.1 “Emergency Unscheduled Maintenance” in response to an alarm identification by Sling Broadband’ Operations Center, notification by Customer or notification by any third party of any failure, interruption or impairment in the operation of the connection within the Sling Broadband System, or any event imminently likely to cause the failure, interruption or impairment in the operation of the connection within the Sling Broadband System.
7.2.2 “Non-Emergency Unscheduled Maintenance” in response to any potential service-affecting situation to prevent any failure, interruption or impairment in the operation of fibers within the Sling Broadband System not covered by Scheduled Maintenance. Customer shall immediately report the need for Unscheduled Maintenance to Sling Broadband in accordance with reasonable procedures promulgated by Sling Broadband from time to time. Sling Broadband will log the time of Customer’s report, verify the problem, and dispatch personnel immediately to take corrective action.
7.3 Planned Service Work Period. Scheduled Maintenance that is reasonably expected to produce any signal discontinuity must be coordinated between the parties. Generally, this work should be scheduled after midnight and before 6:00 a.m. local time. The intent is to avoid jeopardizing work during high-traffic periods.
7.4 Cooperation and Coordination. In performing its services hereunder, Sling Broadband shall take workmanlike care to prevent impairment to the signal continuity and performance of the Customer connection. The precautions to be taken by Sling Broadband shall include notifications to Customer. In addition, Sling Broadband shall reasonably cooperate with Customer in sharing information and analyzing the disturbances regarding the cable and/or fibers. In the event that any Scheduled or Unscheduled Maintenance hereunder requires a traffic roll or reconfiguration involving cable, fiber, electronic equipment, or regeneration or other facilities of the Customer, then Customer shall, at Sling Broadband’ reasonable request, make such personnel of Customer available as may be necessary in order to accomplish such maintenance, which personnel shall coordinate and cooperate with Sling Broadband in performing such maintenance as required of Sling Broadband hereunder. Sling Broadband shall notify Customer at least two (2) calendar days prior to the date in connection with any Planned Service Work Period (PSWP) of any Scheduled Maintenance and as soon as possible after becoming aware of the need for Unscheduled Maintenance. Customer shall have the right to be present during the performance of any Scheduled Maintenance or Unscheduled Maintenance so long as this requirement does not interfere with Sling Broadband’ ability to perform its obligations under the Agreement. In the event that Scheduled Maintenance is canceled or delayed for whatever reason as previously notified, Sling Broadband shall notify Customer at Sling Broadband’ earliest opportunity, and will comply with the provisions of the previous sentence to reschedule any delayed activity.
7.5 Restoration. Sling Broadband shall respond to any event giving rise to the need for Unscheduled Maintenance (in any event, an “Outage”) as quickly as possible (allowing for delays due to causes beyond such party’s reasonable control (“force majeure event”)) in accordance with the procedures set forth herein.
7.6 Facilities. Customer will be solely responsible for providing and paying for any and all maintenance of all electronic, optronic and other equipment, materials and facilities used by Customer in connection with the operation of the Customer connection, none of which is included in the maintenance services to be provided hereunder.
7.7 Subcontracting. Sling Broadband may subcontract any of the maintenance services hereunder; provided that Sling Broadband shall require the subcontractor(s) to perform in accordance with the requirements and procedures set forth herein. The use of any such subcontractor shall not relieve Sling Broadband of any of its obligations hereunder.
ARTICLE 8: GENERAL TERMS
8.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to force majeure event(s). In the event Sling Broadband is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay Sling Broadband for the affected Service for so long as Sling Broadband is unable to deliver the affected Service. Force majeure events along with scheduled maintenance under section 1.4 shall be considered “Excused Outages.”
8.2 Assignment and Resale. Customer may not assign its rights or obligations under this Agreement or any Customer Order without the prior written consent of Sling Broadband, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Customer may resell or otherwise provide the Service to third parties, provided that Customer shall indemnify, defend and hold Sling Broadband and its affiliates harmless from any claims arising from any Services resold or otherwise provided by Customer. If Customer resells telecommunications services, Customer certifies that it has filed all required documentation and will at all relevant times have the requisite authority with appropriate regulatory agencies respecting the same. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8.3 Affiliates. Service may be provided to Customer pursuant to this Agreement by an affiliate of Sling Broadband, but Sling Broadband shall remain responsible to Customer for the delivery and performance of the Service. Customer’s affiliates may purchase Service pursuant to this Agreement. Customer shall be jointly and severally liable for all claims and liabilities related to Service ordered by any Customer affiliate, and any default under this Agreement by any Customer affiliate shall also be a default by Customer.
8.4 Notices. All notices between the parties regarding this agreement shall be in writing, and shall be deemed given upon receipt or refusal of delivery, if sent (a) by overnight courier, addressed to the party to be notified at the address stated in this section, or (b) if tendered by personal delivery to such party, or (c) if sent certified, postage prepaid, return receipt requested. Notice to Customer may also be effectuated by delivery to the Premises. Either party may change its address for notice by notice given in the manner provided in this Section 8.6.
IF TO SLING BROADBAND:
Sling Broadband, LLC.
Attention: Legal Department
500 Green Rd.
Deerfield, FL 33064
8.6 Software License and rights. During the term of this Agreement and any extensions, Sling Broadband may provide customer with the use of certain Software. In such a case, Customer agrees that: (a) Such Software is provided on a non-transferable, non-exclusive, non-proprietary basis and is provided to Customer solely for use on the Hardware provided and in conjunction with the Services; and (b) It will not: (i) copy the software, except as necessary to install on the hardware and for internal, archive purposes; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Software; (iii) sell, lease, transfer, give or sublicense the Software; (iv) write or develop any derivative or other software program(s) based, in whole or in part, upon the Software.
8.7 Marks and Publicity; Non-Disclosure. Neither party shall have the right to use the other party’s or its affiliates’ trademarks, service marks or trade names without the prior written consent of the other party. Neither party shall issue any press release nor make other public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing. Any information or documentation disclosed between the parties during the performance of this Agreement (including this Agreement) shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.
8.8 Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of Florida, without regard to its choice of law rules. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
8.9 Confidentiality. Each party’s confidential or proprietary information disclosed hereunder (“Confidential Information”) shall be held confidential by the receiving party. Sling Broadband’ performance under this Agreement, the quality of Sling Broadband Network performance, the terms of this Agreement, and any data provided by Sling Broadband to Customer regarding performance of the Sling Broadband Network shall be deemed Sling Broadband’ Confidential Information. Neither party shall disclose the other party’s Confidential Information to third parties without the other party’s written consent, except as permitted pursuant to this Section. Each party shall disseminate the other party’s Confidential Information among its employees only on a need-to-know basis and shall use such Confidential Information only for the purpose of performing its obligations hereunder. To the extent a party is required by applicable law, regulation, or by a government agency or court order, subpoena, or investigative demand, to disclose the existence or terms of this Agreement, or the other party’s Confidential Information, such party shall use its reasonable efforts to minimize such disclosure and obtain an assurance that the recipient shall accord confidential treatment to such Confidential Information, and shall notify the other party contemporaneously of such disclosure. Sling Broadband in its discretion may terminate this Agreement for cause upon ten (10) days’ notice and without penalty in the event of any breach by Customer of this Section.
8.10 This Agreement automatically renews for successive service term equal to that of initial service term unless terminated by customer upon at least 30 days written notice prior to the end of the renewal term. Upon expiration or termination of this Agreement, Services not previously terminated by Customer will remain in effect for the term specified in the applicable Service Order Form for each affected Service, and the terms and conditions of this Agreement will continue to apply to such Services. Upon expiration or termination of this Agreement, Sling Broadband shall have no obligation to furnish new Services to Customer, and all rights of Customer to order new Services under this Agreement cease.
8.11 Guaranty. In consideration of the execution of this Agreement and in order to induce Sling Broadband to enter into this Agreement, the undersigned do hereby guarantee, absolutely and unconditionally, payment of all liabilities of Customer to Sling Broadband arising hereunder of whatever nature, whether now existing or hereinafter incurred, whether absolute or contingent, and the full and prompt performance of all the terms, conditions, and obligations of this Agreement or any other agreement existing between Sling Broadband and Customer. This is a Guaranty of payment and not of collection, and the undersigned waive any right to require that any action be brought against Customer or any other person, or to require that resort be had to any security before proceeding against the undersigned. This Guaranty shall not be limited to any specific time or period, nor shall termination be effected by the death of any or all of the undersigned. This Guaranty shall remain in effect until all of the terms, conditions, and obligations of the Agreement and supplements or amendments (if any) have been fully performed by Customer. The undersigned waive any and all defenses (except for full payment of all indebtedness owing from Customer to Sling Broadband), including set-offs and counterclaims, and Sling Broadband may in connection with this Agreement, without notice to the undersigned, renew, extend, or modify any of Customer’s obligations without affecting the undersigned’s liability, which shall be total and absolute. Sling Broadband may accept partial payment, settlement, or release, without affecting or impairing the obligations of the undersigned. Any and all requirements for presentation, demand, protest or other notice of dishonor, are hereby waived by the undersigned, as is the right to trial by jury as to any question or dispute arising pursuant to the Agreement. Any delay by Sling Broadband in enforcing the obligations created by this Agreement or in the maintenance of any proceeding relating to this Agreement, shall not affect Sling Broadband’ rights to take any other action against the undersigned nor shall it be deemed a novation. The undersigned unconditionally agree that, whenever an attorney is used to obtain payment or otherwise enforce this Guaranty or to enforce, declare, or adjudicate any rights or obligations under this Guaranty, whether by suit or by any other means whatsoever, all costs of collection, and the fee of an attorney for Sling Broadband, shall be payable by each Guarantor against whom this Guaranty is sought to be enforced, declared, or adjudicated. The undersigned, if more than one, shall be jointly and severally bound and liable.
8.12 Sling Broadband may change prices, fees, Services, and/or the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, Sling Broadband will give Customer thirty (30) days prior Notice of any significant change to this Agreement. If Customer find the change unacceptable, Customer have the right to cancel Customer Service(s). However, if Customer continue to receive Service(s) after the end of the notice period (the “Effective Date”) of the change, sling broadband will consider that Customer have accepted the changes. Customer may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
8.13 Non-Solicitation of Employees. Each party acknowledges that their respective employees constitute valuable assets of each other. Accordingly, neither party shall, during the Term of this Agreement and for a period of one year thereafter, directly or indirectly, solicit, employ or offer to employ, or engage as a consultant or employee, any employee of the other. The parties agree that the remedy at law for any breach of this provision would be inadequate and that, in addition to any other remedy it might have, the aggrieved party shall be entitled to injunctive relief without proof of irreparable injury and without posting bond.
8.14 Relationship of the Parties. The relationship between Customer and Sling Broadband shall not be that of partners, agents, or joint ventures for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes.
8.15 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. Facsimile signatures shall be sufficient to bind the parties to this Agreement.
8.16 Survival of Terms. The obligations of the parties under this Agreement that by their nature would continue beyond the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
8.17 Additions/Modifications to Agreement. This Agreement can only be modified by a written document executed by authorized representatives of each Party.
8.18 Severability. In the event that any of the terms of this Agreement or the application of any such term shall be found to be invalid by any court of any competent jurisdiction, the remaining terms of this Agreement or their application shall not be affected thereby, and shall remain in full force and effect.
8.19 Waiver. Either party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.