1701, LLC TERMS AND CONDITIONS
These Terms and Conditions are an integral part of the agreement between 1701, LLC (“Provider”) and Customer and are incorporated into the Order Form (“Master Order Form”) and Master Agreement. The Master Order Form, these Terms and Conditions, Master Agreement and all other documents, policies, and attachments referenced in the Master Order Form, or attached hereto comprise the agreement between Provider and Customer (collectively, the “Agreement”). The following terms and conditions apply to the design, construction, provision, and use of Provider’s products and "Services" referenced in the Master Order Form.
- Contract Period:These Terms and Conditions are effective when Customer signs the Master Order Form and the Master Order Form is accepted by Provider ("Effective Date"). The Contract Period commences on the Effective Date and, unless terminated in accordance with the provisions herein, will continue in effect for the Term of Contract stated on the Master Order Form. Following the expiration of the Term of Contract, Customer’s contract will automatically renew on a month-to-month term at Provider’s then prevailing month-to-month rates, which may be up to 125% of Customer’s contracted fees for Services unless Provider receives written notice of cancellation from Customer at least 30 days in advance of the expiration of the Contract Period or a new contract for Services is signed with Provider.
- Billing and Payment:Customer shall pay Provider all charges due under this Agreement, without deduction or setoff. All payments shall be mailed to the address stated on the bill. Bills will be issued monthly and are due immediately upon receipt. All setup fees are due before beginning the project. Furthermore, customer agrees to pay any and all taxes due on the Services, unless Customer provides a valid tax exemption certificate.
- Taxes and Surcharges: Customer shall pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this agreement and which we are permitted to collect from Customer under applicable law. Customer shall be responsible for any applicable local taxes and for all other taxes that Customer are legally obligated to pay including any taxes that arise on the provision of Products to Customer Affiliates. Provider shall be responsible for all taxes based on Provider net income or on Provider property ownership. If any taxes are required to be withheld on payments Customer make to Provider, Customer may deduct such taxes from the amount owed to Provider and pay them to the appropriate taxing authority, provided however that Customer promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.
- Termination:If Customer fails to pay any outstanding charges within ten (10) days after receipt of written notice from Provider of delinquency, or if Customer fails to perform or observe any other material term or condition of this Agreement within ten (10) days after receipt of written notice from Provider of such failure, Provider may terminate this Agreement, in which case, all such charges not previously due and payable under this Agreement shall be immediately due and payable (including recurring monthly charges for the remainder of the Contract period).
If Customer chooses to terminate service during the minimum Contract Period as defined in Section 1, the total sum of remaining charges will be due and payable immediately upon Provider’s receipt of Customer’s written notice of termination.
- Customer Responsibilities:Customer shall ensure that all Customer-owned equipment on its premises that utilize the Services will perform according to published technical specifications for such equipment and Provider's interface specifications and otherwise complies with Provider's specifications for the Services.
- Customer is solely responsible for use of the services, by Customer or by any person or entity Customer permits to access the Services (a "User" or “Users”). Customer agrees that it and any User will not use the Services for illegal purposes, or to interfere with or disrupt other network users, network services or network equipment. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network. Customer shall defend, indemnify, and hold harmless Provider from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by any person based upon the content of any transmissions by Customer or any User using the Services or any other use of the Services by Customer or any User.
- Customer shall limit access and use of the Services to its employees, customers, or tenants. Customer shall not authorize any person to use the Services other than for Customer's business purposes, and shall not resell or otherwise generate income by providing access to the Services to any User.
If Customer permits Users to access the Services, Customer shall defend, indemnify, and hold harmless Provider from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by or against any such Users in connection with the Services, regardless of the form of action, whether in contract, tort (including Provider's active or passive negligence), warranty, or strict liability.
- To the extent deemed necessary by Customer, customer shall implement security procedures necessary to limit access to the Services to Customer's authorized users and shall maintain its own procedure external to the Services for reconstruction of lost or altered files, data or programs. Provider does not provide backup services for reconstruction of lost or altered files, data or programs, unless Customer separately contracts for such service.
- Customer is responsible for establishing designated points of contact to interface with Provider.
- Except for Software specifically licensed to Customer, as between the parties, Customer will retain all right, title, and interest in and to Customer Data. Provider will acquire no rights in Customer Data, other than the right to host Customer Data within the Services, including the right to use and reproduce Customer Data solely as necessary to provide the Services.
- Customer is solely responsible for the content of all Customer Data. Customer will secure and maintain all rights in Customer Data necessary for Provider to provide the Services to Customer without violating the rights of any third party or otherwise obligating Provider to Customer or to any third party. Provider does not and will not assume any obligations with respect to Customer Data or to Customer use of the services other than as expressly set forth in this Agreement or as required by applicable law.
- Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer use of the Services. Customer must promptly notify Provider customer support team about any possible misuse of Customer accounts or authentication credentials or any security incident related to the Services.
- Customer agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data which is exported from the United States using the Services.
- Customer understands that Services provided under this Agreement may require registrations and related administrative reports that are public in nature.
- All Provider supplied equipment remains the property of the Provider unless specified at time of order. Customer is responsible for the replacement cost of Provider’s equipment in the event of theft or damage to the equipment. Such equipment is not the Customer’s responsibility with regard to Acts of God and War. If Customer moves from the location at which the equipment is installed, Customer shall notify Provider immediately and allow Provider to remove or relocate the equipment.
- Provider Responsibilities: Provider will provide the Services as described in the Master Order Form. However, Provider's policy is to continually improve its products and services, and so may from time to time change the Services as provided to Customer under this Agreement.
- Right to Use:Provider hereby grants to Customer a personal, nonexclusive, nontransferable license during the term of this Agreement to use, in object code form, all software and documentation ("Licensed Material") which may be furnished by Provider to Customer under this Agreement. Customer agrees to use its best efforts to ensure that its employees and Users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement. Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the software. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only to support Customer's use of the Services, shall not be reproduced or copied in whole or in part, shall not be removed from the United States, and shall be returned to Provider at the conclusion of the term of this Agreement. In addition, to the extent Licensed Material includes software or documentation provided by any third party pursuant to a sublicense from Provider ("Third Party Material"), Customer agrees, as a condition to the right to use such Third Party Material, to abide by the terms and conditions of such sublicense (including such additional end user terms and conditions as shall be required by such sublicense), and Customer shall be bound by such terms and conditions by virtue of its use of such Third Party Material following notice of such terms and conditions.
8. WARRANTY AND LIMITATION OF LIABILITY:
- FOR PURPOSES OF THIS PARAGRAPH 8, "PROVIDER" INCLUDES PROVIDER, ANY AFFILIATED AND SUBSIDIARY COMPANIES OF PROVIDER, ANY SUBPROVIDERS AND SUPPLIERS OF THE FOREGOING, AND THE DIRECTORS, EMPLOYEES, OFFICERS, AGENTS, SUBPROVIDERS AND SUPPLIERS OF ALL OF THEM.
- PROVIDER MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- PROVIDER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGE THAT CUSTOMER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER. PROVIDER SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO CUSTOMER'S FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF CUSTOMER'S NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY PROVIDER WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, CUSTOMER'S SOLE REMEDY SHALL BE (A) IN THE CASE OF SERVICES, REFUND OF THE PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED, OR (B) IN THE CASE OF PRODUCTS, REPAIR OR RETURN OF THE DEFECTIVE PRODUCT TO PROVIDER FOR REFUND.
- THESE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
- PROVIDER SHALL NOT BE RESPONSIBLE FOR (1) ANY DAMAGE TO CUSTOMER’S EQUIPMENT, (2) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER, ITS EMPLOYEES, AGENTS, SUBPROVIDERS, SUPPLIERS OR LICENSEES, (3) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS, (4) INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET, (5) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET, (6) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS, OR (7) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
- PROVIDER AND CUSTOMER EACH UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AN / OR THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
- All tangible technical or business information disclosed by one party to the other party and marked as proprietary or confidential shall be deemed the property of the disclosing party and shall be returned upon request. The receiving party shall:(1) hold such information in confidence for three (3) years after any termination of this Agreement; (2) restrict disclosure of such information solely to its employees and employees of its affiliated companies with a need to know; (3) and use a reasonable degree of care (in no event less than the same degree of care as it uses for its own proprietary information) to prevent the unauthorized disclosure, use or publication of such proprietary information.
- The receiving party shall have no obligation to preserve the confidentiality of any information which: (1) was previously known to the receiving party or any of its affiliated companies free of any confidentiality obligation; (2) is disclosed to third parties by the disclosing party without restrictions; (3) becomes publicly available by other than unauthorized disclosure; (4) was not identified as confidential or proprietary; or (5) is independently developed by the receiving party.
- The pricing, terms and conditions of this Agreement are proprietary information and shall be treated in confidence.
- CPNI:Certain information is made available to Provider solely by virtue of a Customer’s relationship with Provider. Under U.S. federal law, Customer has a right and Provider has a duty to protect the confidentiality of information that relates to Customer’s usage of Provider’s services and the type of services Customer purchases from Provider. This information is known as Customer Proprietary Network Information (CPNI). Specifically, CPNI is information that relates to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services a Customer purchases from Provider.
Except as permitted by law or with Customer approval, Provider will only use, disclose, or permit access to the CPNI it receives or obtains by virtue of its provision of telecommunications service in connection with (a) marketing service offerings to Customer from within the category of service the customer subscribes, or (b) providing telecommunications service, such as, but not limited to, billing, provisioning, and collecting payments.
- If a dispute arises with respect to this agreement, or any services provided or work performed hereunder, either party may submit the dispute to a Sole mediator selected and agreed to by the parties or, at any time, to mediation by the American Arbitration Association ("AAA"). If not thus resolved, it may be referred by either party to a sole arbitrator selected and agreed to by the parties or to AAA arbitration.
The arbitration shall be governed by the Arizona arbitration act (A.R.S. § 12-1501 et. Seq.) And judgment on the award may be entered by any court having jurisdiction. The parties shall agree on what, if any, Discovery shall be made available; if the parties fail to agree on the form of discovery within 30 days after the appointment of the arbitrator, there shall be no discovery or issuance of any subpoenas. The arbitrator shall not limit, expand, or modify the terms of this agreement nor award damages in excess of compensatory damages permitted under this agreement, and each party waives any claim to such excess damages. The arbitrator shall not have any ability to award any equitable remedies, and shall be limited to remedies available at law. The arbitrator shall not have the right to award any damages in excess of damages that could lawfully be awarded by a court of competent jurisdiction. The arbitrator shall issue a written decision containing findings and conclusions on all significant issues. A request by a party to a court for interim protection shall not affect either party's obligation hereunder to mediate and arbitrate. Each party shall bear its own expenses and an equal share of all costs and fees of the mediation and/or arbitration. Any mediator or arbitrator selected shall be competent in the legal and technical aspects of the subject matter of this agreement. The content and result of mediation and/or arbitration shall be held in confidence by all participants. Each of whom will be bound by an appropriate confidentiality agreement.
- This agreement shall be governed by and construed under the laws of the state of Arizona, without giving effect to its conflicts of law principles.
- Any legal action arising from or in connection with this agreement, or any services provided or work performed hereunder, must be brought within one (1) year after the cause of action arises.
- Neither party shall publish or use any advertising, sales promotions, press releases or other publicity which use the other party's name, logo, trademarks or service marks without the prior written approval of the other party.
- Nothing in this Agreement shall create or vest in Customer any right, title, or interest in the Services, other than the right to use the Services under the terms and conditions of this Agreement.
- If any portion of this Agreement is found to be invalid or unenforceable, the remaining portions shall remain in effect and the parties will begin negotiations for a replacement of the invalid or unenforceable portion.
- This Agreement may not be assigned by either party without the prior written consent of the other. However, Provider may, without Customer's consent, assign this Agreement or its right to receive payments hereunder to an affiliate or subsidiary, or an entity that buys substantially all of Provider’s assets. Provider may subcontract any or all of the work to be performed by it under this Agreement, but shall retain responsibility for the work that is subcontracted.
- Provider's performance obligations under this Agreement shall be solely to Customer and not to any third party. Other than as expressly set forth herein, this Agreement shall not be deemed to provide third parties with any remedy, claim, right of action, or other right.
- Provider shall not have any liability for damages or delays due to fire, explosion, lightning, power surges or failures, strikes or labor disputes, water, acts of god, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure products or transportation facilities, fuel or energy shortages, acts or omissions of communications carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing.
- All formal notices, requests, demands and other communications required or permitted under this Agreement shall be in writing unless otherwise specified in this Agreement and shall be deemed to have been duly made and received when personally served, or when mailed by first class mail, postage prepaid, to 1611 N. Wilmot Rd. Suite 106A, Tucson, AZ 85712. The parties may change the addresses on ten (10) days' prior written notice. In addition, the parties may provide other notices in connection with the provision of the Services under this Agreement (such as notices relating to service outages and maintenance) by other means, including by telephone, facsimile or electronic mail.
- Provider may modify this agreement at any time by posting a revised version on http://www.1701solutions.com/t&c.htm or by notifying Customer in accordance with the above subsection. Modified terms that relate to changes or additions to the Product or that are required by law will be effective immediately, and by continuing to use the Services Customer will be bound by the modified terms. All other modified terms will be effective upon renewal (including automatic renewal) of an existing Services or order for a new Services.
- If Customer is an individual accepting these terms on behalf of an entity, Customer represents that Customer has the legal authority to enter into this Agreement on that entity’s behalf.
THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER AND IT SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS, OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, CONCERNING SUCH SERVICES. No change, modification, or waiver of any of the terms of this Agreement shall be binding unless included in a written agreement and signed by both parties.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
“Customer Data” means all data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you or your Affiliates through your use of the Services.
“User, User’s, or End User” means any user of a Customer Solution, or any person permitted by you to access Customer Data hosted in Services or otherwise use the Services.
“Product” means any Services or Software.
“Services” means one or more of the services or features made available to you under this agreement by 1701 LLC.
“Software” means software we provide to you as part of the Services for use with the Services.
“Term” means the duration of the Contract