This Fixed Wireless Internet Services Agreement (“Agreement”) is made by and between Metropark Communications, Inc. (“Metropark”), a Missouri corporation having its principal place of business at 4050 Wedgeway Court, Earth City, MO 63045 USA and the customer (“Customer”):
Metropark, by or through its affiliate(s) that operate(s) in the state in which Customer receives Service(s) (as defined below), agrees to provide and Customer agrees to purchase, from Metropark and/or its assigned carrier partners, regulated local, interstate, intrastate, local toll telecommunications services and/or data services (collectively, the “Services”).
1. Warranties and Representations.
Customer hereby represents, warrants and agrees that: (i) it has the full right, power and authority to enter into this Agreement and to perform all of its duties and obligations hereunder; (ii) there are not any claims or litigation pending, or to the best of Customer’s knowledge threatened, which will impair, restrict, interfere or impede Customer from performing hereunder; (iii) that it is a valid, existing legal entity in its state of formation and that it is not prohibited or prevented from conducting business in accordance with the terms of this Agreement. Customer further acknowledges that Metropark Communications, Inc. is entering into this Agreement in reliance on the warranties herein made by Customer. Furthermore, Metropark Communications, Inc. warrants its labor and actions per this Agreement for a 12 month period.
2. Services to be provided; Term Commitment.
The Metropark Quotation will describe, as applicable: (i) the Services provided by Metropark either directly or as a managed service with services provided by other service providers to Customer and the location(s) where Services are to be provided; (ii) the duration of Services at a particular location (the “Term Commitment”); and (iii) the applicable recurring and non-recurring charges for the Services. Customer agrees and acknowledges: (i) the Proposal(s) may not include certain taxes, surcharges, assessments, and fees that are based on Tariffs (as defined herein) and/or other federal, state and local taxes, fees, assessments or surcharges imposed by any regulatory or quasi-regulatory authority, including the jurisdiction in which Customer receives the Services; and (ii) Customer shall be responsible for and pay all such fees, taxes, Tariffs, assessments, and surcharges. Metropark’s commitment to provide Services is subject to Metropark or other Service provider’s approval of Customer’s credit, approval of the suitability of Customer’s premises for the Services and receipt of all paperwork required to be completed by Customer for the initial installation of Services.
3. Term of Agreement.
Upon acceptance, this Agreement shall become effective on the date it is signed by Metropark and shall continue for so long as Services are provided to Customer by Metropark. The Term Commitment for a location shall commence on the date Services are installed and the location is connected to the applicable network at such location (“Installation Date”) and shall continue in force for the term set forth in the Proposal for such location, unless sooner terminated as provided herein. It is acknowledged that multiple services from multiple different vendors or carriers may be installed as part of the overall proposal. Each vendor or carrier may have different contracted terms for each location and this agreement only reflects Metropark’s obligated term to Customer, to provide services. Customer may choose to increase or decrease vendor or carrier services over time which may call for a longer term than is provided by this agreement. Upon expiration of the Term Commitment for each location, this Agreement will provide Customer with an option to renew services, transfer vendor services and any remaining obligations to Customer, or disconnect vendor services.
4. Changing Service Plan.
Customer may change Service plan concurrent to the term of the agreement. The costs of Service upgrades, if any, will be pro-rated based upon the activation date. Any Services Customer requests to terminate will be available until the end of the month in which the cancellation is requested; no pro-rated refunds will be calculated.
5. Installation.
Metropark or its vendor partners will require reasonable access to each service location as necessary for review, install, inspects, maintain, or repair any Equipment or Matericasl necessary to provide the services. If Customer owns or controls the service location(s), Customer grants Metropark or its vendor partners permission to enter the service location(s) for the exercise of such right. If a Service Location is not owned and /or controlled by Customer, Customer will obtain, with assistance, appropriate right of access. If such right of access is not obtained by either party, then Metropark’s obligations with respect to such Service Location shall be considered null and void.
6. Site Survey
Metropark or its vendor partners may perform an installation review of each Service Location prior to installation of the Services. Upon request, Customer shall provide Metropark or its vendor partners with accurate site and/or physical network diagrams or maps of a service location, including electrical and other utility service maps, prior to the installation review. If Metropark or its vendor partners determines that safe installation and/or activation of one or more of the Services will have negative consequences to Metropark or its vendor partners’ personnel or Network or cause technical difficulties to other customers, Metropark may terminate the Service Order effective upon written notice to Customer or may require Customer to correct the situation before proceeding with installation or activation of the services.
7. Site Preparation.
Customer shall be responsible for necessary preparations at its locations(s) for delivery and installation of Equipment and the installation and ongoing provision of Services, including the relocation of Customer’s equipment, furniture and furnishings as necessary to access the Equipment or Services. Upon request, Customer shall provide any available electrical, utility service, adn/or general physical network diagrams or maps prior to installation or maintenance work to be undertaken.
8. Customer Network Security
Customer assumes all responsibility for providing and configuring a “firewall” or security measures for use with the Service. Metropark or its vendor partners shall not be responsible in any manner for the effectiveness of these blocking and filtering technologies. Metropark or its vendor partners do not warrant that others will be unable to gain access to Customers’ computer(s) and/or data even if Customer utilizes blocking and filtering technologies, nor does Metropark or its vendor partners warrant that the data or files will be free from computer viruses or other harmful components. Metropark nor its vendor partners have no responsibility and assumes no liability for such acts or occurrences.
4. Payment and Disconnection of Current Services; Third Party Charges.
Customer is solely responsible for providing payments to their legacy service provider(s) until new or replacement vendor services are installed and Customer is notified that legacy services can be disconnected, at which time it is Customer’s sole responsibility to contact the legacy service provider(s) and order the legacy services to be disconnected. In anticipation of possible disconnect fees, Metropark may, at its sole discretion, allow for contract buyout compensation monies to be available to help assist with buy outs or disconnect fees. However, Metropark is not responsible for any fees or other charges assessed against Customer by such provider in connection with such termination or Customer’s failure to terminate services with such carrier. In addition, Customer is responsible for all charges assessed by its phone system vendor, if other than Metropark, and other third parties in connection with the installation of the Services and/or Equipment. If Metropark or a third party provider is required to extend the Demarcation Point for Customer, any fees or charges resulting from such extension will be applied as a one-time non-recurring charge on Customer’s bill in the month after the vendor sends the services bill to Metropark, unless otherwise agreed to by Metropark, the third party provider, and Customer.
5. Applicable Tariffs; Authorized Use.
Customer agrees and acknowledges that the Tariffs are incorporated herein by reference and made part of this Agreement. Customer agrees and acknowledges that the Tariffs are subject to change by all appropriate regulatory agencies at any time and from time to time, with or without notice to Customer. In the event of any conflict between the provisions of this Agreement and the Tariffs, the provisions of the Tariffs shall control. Customer may use the Services only for authorized and lawful purposes. Metropark has the right, in its sole discretion, to limit the manner in which any portion of its network and facilities are used to protect the technical integrity of its network.
13. Payments; Billing Cycle.
Metropark agrees to provide an Invoice to Customer on or before the 25th of each month for Customer’s review and subsequent payment on or before the first of the next month. If payment is not received by Metropark within fifteen (15) days of the date of the invoice, Metropark may do one or more of the following: (i) initiate the process of discontinuing the Services; (ii) terminate this Agreement; (iii) request a security deposit; and/or (iv) impose a late charge of one and one-half percent (1½%) per month of the unpaid balance (or the maximum amount permitted by applicable state law). Metropark may also apply any Customer deposit to the unpaid invoice. Customer agrees to pay all costs and expenses of collection of any amounts due from Customer hereunder, including reasonable attorney’s fees, whether or not suit is brought. Customer agrees and acknowledges that if Customer cancels this Agreement following the execution of the Agreement but prior to the installation of Services, Customer must pay to Metropark a Pre-Installation Cancellation Charge of $500 per data transport circuit.
14. Termination.
Either party may terminate this Agreement at the end of the Term Commitment or any renewal term by providing not less than thirty (30) days written notice to the other party prior to the end of the then current term. In addition, either party may terminate this Agreement upon written notice to the other party, if the other party is in default of any material provision hereof and such default is not cured within thirty (30) days after the non-defaulting party gives the defaulting party written notice thereof; provided, however, that if this Agreement covers Services at more than one location, Customer’s right to terminate for cause shall be limited to termination of the Services at the affected location(s) only and will not affect nor terminate any other servicing areas or any equipment funding agreements at the affected or any location or any other servicing location(s) not in default. Customer’s notice of termination must be sent to:
Metropark Communications, Inc.,
4050 Wedgeway Court
Earth City, MO 63045
Attention: Metropark Legal Department.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER’S RATES AND OTHER APPLICABLE DISCOUNTS ARE BASED UPON CUSTOMER’S AGREEMENT TO PURCHASE SERVICES AT THE APPLICABLE LOCATION(S) FOR THE ENTIRE TERM COMMITMENT OR RENEWAL TERM. THEREFORE, IF CUSTOMER TERMINATES THIS AGREEMENT AND/OR SERVICES AT A LOCATION PRIOR TO THE EXPIRATION OF THE THEN CURRENT TERM FOR SUCH LOCATION (OTHER THAN AS PROVIDED ABOVE DUE TO METROPARK’S MATERIAL BREACH), OR IF METROPARK TERMINATES THIS AGREEMENT PRIOR TO THE EXPIRATION OF THE THEN CURRENT TERM DUE TO CUSTOMER’S MATERIAL BREACH, CUSTOMER AGREES TO PAY TO METROPARK, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AN AMOUNT EQUAL TO THE MONTHLY RECURRING CHARGES FOR THE APPLICABLE LOCATION(S) MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE THEN CURRENT TERM. CUSTOMER AGREES THAT THE ACTUAL DAMAGE TO METROPARK IS DIFFICULT TO ASCERTAIN AND THAT THE AMOUNTS FIXED FOR LIQUIDATED DAMAGES ARE A REASONABLE ESTIMATE OF THE ACTUAL REDUCTION IN THE VALUE OF THIS AGREEMENT THAT METROPARK WILL SUSTAIN IN THE EVENT OF EARLY TERMINATION. METROPARK RESERVES THE RIGHT TO SUSPEND OR TERMINATE THIS AGREEMENT WITHOUT NOTICE, WRITTEN OR OTHERWISE (I) ANYTIME METROPARK HAS THE RIGHT TO TERMINATE THE AGREEMENT; (II) WHENEVER REQUIRED TO PROTECT METROPARK’S OR METROPARK’S CARRIER PARTNER’S NETWORK OR FACILITIES; OR (III) WHENEVER THE SERVICE IS USED FOR ILLEGAL PURPOSES OR OTHERWISE IN VIOLATION OF METROPARK USAGE POLICIES.
12. Return of Equipment.
Immediately upon termination of this agreement Customer shall return, or allow Metropark or its vendor partners to retrieve, the Equipment supplied by Metropark or its vendor partners to the Customer. Failure of Customer to return, or allow the retrieval of Equipment with twenty-five (25) days after Services are terminated will result in a charter to Customer’s account equal to the retail cost of replacement of the unreturned Equipment. Customer shall pay for the repair or replacement of any damaged Equipment, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects, together with any costs incurred by Metropark or its vendor partners in obtaining or attempting to regain possession of such Equipment, included reasonable attorney fees.
16. Telco Provided Equipment; Special Construction.
Any equipment installed by Metropark or authorized vendors at Customer’s location(s) and not purchased by Customer (the “Telco Equipment”) shall remain at all times the property of Metropark or its vendor partners and shall be considered network equipment of Metropark. Metropark shall be responsible for the maintenance and repair of the Equipment unless it is damaged as a result of the action or inaction of Customer or its employees or agents, in which case Customer shall reimburse Metropark for the cost of any necessary repairs. Customer shall have no right, title or interest in the Telco Equipment and shall keep the equipment free from liens, security interests and other encumbrances. Customer agrees to give Metropark reasonable access to the Telco Equipment for purposes of repair, maintenance, removal or otherwise. Upon termination of this Agreement or a move by Customer, Customer will permit Metropark access to Customer’s location(s) for a period of thirty (30) days after such termination or move to permit Metropark to remove its Telco Equipment. If Metropark does not have access to Customer’s location(s) within this timeframe, Customer agrees to reimburse Metropark for the full purchase price of the Telco Equipment as well as any attorney’s fees and costs incurred by Metropark related to Metropark’s retrieval of the Telco Equipment. All Telco Equipment must be returned to Metropark or authorized vendor in as good condition as received, normal wear and tear accepted. Metropark and its vendor partners offer all Services subject to facility availability. If Customer requires special construction to its location(s) or facilities as part of provisioning of a Service, or if Customer requests a change in location of all or part of the Services prior to the completion of construction or installation, Customer shall be responsible for all costs associated with such special construction or change in location. Metropark shall have no responsibility or obligations whatsoever with respect to the maintenance and repair of any third-party equipment purchased by Customer in connection with the Services. Warranties for equipment or software delivered hereunder are limited to the manufacturers’ warranties that are delivered with such equipment or software. To the extent that its contracts with suppliers permit, Metropark hereby assigns all such warranties on equipment or software purchased or licensed hereunder to Customer.
18. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, METROPARK MAKES NO WARRANTIES REGARDING THE SERVICES, FACILITIES OR EQUIPMENT PROVIDED HEREUNDER, EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES WITH RESPECT TO ANY SERVICES, FACILITIES OR EQUIPMENT PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED.
19. Limitation of Liability.
THE LIABILITY OF METROPARK (OR ANY OTHER SERVICE PROVIDER FURNISHING ANY PORTION OF THE SERVICES) FOR ANY INTERRUPTION OR FAILURE OF ANY SERVICES FURNISHED PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO CREDITS FOR THE INTERRUPTED SERVICES IN ACCORDANCE WITH METROPARK’S THEN CURRENT CREDIT POLICY, AND IN NO EVENT SHALL METROPARK’S LIABILITY FOR ANY CLAIM, LOSS OR EXPENSE UNDER THIS AGREEMENT EXCEED THE SUMS ACTUALLY PAID TO METROPARK FOR THE SERVICES GIVING RISE TO SUCH CLAIM, LOSS OR EXPENSE. METROPARK SHALL NOT BE LIABLE FOR ANY INTERRUPTION CAUSED BY ANY ACT OR OMISSION OF ANY OTHER SERVICE PROVIDER FURNISHING ANY PORTION OF THE SERVICES. NEITHER METROPARK NOR ANY OTHER SERVICE PROVIDER FURNISHING ANY PORTION OF THE SERVICES SHALL BE LIABLE OR RESPONSIBLE FOR ANY FRAUDULENT OR UNAUTHORIZED CALLS ORIGINATING FROM CUSTOMER’S PREMISES OR THE SERVICES, OR FOR ANY ERRORS OR OMISSIONS OF DIRECTORY LISTINGS. IN NO EVENT SHALL METROPARK, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING UNDER THIS AGREEMENT OR OTHERWISE, WHETHER IN AN ACTION BASED ON BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF CONTRACT, STRICT TORT LIABILITY OR OTHERWISE, EVEN IF METROPARK HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD THEREOF.
20. Entire Agreement; Modification; Waiver.
This Agreement, together with the Tariffs and the rates, rules and regulations referenced in Section 7 constitute the entire agreement between Metropark and Customer. There are no terms, conditions or obligations other than those contained herein and there are no verbal statements, representations, warranties or agreements with respect to the subject matter hereof not embodied herein. All amendments to this Agreement must be in writing and signed by Customer and Metropark’s Legal Department on behalf of Metropark. Hand-written, typed or any other modifications of this Agreement, unless executed by both parties as described above, are strictly prohibited and will not be binding on Metropark in any way. No waiver of any breach of this Agreement or of any right derived herefrom will be valid unless in writing and signed by the party against whom enforcement is sought and no such waiver shall be deemed to be a waiver of any future breach or right arising hereunder.
21. Notices.
All notices hereunder shall be in writing mailed first class certified mail, return receipt requested, or delivered by hand to the address of the parties as set forth on the first page of this Agreement or such other address as such party may designate from time to time by such notice and shall take effect: (i) when delivery by mail is made or attempted, as evidenced by the certified mail receipt or (ii) when received, if delivered by hand. All notices to Metropark shall include a copy to Brian D. Klar, Attorney at Law, 1505 S. Big Bend Blvd., St. Louis, MO 63117.
22. Governing Law; No Assignment; Miscellaneous.
This Agreement shall in all respects be governed by and construed in accordance with the laws of the state of Missouri, without regard to its choice of law rules. Customer may not assign this Agreement, or any interest herein or part hereof, by operation of law or otherwise, without the express written consent of Metropark. Metropark may assign this Agreement or assign its rights and delegate its duties under this Agreement either in whole or in part at any time and without Customer’s consent. If any provisions of this Agreement shall be held to be illegal, invalid or unenforceable as a matter of law, the same shall not invalidate this Agreement, which shall be construed as if not containing such provision, and the rights and obligations of the parties shall be construed and enforced as if a commercially reasonable provision had been substituted in place thereof, consistent with applicable laws and the undertakings of the parties hereto. Notwithstanding anything contained herein to the contrary, neither party shall be in default hereunder or responsible to the other for damages or losses caused by an “Act of God,” adverse weather condition, fire, flood, strike, war, government requirement, cable cut or other “force majeure” or cause beyond the reasonable control of the affected party. This Agreement may be executed in one or more counterparts each one of which shall be deemed an original and all of which together shall constitute one and the same instrument.
23. Arbitration.
Customer agrees and acknowledges that for regulated services any claim or dispute by Customer arising out of the Services provided by enrolled telecom vendors must be referred to the public service commission or other applicable regulatory agency (the “Commission”). In the event that Metropark and Customer are unable to resolve a managed services claim or dispute by Customer arising out of this Agreement and/or the Services relates to unregulated services, the parties agree and acknowledge that the claim or dispute must be settled by arbitration administered by United States Arbitration and Mediation located in St. Louis, Missouri. Each party will bear the costs of preparing and prosecuting its case. The arbitrator has no power or authority to modify the provisions of this Agreement, including the limitation of liability provisions of Section 12. All claims must be arbitrated individually, and there will be no consolidation or class treatment of any claims. The location of any such arbitration shall be St. Louis, Missouri, unless a different location is required by applicable law. In the event of arbitration, suit or action (collectively ”Action”) instituted to enforce this Agreement, or with respect to this Agreement or any documents described in this Agreement, the prevailing party shall be reimbursed by the other party for any and all costs and expenses incurred in connection with the Action, including, but not limited to, reasonable attorneys’ fees at any hearing or trial and on appeal.
24. Regulatory Charges.
In the event of any change in applicable laws, regulations, decisions, rules, or orders issued by the Federal Communications Commission, a state Public Utility or Service Commission, a court of competent jurisdiction or other government entity (a “Regulatory Requirement”) that materially increases the costs of Services provided by Metropark, Metropark reserves the right to pass any such increased costs through to the Customer as a rate increase. Metropark shall provide written notice of any such rate change as soon as practicable, but not less than thirty (30) days prior to such rate change.
25. Privacy and Customer Proprietary Network Information.
Customer authorizes Metropark to monitor and/or record oral communications with Metropark personnel regarding Customer’s account or the Services for the purposes of service quality assurance. Metropark may analyze Customer’s account and usage information and share this information with its affiliates, agents, contractors, and enrolled vendors for the purpose of performing its obligations and providing Services hereunder.
CUSTOMER ACKNOWLEDGES THAT METROPARK MAY SEND CUSTOMER ELECTRONIC MAIL MESSAGES CONTAINING CUSTOMER SERVICE, MARKETING, PROMOTIONAL OR OTHER INFORMATION CONCERNING METROPARK PRODUCTS AND SERVICES. BY SIGNING THIS AGREEMENT, CUSTOMER HEREBY AFFIRMATIVELY CONSENTS TO THE RECEIPT OF SUCH ELECTRONIC MAIL MESSAGES, UNLESS AND UNTIL CUSTOMER OTHERWISE REVOKES SUCH CONSENT IN WRITING TO METROPARK.
26. Remedies on Default
It is understood and agreed by Customer that in the event of any breach of the terms of this Agreement by Customer, Metropark shall have the right to retake possession of any Telco Equipment described in this Agreement; it being agreed and understood that all such products are considered removable items and are not considered fixtures by Customer and/or the owner of any property in which such products are delivered and/or installed. It is further understood and agreed that until full and final payment is made by Customer to Metropark Communications, Inc., all products which are the subject matter of this Agreement remain the property of Metropark Communications, Inc. for purposes of ownership only (it being agreed and understood by and between Customer and Metropark that the duty to insure such products shall be borne solely by Customer commencing on the date of the delivery of such products to Customer).
27. Acknowledgment.
Customer and Metropark Communications, Inc. acknowledge and agree that: (i) they fully understand the right to discuss all aspects of this Agreement with legal and personal advisors and counsel of their choice; (ii) to the extent desired, they have done so; (iii) they have carefully read and fully understand all of the provisions of this Agreement; and (iv) they have voluntarily entered into this Agreement. Upon receiving the equipment from Metropark employee or designated delivery service, customer agrees to accept responsibility of equipment or if directed, sign a Delivery and Acceptance Certificate allowing responsibility of equipment to be transferred to Customer. Upon agreed milestones, substantial installation completion or cutover of new equipment has occurred, Customer agrees to make final equipment funding payment directly to Metropark Communications, Inc., or instruct 3rd party funding source to make final funding payment to Metropark Communications, Inc. If equipment is in use and customer has not provided final equipment funding or provided a signed Delivery and Acceptance Certificate for a 3rd party funding source, the customer agrees to pay a daily rental for the equipment based on the total equipment purchase amount and rental rate.
These Terms & Conditions relate to this Fixed Wireless Internet Services and Wireless Fiber Services Only Quotation and subsequent Sales Order. Once Quote is signed by Customer, these Term’s and Conditions apply.
(It is advised that Customer print these Terms & Conditions out to a local printer, for later Customer review and records)