WEB FIRE Service Agreement-091901
THIS AGREEMENT is by and between the Customer and Web Fire Communications, Inc., a Texas corporation with it’s main office located at 3406 McNeil, Wichita Falls, TX 76308 (“WEB FIRE”) for the provision by WEB FIRE of certain network services for Customer (collectively, the “Agreement”).
1. The “Agreement” refers to both the Service Agreement and the Service Exhibit.
2. The “Customer” and “Customers” refers to the signed Customer enrolled or enrolling with WEB FIRE.
3. The “Service” or “Services” refers to any service as described in the Service Exhibit, as revised from time to time.
4. The “Effective Date” as used herein, means the date when the Agreement is accepted by WEB FIRE and successful Enablement of Services has occurred.
5. “Successful Enablement” means that (1) WEB FIRE has enabled the transmission of TPC/IP packets between WEB FIRE’s router interface to the Customer’s Router interface that is specifically designated for the Service, and (2) a Customer user name and password with respect to the Service has been authorized by WEB FIRE.
6. “Operation and Maintenance” means the continued enablement of transmission of TCP/IP packets between WEB FIRE’s router interface and Customer’s router interface that is specified for the Service, provided, however; that any failure or malfunction of any cabling, communications lines, hardware, and software not operated or provided by WEB FIRE will not create any liability of WEB FIRE under this Agreement.
This Agreement shall come into effect on the Effective Date, as defined above. Once WEB FIRE achieves Successful Enablement, the Service will be presumed to be available for Customer’s use, regardless of Customer’s equipment. The initial term of the Agreement shall be thirty (30) days from the Effective Date, and shall extend thereafter for successive thirty (30) day terms at WEB FIRE at the current month-to-month rates for the Service and shall remain in effect until terminated in accordance with the Termination provisions of this Agreement (Paragraph 5). If, for any reason, WEB FIRE is unable to effect Successful Enablement within thirty (30) days after the date this Agreement is accepted by WEB FIRE, this Agreement shall be deemed null and void.
3. Rates, Charges and Payment: Rate Changes.
The Customer is responsible for the payment to WEB FIRE of the rates and charges specified in the Service Exhibit. All rates and charges, as defined herein, shall become payable when this Agreement comes into effect, pursuant to the terms contained above. All charges specified in this Agreement are expressively exclusive of any applicable taxes the latter of which shall be payable by Customer and which shall be itemized separately by WEB FIRE. Rates and charges shall be invoiced on the first day of each month and payment is due by the due date stated on each invoice. WEB FIRE billing statements shall be deemed correct and binding on the Customer unless an objection in writing is received by WEB FIRE fifteen (15) days from the date of the billing statement. Interest on any overdue payments owing to WEB FIRE pursuant to this Agreement may accrue on a daily basis and will apply at a compound rate of 1.5% per month (19.56% per annum). The rates and charges specified in this Agreement are subject to revision by WEB FIRE from time to time, and WEB FIRE will provide thirty (30) days written notice to the Customer of any increase in rates and charges. When and if Customer receives any notice of any such rate increase from WEB FIRE, Customer may terminate this Agreement upon providing WEB FIRE a written notice within thirty (30) days of the receipt of the written notice by WEB FIRE. If the Customer fails to deliver such a notice to WEB FIRE, this Agreement shall continue in effect and the new rates shall apply and be billed to the Customer accordingly.
4. Customer Obligations and Rates.
1. Customer shall at its own expense undertake any and all preparations required complying with WEB FIRE installation and maintenance instructions.
2. Customer shall be precluded from doing any of the following:
1. Posting or transmitting any transmissions constituting or encouraging conduct that would constitute a criminal offence, giving rise to civil liability, or otherwise violating any local, state, national or international law, including without limitations the U.S. export control laws and regulations.
2. Post or transmit any information or software, which contains a virus, worm, cancelbot or other harmful component.
3. Upload, post, publish, transmit, reproduce, distribute or participate in the transfer of sale, or in any way exploit any information, software or other material obtained through the Internet which is protected by copyright or other proprietary right, or derivative works with respect thereto, without permission of the copyright owner.
4. Abuse or fraudulently use the Service in any way not specifically set forth above.
3. Customer acknowledges that access to the Service under this Agreement is intended for the use of the Customer and its Authorized users only. Customer and its authorized users shall not resell the Service to any other party without having executed a separate Reseller Agreement with WEB FIRE.
Either party may terminate this Agreement after the initial term, by providing the other party thirty (30) days written notice. Any termination shall not relieve Customer of its obligation to pay any charges incurred hereunder for services rendered prior to the date of Customer’s termination. Prepaid accounts, such as semi and annual, are not subject to refund after thirty (30) days if terminated by the customer. Moreover, WEB FIRE may terminate this Agreement, or suspend the provision of the Service to the Customer at any time in the event of the occurrence of any of the following:
1. Customer to pay all required rates and charges under this Agreement to WEB FIRE on the payment due date specified in WEB FIRE’s billing statements.
2. Breach of any covenant, term of condition of the Agreement, and such breach continues for a period of three (3) days after notice to Customer of such breach.
3. The Customer makes an assignment for the benefit of creditors or becomes bankrupt or insolvent or takes benefit of or become subject to any legislation in force relating to bankruptcy or insolvency, it being understood that the appointment of a Receiver or Trustee of the property and assets of the Customer is conclusive evidence thereof.
4. WEB FIRE is unable to provide the service by reason of any law, rule, regulation, or order of any municipal, state or federal authority, including but not limited to any regulatory having jurisdiction.
6. Rights and Obligations of WEB FIRE; Disclaimer of Warranties.
1. WEB FIRE shall be responsible only for Operations and Maintenance (as defined above) of the Service. Customer shall be responsible for maintaining and managing its own network and routers the interface with the Service. WEB FIRE shall not be responsible for cabling that connects equipment not provided by WEB FIRE to WEB FIRE equipment or the Service. Any interruption in the Service that is caused by the malfunction or interruption of any physical telecommunications media or facility (including, but not limited to, cables and fiber optic lines) not under direct or indirect control of WEB FIRE or by any malfunction or manufacturer’s defects of equipment either sold by WEB FIRE to the Customer or purchased by Customer in connection with the Service will not be deemed a breach of WEB FIRE’s obligation under this Agreement.
2. WEB FIRE will grant a credit allowance for service interruption that occurs during the initial term or any subsequent term of this Agreement, and such credit allowance will be calculated and credited in 15-minute increments. A service interruption will be deemed to have occurred only if the WEB FIRE facility, equipment or personnel used to provide the Service, and only where the interruption is not the result of (i) the negligent acts of Customer or its agents; (ii) the failure or malfunction of non WEB FIRE equipment or systems not provided by WEB FIRE; (iii) circumstances or causes beyond the control of WEB FIRE or (iv) a service interruption caused be scheduled service maintenance, alteration or implementation. Such credits will be granted only if: (a) Customer affords WEB FIRE full and free access to Customer’s premises to make appropriate repairs, eminence, testing, etc.; and (b) Customer does not unreasonable continue to use the Service on an impaired basis. The foregoing states the Customer’s sole remedy for service interruption under the Agreement, and in no event shall WEB FIRE be liable for harm on business, lost revenues, lost savings, or lost profits suffered by Customer, regardless of the form of action, whether in contract, warranty, strict liability, or tort, including without limitation, negligence of any kind, whether active or passive.
3. Customer understands that Customer and Customer’s authorized users may access the Internet through the Service. Customer understands further that, except for certain products and services specifically identified as being offered by WEB FIRE, neither WEB FIRE nor any of its affiliates operated or controls the Internet in any way, and that all merchandise, information and services offered or made available or accessible by Third Parties who are not affiliated with WEB FIRE, its agents, or affiliates. Customer assumes total responsibility and risk for Customer’s use and Customer’s authorized users use of the Service and the Internet. Neither WEB FIRE, its agent’s nor its affiliated make any express or implied warranties, representations or endorsements whatsoever.