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TERMS AND CONDITIONS
1.0 Services. Customer shall use the Services without the right of resale or distribution, and strictly in accordance with the applicable law and the Acceptable Use Policy and the Customer Policies, which are available at www.hipointinc.com/terms (collectively, ‘Policies’ and which form a part of this Agreement). HPTS reserves the right to change the Policies upon notice to Customer. HPTS and its suppliers may, from time to time and without liability, interrupt Services for maintenance and other operational reasons, and Customer shall not receive any compensation for such interruptions. HPTS reserves the sole and exclusive right to determine or revise its service area, and the right to discontinue any Service or Product without liability. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2.0 Products and Customer Equipment. HPTS may deliver to Customer certain software, hardware and documentation, including but not limited to CPE defined below (collectively, "Products"). HPTS grants to Customer a personal, non-transferable, non-exclusive, license to use the software and documentation during the Term solely for Customer’s own internal use of the Services in accordance with this Agreement. HPTS is not responsible for the configuration of, or internal equipment for, Customer’s personal computer that may be necessary to make such computer compatible with the Services. For any CPE that Customer purchases through HPTS, HPTS may supply new or recertified equipment. On new and recertified equipment purchased by Customer through HPTS, HPTS will provide a one (1) year warranty from the day the Customer’s order is closed (the ‘Billing Start Date’ as defined in the Policies). At HPTS’s discretion, any equipment HPTS supplies as replacement equipment (e.g., for warranty purposes) may be new, recertified or refurbished. Any equipment supplied as replacement equipment will carry the remainder of the one (1) year warranty described above. If the CPE malfunction is the result of Customer’s abuse, misuse or reconfiguration of CPE or equipment, HPTS will charge Customer for the Field Service Technician visit (if applicable) at the rates set forth in the most current version of the Customer Policies and the cost of any replacement equipment. After expiration of the one (1) year warranty period, HPTS will replace such malfunctioning CPE, and Customer will be responsible for the cost of the CPE and the Field Service Technician visit (if applicable), each as set forth in the Customer Policies. HPTS may also provide any Product or CPE upgrades at no expense to Customer, and Customer shall use all such upgrades provided by HPTS. HPTS and its suppliers shall have no obligation or liability in connection with any equipment not purchased through HPTS and configured by HPTS, or for any abuse, misuse or reconfiguration (including, but not limited to, the addition of software or other devices on the CPE) of any equipment by any party other than HPTS.
3.0 Setup. Services are provided over a permanent virtual circuit (‘Customer Circuit’) to Customer’s premises. ‘Installation’ will be deemed to have occurred when: (i) HPTS can verify connectivity of the service ordered between the CPE and the HPTS SWITCH or other network equipment; and (ii) HPTS can verify Internet connectivity from a host on the Customer’s network to a host on the Internet, through a ping test or another applicable connectivity test. If Customer declines the Customer Circuit and, if Customer has ordered only that particular service, Customer and/or HPTS may terminate this Agreement. Customer will be responsible for any additional, unforeseen construction costs including, without limitation, inside wiring administration and special installation costs.
4.0 Monitoring. HPTS and its suppliers have no obligation to monitor the Services, but may do so and disclose information regarding use of the Services if HPTS or its suppliers, in their sole discretion, believes that it is reasonable to do so, including to: (i) satisfy laws, regulations, or governmental or legal requests; (ii) operate the Services properly; or (iii) protect itself and its other users and customers. HPTS may immediately remove Customer’s material or information from HPTS's servers, in whole or in part, if HPTS, in its sole and absolute discretion, determines that such content infringes another party’s property rights, is illegal or that such content violates HPTS's Acceptable Use Policy. In addition, HPTS may disconnect Customer’s service if HPTS determines that Customer is in violation of the Acceptable Use Policy, and Customer will be responsible for any applicable Disconnection Fees.
5.0 Fees and Payments. Customer shall pay for all Services and Products that HPTS furnishes to Customer at the applicable prices set forth in Customer’s order. Customer shall also pay any repair, telephone charges and charges for inspection, installation or repair of wiring performed on Customer’s premises for the additional charges set forth in the Customer Policies. Monthly service charges, upgrades/downgrades and move orders are pro-rated. Upon Installation (as defined in Section 3), Customer shall be invoiced in arrears for all upfront fees and in advance for the pro-rated portion of the first month’s fees for Services for which Installation has occurred. Each month on Customer’s Anniversary Date (as defined below), HPTS shall bill Customer in arrears for non-recurring and pro-rata monthly charges (if any) as well as in advance for the monthly fees for the Services. The Anniversary Date is the date Customer created an account with HPTS by registering as a Customer of HPTS(‘Anniversary Date’). . All payments are due within thirty (30) days of the invoice date, and if Customer fails to pay any bill when due, HPTS shall have the right to: (i) debit the Customer’s credit card for the overdue amounts; or (ii) terminate the unpaid Services or the Agreement for breach if Customer has not paid the overdue amounts within fifteen (15) days of receipt of notice of such overdue amounts, and Customer shall be responsible for all applicable Disconnection Fees. For all late payments, Customer may pay interest on overdue amounts at the lesser of (i) interest at the rate of 1.5% per month on the outstanding balance due; or (ii) the maximum interest charges permitted under applicable law. Returned checks may be charged a $25.00 processing fee.
6.0 Taxes. Customer shall be responsible for and shall pay all applicable federal, state and local taxes, fees, charges, surcharges or other similar exaction (hereinafter called ‘taxes’) imposed on or with respect to the Services and/or Products that are the subject of this Agreement whether such taxes are imposed directly upon Customer or upon HPTS. For purposes of this Section, taxes do not include any taxes that are imposed on or measured by the net income of HPTS.
7.0 Termination. The term of this Agreement will run from the Effective Date until the end of the Minimum Term from the last Installation of a Service. The Services and the obligation to pay for such Services will continue after the end of their respective Minimum Terms on a month-to-month basis, unless either party terminates the Agreement or cancels such Service by providing at least thirty (30) days prior written notice. Written notice of termination may be sent in the form of an email to support@hipointinc.com or via fax to 800-381-3616. Termination prior to agreed upon term will be subject to the balance due for the remainder of the term as well any and all fees waived or initial promotional credits applied towards installation and/or service provided with the exception of termination due to service standards outside the acceptable parameters documented within the HiPOINT Service Level Agreement (“SLA”)
8.0. Non-Defamation: Customer agrees that he/she will not make any public defamatory comments about the Company and will not disrupt the Company's business in any manner. Nothing in this paragraph shall prohibit either customer or the Company from providing any information as may be required by law. Violation of this clause can result in indefinite suspension of services.
9.0 Disclaimers. THE SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. HPTS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HPTS DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR‑FREE, OR SECURE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE RELATED CLAIM WILL BE AS SET FORTH IN HPTS’S STANDARD SERVICE LEVEL AGREEMENT (SLA), WHICH IS CONTAINED IN THE CUSTOMER POLICIES AND WHICH ONLY APPLIES TO TELESPEED AND TELEXTEND SERVICES.
10.0 Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER HPTS OR ITS SUPPLIERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, OR FOR ANY LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS REGARDLESS OF THE CAUSE OF ACTION, AND WHETHER OR NOT FORESEEABLE. IN NO EVENT SHALL HPTS’S OR ITS SUPPLIERS' CUMULATIVE LIABILITY EXCEED THE FEES PAID BY CUSTOMER THROUGH THE MONTH IN WHICH THE CLAIM AROSE EVEN IF HPTS IS INFORMED OF THE POSSIBLITY OF SUCH DAMAGES. In addition, HPTS and its suppliers will not be responsible for any damages, losses, expenses or costs that Customer suffers AS A RESULT OF: (i) any interruption or failure of the Services OR Products; (ii) the downloading or use of any information, data or materials obtained via the Services OR FROM THE INTERNET; (iii) any failure to complete a transaction on the internet OR USING THE SERVICES or ANY loss of data due to delays, non-deliveries, mis-deliveries, or Service interruptions; (iv) ANYTHING BEYOND THE REASONABLE CONTROL OF HPTS, INCLUDING BUT NOT LIMITED TO any interRuption or failure of a third party’s services, software, equipment or network; (v) any unauthorized use or modification of Services or Products or combination of Services or Products with other services, products or equipment; (VI) viruses, worms, trojan horses, or other undesirable data or software; or (vii) the attempt by unauthorized users (e.g., hackers) to obtain access to Customer’s data, web‑site, computers, or networks.
11.0 Confidentiality. Customer acknowledges that the Products contain proprietary and confidential information of HPTS and its suppliers. Customer agrees to not disclose the Products to third parties without the prior written consent of HPTS and the suppliers identified to Customer in HPTS's response to such notice. Customer shall not copy, modify, resell or distribute the Products, create or recreate the source code for the Products, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Products. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products
12.0 Choice of Law and Binding Arbitration. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to any of the subject matter of this Agreement. Binding arbitration shall be the sole and exclusive remedy for resolution of Disputes between the parties. Such Dispute shall be submitted for arbitration in Chicago, Illinois under the rules of the American Arbitration Association (‘AAA’). The arbitrator's decision will be final and entered into any court of competent jurisdiction. The prevailing party will be entitled to recover its attorney's fees and costs in connection with such arbitration. Should either party bring a Dispute in a forum other than AAA, the arbitrator may award the other party its reasonable costs and expenses, including attorneys’ fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this Dispute resolution provision. Customer understands that Customer would have had a right to litigate Disputes through a court, and that Customer has expressly and knowingly waived that right and agreed to resolve any Disputes through binding arbitration. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. For the purposes of this section, the term ‘Dispute’ means any dispute, controversy, or claim arising out of or relating to (i) this Agreement, its interpretation, or the breach, termination, applicability or validity thereof. ‘HPTS’ includes its subsidiaries, affiliates, directors, officers, employees, beneficiaries, agents or assigns; the term ‘Customer’ means you, the original account holder, its agents, employees, directors, officers, beneficiaries, or heirs.
13.0 Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party's reasonable control, including but not limited to acts of God, changes in governmental laws, rules, regulations or orders, war, terrorist acts, insurrection, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials. Customer acknowledges that certain of HPTS’s suppliers establish the prices charged to HPTS based on governmental laws, rules, regulations, orders and decisions. If any of the prices charged to HPTS by any of its suppliers increase as a result of changes to governmental rules, laws or regulations or pursuant to new decisions or orders issued by applicable regulatory bodies, HPTS reserves the right to increase the price charged to Customer and/or change the terms of service hereunder, effective thirty days following notice to Customer. If Customer does not agree to accept the new pricing and/or revised terms, Customer may terminate the affected Services without penalty within thirty days of the date of such notice. Any continued use of the Services thirty days after the notice date shall be deemed acceptance of the new prices and/or terms.
14.0 General. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint-venturers or agents. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. Customer may not assign this Agreement without the prior written consent of HPTS, which consent shall be at HPTS's sole discretion. HPTS may assign this Agreement. Except as expressly provided herein, no modification to this Agreement shall be effective unless in writing and signed by an authorized representative of HPTS. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be effected. Notices to Customer may be sent to the facsimile number, email address or address listed on the Order Form. Customer consents to receiving all notices hereunder through electronic means. The Order Form, the Policies and these Terms and Conditions contain the entire understanding of the parties with regard to this matter and supersede any prior written or oral communications between the parties with respect to the subject matter of this Agreement. The provisions of Sections 6, 7, and 10, 11, 13, 13 and 15 shall survive any termination of this Agreement.
15. Customer Provided CPE for HiPoint HiSpeed Internet Services. Customer must use HPTS provided CPE.