1. Product Description
We appreciate the opportunity to provide Internet Access services to you. The particular services you choose to be provided by Peak for you are referred to in this agreement as the “Internet Product.” The Internet Product features, access speeds and other items you have selected are set out on your below your signature.
Throughout this Agreement, the individual or entity purchasing the Internet Product is referred to as you, your, or yours. Peak Internet is referred to as Peak, us, we or ours.
The initial term will begin on the Establish Date and will run for the length of time set out herein (Initial Term). The Establish Date is the date upon which the Internet Product is made available by us for you to use. Following the expiration of the Initial Term, this Agreement will automatically renew for the length of the Initial Term (Renewal Term), unless you provide us with written notice of cancellation no later than 30 days prior to the beginning of a Renewal Term (Cancellation Notice). Your Cancellation Notice must be sent to the address set out in this Agreement, and received by us within the time period set out above.
It is important for you to know that many of our Internet Products have term commitments. In some cases, you may have received a discount on equipment, installation charges, or such a commitment is required for us to recover up-front fees we must pay to our vendors. If you terminate this Agreement prior to its expiration – whether such a termination is during the Initial Term or a Renewal Term – you will be charged an early termination fee.
a. Termination by Peak.
We may terminate this Agreement prior to the end of an Initial Term or any Renewal term, without liability to you, or waiving any of our rights, if:
i. You do not comply with the applicable terms of any aspect of this Agreement, including items incorporated by reference;
ii. You have made any false statements to us;
iii. We are prohibited from offering the Internet Product, or a third party vendor stops making aspects of the Internet Product available to us, or uneconomical for us to continue to provide to you;
iv. You fail to cure a material breach within 30 days of notice from us, or the material breach is incapable of cure;
v. You file for bankruptcy (whether voluntary or involuntary) or reorganization; and/or
vi. You do not provide us with technical information for us to implement the Internet Products in a commercially reasonable amount of time.
b. Termination by you.
You may terminate this Agreement, prior to the end of the Initial Term, or any Renewal Term, if we have failed to cure a material breach within 30 days written notice from you, or our material breach is incapable of cure.
This termination right shall be your sole and exclusive remedy. If our material breach does not run to a product provided to us by a third party, you may still remain responsible for early termination charges assessed by that entity.
Initial Invoice – Your first invoice will include all non-recurring charges, recurring charges for the first full month, any additional charges incurred as a result of your special requests (such as expedite charges) and the pro-rated amount for Internet Products provided during installation.
Early Termination Charges – If you terminate this Agreement, other than as provided in paragraph 2 or 3(b), you will be responsible for the amount due us for the balance of the Initial or any Renewal Term, the retail cost of any equipment provided to you at “no charge,” and any fees assessed us by third parties who provide products and services to us.
Payment Method – All new accounts are required to pay by credit or debit card. It is your responsibility to provide us with accurate and up-to-date credit card information. Your account will be considered Past Due should we be unable to process your credit card.
Past Due Accounts – If payment has not been received in our office 40 days from the date of our initial attempt to charge your credit card, your account will be put on temporary hold until payment arrangements have been made. We will make one attempt to contact you about your delinquent account before terminating this Agreement. We may contact you by e-mail, telephone or post. It is your responsibility to ensure that you honor your payment obligations. Accounts that are temporarily suspended, or terminated, will not function. In addition to any other disclaimers of liability set out in this Agreement, we have no liability for accounts that are suspended or terminated because of your default. Any account put on temporary hold will be assessed a $15 reactivation fee.
Resuming Services – After our termination of your account, we may choose to resume providing the Internet Product to you, at your request. We are under no obligation to do so, and new fees may be assessed.
Bill Disputes – Our TOS sets the procedures you must follow to dispute a particular charge.
5. Our Rights and Responsibilities
Provisioning – We agree to provision and provide the Internet Product to you on a best efforts basis, according to, and limited by, the provisions of this Agreement. However, it may not be possible to provide Internet Product to you in spite of our best efforts. This inability may be based on factors that are within our control, but which, in our sole and exclusive judgment, make it difficult for us to provide the Internet Product. If we are unable to provide the Internet Product to you, we will refund any fees you have paid to us in conjunction with the Internet Product. Under no circumstances shall we: (i) be compelled to provide the Internet Product to you; and/or (ii) have any liability to you, or third parties, based on our inability, or unwillingness, to provide the Internet Product to you.
Technical Support – We will provide technical support to help facilitate your use of the Internet Product (Tech Support). Our obligation to provide Tech Support extends only to working with you on a collaborative basis to troubleshoot the Internet Product. While we appreciate the complexity of technology, our obligation to provide Tech Support extends solely to trouble shooting problems with the Internet Product itself. By way of example only, among the issues not within the scope of Technical Support, are troubleshooting issues you may have connecting to the Internet Product, or problems associated with your hardware or software. We may agree to provide Tech Support to you to troubleshoot issues that affect the Internet Product, such as conflicts with your operating system, but we are not obligated to do so. Depending on the type of Internet Product, Tech Support may be limited to first level trouble shooting, other levels of support may be provided by third parties.
Speed and Capacity – This Agreement may contain descriptions of certain features of the Internet Product related to speed and upload/download capacity. These descriptions assume that the Internet Product is provisioned in the best possible environment. It may not be possible for the Internet Product, as utilized by you, to meet or reach these descriptions. Peak does not guarantee speed and/or upload or download capacity. However, if the speed and/or capacity is reduced in such a manner that you would qualify for a lower capacity Internet Product, we agree to adjust your account, including fees, accordingly. You may not terminate this Agreement based on the speed or capacity of the Internet Product, or the fact that your account has been changed to a lower speed/capacity Product.
Access – Unless specifically set out in this Agreement, the terms “unlimited access,” “always on” or similar terms, simply refer to the fact that you can access the Internet at any time – your access is not time restricted. They do not mean that you may use the Internet Product to connect to the Internet for an unlimited period of time. As set out in our TOS, we reserve the right to limit your Internet connection time. You may not use software “pinging” or other devices to maintain a connection to the Internet. The amount of bandwidth, and your upload/download capacity, may also be limited.
Should we determine that your use of the Internet Product exceeds that of a similarly situated customer, we will automatically adjust your account to a more appropriate Internet Product. You may choose either (i) to accept this adjustment by paying the new fee; or (ii) decline the adjustment, in writing. By declining the adjustment, you represent to Peak that you will modify your use of the Internet Product so that it does not exceed typical use. If your efforts are not successful, your account will be automatically adjusted. You may not decline this second adjustment. You may not terminate this Product Attachment based on either a restriction on the amount of time you may use the Internet Product, or our adjusting your account based on your use.
Access Numbers – We provide “dial-in” telephone numbers for certain types of Internet Products (Dial In Number). Although Dial In Numbers may be designated as “local,” or appear when you type your location into software provided to you by us, it is your responsibility to verify that you can access the Dial In Numbers, and whether fees may be charged to you by your telecommunications provider for that access. Dial In Numbers are subject to change at any time. This change may alter your ability to reach the Dial In Number. You may not terminate this Product Attachment based on the fact that you are charged a fee to connect to the Dial In Number, or that you are prohibited by your telecommunications carrier from accessing Dial In Number.
Software – We may provide software necessary for you to use the Internet Product (Software). The Software is provided pursuant to the software license set out in the TOC. While we seek to provide software that is compatible with most operating systems, we can not guarantee that the Software will operate on every computer. If the Software does not operate on your computer, and we are unable to provide Internet Product to you, we will refund any fees you have paid to us in conjunction with the Internet Product.
IP Address – Depending on the Internet Product you purchase, we may provide at least one IP address for the Internet Product. Unless a static IP address is specifically set out on your Sales Quote, this address will be dynamic. Upon termination of this Agreement, the IP address will be recycled. You have no ownership rights in this address.
6. Your Rights and Responsibilities
Assignment – The Internet Product is provided only to you. You may not transfer or assign it without our written permission which may be withheld for no reason.
Resale – Unless you have entered into a resale agreement with us, you may not resell the Internet Product. This restriction applies even if you are not collecting payment for your activities.
Public Access – Individuals who are members of your household, employees, or agents, may use the Internet Product to access the Internet. You may not use the Internet Product to provide Internet access to the general public. This restriction applies even if you are not collecting payment for your activities.
Equipment – The Internet Product requires certain equipment provided by you (Customer Equipment). This Customer Equipment is different than the “Equipment” described below. We reserve the right to provide the Internet Product only to the extent that the Customer Equipment is compatible with the Internet Product. The Internet Product may require that the Customer Equipment be configured in a certain way and/or contain specific software and software versions. PEAK may, without notice, remotely upgrade the firmware of customer premise equipment as required for appropriate network operation. It is your responsibility to configure the Customer Equipment in such a way that it is compatible with the Internet Product. It is impossible to predict how the unique configuration of Customer Equipment will function when it is modified to connect to the Internet Product. In addition to any other limitation of liability contained in this Agreement, you acknowledge that any such installation, access, operation or use could cause damage to Customer Equipment. Neither Peak, nor any of our affiliates or agents, shall have any liability whatsoever for any such failure or damage.
Access – In some cases we, or third parties authorized by us, may need to access the physical location where you will connect to the Internet Product. You warrant that you are the owner of, a tenant in, or lessee, of this location. You agree to indemnify, defend and hold us harmless, and other parties authorized by us, against all claims and expenses arising out of a breach of this section.
Multiple Users – The “Dial Up” Internet Product is limited to one user at a time. You may not allow other individuals to use your log in information to create multiple connections to the Internet.
Fraud – You agree to keep your log in information secret and secure. If you believe your log in information has been compromised you must notify us immediately. You are responsible for all use of the Internet Product using your log in information. This responsibility extends to any information, data, or content transmitted or received using the Internet Product. The fact that your log in information was verified by our servers, or those of third parties, is proof of your use of the Internet Product, even if you did not specifically authorize that access.
Transfer – The Internet Product is location specific. That means that we are not able to provide Internet access in all places. Should you request that we provision the Internet Product to a location other than the one to which it was initially provisioned, the Internet Product may be interrupted, or, we may not be able to provide the Internet Product at the newly requested location. You may not terminate this Agreement based on reasons of a move to a different location and our inability, or unwillingness, to provide the Internet Product at that location.
You may choose to purchase or lease from us equipment that you use to connect to the Internet Product (Equipment). This Equipment may be provided by a third party. Your use and/or ownership of it is governed by the documents provided with the Equipment. While we may agree to help facilitate your use of the Equipment, and provide first level Tech Support, we make no warranties regarding the Equipment unless you have selected a PEAK warranty plan. You agree to look solely to the manufacturer of the Equipment for all Tech Support and other issues. If you lease the Equipment, upon Termination, you agree to return the Equipment using our returns procedures.
Altering Equipment – You may not service, alter, modify or tamper with the Equipment, or permit any person (other than Peak or its authorized third-parties) to do so. This prohibition includes, but is not limited to, altering the Equipment to change the downloading or uploading capacity.
Responsibility on Termination – The purchase price of the Equipment may be spread out over the Initial Term. If you cancel, downgrade, change or terminate the Internet Product prior to the end of the Initial Term, you may be charged the full price for the Equipment.
8. Service Outages
Unless set out in an attached Service Level Agreement, we make no representations or warranties that you will be able to access the Internet Product.
Notwithstanding anything to the contrary in this Agreement, for the Internet Product, our responsibility, and your sole remedy for a Qualified Service Outage, is a credit to your account for up to one month’s fees for the particular Internet Product suffering the Qualified Service Outage. Outage Credits may not: exceed one month’s fees; be aggregated; be applied to delinquent accounts; or to fees due third parties.
The following issues are not within the definition of Qualified Service Outage: Equipment failure; and/or inability to connect to the Internet Product because of Customer Equipment configuration problems.
9. Safety and Security
Viruses – Neither Peak, nor its affiliates, agents or third party providers warrant that any software or content installed on your computer, or downloaded from the Internet Product, either voluntarily or involuntarily, will be virus free or without any other harmful feature. You warrant that you possess adequate knowledge regarding the risks of connecting to the Internet to take sufficient precautions to address this issue, with the full knowledge that there is no complete protection from viruses and other harmful features. IN ADDITION TO ALL OTHER LIMITATIONS OF LIABILITY CONTAINED IN THIS AGGREEMENT, NEITHER PEAK, NOR ITS AFFILIATES, AGENTS OR THIRD PARTY PROVIDERS SHALL HAVE ANY LIABILTY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HAMRFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT, WHETHER SUCH ATTEMPT IS PROVIDED, OR RECOMMENDED, BY US, OR ATTEMPTED BY YOU.
You acknowledge that certain types of Internet Product maintain a continuous connection to the Internet. It is possible for unauthorized third parties to use this feature to gain access to Equipment and/or Customer Equipment, including all devices connected to the Internet, or networked with a device that is connected to the Internet. You are solely responsible for the security of the Equipment and/or Customer Equipment, and all other devices referred to in this paragraph. This includes any data contained on these items. In addition to all other limitations of liability contained in this Agreement, neither Peak, nor its affiliates, agents or third party providers shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to the unauthorized third party access to the items described in this paragraph.
10. Limitations of Liability and Warranty Disclaimers
THE INTERNET SERVICE, TECH SUPPORT AND/OR EQUIPMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PEAK, NOR ITS AFFILIATES, AGENTS OR THIRD PARTY PROVIDERS WARRANT THAT ANY CONNECTION TO, TRANSMISSION OVER, OR RESULTS OF THE INTERNET SERVICE, WILL MEET YOUR REQUIREMENTS OR WILL PROVIDE UNITNERRUPTED USE OR WILL OPERATE AS REQUIRED UNINTERRUPTED, AT ANY SPEED, DATA TRANSFER VOLUME OR BE ERROR FREE.
NEITHER PEAK, NOR ITS AFFILIATES, AGENTS OR THIRD PARTY PROVIDERS WARRANT THAT ANY DATA OR FILES SENT BY, OR TO YOU, WILL BE TRANSMITTED IN AN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATOINS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE, NONIFRINGMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY EXCLUDED.
You acknowledge and understand that we may use the services, equipment and infrastructure and content of others in providing the Internet Product and that third parties may provide components of the Internet Product. We are not responsible for the performance, or non-performance, of such services, equipment, infrastructure or content of others whether or not they constitute components of the Internet Product. No undertaking, representation or warranty made by an agent or employee of Peak, or our underlying third party providers, in connection with the installation, maintenance, or provision of the Internet Product which is inconsistent with the terms of this Agreement shall be binding on us. The limitations of liability set out elsewhere in this Agreement, apply to the acts, omissions, and negligence of Peak and its underlying third party providers.
Each of these limitations of liability, and disclaimers of warranty, shall apply in addition to all other limitations of liability and/or warranty disclaimers contained in this Agreement.
One party shall indemnify (the “Indemnitor”) and hold the other and/or or any of its agents, officers, directors or employees (the “Indemnitee”) harmless from, and defend against, a claim that the Indemnitor failed to comply with all applicable laws and regulations in the promotion, distribution and use of the Internet Products. This indemnification obligation shall extend to any and all fines, penalties, liabilities, damages, costs and expenses incurred by the Indemnitee, as a result of any violation of this paragraph by the Indemnitor. This paragraph will be conditioned on the Intemnitee notifying the Indemnitor promptly in writing of the claim and giving the Indemnitor full authority, information, and assistance for the defense and settlement thereof. The Indemnitee shall have the right to participate in the defense of the claim at the Indemnitee’s expense.
Your execution of this Agreement signifies your acceptance of our initial and continuing credit approval procedures and policies. We reserve the right to withhold initiation or full implementation of the Internet Products until we are satisfied with our initial credit review and approval. We may require a security deposit before the Internet Products are provided.
13. Transfer and Assignment
We reserve the right to subcontract the Products, work or any of our other obligations set out in this Agreement without your consent.
Notices – All notices to you will be sent to the address set out below your signature to the attention of the signatory. Notices will be effective upon receipt. All notices from you to Peak should be addressed as follows:
Attention: General Counsel
1600 S.W. Western Blvd.
Corvallis, OR 97333
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
Survival The following paragraphs shall survive the expiration or termination of this Agreement: 1, 4, 5, 6, 9, 10, 11, 12.
EQUIPMENT MAINTENANCE ATTACHMENT
A. Equipment Maintenance
If set out in your sales quote, we agree to use commercially reasonable efforts to maintain the Equipment used to provide the Internet Product according to the terms set out in the Agreement, and this attachment (“Equipment Maintenance”). Equipment Maintenance will consist of the following: (i) we will provide assistance in the determination and resolution of any reproducible defects or nonconformities which causes the Equipment to cease to operate; (ii) we will replace Equipment found to be inoperable, within the scope of this attachment. Equipment Maintenance may take place either at our facility or where the Equipment is located.
We agree to respond to all requests for Equipment Maintenance: Within two (2) business days, should we fail to respond with 2 business days, we will credit your account twenty-five percent (25%) of such month’s fees.
Equipment Maintenance excludes problems caused by: (i) improper installation of the Equipment by you or a third party; (ii) your combination of the Equipment or Internet Product (in whole or in part) with other hardware software or services; (iii) the use of the Equipment in a manner inconsistent with the Agreement, manufacturer’s instructions, our instructions or contrary to the ordinary purpose for which the Equipment is designed; or (iv) our inability to access the Equipment because of contractual restrictions imposed on either of us by the manufacturer or lessor of the Equipment or the owner of the Property.
Equipment Maintenance is limited to the Equipment. It does not include support or maintenance for any third party software or hardware used in conjunction with the Internet Product (Third Party Component). In the event any Third Party Component fails to operate in accordance with its specifications, or your expectations, your sole remedy will be to pursue any remedies you may have against the supplier of the Third Party Component. In addition, Equipment Maintenance does not include support or maintenance of any customer modifications, connections, or hardware connected to the Equipment.
You agree to use your best efforts to enable us to perform our obligations under this attachment. This includes, but is not limited to, providing access to the Equipment and maintaining records sufficient for us to reproduce errors.
We warrant that we will provide the Equipment Maintenance in a professional and workmanlike manner in accordance with generally acceptable Internet industry practices. Our sole and exclusive obligation pursuant to this warranty shall be to re-perform any work not in compliance with this warranty and this non-
conformance is brought to our attention by written notice within 30 days after the Equipment Maintenance is completed. Other
than this limited warranty, all other disclaimers of warranty and limitations of liability continue to apply.