These are the terms and conditions (TOS) pursuant to which Peak Internet (Peak, we, us, or our) agrees to provide certain products to you, and which govern the rights and responsibilities between Peak and the entity purchasing, or using, those products (Customer, you or your). By using, purchasing or accessing Peak’s products, you agree to be bound by this TOS. We both agree that Peak’s provision of products to you, and your continued use of them, whether such a use is directly with Peak, or as a third party user of our products, represent an agreement to be bound by the TOS. It is your obligation to review this TOS and ensure you are able to comply with it. The fact that you have not reviewed this TOS, have not been required to sign it, or check an “I accept” box, does not alter the fact that it is a binding agreement between Peak and you. Each of the documents, polices, terms and conditions are referred to in the aggregate in this TOS as the “Agreement.”
a) Peak provides a number of products to its customers. The features and details of the products governed by this TOS are described on the particular set of web pages describing the particular product or service you have purchased (Product Description Page). Throughout this TOS, these products and/or services are referred to as the “Product.” The individual components of the Products are set out on the Product Description page on the Effective Date.
b) The “Effective Date” of this TOS is the day on which Peak creates a billing template for your account. Peak may modify the products and products it offers from time-to-time. Should the Product Description Page change subsequent to the Effective Date, Peak has no obligation to modify the Products to reflect such a change.
c) Certain aspects of the Products are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the products provided by them. We will use commercially reasonable efforts to inform you of those changes. You may terminate this Agreement if such a change materially affects the Products. You must provide this notice in writing, within 30 days of the date of such a change. The term “material” shall have the same definition given to it in the material breach paragraph.
d) We can not, and do not, guarantee that the Product will be available in your location. The Product may require additional equipment, such as a premise wiring, in order for it to operate. It is your responsibility to ensure that your equipment, or physical setup, is configured properly to connect to, or receive the Product. Any charges you incur to do so are your responsibility. In some cases the Product may only be provided in one configuration, or, will be interrupted if you change service providers. You are responsible for ensuring that any changes to your physical set up, or service provider, does not interrupt the operation of the Product. You are not entitled to a refund, or early termination, if we can not provide a Product as a result of these changes.
e) Our Product Description Page may contain a description of the maximum speed of a particular Product. This description assumes a properly wired and configured environment. The actual speed of a particular Product may vary based on factors outside our control. Because of this, Product speeds are not guaranteed.
f) Unless such a guarantee is provided in a separate agreement, we do not guarantee the availability of system backups for the Products. We are not obligated to provide historical data about the Products to any party.
a) This Agreement will begin on the Effective Date and continue for the term set out on the Product Description Page (Initial Term). After the expiration of the Initial Term, the Agreement will renew for successive periods of equal length (Renewal Term). If the Product Description Page does not contain an Initial Term, the Initial Term shall be one month.
a) You may cancel a Product in writing or in person. We do not accept cancellation by any other method, including e-mail. You must give notice at least 30 days prior to expiration of an Initial or Renewal Term. When you request cancellation, the Product will be canceled on the last day of the Initial or Renewal Term. You will not receive a refund for any period of time between your notice of cancellation and the end of the Initial or Renewal Term.
You may cancel your service by writing to:
Attention Billing Department
1600 SW Western Blvd. #180
Corvallis, OR 97333
a) Either party may terminate a Product by providing written notice to the other no later than 30 days prior to the expiration of the Initial Term or Renewal Term.
b) We reserve the right to immediately terminate this TOS, and suspend or cancel your Products: (i) for a violation of any Agreement between the parties; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.
c) One party may also terminate this Agreement upon the occurrence of a material breach which has not been cured by the other party within 30 days of their receipt of written notice of the breach. Materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
d) Upon termination, your account will be closed and the Products terminated. We have no responsibility to forward email, or other communications, for you once your account is closed. You are encouraged to keep the Products active during a transition period should you seek to forward your email or other communications.
a) The fees and charges for the Product are set out on the Product Description Page (Fees). The Product Description Page may also contain a date on which the Fees are due (Due Date). If no Due Date is set out, the Fees are due upon your receipt of our invoice and are considered past due 20 days from date of the invoice. Set up fees are not refundable for any reason. You are responsible for all long distance and/or connection charges associated with the Products. Fees accrue beginning on the Effective Date.
b) Our obligation to provide the Products is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. You must provide accurate billing information. For example, a correct credit card number, name, and address. It is your responsibility to ensure that this information is current, and that you have provided the most recent information to us. Fees will be considered paid on the date your financial institution makes the funds available to us. Should your account be suspended for any reason, Fees will continue to accrue.
c) If the monthly account charges and Fees are not paid or not received in our office 40 days from the date of the invoice, your account will be considered delinquent. At that time our system will automatically place your account on hold. Putting an account on hold renders your account so it is not useable. To reinstate your account, we may charge you: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges; and/or (iv) any fees levied on us by our financial institution; (v) a reinstatement fee of $15. During the period in which your account is delinquent, we reserve the right to terminate this Agreement and the Products.
d) You may choose to purchase certain products and products that are provided by other parties through Peak (Third Party Products). Fees for the Third Party Products may not appear on Peak’s invoices in the month on which they are delivered. You agree to pay for these Third Party Products regardless of the length of time elapsed between their delivery date, and the date on which you are charged.
e) If you believe there is an error in your invoice, we encourage you to contact us in writing. Our obligation to consider your claim is contingent on you providing us with written notice of this dispute and including sufficient facts for us to investigate your claims. We must receive this notice at least 5 days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit your account on your next invoice. If you contact your credit card company and dispute a charge with them, and this dispute is past the Dispute Deadline, we may charge you a $200 investigation fee.
6) Use of the Products
b) When your Products are set up, you will receive a username, password and other information related to your account. It is very important that you protect this information from unauthorized disclosure. It is your obligation to notify us if you have lost any of this information, or you believe there is unauthorized use of the Products. We can not be responsible for any damages, extra charges or any other harm that occurs as a result of lost, stolen, or misplaced information of this sort.
c) Your use of the Products must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. Your bandwidth use is set out on the respective Product Description Page. If it is not, you may not use excessive bandwidth. You agree that we may place restrictions on your use of the Products to the extent that they exceed the use of the Products by similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Products. Restrictions may be placed on your e-mail capacity. These restrictions may apply both to the amount of e-mail you may save, receive, and/or store. Should you exceed these restrictions, your account may be suspended, files compressed and transferred to another location, and/or deleted. E-mail accounts are not designed to function as permanent storage. We assume no responsibility for files that are damaged or inadvertently deleted.
d) You agree to cooperate with us to facilitate your use of the Products. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Products.
e) We may use software and other techniques to protect our company from viruses, SPAM and other items that we, in our sole and exclusive judgment, believe may harm our business. On request, we will provide you with information about the operation of these devices. You can then determine whether they affect your use of the Products. However we are not responsible for any harm caused to you by these devices. In particular, we are not responsible for the failure to process e-mail that we have labeled as SPAM or as otherwise harmful to our network.
f) It is your responsibility to ensure that you can connect with us to use the Products. We may change our dial-up modem numbers at any time and/or require you to use certain telephone numbers.
7) Licenses and Intellectual Property
a) Peak grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by Peak solely to access and use the Products. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in Peak’s technology shall remain with Peak or Peak’s licensors. You are not permitted to circumvent any devices designed to protect Peak’s, or its licensor’s, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
b) Information you provide to us, and our responses, related to technical support, implementation, operation or administration of the Products is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products. We shall be the exclusive owners of this intellectual property. You waive any rights you may in this intellectual property, and assign all right, title and interest in it to us.
c) Depending on the Products you purchase, you may also be licensed to use certain digital content. This license will be provided to you separately. Should you choose to license this content, please note that the licensor retains the right to withdraw any and/or all of the content from the license. You may not terminate this TOS based on that licensor’s actions.
d) You grant Peak, and any third parties used by Peak to provide the Products, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your customers, in conjunction with the Products. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.
8) Peak’s Representations and Warranty
a) Peak warrants that it will perform the Products in accordance with other similarly situated companies. To make a warranty claim, you must notify Peak in writing within 30 days of the date of Peak’s alleged breach. Your exclusive remedy, and Peak’s sole obligation, in the case of a breach of warranty is, at Peak’s option, to (i) reperform the Products; (ii) issue you a credit based on the amount of time the Products were not in conformity with this warranty, subtracted (“pro-rated”) by the amount of time they were in conformance. For the purposes of Peak’s warranty, the following issues shall not constitute products within the definition of “similarly situated companies”: up-time, “up-time guarantees“ or other items for which Peak may provide a service level agreement, regardless of whether a service level agreement is, or was, available for the Products. Third Party Products are excluded from this warranty.
9) Your Representations and Warranty
a) You represent and warrant to Peak that: (i) you have the experience and knowledge necessary to use the Products; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Products without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; and/or (v) that you understand that you may not be able to access location based products, such as “911” emergency calls.
b) You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to Peak, or which may be accessed or transmitted using the Products. You also warrant that to the extent you do business with other parties using the Products, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
a) ALL PRODUCTS ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT HEREIN, PEAK HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND/OR TITLE. PEAK DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. PEAK IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE PRODUCTS PROVIDED BY PEAK. PEAK SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING PRODUCTS PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE PRODUCTS APPEAR TO BE PROVIDED BY PEAK. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO PEAK SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
b) THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM PEAK, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
c) SOME STATES DO NOT ALLOW PEAK TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.
11) Limitation of Liability
a) The Internet is essentially unregulated. No tool, software, device or procedure is totally effective in eliminating risks inherent in connecting to the Internet. It is your responsibility to weigh the risks to your business that are created when you connect to the Internet. Peak does not control your content, nor the content accessed by you, or your customers, through, or via, Peak. It is your obligation to ensure the accuracy, integrity, title or ownership, and security of anything you receive from the Internet. You agree that Peak has no liability, of any sort, for content you or your customers access from the internet.
b) Peak provides no guarantee that its service will be uninterrupted, or continuous, that you will be able to access the Products at a particular time, that any data transmitted by Peak is accurate, error free, virus free, secure, or inoffensive. You acknowledge that it is your responsibility to keep back-up copies of your data. Peak is not responsible for any loss of data, for any reason. Peak is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its system.
c) In certain cases you may be able to access the publicly switched telephone network using the Products. Using the Internet for telephone service – in some cases referred to as “Voice over IP” or “VOIP” – carries the same risks as accessing the Internet to transmit data. Peak is not liable for your inability to access the publicly switched telephone network.
d) It is your responsibility to determine that the Products and any equipment provided by us, or third party vendors, are compatible with your equipment. You are strongly advised to back-up your computer prior to installing any equipment or using the Products. We are not responsible for any damages you sustain that occur because of incompatible, improperly configured equipment.
e) It is your responsibility to evaluate the qualifications of any individuals or entities referred to you to assist you with installation problems. If we provide such a referral to you, it is done merely as a “good neighbor.” We are not acting as an agent or in any other capacity, and have no responsibility, or liability to you, for their actions.
f) YOU MAY NOT BE ABLE TO USE LOCATION BASED EMERGENCY PRODUCTS, SUCH AS “911,” USING THE PRODUCTS. PEAK HAS NO LIABILITY FOR DAMAGES OR INJURIES, OF ANY TYPE, THAT YOU, EMPLOYEES, AGENTS OR AFFILIATES SUSTAIN BASED ON THE FACT THAT LOCATION BASED PRODUCTS ARE UNAVAILBLE.
g) IN NO EVENT WILL PEAK’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY PEAK FROM CUSTOMER FOR THE 30 DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM PEAK SHALL BE INTERPRETED TO INCLUDE PEAK’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING PRODUCTS TO YOU THROUGH PEAK.
h) YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD PEAK OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF PEAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS PEAK’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
a) You agree to indemnify, defend and hold harmless Peak and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Products (ii) any violation by you of any of Peak’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or products, the use of which is facilitated by us.
b) Peak shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that a Product actually provided by Peak hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to Products which are fully owned by Peak. It does not extend to Products provided by third parties. If allowed in its agreements with third parties, Peak shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on you notifying Peak promptly in writing of the claim and giving Peak full authority, information, and assistance for the defense and settlement thereof. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in Peak’s opinion is likely to occur, you agree to permit Peak, at its option and expense, either to: (a) procure for you the right to continue using the Product; (b) replace with a Product, regardless of manufacturer, performing the same or similar function as the infringing Product, or modify the same so that it becomes non-infringing; or (c) if neither of the foregoing alternatives is reasonably available, immediately terminate Peak’s obligations (and your rights) under this Agreement with regard to such Product and/or refund the Fee actually received by Peak from you for the 12 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
a) Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you.
b) Please refer to our website, www.peakinternet.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other Peak policies should be directed to:
1600 S.W. Western Blvd.
Corvallis, OR 97333
14) Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
15) Choice of Law, Jurisdiction and Venue.
The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Oregon, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. You agree that jurisdiction and venue are proper in the state courts located in Portland Oregon, or the U.S. District Court for the District of Oregon located in Portland. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
16) No Waiver.
No waiver of rights under this Agreement shall constitute a subsequent waiver of this or any other right under this TOS.
This Agreement may be assigned by Peak. It may not be assigned by Customer. The Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
19) No Modification
This Agreement is the entire agreement between us. We may revise, amend, or modify this Agreement at any time. Should such a modification be material – as that term is defined in this TOS – you may have the right to terminate the affected part of the Product. The Agreements may not be amended or modified by you except by a written document signed by both you and our authorized representative.
20) No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. We may subcontract any of our obligations under the Agreements without notice or your consent.
The following paragraphs shall survive the termination or expiration of this TOS: 7, 8, 9, 10, 11, 12, 13, 15, 18, 19 and 21.