1. SERVICE APPLICATION AND LETTER OF AUTHORIZATION FOR WIRELESS INTERNET ACCESS AND RELATED SERVICES - This form, combined with attached Customer Order Form constitutes an Application for Service, Letter of Agency, and Agreement for Service between Customer and TVC Albany, Inc., d/b/a Tech Valley Communications ("TVC"). As used herein, the term Service includes Wireless Internet Access and any associated Equipment provided by TVC for use by Customer. The Agreement will be enforceable upon acceptance by TVC which may, at its sole discretion, reject the application for service of any Customer based on insufficient or unsatisfactory credit, or may require a deposit from Customer.
2. SERVICE PROVISION - TVC shall, in accordance with Customer's choices as set out in the accompanying Customer Order Form, provide Customer with access to the Internet via a wireless access loop utilizing the IEEE 802.11b/g "Wi-Fi" standard for wireless Ethernet. The wireless connection shall be provided only on "Best Effort," where Best Effort shall mean TVC's reasonable commercial efforts to provide wireless network availability and connection speeds within TVC-designated coverage areas subject to factors including but not limited to signal propagation, obstructions, environmental conditions and scheduled maintenance outages. No assurance of service at any particular performance level or location, or under any particular condition, is offered. Any reference to connection speed represents the originating speed of the wireless connection from the TVC network infrastructure and does not guarantee same at customer premises or at Customer’s reception device.
3. USE - Customer may use the Service for any lawful purpose for which it is intended, provided that Customer will not use the Service so as to interfere with or impair service over any of the facilities and associated equipment comprising the TVC network and associated equipment, or that of any other person or carrier, or to impair the privacy of any communications over the facilities and associated equipment of TVC or that of any other person or carrier. Customer's use of Service shall at all times comply with TVC's then-current Acceptable Use Policy which may be found at www.techvalleycom.com, and which is subject to change at TVC’s sole discretion.
4. SERVICE DATE and TERM - This Agreement shall become effective on the date Customer submits an order and such order is accepted by TVC, and it shall continue in force until the end of the Service Term selected (which shall commence upon the provision of service). Unless written notification is provided by the Customer or TVC 30 days prior to expiration of the Service Term, this agreement shall automatically renew for additional periods equal to the initial Service Term. TVC shall use reasonable efforts to make Service available within five (5) days of order acceptance by TVC.
5. EQUIPMENT - Customer agrees that all right, title and interest in all wireless modems and appurtenant accessories including but not limited to Ethernet cables, antennae, power over Ethernet adapters, power supplies, suction cups, etc. (“Equipment”) provided by TVC hereunder for the express purpose of providing the Service set out in the accompanying Customer Order Form shall at all times remain exclusively with TVC. Customer shall accept installation of the Equipment and services by allowing TVC or its agent's reasonable access to its premises as necessary. TVC shall use reasonable efforts to maintain the Service in accordance with applicable performance standards therefore related to the Equipment. Customer shall allow TVC or its agents all reasonable and necessary access to its equipment to perform maintenance and/or to inspect the state and condition thereof. Where appropriate, third party vendor equipment supplied by TVC may be covered by the vendor's standard warranties and guarantees; TVC makes no representations or warranties regarding, and shall have no responsibility or liability in connection with, such third party vendor equipment. Customer shall not engage in any action which contravenes or voids the vendor's terms of warranty or guarantee. In the event that Customer engages in any action which contravenes or voids the vendor's warranty, the Customer shall bear the costs of any repairs, replacements or extended warranties or guarantees. TVC shall have no responsibility for the maintenance and repair of equipment which it does not furnish, and TVC may assess Customer its standard charge for false call outs where any Service failure or deficiency is not found to be the fault of TVC. In the event Equipment is damaged, destroyed or lost, Customer agrees to pay for any replacement at the prevailing retail price, without deduction or credit for payments made to TVC therefore.
6. BILLING AND PAYMENT - Billing shall commence immediately following the effective date of this Agreement except for any Service for which Equipment is provided by TVC as described in Paragraph 5, in which case billing shall commence five (5) days following the effective date of this Agreement. For all monthly recurring Service (a) a temporary $1.99 capture may be placed on Customer credit card for validation but not charged; (b) Service will be billed in full in advance at the beginning of each billing period; (c) the initial payment for Service shall be the sum of (i) the amount for the first month of Service prorated from the start of Service, (ii) the first full month of service, (iii) any installation charges, and (iv) any shipping charges (collectively the “Initial Payment”). The Initial Payment is nonrefundable except as provided for in Paragraph 9. An additional one-time charge in the amount of the last full month of service will be applied at the time of the Initial Payment for any Service that includes Equipment provided by TVC (the “Deposit”). All past due invoice amounts are subject to a late charge of 1.5% per month of the balance due, compounded monthly, or such lesser maximum charge as permitted by applicable law. Customer agrees to pay all costs and expenses of collection of any amounts due from Customer hereunder, or other actions or proceedings for enforcement of the terms of this Agreement, by TVC, including reasonable attorney's fees. TVC will charge a fee, as allowed by law, for each check returned for insufficient funds. TVC must receive written notice of any dispute within sixty (60) days after the invoice date, or such invoice shall be deemed final, correct, and binding.
7. DEFAULT – Customer shall be in default under this Agreement if Customer (a) shall fail to pay any amount required under this Contract and such failure continues for ten days after written notice to Customer that the same is due and payable; (b) fails to comply with any other material provision of this Contract and such noncompliance continues for thirty days after written notice to Customer thereof; (c) terminates this Agreement without cause, and/or (d) defaults under any other agreement between the Parties. In the event of such default, TVC, at its sole discretion, may elect to pursue one or more of the following courses of action: (i) terminate this Contract and the Service without further notice, and be entitled to collect all sums then due and payable (including the pro-rated current month’s charge)and/or (ii) pursue any other remedies as may be provided by law or in equity.
8. LIMITATIONS OF LIABILITY - (a) Liability for Service Failures or Interruptions: To the extent that any part or portion of the Service is unavailable, interrupted, degraded or otherwise unsatisfactory for any reason, TVC and Customer agree that Customer's sole and exclusive remedy for any claim, cause of action, or damage of any nature, shall be the credit allowances for interruptions as provided in Section 9. (b) Liability for Damages to Property: TVC shall not be liable for any damages whatsoever to property at any Customer premises resulting from the installation, maintenance, repair or removal of equipment and associated wiring unless the damage is caused by TVC willful misconduct or negligence. (c) Liability for Service and Equipment Not Provided by TVC: TVC shall not be liable in any manner for any damages whatsoever associated with service, channels, or equipment which it does not furnish, or for any act or omission of any other person or entity furnishing to Customer facilities or equipment used for or with the Service. (d) Liability for Force Majeure Events: TVC shall not be liable for any failure of performance or Service for reasons beyond its reasonable control including but not limited to casualty, condemnation, loss of rights-of-way, weather, electromagnetic interference or phenomenon, acts of other persons, war, civil strife, natural disaster, labor disputes, or failure of suppliers or contractors (e) Liability for Negligence or Fault of Customer: TVC shall not be liable for any interruptions or damages due to the fault or negligence of Customer or due to the failure or malfunction of Customer-provided equipment or facilities. (f.) Liability Regarding Governmental Authorization: TVC shall use best efforts to obtain and keep in effect all governmental authorizations necessary in order to provide Service under this Contract. TVC shall be entitled to take and shall have no liability for any action necessary, including termination, to bring the Service into conformance with any governmental regulations or authorizations, and Customer shall cooperate fully in and take such action as may reasonably be requested by TVC as part of such compliance. (g.) No Special Damages: In no event shall TVC be liable for any special, consequential, exemplary, or punitive damages as a result of its performance or nonperformance of this Contract, whether or not such damages are foreseen or in the contemplation of the parties.
9. CREDIT ALLOWANCES - A credit allowance will be given when Service is interrupted for more than 24 hours, except as specified below. An interruption period begins when Customer reports an interruption in service to TVC at 1-877-598-0940. Credit allowance does not apply to interruptions: (a) caused by Customer; (b) due to failure of power or equipment provided by Customer or others, (c) during any period in which TVC is not given access to the service premises; and (d) due to scheduled maintenance and repair. All service interruptions will be credited for 1/6 day prorated monthly recurring charge for each four-hour period or fraction thereof after the initial 24-hour period as stated above. No more than one full day's credit will be allowed for any period of 24 hours and no more than thirty days credit will be allowed in any calendar month. All requests for credit for service outages must be made in writing by Customer to TVC no more than 30 days after issuance of the bill for the period in which the outage occurred. Requests for credit should be mailed to Customer Service, Tech Valley Communications, 3 E-Comm Square, Albany, NY 12207, or e-mailed to support@techvalleycom.com.
10. TERMINATION - TVC may terminate this Contract without liability upon reasonable notice to Customer under the circumstances and Client’s payment obligation will be apportioned in the event: (a) the facilities used to provide Service are taken by exercise of condemnation or eminent domain; or (b) the facilities shall in TVC's judgment, be made inoperable and beyond economically or technologically feasible repair. In the event of nonpayment of any bill rendered by TVC, or the non-payment of any required deposit, TVC may suspend or terminate service upon 10 days’ written notice until the bill rendered or the required deposit has been paid and Customer will be assessed an additional fee in the amount of twenty dollars (US$20.00) (“Reconnection Fee”). In the event that Customer cancels any service provided under this agreement, Customer shall be entitled to the amount of prepaid service prorated for services already rendered with the exception of the Initial Payment per Paragraph 6. Notice of cancellation should be mailed to Customer Service, Tech Valley Communications, 3 E-Comm Square, Albany, NY 12207, by phone to 518-598-0940 or e-mailed to support@techvalleycom.com. Termination of Service is applicable only when TVC is in receipt of notice of cancellation and acknowledges receipt of such to Customer. Customer agrees to return Equipment in good condition to TVC promptly upon termination of Service at Customer’s sole expense within thirty (30) days. If (a) Equipment is not returned within thirty (30) days and/or (b) Customer informs TVC in writing that Equipment has been damaged, destroyed or lost, and TVC acknowledges accordingly, Customer agrees to pay for replacement of the Equipment at the prevailing retail price, without deduction or credit for payments made to TVC therefore, and TVC reserves the right to charge the Customer credit card on file for the cost of replacement.
11. INDEMNIFICATION - TVC shall be indemnified, defended and held harmless by Customer against all claims, suits, proceedings, expenses, losses, liabilities, or damages, including reasonable attorneys fees, (collectively "Claims") arising from the use or furnishing of Service pursuant to this Contract involving: (a) Claims of third parties, including patrons or clients of Customer; (b) Claims for libel, slander, invasion of privacy, or infringement of copyright arising from any communication using the Service; (c) all other Claims arising out of any act or omission of Customer, or clients or patrons of Customer, in connection with the Service made available to Customer under the terms of this Contract. Customer agrees to defend TVC against any such claim and to pay, without limitation, all litigation costs, reasonable attorney's fees and court costs, settlement payments, and any damages awarded or resulting from any such Claim.
12. ASSIGNMENT - TVC may, without obtaining any further consent from Customer, assign any of its rights, privileges, or obligations under this Contract. Customer shall not, without prior written consent of TVC (which consent shall not be unreasonably withheld) assign, transfer, or in any other manner dispose of, any of its rights, privileges, or obligations under this Contract.
13. WARRANTIES - TVC MAKES NO AGREEMENTS, WARRANTIES, OR REPRESENTATIONS OF ANY NATURE, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, WITH RESPECT TO ANY SERVICES OR EQUIPMENT PROVIDED, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN. ALL SUCH WARRANTIES AND REPRESENTATIONS ARE SPECIFICALLY DISCLAIMED.
14. SEVERABILITY - In the event that any term or provision of this Agreement shall be declared invalid, illegal, or unenforceable, in any respect, by any court or regulatory agency of competent jurisdiction, such invalidity, illegality, or unenforceability shall not in any manner affect the validity or enforceability of any other term or provision of this Agreement. Failure by either party to enforce a provision of the Agreement shall not constitute subsequent waiver of such provision. TVC may disconnect service in accordance with the applicable tariff(s), non-payment, illegal use of service, violation of Federal/State/Local laws, under court order, and violation of FCC/PSC rules.
15. REGULATORY JURSIDICTION and TARIFFS - This Agreement may now or in the future be subject to state and/or federal tariff(s). In the event that provisions set forth in this Agreement differ from those set forth in the applicable federal and/or state tariff(s), including but not limited to rates, terms, and conditions, the terms of this Agreement shall be deemed to govern this Agreement. All applicable tariff(s) are incorporated herein by reference to the extent not inconsistent with this Agreement.
16. MISCELLANEOUS - If, for any reason, TVC determines that service cannot be provisioned as ordered, TVC reserves the right to amend this contract accordingly. In the event the amendment increases the cost quoted herein or requires other changes to this Agreement, TVC shall give 30 days prior notice thereof to Customer. If such changes in rates or other terms are not acceptable to Customer, Customer will have the right to rescind the contract by giving written notice to TVC within such 30 days. If Customer rescinds this contract, Customer will be responsible for any charges incurred by TVC in preparing for the services originally contracted. Changes or modifications including but not limited to changes or modifications to the rates or terms of this contract or its schedule(s) may be made, modified, waived or amended only by a written instrument preapproved and signed by an Officer of TVC, and signed by the party against which enforcement thereof is sought. It shall be binding upon the party's respective successors and assigns, and constitutes the entire agreement between TVC and Customer.
17. JURISDICTION - The rights and obligations of the parties under this Contract shall be in all respects governed by, construed, and enforced in accordance with the laws of the State of New York, including all matters of construction, performance and validity. Any action arising under the Agreement shall be brought in a Federal or State Court located in Albany County, New York, as the exclusive forums.