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TERMS OF SERVICE These Terms of Service (these “Terms of Service”)
govern the provision of all Services by IZone
Networks, (“IZone Networks, ”)
to any customer purchasing or subscribing to Services from IZone
Networks, (“Customer”) through any IZone Networks, service/sales order form and/or sales
agreement (in written or electronic format, as the case may be) submitted by or
on behalf of Customer to IZone Networks, (the “Agreement”). These Terms of Service are
made an integral part of the Agreement and any other agreement which expressly
incorporates these Terms of Service by reference. As used herein, the term
“Service(s)” shall reference the various high-speed telecommunications data
services offered by IZone Networks, either via DS1
technology for T-1 service (“T-1 Service”) or via digital subscriber line
technology for 1. INSTALLATION &
EQUIPMENT. In support of Connectivity Service, IZone
Networks, shall install an end user
circuit at the telephone company’s recognized “minimum point of entry” or
“local loop demarcation point” (the “MPOE”) at Customer’s premises where the
Services are to be deployed (the “Premises”). For purposes hereof, a “Broadband
Service Line” shall refer to any Connectivity Service circuit provisioned
hereunder. IZone Network’s basic installation
responsibilities shall be limited to establishing connectivity between the MPOE
and the IZone Networks, wide area network (“WAN”) interface (the path
over which available bandwidth shall be measured), testing of the circuit
connection, and WAN side installation of the supporting data service unit or
Customer Premises equipment (e.g., a router, DSU or high-speed modem; the “ 2. TERM. Connectivity Service. The initial term for Connectivity
Service is twelve (12) months for each Broadband Service Line. The billing
period for each service (and, for Connectivity Service, the Initial Service
Term)commences upon delivery by IZone Networks, of such service; provided, however, if
delivery of a service is prevented or delayed by Customer, the billing period
and term will commence on the date IZone Networks, notified Customer thatIZone
Networks, stood ready to deliver such
service (e.g., if Customer does not grant access to IZone
Networks, or its contractors to perform
inside wiring upon such date and time proposed by IZone
Networks, then billing shall commence upon the date of circuit installation,
regardless of non-performed 3. TERMINATION OF SERVICE.
In the event IZone Networks, fails through no fault or delay of
Customer to effect basic installation of Connectivity Service at the Premises
within thirty (30) business days after the date of submission by Customer to IZone Networks, of a
valid service order, then Customer may, at any time prior to delivery of
Service, provide IZone Networks, with written notice of termination of the
given order, and such order shall terminate without liability to either party.
Customer may cancel Service at any other time upon one (1) month’s prior
written notice to IZone Networks, subject to the terms
hereof. If Customer cancels its order for Connectivity Service prior to commencement
of Connectivity Service (other than due to IZone
Network’s delay as set forth above), then Customer shall be responsible for
returning any Equipment provided by IZone Networks, in support of Service and for a $450 (for T-1
Service cancellation) or $225 (for 4. AVAILABILITY.
Irrespective of any preliminary mapping, IZone
Networks, ’s services may not be available at the
Premises because of factors beyond IZone Network’s
control, such as the length or condition of telephone company lines. If IZone Networks, determines that it is unable to effect
installation or provide service without undue cost or burden, IZone Networks, shall so advise Customer, where upon the
applicable service order shall terminate without liability to either party. Due
to 5. IP ADDRESSES. IZone Networks, ’s ability to
assign “IP addresses” is subject to restrictions on availability. IZone Networks, may require a “justification letter”
and other supporting documents in order to secure the number of IP addresses requested
by Customer. IZone Networks, reserves the right to deny requests for
a number of IP addresses which IZone Networks, deems to be excessive. Customer has no
property rights in the IP addresses assigned by IZone
Networks, and cannot acquire such rights
through usage, publication, announcement or otherwise. All IP addresses remain
property of IZone Networks, and Customer’s right to
use any given IP address shall terminate upon termination of the associated service. 6. OPTIONAL SERVICES.
Optional Services are delivered over, or in association with, a subscribed
Broadband Service Line and are thus only available to a customer who is also
receiving Connectivity Service fromIZone Networks, .
Certain Optional Services may not be compatible with all other offered forms of
Service (check with your IZone Networks, account
representative for further information). Charges for any ordered Optional
Services are in addition to those associated with Connectivity Service. SECURITY Router Configuration
(leased router). As part of any leased
router service, unless Customer has elected “Self Administration,” IZone Networks, will
provide initial configuration of the Router Configuration
(purchased router). As part of
Service, IZone Networks, will provide initial configuration, as
described herein, of the ROUTER
PURCHASE. Limited to the sale of specific routers then made available
for purchase by IZone Networks, (only routers which are compatible with
IZone Network’s network will be made available for
purchase hereunder), and subject to availability. Customer shall be responsible
for providing all router administrative services, including implementation of
router security passwords, except to the extent any of such functions are
contracted for by Customer to be performed by IZone
Networks, pursuant
to the other provisions of the Agreement. NETlink / NETlink Plus NETlink service is a form of virtual, routed, private network
(“VPN”) service established between or among designated, installed Premises on IZone Networks, ’s network. Customer
acknowledges that IZone Networks, can not transmit multiple protocols
(i.e.: 7. CHARGES. Customer
shall pay all of IZone Network’s invoices for all
charges in connection with the Services and Equipment, including, but not
limited to, late payment fees, charges for returned or “bounced” checks,
charges and expenses incurred following a payment default by Customer and in connection
with an account delinquency (including, without limitation, collection agency
fees), reasonable attorneys’ fees and expenses in connection with enforcement
of the Agreement, and applicable termination charges (provided, IZone Networks, may
recoup such attorneys’ fees and expenses only if IZone
Networks, prevails, in whole or in part,
in any action, claim, suit, hearing or dispute for which such counsel was
engaged). All payments shall be made to IZone
Networks, at
the address indicated in each invoice. Customer shall be responsible for all
applicable, invoiced federal, state, and local mandated surcharges, fees,
universal service contributions, if any, and taxes applicable to the purchase
of Services and Equipment under the Agreement (other than taxes attributable to
IZone Networks, ’s income),
other than those exempted under a valid tax exemption certificate which has
been previously presented by Customer to IZone
Networks, . Recurring service charges are billed monthly, in advance; provided,
however; service charges for an initial partial month of service will be
pro-rated and, at IZone Networks, ’s
election, may be billed on the first recurring monthly bill. For each month
after the initial partial month of service, the full monthly fee is due for any
part of a month in which the applicable service is provided, except in
instances where Customer has terminated service following the Initial Service
Term upon at least 30 days’ written notice in accordance herewith, in which
case recurring service charges for the final month of service during which
service is to terminate will be pro-rated to the effective date of termination,
and except as otherwise provided herein. Non-recurring charges, such as charges
for service calls, technical assistance, configuration requests, repairs or inside wiring, will be billed as incurred. IZone Networks, may require prepayment or a security
deposit as a condition to providing certain one-time services or, if Customer
is delinquent in its payment obligations, recurring services, andIZone Networks, reserves the right to recoup any prepayments
or security deposits at any time. Charges incurred by Customer for services
based upon actual usage may be billed by IZone
Networks, on a
subsequent bill. Payment in full is due upon receipt of invoice. Payments not
made within 30 days of the date of invoice will accrue interest from the
invoice date to the date of full payment at a rate that is the lesser of (i) 1.5% per month or (ii) the highest rate permitted by
applicable law. If Customer has elected to pay via credit card, Customer
authorizes IZone Networks, to debit Customer’s credit card for all
amounts due hereunder, except that recurring charges shall be debited at the commencement
of the applicable billing period. If Customer disputes any charges, Customer
must notify IZone Networks, within 60 days of the invoice due date
or such claim shall be waived. All items not in dispute must be paid when due.
The parties shall cooperate with each other in good faith to promptly resolve
any disputes. Notwithstanding the foregoing, if Customer has not brought its
account current to IZone Network’s satisfaction
within 10 days of IZone Network’s written notice
to Customer of Customer’s delinquency,IZone Networks,
may terminate the Agreement and all
Services or suspend Service without further notice. If any Service, or the
Agreement, is terminated byIZone Networks, for reasons other
than Customer breach, or by Customer because ofa material
failure in Connectivity Service, as aforesaid, IZone
Networks, shall issue a ratable credit
or refund to Customer for any monthly recurring service charges which may have
been prepaid by Customer for periods of service after the effective date of
such termination. Except as expressly set forth herein, all fees and charges
are nonrefundable. If, during the Initial Term or the Initial Service Term, as
the case may be,IZone Networks, determines that IZone
Network’s (or its affiliates’) costs for providing Services have increased
(as reflected by one or more increases in the prices charged by its or their
direct or indirect suppliers for telecommunications circuits or facilities
and/or network connectivity) as a result of, or in response to, the adoption,
injunction, rescission, or modification of any governmental rule, law or
regulation or applicable tariff (whether by legislative, administrative or
adjudicatory action), IZone Networks, may, upon 45days’ prior written notice to
Customer, impose an increase in the prices it charges to Customer for affected
Services hereunder. Customer agrees to be responsible for any pricing increase
to an affected Service implemented under this paragraph; provided, that, any
such increase, when aggregated with all other previous increases implemented
under this paragraph, if any, for such affected Service, does not exceed 20% of
the contracted price for such affected Service in effect upon commencement of
the Initial Service Term or Initial Term, as the case may be. If any such price
increase imposed by IZone Networks, would result in the increase percentage being
more than the aforementioned 20%, then Customer shall have the right to dispute
such increase by written notice thereof to IZone
Networks, delivered within 15 days following
the date of IZone Network’s notice to Customer of
the pending price increase. If, following IZone
Network’s receipt of such dispute notice, the parties cannot, in good faith,
resolve such dispute within 10 days thereafter, Customer shall thereupon have
the right, upon specific written notice there of to IZone
Networks, received at least 10 days
prior to the proposed effective date of the price increase, to terminate the
Services affected by the proposed price increase without penalty, which
termination shall become effective immediately prior to the proposed effective
date for said price increase. For avoidance of doubt, any continued use by
Customer of the Services affected by the price increase after the 45th day
following the date of IZone Networks, ’s written notice thereof to Customer, or failure to
timely dispute the increase, shall be deemed acceptance of the new prices.IZone Networks, reserves the right to modify pricing for any
active Service then being provided to Customer following the expiration of the
Initial Service Term upon 45 days’ prior written notice to Customer. Customer
shall have the right to dispute such increase by written notice thereof to IZone Networks, delivered
within 15 days following the date of IZone Network’s
notice to Customer of the pending price increase. If, following IZone Networks, ’s receipt of such
dispute notice, the parties cannot, in good faith, resolve such dispute
within10 days thereafter, Customer shall thereupon have the right, upon
specific written notice thereof to IZone Networks, received at least 10 days prior to the proposed
effective date of the price increase, to terminate the Services affected by the
proposed price increase without penalty effective immediately prior to the
proposed effective date for said price increase. For avoidance of doubt, any
continued use by Customer of the Services affected by the price increase after
the 45th day following the date of IZone Network’s
written notice thereof to Customer, or failure to timely dispute the increase, shall
be deemed acceptance of the new prices. Customer agrees that IZone Networks, may utilize credit reports on Customer
in order to perform a credit review as part of Customer’s qualification
process. As a result of such credit check, IZone
Networks, reserves
the right to deny credit privileges or set appropriate credit limits, including,
but not limited to, requiring Customer to provide payment in advance or a
security deposit. Inthe event that an order for
relief is entered against Customer by any bankruptcy court, the Agreement shall
be deemed to be an executory contract for bankruptcy
purposes. In connection therewith, as a condition to the continuation of
service to Customer as a debtor-in-possession, IZone
Networks, reserves the right to require
monthly prepayment of services and/or a deposit from Customer representing no
less than two months’ of contracted monthly recurring service charges (plus
usage-based charges as averagedover the prior six
months of service), and may terminate or suspend service with or without
further notice in the event such payment terms are notcomplied
with by Customer. 8. LIMITED WARRANTY;
LIMITATION OF LIABILITY. IZone Networks, will guarantee the
Connectivity Services to the extent of the Service Level Agreement as in effect
from time to time for the given Service, as posted on IZone
Network’s website. EXCEPT AS OTHERWISE EXPLICITLY SETFORTH HEREIN 9. CUSTOMER RESPONSIBILITY.
Customer is responsible for protecting all account passwords and for any
authorized or unauthorized use made of the services and products provided
hereunder. Customer shall comply with the rules appropriate to any network to
which Customer may gain access via the Services. Customer may not resell the
Services (or any part thereof)unless IZone Networks, consents in writing. Customer shall use the
Services only for lawful purposes and in a manner consistent with the terms of
the Agreement and IZone Network’s Acceptable Use
Policy as in effect from time-to time, as posted on IZone
Network’s website. Any failure to do so shall be deemeda
breach of the Agreement. Customer acknowledges that posting a changed Acceptable
Use Policy or Service Level Agreement on IZone
Network’s website will be sufficient notice to Customer of changes thereto. IZONE
NETWORKS, 10. INDEMNITY. Customer
shall indemnify, reimburse and hold harmless IZone
Networks, its directors, officers, stockholders, employees, agents, suppliers, contractors
and representatives from and against any liability, loss, damage or expense,
including court costs and reasonable attorneys’ fees and expenses, arising out
of or in connection with any actual or threatened claim, suit, action or
proceeding brought by any third party relating to the (i)breach
or alleged breach by Customer (or its end users or those accessing the Services
through Customer, whether authorized or not) of the Agreement or IZone Network’s Acceptable Use Policy or (ii) use or
misuse of the Services (including, without limitation, configuration changes
made to a IZone Networks, -managed or leased router
by parties other than IZone Networks, ) by Customer
or anyone accessing IZone Network’s network or
services through Customer, whether or not authorized. Subject to Section 8 of
these Terms of Service, IZone Networks, shall indemnify, reimburse and hold harmless
Customer, and its directors, officers, stockholders, employees, agents,
suppliers, contractors and representatives, from and against any liability,
loss, damage or expense, including court costs and reasonable attorneys’ fees
and expenses, arising out of or in connection with any actual or threatened claim,
suit, action or proceeding brought by any third party to the extent resulting
from a violation of law by IZone Networks, or arising from or relating to any claim that
the Services provided by IZone Networks, hereunder violate any proprietary rights of
any third party or any claim arising out of personal injury or tangible
property damage caused by the negligence or willful misconduct of IZone Networks, or
its agents in entering onto a Premises during the course of providing
Installation or repair services. 11. FORCE MAJEURE.
Neither IZone Networks, nor its suppliers shall be liable, nor shall
it constitute a material failure of Service or breach of the Agreement, to the
extent that performance of IZone Network’s
obligations are delayed or prevented by reason of any act of God, fire, natural
disaster, accident, riot, act of government, third party nonperformance
(including, without limitation, the failure or delay of common carriers, inter exchange
carriers, local exchange carriers, suppliers and subcontractors), or any other
cause beyond IZone Network’s reasonable control.
In the event a force majeure event causes a material
interruption in Service which continues unremedied byIZone Networks, for 30 days, Customer may terminate the
affected Service upon written notice to IZone
Networks, without liability to either
party and shall only remain liable for charges accrued through the last date of
service prior to the occurrence of the force majeure
event. 12. GOVERNING LAW. The
Agreement shall be governed by the laws of the State of 13. CONFIDENTIALITY.
Each party agrees to protect the other's Confidential Information (as defined
below) from unauthorized or unlawful dissemination and use with the same degree
of care that such party uses to protect its own Confidential Information and,
in any event, at least a reasonable degree of care. Neither party will use the
other's Confidential Information for purposes other than those necessary to
directly further the purposes of the Agreement or the provision of Service.
Each party will use its commercially reasonable best efforts not to disclose to
third parties the other's Confidential Information without the prior written
consent of the other party. Notwithstanding the foregoing, each party may
disclose the other’s Confidential Information to its employees, consultants,
contractors, suppliers, affiliates, and its legal and financial advisors on a
need to know basis as required in the ordinary course of that party's business
and to further the transactions contemplated hereby, provided that such parties
agree to be bound by confidentiality restrictions materially similar to those
set forth in this Section, and may disclose Confidential Information in order
to comply with governmental or judicial orders and requests by law enforcement agencies.
Further, the parties acknowledge that the Agreement, or portions hereof, may be
required to be disclosed under applicable law or there gulations
of an applicable securities market or exchange. If disclosure of the other
party’s Confidential Information is required by governmental or judicial order,
or requested by law enforcement authorities, the revealing party will notify
the other in writing, and, if requested by such other party, the parties will
jointly seek confidential treatment of such Confidential Information to the
maximum extent reasonably possible (at the cost of the party desiring
confidential treatment); however, it is understood that a party may acknowledge
the existence and general nature of the Agreement without any obligation to
contact the other party or seek confidenti all treatment.
For purposes hereof, "Confidential Information" means: (i) any trade secrets or other non-public information
relating to either party's products or services, including plans, designs,
costs, prices, pricing discounts or concessions, finances, service areas,
customers, marketing plans, web tools, business opportunities, personnel,
research, development or know-how; and (ii) the specific terms and conditions
of the Agreement. "Confidential Information" shall not include
information that: (i) is or becomes generally known
or available by publication, commercial use or otherwise through no fault of
the receiving party; (ii) is known and has been reduced to tangible form by the
receiving party at the time of disclosure and is not subject to restriction;
(iii) is independently developed or learned by the receiving party; or (iv) is
lawfully obtained from a third party that has the right to make such
disclosure. Each party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure or use of Confidential
Information and that each party may seek, without waiving any other rights or
remedies, such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction. 14. MISCELLANEOUS. The
Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective successors and assigns. Customer may not assign its
rights or obligations under the Agreement without IZone
Networks, ’s prior written consent, and attempted
assignments without such consent shall be void. The Agreement, together with IZone Networks, ’s Acceptable Use
Policy and Service Level Agreement, each as in effect from time to time (as
posted on IZone Network’s website), constitute the
entire agreement between the parties regarding IZone
Network’s provision of Services hereunder, and shall supersede any other or
prior agreements, representations, statements, negotiations, understandings,
proposals or undertakings, whether oral or written, with respect to the subject
matter hereof. To the extent IZone Networks, permits a change order to be processed with respect
to the Services being provided to Customer hereunder (e.g., if, during the
term, Customer requests a service speed upgrade for which Customer may be
eligible or requests additional e-mail boxes), the Services, as revised, shall
remain subject to the applicable terms of the Agreement, unless IZone Networks, specifies otherwise, in which case such
modified terms shall apply to the extent of any conflict (e.g., to account for
any higher-priced or additional services). Customer acknowledges and agrees
that IZone Networks, shall have the right to rely upon any service
order or signature placed withIZone Networks, on Customer’s behalf under the Agreement or to
the Agreement as being valid and binding upon Customer, notwithstanding Section
2 hereof, and Schedule 2 hereto. The Agreement may not be amended or modified except
pursuant to a written instrument signed by both parties. Upon Customer breach, IZone Networks, may pursue any remedies available to it
at law orin equity, and any remedies afforded IZone Networks, under the Agreement shall be cumulative and
not exclusive in nature. Nothing expressed or implied in the Agreement is
intended, or shall be construed, to confer upon or give any person, firm or
entity other than the parties hereto any rights or remedies under or by reason
of the Agreement. Headings used herein are used only for descriptive
convenience and have no independent legal effect or connotation. The Agreement
may be executed (manually or electronically)in
counterparts, and transmitted via facsimile transmission or via other authorized
electronic format, with all such counterparts constituting one and the same
instrument. Nothing in the Agreement shall be construed as creating an employer-employee
or agency relationship, a partnership, or a joint venture between the parties.
Each of the individual signatories to the Agreement represents and warrants to
the other party that such signing party has all legal right and authority to
execute and deliver the Agreement on behalf of the indicated entity. Without
limiting the foregoing, Customer’s signatory agrees to submit written
documentation, acceptable to IZone Networks, of its
appointment of agency from the applicable grantor/purchaser of Services if the
individual executing the Agreement on behalf of and in the name of Customer is
doing so in his/her capacity as an authorized agent (e.g., a “systems
integrator”) of Customer. The term “business day(s)” shall refer to any weekday
other than a national holiday. IZone Networks, shall not be deemed
as a consequence of any act, delay, failure, omission, forbearance or other indulgence
granted from time to time to have waived, or to be stopped from exercising, any
of its rights or remedies hereunder or to have modified, terminated or
rescinded any of the terms of the Agreement, unless such waiver, modification,
termination or rescission is set forth in writing and signed by IZone Networks, . A waiver expressly made in writing on one
occasion will be effective only in that specific instance and only for the
precise purpose for which given. A delay or failure in billing by IZone Networks, for any given service provided
hereunder shall not operate as a waiver or estoppel
of its right to be paid for those services. If any provision shall be held to
be invalid or unenforceable by any court of competent jurisdiction, the remainder
of the Agreement shall not be affected thereby and shall been forced to the
fullest extent permitted by law. A given Service order placed hereunder shall
be deemed accepted by IZone Networks, subject to the
other terms of the Agreement, once confirmed via “welcome call,” e-mail or
other similar communication. Termination of the Agreement shall not relieve the
parties of obligations accruing prior to the effective time of termination, nor
terminate or render void any provisions, which, by their logical context, would
reasonably be expected to survive termination of the Agreement (including,
without limitation, Sections 7, 8, 9, 10, 11, 12, 13 and 14 of these Terms of
Service) as necessary in order to resolve any claims or disputes between the
parties. Service maybe provided by IZone Networks, or its affiliates,
or through authorized contractors. Certain services furnished by IZone Networks, hereunder may be supported or provided
by IZone Network’s third-party suppliers. All
notices, requests, and demands hereunder shall be given in writing and shall be
deemed to have been given on the date of delivery, if delivered in person, on
the next business day, if sent by nationally recognized overnight courier (charges
prepaid), on the third business day after deposit in the U.S. mail, if sent by
certified or registered mail, return receipt requested, or upon receipt of
electronic confirmation, if sent by electronic mail, facsimile or other
electronic means that provides evidence of receipt, addressed to the party, in
the case of Customer, at the billing address set forth in the Agreement, or, in
the case of IZone Networks, to IZone
Networks, at 11861 Canon Blvd Suite D Newport News, VA 23602, Attention: Customer Service
Dept. (or such other address as is then posted on its website), as the case may
be, or to such other address as either party shall have most recently notified
the other of in writing (including any applicable e-mail addresses posted on IZone Network’s website or provided by Customer
hereunder). Customer is responsible for providing IZone
Networks, with
timely written notice of any billing address changes. Unless Customer has
otherwise notified IZone Networks, in writing, Customer permits IZone Networks, to
send it periodic notices on IZone Networks, products and services, promotional and special
offers and/or industry news. By submitting Customer's order for Services,
Customer acknowledges its understanding of, and agrees to comply with the terms
of, the Agreement, the Acceptable Use Policy, IZone
Networks, 's Copyright Violations Policy(available on the IZone
Networks, website or upon written
request), and any written, IZone Networks, -authorized
rebate/promotional offer and all related eligibility requirements. |
