1. General. This Agreement between (“Customer”) and Phoenix Internet sets forth the mutual understandings and agreements relating to the provision of Phoenix Internet products and services to Customer and is effective signed on the Phoenix Internet Order Form. This Agreement between Customer and Phoenix Internet shall consist of the specific terms set forth herein, the Phoenix Internet Service Form, the Acceptable User Policy, and additional Attachments which may be added, each of which is incorporated herein in its entirety by this reference.
2. Service Plan. Upon signing this Agreement, Phoenix Internet may conduct a credit check and Phoenix Internet will retain the right to require a deposit to be held against any amounts Customer may owe under this Agreement. Phoenix Internet will pay simple interest on this deposit at the rate (if any) the law requires, but Customer must retain its evidence of deposit. Customer cannot use its deposit to pay any bill unless Phoenix Internet previously agrees in writing. Payment is due on the first day of each month in advance and is not dependant on the receipt of an invoice from Phoenix Internet. The first invoice may be for the month or any portion thereof in which the Service activation date occurs plus the next full month’s charges plus any non-reoccurring charges not otherwise invoiced. The first invoice must be paid at the time of installation via credit card. Each invoice thereafter shall be for the following month and will be automatically deducted every month, from the supplied credit card on the Order Form, up to 10 days before the beginning of each month’s Service. Customer has the ability to pay invoices, view new invoices, and print receipts from a secure online account provided by Phoenix Internet. If the payment is late, Customer agrees to pay a late payment fee of 1.5% per month (an 18% annual rate) on balances plus any collection costs including attorney’s fees associated with any past due collections by Phoenix Internet under this Agreement.
3. Availability and Internet Speeds. The speed(s) available at Customer’s Service Address are identified during the ordering process, actual speeds may vary. Service speeds are “up to” and Phoenix Internet will provision Customer’s Internet at the maximum speed it qualifies for within the speed range of the monthly Service fees. Availability of Service depends on availability and limits of Phoenix Internet towers and facilities. Service will not be provided using unsuitable facilities or if provision of Service creates interference with other Services. Speed and availability of Service are not guaranteed and may be limited by a variety of factors including but not limited to the distance from a Phoenix Internet tower, clear line of sight to a Phoenix Internet tower, available facilities at Phoenix Internet’s tower location, Internet traffic and congestion or bandwidth, and other factors outside of Phoenix Internet’s control.
4. Customer Support. Customer may reach the Phoenix Internet Network Operations Center at 1-877-269-7886 opt. 4 for Phoenix Internet service and equipment support, including use of that equipment and service. Phoenix Internet will monitor for any component or system failure at its Network Operations Center.
5. Installation and Equipment. Phoenix Internet may provide Customer with a radio, antenna, antenna surge protection, and patch cable, referred to as Equipment, for use with Phoenix Internet Service. The Equipment is and at all times shall remain the sole and exclusive personal property of Phoenix Internet, and Customer shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Equipment to the Customer’s residence or otherwise. Customer will not open, alter, misuse, tamper with or remove the Equipment as and where installed by Phoenix Internet, and will not remove any markings or labels from the Equipment indicating Phoenix Internet ownership or serial or identity numbers. Customer will safeguard the Equipment from loss or damage of any kind, and will not permit anyone other than an authorized representative of Phoenix Internet to perform any work on the Equipment. Upon termination of the Services, for whatever reason, Customer acknowledges that his/her right to possess and use the Equipment shall likewise terminate. In such event, the Equipment shall be returned to Phoenix Internet in the same condition as when received, ordinary wear and tear accepted. If the Equipment is damaged, destroyed, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of replacement of the Equipment in the amount of $350.00. If the Equipment is not returned to Phoenix Internet, Customer will pay Phoenix Internet $350.00 for the replacement cost of the Equipment without any deduction for depreciation, wear and tear or the physical condition of such Equipment. Phoenix Internet will use industry standards when installing Phoenix Internet Equipment. Installation charge includes: Up to 5 feet of EMT conduit mast for antenna; a #12 gauge wire run from the antenna to the closet ground up to 25 feet; Up to 100 feet of Category 5E outdoor cable run from the antenna to a Phoenix Internet installed network jack/ biscuit; a 6 foot category 5E patch cable from the Phoenix Internet jack/biscuit to the Customer’s computer or network port. Additional installation work will be considered non standard and will be charged based on time and material. The Customer will be notified by Phoenix Internet or one of its representatives of any additional charges before the installation is performed. If additional charges are required for installation, Customer may terminate this Agreement without penalty.
6. Purchased or Lease Equipment. In the event Customer requires a router, the Customer may supply their own and or purchase or rent a router from Phoenix Internet. This purchase or monthly rental price of a router from Phoenix Internet shall be included in the Residential Internet Order Form and Agreement along with applicable taxes. In the case Customer chooses to rent a router Termination Charges specified in Paragraph 5 and 7 and equipment return conditions specified in Paragraph 5 will be adjusted to recover the cost of the router if not returned to Phoenix Internet.
7. Term; Early Termination Charges. This Agreement starts with the signing of this Agreement. This Agreement shall remain in effect through the Term specified in the Phoenix Internet Order Form, said Term shall start on the Date Service is made available to the Customer. After completion of the Term, the Term will become month to month under this Agreement subject all the provisions herein. Customer may terminate this agreement at the end of the Term with written notice to Phoenix Internet 30 days before the end of the Term. If Customer terminates the Phoenix Internet Service for any reason before the end of the Term selected, Customer agrees to pay an early termination fee equal to 80% of the monthly recurring charges for each remaining month in this Agreement. The Antenna, radio, surge arrestor, router, and power supply used to provide Service to the Customer is the property of Phoenix Internet and the Customer is responsible for making sure Phoenix Internet has access to remove them when the Service has been terminated by either the Customer or Phoenix Internet. Phoenix Internet will charge the Customer $350.00, the cost of the equipment, if Phoenix Internet is not provided access to recover the equipment to include the antenna, radio, surge arrestor and power supply from the Customer’s premise. Notwithstanding the termination of this Agreement, the provisions set forth in Paragraph 8, 9, 10 and 11 of this Agreement will continue to govern Customer’s and Phoenix Internet’ conduct after the end of this Agreement.
8. Use of Services; Rights to Restrict, Interrupt or End Service or this Agreement. Phoenix Internet is providing products and services solely for Customer’s personal or internal business use as an end user, and Customer will be solely responsible for the content of any transmissions over the Phoenix Internet Network from Customer’s premises location. Customer agrees not to (a) attempt to gain unauthorized access to any other system or network, or (b) interfere or disrupt other End Users, Network Operations or Network equipment of Phoenix Internet or any of its affiliates. Customer also agrees not to (1) propagate computer viruses or other harmful code or data or (2) impersonate any person using forged headers or other identifying information (provided, however, that the use of anonymous re-mailers and nicknames is allowed). Customer hereby warrants that it will not infringe the copyright, trademark, or other intellectual property rights of any other person or entity through the use of the Phoenix Internet Network or services, and that Customer will not use the Phoenix Internet Network or services to defame, harass, cause an invasion of privacy or otherwise violate the right of any person or entity, or violate any local, state, federal, or international statute, regulation or treaty. Customer agrees to comply with all governmental rules and regulations applicable to the export or transfer of regulated technical data or software. To maintain or improve Phoenix Internet service or the Phoenix Internet Network, or to prevent fraud or for other business reasons, Phoenix Internet can restrict, interrupt or modify Customer’s service without notice and will promptly seek to resolve any situation or condition that has caused an interruption in service to the extent that the fault involves the Phoenix Internet Network or its equipment. PHOENIX INTERNET CAN RESTRICT OR END CUSTOMER’S SERVICE OR THIS AGREEMENT WITHOUT NOTICE if Customer: (a) carries past due balances; (b) makes materially false statements to Phoenix Internet; (c) interferes with Phoenix Internet customer service or any other business operations; (d) becomes insolvent or goes bankrupt; (e) breaches any part of this Agreement, (f) misuses service or knows of service being misused by anyone for unlawful activity or (g) otherwise uses the service in an inappropriate manner. In the event of Service termination, early termination charges will apply according to the Paragraph 7.
9.1 Disclaimer of Warranties. EXCEPT IF SPECIFICALLY SET FORTH IN AN ATTACHED EXHIBIT HERETO, PHOENIX INTERNET MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER. PHOENIX INTERNET SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AS WELL AS ANY WARRANTIES REGARDING THE PERFORMANCE OR INTEROPERABILITY OF THE SERVICE IN CONNECTION WITH ANY CUSTOMER/END USER CPE.
9.2 Disclaimer of Certain Damages. WITHOUT LIMITING ANY EXPRESS LIABILITY PROVISIONS PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR PHOENIX INTERNET’ PROVISIONING OF THE SERVICES (INCLUDING BUT NOT LIMITED TO: (I) ANY SERVICE IMPLEMENTATION DELAYS/FAILURES; (II) LOST, DELAYED OR ALTERED MESSAGES/TRANSMISSIONS; OR (III) UNAUTHORIZED ACCESS TO OR THEFT OF CUSTOMER’S TRANSMITTED DATA), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Limitation of Phoenix Internet Liability. WITHOUT LIMITING THE PROVISIONS OF SECTION 9.2 ABOVE, THE TOTAL LIABILITY OF PHOENIX INTERNET TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF: (I) DIRECT DAMAGES PROVEN BY CUSTOMER; (II) THE AGGREGATE AMOUNT OF SERVICE CREDITS DUE UNDER THE APPLICABLE EXHIBIT FOR THE AFFECTED SERVICE; OR (III) THE PREVIOUS MONTH’S MONTHLY RECURRING SERVICE CHARGES ASSOCIATED WITH THE AFFECTED SERVICE. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. FURTHER, PHOENIX INTERNET’ LIABILITY WITH RESPECT TO INDIVIDUAL SERVICES MAY ALSO BE LIMITED PURSUANT TO THE TERMS AND CONDITIONS OF THE APPLICABLE EXHIBITS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMER AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
For purposes of this Section 9, all references to Phoenix Internet and Customer include their respective Affiliates, End Users, agents, officers, directors, shareholders and employees.
10. Phoenix Internet Rights. All products and services Phoenix Internet provides are subject to its business policies, practices, and procedures, which Phoenix Internet can change at any time at Phoenix Internet’s sole discretion without notice to Customer. PHOENIX INTERNET CAN ALSO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME AFTER THE EXPIRATION OF THE INITIAL TERM BY PROVIDING WRITTEN NOTICE PRIOR TO THE TIME THE CHANGES WOULD GO INTO EFFECT. The changes will apply to Customer after the date Customer receives notice.
11. About this Agreement. Phoenix Internet may assign all or part of this Agreement without notice, and Customer agrees to comply with the terms of any such assignment as instructed by Phoenix Internet (Assignment will release Phoenix Internet from all liability for the rights and duties involved). Customer may not assign any part of this Agreement or any of Customer’s rights or duties without Phoenix Internet prior written consent. All written notices are considered delivered to Customer when mailed to the billing address we have on file for Customer at the time, or to Phoenix Internet when mailed to the Phoenix Internet Customer Service Center at 2922 W Clarendon Ave., Phoenix, Arizona, 85017. Customer represents that it has the legal capacity to agree to this Agreement. This Agreement is not for the benefit of any third party except Phoenix Internet affiliates and predecessors and successors in interest. This Agreement is governed by the laws of the State of Arizona. By signing this Agreement, Customer is representing that all the information it has provided is true and accurate. A copy or a fax of this Agreement and Customer signature is the same as an original.