Grid4 Communications Inc.
GENERAL TERMS AND CONDITIONS
Applicable to Products Offered Within the operating territory of Grid4 Communications
1. Entire Agreement. Except as set forth in Section 3, these terms and conditions (“Terms and Conditions”), the preceding Service Order entered into by parties under these Terms and Conditions, and all applicable Service Addendums (collectively, the “ Agreement”) constitute the entire agreement and understanding between customer (“Customer”) and Grid4 Communications, Inc. (“Grid4”), and any third party providing services under the Agreement on Grid4’s behalf, and supersede all prior agreements, understandings and arrangements, both oral written. Customer acknowledges that its execution of the Service Order and its use of the Services each constitutes its full acceptance of these Terms and Conditions and its agreement to be fully bound by the Agreement. Subject to Section 3, these Terms and Conditions apply to all Grid4 services ordered by Customer (“Services”). If a conflict arises between any terms of the Agreement, the following order of precedence will apply: (i) the Service Addendum; (ii) the Terms and Conditions; and (iii) the Service Order.
2. Services. Subject to the terms and conditions in the Agreement, Grid4 will provide to Customer the Services listed on a Service Order or a Service Addendum, at the specified prices, at the location listed on the applicable Service Order. Grid4’s provision of such Services is subject to its ability to acquire and maintain commercially reasonable transport and other facilities. Grid4 may terminate the Agreement or cancel an order for Services should such order require special set-up or installation at Customer’s facility. Grid4 will not have any obligation with respect to any person or entity (including, without limitation, any person or entity that shares the Services) or any location other than the Customer and the location indicated on the Service Order.
3. Tariffs. Each party will comply with all laws and regulations applicable to the Agreement and the Services. If any Service is subject to Grid4’s Federal, State or local tariffs (each a “Tariff”), then Customer is bound by the terms of such applicable Tariffs. If a conflict arises between the Agreement and an applicable Tariff, the Tariff will control.
4. Charges; Payment and Credit.
i) The charges for the Services are set forth in the Service Order. Any set-up and install fees indicated on the Service Order will be incurred by Customer when such work is performed. Customer will begin incurring charges for the provision of Services upon the earlier of (A) Commencement of services or (B) 30 days after delivery of the applicable facilities to the customer premises by the facility provider, unless the delay in connection of the facility is caused by Grid4. Customer will be fully responsible for all charges relating to use or provision of the Services at the location indicated on the Service Order, whether such Services are used by Customer or any other person or entity (including, without limitation, any person or entity sharing the Services).
ii) Except as otherwise set forth in the Service Order or this Section 4, Grid4 will invoice Customer (which Grid4 may send electronically or otherwise) on a monthly basis. Grid4 will not provide separate invoices, billing or other information to or for any person or entity sharing the Service with Customer. Grid4 may invoice Customer recurring, fixed monthly charges one month in advance. Customer agrees to pay each invoices within 15 days after the bill end date indicated on such invoice. All payments must be made in U.S. dollars. If Customer does not pay all charges when due, then Grid4, may impose late payments charges at 1½% per month on the unpaid amounts (“Late Payment Charge”), and Customer will reimburse Grid4 for all costs and legal fees associated with collecting such amounts. Grid4 may assess Customer a fee of $50 for any check returned for insufficient funds.
iii) Customer is responsible for all Federal, State and local sales, use and excise taxes pertaining to the provision or use of the Services. Grid4 may, at any time, pass through and invoice to Customer any existing, new or increased fees, assessments, taxes or other charges imposed on, required of or allowed to be collected by Grid4 by any Governmental agency (including, without limitation, universal service fund charges).
iv) Each invoice will be deemed correct and indisputable unless Customer disputes such invoice in a writing, specifically identifying the disputed charges, by the due date for the applicable invoice. All undisputed amounts on such invoice must be paid by Customer by the due date, regardless of the existence of any dispute regarding other amounts. Any disputed amounts that Grid4 determines to be in error or not in compliance with the Agreement will be adjusted on a subsequent invoice. Any disputed amounts that Grid4 reasonably determines to be correct will be due and payable by Customer, along with a Late Payment Charge, upon notice of such determination by Grid4.
v) Subject to Section 4(iv) above, if Grid4 does not receive full payment from Customer by the due date then in addition to any other rights or remedies of Grid4, Grid4 may, after giving Customer 7 days notice, suspend all or any portion of the Services listed on all Service Orders or a Service Addendums for the master account and all sub-accounts, including all locations, until such time as Customer has paid in full all charges then due, including Late Payment Charge, resumption fees and collection costs.. Following such payment, Grid4 will resume Service to Customer only if Customer pays in advance Grid4’s costs of, and any fees for, such resumption and provides to Grid4 assurances satisfactory to Grid4 of Customer’s ability to pay for Service. Grid4 may assess Customer a fee up to $50 to resume Customer’s Services. If Customer fails to make such advance payment or provide such assurances, then Customer will be deemed to have terminated the Agreement and Grid4 may asses Early Termination Charges as set forth below.
vi) Customer may use phone numbers as a billing mechanism for other communications services provided by third parties (such as, without limitation, information services). Customer’s use of phone numbers for this purpose is considered a constructive order for such services. By constructively ordering such services, Customer grants Grid4 permission to release the Customer’s name and billing address information to the third party provider of these services. Customer understands that the provider of these services may bill customer directly for those services.
vii) Customer will provide Grid4 with all information reasonably requested to verify that Customer has satisfactory credit. In addition, Customer hereby grants Grid4 permission to obtain Customer’s credit information from time to time from credit reporting agencies and other sources. Grid4 may decline Service, or require a reasonable deposit from Customer to be held by Grid4 as a guarantee of payments due under the Agreement, if Customer’s credit is unsatisfactory, in Grid4’s reasonable discretion. If Customer’s financial circumstances or payment history becomes unsatisfactory to Grid4, or indicates difficulties in meeting payments, then Grid4 may require a new or increased deposit. If Customer fails to make any payment when due, then Grid4 may, with or without notice, apply Customer’s deposit to satisfy such amounts, and may require Customer to promptly replenish such deposit. Upon termination of the Agreement, Grid4 may use such deposit to satisfy any amounts Customer owes Grid4 under the Agreement (including, without limitation Early Termination Charges), and the remainder of any deposit will then be returned to Customer (with any interest accrued on such returned amounts if such interest payment is required by applicable law).
5. Technical Standards of Performance. Facility and port performance will be measured using three parameters: availability; latency; and packet loss. Availability is a measure of the relative amount of time during which the service is available for use. The availability objective for all Services is to provide performance levels of 99.999% over a monthly billing period. Latency is measured as time required for a packet to travel round trip between network IP PoPs. Latency will average less than 55 ms for traffic within Grid4’s network and 75 ms for traffic terminated on peered networks over a monthly billing period. Packet loss is measured as the percentage of 64 byte packets lost after 100 trials during a one month billing period between Grid4’s IP PoPs. Packet loss will be less than 0.5% for traffic within Grid4’s network and peered networks. Customer acknowledges that Grid4 may need to perform routine maintenance to the network between the hours of 12:00 AM and 6 AM. Such maintenance is acknowledged to not be considered for overall measurement of standards of performance.
Availability Credits. Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time when Services are “unavailable” (as defined in Technical Standards of Performance). In the event of unavailable services, Customer shall be entitled to a credit calculated as follows:
Availability Credit = [(Hours of outage – 1 hour) X (Total Monthly Recurring Charge of affected Facility)] /720
The length of the unavailability shall be measured in hours and fractional portions thereof. An event shall be deemed to have commenced upon notification by Customer to Grid4. Each event shall be deemed to terminate upon restoration of the affected Services as evidenced by appropriate network tests by Grid4, and Grid4’s notification to Customer.
Other Performance Credits. If the average network latency or packet loss performance falls below the stated levels within the calendar month, Grid4 shall provide a service credit as stated below:
Service Credit = Total Monthly Recurring Charge of affected Facility / 30
6. Customer Responsibilities. In addition to Customer’s other responsibilities under the Agreement, Customer will: (i) take all actions requested by Grid4 to facilitate commencement of Service; (ii) provide Grid4 with adequate facilities to house and operate any equipment necessary for Grid4 to provide the Services; (iii) use Grid4 as its provider of local exchange services for the entire term of the Agreement; (iv) not be a call center; (v) not resell the Services to any third party; (vi) be solely responsible for establishing and maintaining security measures (including, without limitation, codes, passwords or other features) necessary to restrict access to its computers, servers or other equipment through the Services; (vii) be solely responsible for all fraudulent or unauthorized use of the Services by persons accessing Customer’s facilities or premises or that otherwise occurs from the location indicated on the Service Order; and (viii) serve as the sole point of contact for communications to and from Grid4 with respect to the Services and Customer’s account (including, without limitation, all requests for moves, additions, deletions or changes to the Services). Customer warrants and represents to Grid4 that a significant amount of its local traffic is carried on Grid4 service.
7. Equipment. In connection with the Services, Grid4 may provide Customer with equipment to be located at Customer’s premises. Such equipment will remain the sole property of Grid4. Customer will take reasonable measures to protect such equipment and will fully compensate Grid4 for the value of any such equipment that is lost or damaged. Such reasonable measures include, without limitation, the provision of a secure, air-conditioned space to house, and sufficient electricity to run, such equipment. All such equipment provided to Customer will be used solely for the provision of the Services by Grid4. Customer will comply with all instructions and requirements of Grid4 regarding the use of such equipment.
8. Term and Termination
i) Unless earlier terminated pursuant to the terms of the Agreement, the initial term begins on the first day of available services and will continue in effect for the Service Period specified in the Service Order (the “Initial Term”). Upon expiration of any Term, the Agreement shall auto renew for a 1 year term at the current contracted rate, unless the Agreement is terminated by either party by providing proper notice of termination to the other at least 30 but not more than 60 days prior to the end of the Initial Term or any such successive term (each a “Renewal Term”).
Notwithstanding the foregoing or the Initial Term of the Agreement, if Customer has ordered the “Grid4 Home” Service, as indicated on the applicable Service Order, then the initial term for such Grid4 Home Service will be that of SmartCOMM™. If the end date of such Grid4 Home service initial term is the same as the end date of the Initial Term or a Renewal Term of the Agreement, then the term for the Grid4 Home-service will renew on the same terms and for the same period as the Agreement, as set forth in this Section 8(i). If the end date of such Grid4 Home Service initial term precedes the end date for the Initial Term of the Agreement, then the Grid4 Home Service term will automatically renew on a month-to-month basis until such Grid4 Home Service is terminated by either party with 30 days notice to the other or otherwise in accordance with this Agreement. The Grid4 Home Service will also terminate automatically upon the expiration or termination of the Agreement or the SmartCOMM™ Service, subject to applicable Early Termination Charges as set forth in Section 11.
The Grid4 Home service is intended solely for residential use by Customer’s key personnel as a secondary means of access to the Services in connection with the Customer’s business. If in the discretion of Grid4 the Grid4 Home Service is being used in a manner inconsistent with such intended use, then Grid4 may immediately terminate the Grid4 Home service.
ii) Customer may terminate the Agreement (without liability for Early Termination Charges) if Grid4 materially breaches the Agreement and does not cure such breach within 30 days (in the case of a breach with respect to the provision of Service) or 45 days (for all other breaches) after receiving notice thereof; provided that Customer’s account is current (i.e. no balance older than 30 days) prior to such termination and further provided that Customer will be responsible for all charges for the use of Services until disconnection.
iii) Grid4 may terminate the Agreement if Customer materially breaches the Agreement and does not cure such breach within 30 days after receiving notice thereof; provided that such notice and cure period will be only 10 days in the event such breach is of Customer’s payment obligations under the Agreement. In addition, Grid4 may immediately terminate the Agreement (or suspend or alter the Services), without notice, for any breach by Customer of Grid4’s Acceptable Use Policy, as such policy is discussed in Section 18 below, or if Grid4 otherwise determines in its sole discretion that the provision of Service to Customer has resulted or may result in harm to Grid4, its reputation or its other customers.
If Grid4 suspends Services under such circumstances, then resumption of such Services will be subject to the discretion of Grid4 and the payment by Customer of Grid4’s costs of such resumption and all resumptions fees imposed by Grid4 (in Grid4’s discretion) on Customer. Grid4 may also immediately terminate any order, and assess Early Termination Charges (as described below), if Customer does not cooperate with Grid4’s efforts to initiate the applicable Services. If Grid4 suspends Services due to Customer’s breach of the AUP, then resumption of such Services will be subject to the discretion of Grid4 and the payment by Customer of Grid4’s costs of such resumption and all resumptions fees imposed by Grid4 (in Grid4’s discretion) on Customer.
iv) Upon termination of the Agreement or an order for any reason, Customer will immediately return to Grid4 all equipment and any other property or information (including, without limitation, Confidential Information) obtained by Customer in connection with the Agreement or such order (as the case may be), and if Customer does not immediately return all such equipment and other property, then Customer will pay to Grid4, promptly upon receipt of invoice, the value of such equipment. Grid4 may also invoice Customer, and Customer will promptly pay, all costs incurred by Grid4 in retrieving or attempting to retrieve such equipment and property. Customer will not be entitled to a refund or credit of any amounts paid with respect to the Services. Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 19 and 20 will survive the termination of the Agreement.
9. Disclaimer of Warranties.
Grid4 provides the services and related equipment “as is” without any warranty, express or implied. Grid4 disclaims all implied warranties, including, without limitation, warranties of merchantability and fitness for a particular purpose, and any warranty arising out of usage of trade, course of dealing or course of performance. Customer is solely responsible for the selection, use and suitability of the services, and grid4 has no liability therefor. Grid4 does not warrant that the services will be uninterrupted or error-free or that they will meet customer’s requirements or prevent unauthorized access.
10. Sole Remedy; Liability Limitations.
i) This section describes the full extent of Grid4’s responsibility for any claims or damages caused by the services or related equipment or otherwise arising in connection with the services or the agreement and any termination or suspension thereof. The parties acknowledge that the limitations set forth in this section are reasonable and are integral to the amount of fees levied in connection with the agreement and that, were grid4 to assume any additional liability, such fees would be set substantially higher.
ii) other than customer’s termination right in section 8(ii), customer’s sole remedy, and grid4’s sole obligation, with respect to any loss, interruption, failure, defect or error in the services or equipment will be a credit of the pro rata charges paid by customer for the applicable service during the affected period. Notwithstanding the foregoing, grid4 will not be liable, nor will any credit be given, for any loss, interruption, failure, defect or error that is (a) covered under section 15; (b) less than 24 hours; (c) caused by customer or a third party; or (d) due to equipment, systems or services provided by customer or a third party.
iii) Grid4 does not exercise control over, and will not be liable for, the content, accuracy or quality of information transmitted through its facilities. Customer’s use of the services or any information obtained therefrom is at its own risk. Grid4 is not liable for any damages for injuries, death or loss to persons or property incurred by any person as a result of any act or omission of grid4 either in connection with developing, adopting, implementing, maintaining or operating any emergency “911” system or in the identification of the telephone number, address, name, location or other information of any person accessing or attempting to access an emergency “911” or similar system. Grid4 will also not be liable for errors or omissions in customer’s information listed in any published directory, and customer is solely responsible for ensuring the accuracy of such information.
iv) E911 Capability: To receive SmartCOMM™ or SmartVOICE™ services, Customer must review and acknowledge acceptance of a Disclosure Addendum indicating that any E911 calling capability associated with Service: (a) may not be available during an electrical power outage affecting the Service location; (b) will not be available if Customer’s broadband connection service has been disrupted and not restored; (c) will not be available if Service has been discontinued for any reason, including Customer non-payment; (d) may not be available or may be routed to emergency personnel unable to respond at locations other than the location for which a Service address has been furnished to Grid4; (e) may not be available or may be routed to emergency personnel unable to respond, if Customer has disabled or damaged Grid4-provided Interactive Access Device or removed it to a location other than one for which a Service address has been provided to Grid4; or (f) may be delayed or unavailable due to network congestion or other problems affecting the network. Customers are encouraged to acquire and maintain alternative means of accessing E911 service and to inform their authorized users of emergency calling alternatives available to them.
v) Grid4 will not be liable to the customer whatsoever for any indirect, incidental, consequential, punitive or special damages, or damages relating to loss of data, profit, revenue or business, whether such damages are suffered by customer, its assignee or other transferee. This provision applies even if Grid4 is informed in advance of the possibility of such damages.
vi) the limitations of liability afforded Grid4 in these terms and conditions will apply whether the action in which recovery is sought (a) is based in contract or tort (including, without limitation, negligence or strict liability), or (b) under a statute, rule or otherwise.
11. Early Termination Charges. If the Agreement is terminated, other than pursuant to Section 8(ii) above, prior to the end of an Initial Term or Renewal Term, then Grid4 may assess against Customer “Early Termination Charges,” as a reasonable approximation of the damages incurred by Grid4, (i) if such termination occurs prior to Grid4 installing the equipment for initiating the Services, a minimum of $1,000; (ii) if such termination occurs at any other time during the Initial Term, all outstanding nonrecurring fees plus 100% of the monthly recurring fees times the number of months remaining in the term or (iii) if such termination occurs during any Renewal Term, all outstanding nonrecurring fees plus the monthly recurring fees times the number of months remaining in such Renewal Term.
12. Indemnity. Customer will indemnify, defend and hold harmless Grid4, its affiliates, and the officers, directors, employees, agents, successors and assigns of it and its affiliates (each an “Indemnified Party”) against all losses, claims, damages, liabilities, penalties, actions, proceedings and judgments (collectively “Losses”) that arise out of, or relate to, Customer’s use of the Services or any Grid4 equipment at Customer’s premises.
13. Force Majeure. Grid4 will not be liable or in breach under the Agreement for any delay, failure to perform or equipment damage, loss, destruction or malfunction, or any consequence thereof, caused by any cause beyond its reasonable control, including, without limitation, fire; earthquake; flood; weather; acts of God; labor disputes; utility curtailments; power failures; cable cuts; failure caused by telecommunications or other Internet provider(s); worms, Trojan horses, viruses or other destructive code or software; explosions; civil disturbances; terrorism; vandalism; governmental actions or shortages of equipment or supplies.
14. Confidentiality.“Confidential Information” is information, in any form, of or about Grid4, or its Services, customers or contractors, that is not generally known by, or readily available to, the public. Customer may use Confidential Information solely for its internal purposes, and will only disclose such information internally on a need-to-know basis. Customer will use reasonable best efforts to protect Confidential Information from unauthorized use or disclosure. Grid4 may seek equitable relief (and any other remedies) to enforce this Section 14.
15. Publicity. Neither party will use the other’s name, logo, product names or trade or service marks, or refer to the other directly or indirectly in any advertising, sales presentation, news release, release to any professional or trade publication or for any other purpose without the other’s prior written approval.
16. Maintenance. Grid4 may from time to time perform maintenance that may affect the availability or functionality of all or part of the Services. When practical, Grid4 may provide reasonable notice in advance of any such maintenance materially affecting the Services. Any impact on the Services as a result of maintenance under this Section will not be deemed a breach of the Agreement by Grid4 and will not entitle Customer to any credits or refunds.
i) If Customer wishes to move Services to a different location, then Customer will request such move in a writing to Grid4 at least 6 weeks in advance. If such new location is within Grid4’s serving area, then Customer and Grid4 will enter into a new contract of length no less than the original Service Period. Such new contract may include additional or different installation, recurring and other charges and fees, and, in addition to the foregoing, Grid4 may assess, and Customer will promptly pay, a $500 relocation fee each time Customer changes the Grid4 SmartCOMM™ Service location. If such new location is not within Grid4’s serving area or Services cease at the prior location and such new agreement for the new location is not entered into by the parties, then the Agreement will be deemed terminated by Customer and Early Termination Charges will apply.
ii) In the event Customer requests a move, add, change or deletion for an existing location, Grid4 will bill Customer a $4.95 Move, Add, Change, Delete (MACD) Fee plus any applicable equipment charges and installation fees.
iii) GRID4 reserves the right to increase fees, surcharges, monthly subscription fees or to institute new fees at any time upon 30 days prior notice. GRID4 may reduce any fees at any time without notice.
18. Acceptable Use Policy. Customer will comply with Grid4’s Acceptable Use Policy (“AUP”), which is hereby incorporated by reference herein, and which is posted on the Internet at www.Grid4.com. Grid4 may change the AUP at any time without prior notice to Customer. Grid4’s AUP, including any amendments thereto, will be effective upon posting on the URL.
19. Additional Services. Customer may order Grid4 services in addition to those obtained by Customer under the Service Order through Grid4’s web site, or by e-mail, facsimile or phone call to Grid4. Customer agrees that any additional service ordered by Customer through whatever means will be governed by these Terms and Conditions and any additional terms and conditions applicable to such additional service and posted on the Internet at 126.96.36.199, which terms are incorporated herein by reference. Customer’s use of such additional service will be deemed Customer’s assent to such additional terms and conditions.
i) Amendment. The Agreement may only be amended by a written document signed by the Customer and a Grid4 corporate officer at a level of Vice President or above.
ii) Assignment. Customer will not, without Grid4’s prior written consent (which will not be unreasonably withheld or delayed), assign, delegate or subcontract the Agreement, or any of its rights or obligations hereunder. If Customer does any of the foregoing or undertakes or suffers a change in control (whether by sale of stock or assets, reorganization, merger or otherwise) without Grid4’s prior written consent, then Grid4 may immediately terminate the Agreement and/or invoice Customer, and Customer will immediately thereafter pay, the applicable Early Termination Charges.
iii) Waiver. A waiver by either party of a breach or non-compliance with any provision of the Agreement will not be construed as a waiver of any subsequent breach or non-compliance. A waiver by a party must be in writing and signed by such party.
iv) Arbitration. Other than an action solely for injunctive relief, any controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be settled by arbitration to be held and administered in Oakland County, Michigan, by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted before a single arbitrator that will be selected by the parties within 30 days of the filing of a claim and the arbitrator will be a licensed attorney with telecommunications experience. The arbitrator will conduct the arbitration so as to reach a final decision within 90 days of the filing of the claim.
In connection with the foregoing, each party will petition the arbitrator, and request an arbitration schedule to enable the parties to complete the arbitration within such 90-day period, and each party will otherwise diligently pursue completion of the arbitration within such period or, if exceeded, as soon as possible thereafter. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction in Oakland County, Michigan. Each party will bear its own expenses with respect to the arbitration, unless otherwise ordered by the arbitrator, and the parties will be entitled to engage in discovery in the arbitration pursuant to the Federal Rules of Civil Procedure, except that the discovery period will be 60 days.
v) Governing Law; Venue. Subject to Section 20 (iv) above, the Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan, without regard to conflict of laws principles. In actions that are solely for injunctive relief, each party consents to the exclusive jurisdiction of the state and federal courts having jurisdiction in Oakland County, Michigan.
vi) Future Actions. The parties acknowledge that some rights and obligations under the Agreement may be affected by future rules, regulations, orders, treaties or other laws promulgated, enacted, or entered into by international, federal, state or local legislatures, agencies, governments or other regulatory bodies (together “Actions”). If any such Actions adversely affect Grid4’s rights or obligations under the Agreement, then Grid4 may, upon 30 days notice to Customer, require that the parties renegotiate in good faith the Agreement and Terms and Conditions to address the effect of such Actions.
vii) Severability. If one provision of the Agreement is declared invalid, then the other provisions will remain in effect and the parties will work in good faith to agree to a replacement provision that has the same or similar intent as the original provision.
viii) Third Party Beneficiary. The Agreement inures solely to the benefit of Grid4 and Customer and their respective assigns.
ix) Notices. Except as otherwise set forth herein, all notices under the Agreement must be in writing. All notices to Grid4 will be sent to: Grid4 Communications, Attn: Notices Manager, 2107 Crooks Rd. Troy, MI. 48084.
x) Headings. The section headings used herein are for reference only and will not enter into the interpretation thereof.