Discovery Speed Internet Customer Agreement - Residential
This
Customer Agreement is made this ______day of ___________________, 2006 (the “Effective Date”) by and between Discovery
Speed Internet, with its principal place of business at 658 N. Windy Ridge;
1.
Services:
Subject to the terms and conditions of this Agreement,
Discovery Speed agrees to provide to the Customer, and the Customer agrees to pay for, the Service described on
the “Order Form” attached to this Agreement and incorporated by reference herein (the "Service").
2. Installation and Equipment:
a.
Customer acknowledges and agrees that use of the Service
will require certain equipment to be installed by Discovery Speed (the "Discovery Speed Equipment") at
the Customer location. Discovery Speed Equipment includes, but is not limited to, an outdoor antenna, wiring,
and radio transceiver.
b.
Discovery Speed will not be liable for any alterations
to the Premises that result from the installation or removal of the Equipment, including, but not limited to, holes
in walls, cable wiring or antenna mounting brackets.
c.
Any custom installation work that Customer requests,
including placing cable under carpet, through interior walls or inside molding, may require an additional charge.
3.
Payment Terms:
a. Agreement to Pay. Customer agrees to pay all monthly fees and installation charges, including all applicable taxes, surcharges, administrative fees, reconnection fees, customer service fees, late fees and door collection fees. The installation fee (and any related taxes and surcharges) will be billed in the first invoice as a nonrecurring fee.
b.
Interest will accrue on past-due balances at the lower
of one and a half percent (1.5%) per month or the highest rate permitted by applicable law. In addition,
Discovery Speed reserves the right to impose administrative fees with respect to past due balances announced to
Customer from time to time. If Service is disconnected as a result of nonpayment of fees and subsequently
reconnected, Customer will be required to pay a reconnection fee in addition to applicable interest and administrative fees.
4.
Access to Customer's Premises:
Customer
authorizes Discovery Speed, and its employees, agents, contractors, and representatives to enter Customer's premises
(the "Premises") in order to install, maintain, inspect, repair and remove the Equipment and/or Services.
If Customer is not the owner of the Premises, upon request, Customer will supply Discovery Speed with the owner's
name and address, evidence that the customer is authorized to grant access to the Premises on the owner's behalf,
and (if needed) written consent from the owner of the Premises. This Agreement is contingent upon Discovery Speed's
obtaining a right of entry onto the Premises.
5.
Relocating / Removing Equipment:
Customer
will not remove the Equipment from the Premises or connect the Equipment to any outlet other than the outlet to
which the Equipment was initially connected to by the Discovery Speed installer. Discovery Speed may relocate the
Equipment for Customer within the Premises at the Customer's request. If customer relocates to a new address, this
Agreement will automatically terminate and Customer will be required to enter into a new Customer Agreement to
initiate service. Customer acknowledges that Customer may incur additional charges for any Equipment relocation.
6.
Contact Address:
For
any inquiries or notice required in connection with this Agreement, Customer should contact Discovery Speed via
e-mail at service@discoverywind.net, telephone at 970-884-4328, or in writing at 658 N. Windy Ridge; Bayfield,
CO 81122.
7.
Prohibited Uses of the Services:
Customer shall not use the Equipment or the Service directly or indirectly to:
a. perform any illegal activity;
b. breach or attempt to breach the security of another user or attempt to gain access to any other person's computer, software or data without the knowledge and consent of such person. The Equipment and the Service may not be used in any attempt to circumvent the user authentication or security of any host, network or account. Use or distribution of tools designed for compromising security is also prohibited.
c. invade another person's privacy;
d. unlawfully use, possess, post, transmit or disseminate obscene material or child pornography;
e. post, transmit, or disseminate content which violates any proprietary rights of Discovery Speed or any third party or is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable;
f. unlawfully promote or incite hatred;
g. post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, federal or international law, order or regulation;
h. upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary right, without obtaining permission of the owner;
i. service, alter, modify or tamper with any Discovery Speed-owned Equipment or Service or permit any other person to do the same that is not authorized by Discovery Speed;
j. restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Equipment or the Service, including, without limitation, posting or transmitting any information or software which contains a virus, lock, key, bomb, worm, Trojan horse or other harmful feature; or generating levels of traffic sufficient to impede others' ability to send or retrieve information;
k. you may not reference Discovery Speed (e.g. by including "Organization: Discovery Speed Internet" in the header or by listing an IP address that belongs to Discovery Speed Internet) in the header of any unsolicited e-mails, even if that e-mail is not sent through the Discovery Speed network. URLs belonging to Discovery Speed include, but are not limited to the following: discoverywind.net, discoverywind.com, tumblespeed.net & tumblespeed.com.
l. disrupt or attempt to disrupt Discovery Speed's backbone network. Prohibited disruptions include, but are not limited to, sending unsolicited bulk or commercial e-mail messages ("spam"). Unsolicited e-mail may not direct the recipient to any web site or other resource, which uses the Discovery Speed service. In addition, "mail bombing", the sending of numerous copies of the same or substantially similar messages or very large messages or files with the intent to disrupt a server or account, is prohibited;
m. resell the Service or otherwise charge others to use the Service.
n. use the Equipment or Services in a way which is contrary to any other Discovery Speed policy that may be posted by Discovery Speed from time to time. Specifically, customer agrees to abide by the Discovery Speed Acceptable Use Policy and should consult this document regularly to ensure that their activities conform to the most recent version.
o.
use an IP address or client ID not assigned to customer. Customer acknowledges that the IP
address assigned by Discovery Speed is dynamically assigned, and may change at any time without notice.
Engaging in any of the activities listed above may result
in immediate termination of this Agreement.
8. Customer
Information:
Discovery Speed collects and uses aggregate information
about Internet usage such as, bit rates, and number of bytes passed. Discovery Speed collects and uses personally
identifiable information for billing purposes, as well as to anticipate and resolve problems with the Service.
Discovery Speed will not use or disclose any personally identifiable information regarding Internet usage unless
compelled by a court order or subpoena, Customer consents to the use or disclosure, or to protect Discovery Speed's
broadband services and facilities.
9. Customer
Service:
Discovery Speed expressly reserves the right to institute
fees for providing certain customer support services if, at its sole discretion, it determines such fees are warranted.
Customer acknowledges that Discovery Speed shall not be liable for any damage to Customer's equipment resulting
from or arising in connection with its provision of technical service and support for the Discovery Speed service
even if such damage results from the negligence or gross negligence of the Discovery Speed installer, technician
or customer service representative.
10. Termination:
a. Customer agrees that upon termination of this Agreement:
1.
Customer will permit Discovery Speed to access Customer's
premises at an agreed-to time to remove any Discovery Speed Equipment and other material provided by Discovery
Speed.
11. Limited
Warranty:
ANY DISCOVERY SPEED EQUIPMENT AND SERVICE ARE PROVIDED
BY DISCOVERY SPEED "AS IS" WITHOUT WARRANTY OF ANY KIND. DISCOVERY SPEED DOES NOT WARRANT UNINTERRUPTED
USE OF THE EQUIPMENT OR THE SERVICE. DISCOVERY SPEED DOES NOT WARRANT THAT ANY DATA OR ANY FILES SENT BY OR TO
CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS AND
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NONINFRINGEMENT, FITNESS
FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE HEREBY EXCLUDED AND DISCLAIMED.
12. Discovery
Speed Performance and Reliability Rights:
Although Discovery Speed will make every commercially reasonable
effort to deliver a high quality Internet access service, unless otherwise specified by Discovery Speed in writing,
customer is purchasing a best-effort data service with no performance or reliability warranty either expressed
or implied. Discovery Speed reserves the right to manage its network for the greatest benefit of the greatest number
of subscribers including, but not limited to the following: rate limiting, traffic prioritization, and protocol
filtering. Customer expressly acknowledges and accepts that such action on the part of Discovery Speed may affect
the performance of the service. Discovery Speed reserves the right to enforce limits on specific features
of the Service, including, but not limited to, e-mail storage and webhosting maximums.
13. Damage
to and Encumbrances on Premises, Equipment:
a. Ownership of Equipment. All equipment, except for equipment purchased and paid for in full by Customer, will at all times remain the property of Discovery Speed. Customer may not sell, transfer, lease, encumber or assign all or part of the Discovery Speed Equipment to any third party. Customer shall pay the full retail cost for the repair or replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Discovery Speed Equipment or part thereof, together with any costs incurred by Discovery Speed in obtaining or attempting to obtain possession of any such Discovery Speed Equipment. With regard to such equipment, Customer agrees:
1. To use the equipment only for the purpose of receiving the services ordered from Discovery Speed and for no other purpose.
2. To prevent any connections to the equipment which are not expressly authorized by Discovery Speed.
3. To prevent tampering, altering or repair of the equipment by any person other than Discovery Speed's authorized personnel.
4. To assume complete responsibility for improper use, damage or loss of such equipment regardless of cause.
5. To return the equipment in good condition, ordinary wear and tear resulting from proper use excepted, immediately upon discontinuance of service. In the event the equipment is not returned to Discovery Speed in good condition, Customer agrees to pay to Discovery Speed the sum of $300 for each Wireless Customer Premise System and for other equipment not returned.
b. Discovery Speed may, at its option, install new or reconditioned Equipment, including swapping existing customer equipment for upgraded equipment, for which the customer may incur a fee.
c.
Customer's Premises, Equipment.
If Discovery Speed damages the Customers’ Premises or computer hardware during the Services' installation or maintenance,
Discovery Speed will compensate the owner for reasonable, actual and documented costs of necessary repair, not
to exceed $1,000. Discovery Speed shall have no liability whatsoever for any damage to or loss or destruction
of any software, files or data.
14.
No Discovery Speed Liability For:
a. Content. There may be some content on the Internet or otherwise available through the Service, which may be offensive to some individuals, or which may not be in compliance with all local laws, regulations and other rules. Discovery Speed assumes no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by Customer through the Service is accessed and used by Customer at Customer's own risk, and Discovery Speed and each of their respective affiliates, subcontractors, employees and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to access to such content by Customer. Discovery Speed specifically disclaims any responsibility for the accuracy, quality and confidentiality of information obtained through the Service.
b. Eavesdropping. Other Service subscribers may be able to access and/or monitor Customer's use of the Service. This risk of eavesdropping exists on the Internet and other services to which access is provided by Discovery Speed as part of the Service. Any sensitive or confidential information (such as credit card numbers or other financial information, medical information or trade secrets) sent by or to Customer is sent at Customer's sole risk, and neither Discovery Speed nor any of their respective affiliates, subcontractors, employees or agents, shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by Customer.
c.
FTP/HTTP/Proxy/Gateway Server Setup. Customer should be aware that when using the Service to access the Internet
or any other online service, there are certain applications, such as FTP, HTTP, proxy, or gateway server applications,
which may by used to allow other Service users and Internet users to gain access to Customer's computer. Neither
Discovery Speed nor any of their respective affiliates, subcontractors, employees or agents, shall have any liability
whatsoever for any claims, losses, actions, damages, suits or proceedings, resulting from, arising out of or otherwise
relating to the use of such applications by Customer, including, without limitation, damages resulting from others
accessing Customer's computer or from any loss of data maintained on the Network.
15. Limitation
of Liability:
Unless otherwise specifically provided in the Agreement, neither Discovery Speed nor any of their respective affiliates, subcontractors, employees or agents, will be liable to Customer or to any third party for:
a. any direct, indirect, incidental, special, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly from, or otherwise arising in connection with, the use of the Service by Customer or any other use of the Equipment, including without limitation, any damage resulting from or arising out of Customer's reliance on or use of the Equipment or Service, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, non-deliveries, mis-deliveries, transmission, or any failure of performance of the Equipment or Service;
b. any direct, indirect, incidental, special, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly from, or otherwise arising in connection with, the termination or reclassification of Customer's account by Discovery Speed pursuant to the Agreement; and
c. any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding based upon a contention that the use of the Equipment or Service by Customer or a third party infringes the copyright patent, trademark trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party.
d. The limitations set forth in this Section 15 apply to the acts, omissions, negligence and gross negligence of Discovery Speed and each of their respective affiliates, subcontractors, employees and agents, which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine.
e.
Customer's sole and exclusive remedies under this Agreement
are as expressly set out in this Agreement. Some states do not allow the limitation or exclusion of incidental
or consequential damages, so such limitations or exclusions may not apply to you.
16.
Multiple Users:
Customer
acknowledges that Customer is executing this Agreement on behalf of all persons who use the Equipment and/or Service
through Customer's computer(s). Customer shall have the sole responsibility for ensuring that all such other users
understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees
that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement,
whether such breach is the result of use of the Service and/or Equipment by Customer or by any other user of Customer's
computer(s).
17.
Governing Law:
This
Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of
18.
Term:
This
Agreement shall run for a term of _______ months. Thereafter, the agreement will continue on a month to month
basis. Should Customer terminate this agreement early, Discovery Speed is authorized to charge, in a lump
sum, one half the monthly billing for all full or partial months remaining.
19.
General:
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supercedes and replaces any and all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Discovery Speed's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. This Agreement may not be assigned or transferred by Customer. This Agreement is freely assignable by Discovery Speed to third parties.