This Internet Service Agreement is by and between Live Wire Networks, Inc. (“LWN”) and the business and/or individual (“Customer”) that is using the service. Acceptance of the quoted services via the LWN online sign up system or via a quote form constitute an acceptance of all the terms and conditions of this service agreement.
1. SERVICES: “Services” are defined as Internet Access, VOIP Digital Phone Service, E-mail and related Spam and Virus Filtering, Web Site hosting, and/or other recurring Internet services which Live Wire Networks, Inc. (“LWN”) provides to the Customer.
2. TERM & RENEWAL: This Agreement is for the term as indicated on the LWN online sign up system or a signed quote form. Customer must give LWN at least 30 days written notice of its intent to cancel services. Within 10 days prior to the expiration of the initial term or any renewal term, LWN may notify customer in writing of the terms and conditions on which it will offer a renewal of Services. Customer may then elect to renew this Agreement in writing prior to the expiration date. In the event there is no cancellation notice or an updated service offering notice, this agreement will automatically carry forward on a month-to-month basis with the same conditions as the original agreement.
3. TERMINATION: LWN may terminate this Agreement without liability, and Customer’s payment obligation will be apportioned if:
(a) the facilities used to provide Services are taken by exercise of condemnation or eminent domain; or
(b) due to casualty the facilities will, in LWN’s judgment, be made inoperable and beyond
economically or technologically feasible repair. In the event that the casualty is capable of repair, LWN will effect such repair as soon as reasonably possible. Such repairs will be at LWN’s sole expense, except that if such casualty is caused by the willful misconduct or negligence of Customer or by Customer’s noncompliance with its obligations under this Agreement, then such repairs will be at Customer’s expense.
4. EARLY TERMINATION: In the event that the Customer terminates the service prior to the end of the contract term stated in section 2 “Term & Renewal”, the remaining balance of the monthly payments after the termination date become due and payable. In addition the balance of the initial installation fee will be apportioned based on the number of months remaining in the service agreement
at the time of cancellation.
5. ACCEPTABLE USE POLICY / RIGHT TO REFUSE SERVICE: As a provider of Internet access, web site hosting, and other Internet-related services, LiveWireNet offers its customers or subscribers the means to acquire and disseminate a wealth of public, private, commercial, and non-commercial information. LiveWireNet respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, LiveWireNet reserves the right to take certain preventative or corrective actions. In
order to protect these competing interests, LiveWireNet has developed an Acceptable Use Policy (“AUP”), which supplements and explains certain terms of each customer’s respective service agreement and is intended as a guide to the customer’s rights and obligations when utilizing LiveWireNet’s services. This AUP will be revised from time to time. A customer’s use of LiveWireNet’s services after changes to the AUP are posted on LiveWireNet’s web site, www.livewirenet.com, will constitute the customer’s acceptance of any new or additional terms of the AUP that result from those changes.
One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet’s openness and value, but it also places a high premium on the judgment and
responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When subscribers obtain information through the Internet, they must keep
in mind that LiveWireNet cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that subscribers may acquire. For this reason, the subscriber must exercise his or her best
judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because LiveWireNet cannot monitor or censor the Internet, and will not attempt to do so, LiveWireNet cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal
When subscribers disseminate information through the Internet, they also must keep in mind that LiveWireNet does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over LiveWireNet’s network and may reach a large number of people, including both subscribers and non subscribers of LiveWireNet, subscribers’ postings to the Internet may affect other subscribers and may harm LiveWireNet’s goodwill, business reputation, and operations. For these reasons, subscribers violate LiveWireNet policy and the service agreement when they, their customers, affiliates, or subsidiaries engage in the following prohibited activities:
A. Spamming — Sending unsolicited bulk and/or commercial messages over the Internet (known as “spamming”). It is not only harmful because of its negative impact on consumer attitudes toward LiveWireNet, but also because it has the potential to overload LiveWireNet’s network and disrupt service to LiveWireNet subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, LiveWireNet has the discretion to determine from all of the evidence whether the email recipients were from an “opt-in” email list.
B. Intellectual Property Violations — Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. LiveWireNet is required by
law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also LiveWireNet’s policy to terminate the privileges of customers who commit repeat violations of copyright laws.
C. Obscene Speech or Materials — Using LiveWireNet’s network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material. LiveWireNet is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through LiveWireNet’s network.
D. Defamatory or Abusive Language — Using LiveWireNet’s network as a means to transmit or post defamatory, harassing, abusive, or threatening language.
E. Forging of Headers — Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.
F. Illegal or Unauthorized Access to Other Computers or Networks — Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).
G. Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities — Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.
H. Facilitating a Violation of this AUP — Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.
I. Export Control Violations — Exporting encryption software over the Internet or otherwise, to points outside the United States.
J. Usenet Groups — LiveWireNet reserves the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the AUP.
K. Other Illegal Activities — Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.
L. Other Activities — Engaging in activities, whether lawful or unlawful, that LiveWireNet determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.
As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with the subscriber. LiveWireNet will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with LiveWireNet’s policy or applicable law. When LiveWireNet becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site,implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate.
LiveWireNet also is aware that many of its subscribers are, themselves, providers of Internet services, and that information reaching LiveWireNet’s facilities from those subscribers may have originated from a customer of the subscriber or from another third-party. LiveWireNet does not require its subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of its subscribers. LiveWireNet has the right to directly take action against a customer of a subscriber. Also, LiveWireNet may take action against the LiveWireNet subscriber because of activities of a customer of the subscriber, even though the action may effect other customers of the subscriber. Similarly, LiveWireNet anticipates that subscribers who offer Internet services will cooperate with LiveWireNet in any corrective or preventive action that LiveWireNet deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of LiveWireNet policy. LiveWireNet also is concerned with the privacy of on-line communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, LiveWireNet urges its subscribers to assume that all of their on-line communications are insecure. LiveWireNet cannot take any responsibility for the security of information transmitted over LiveWireNet’s facilities.
LiveWireNet will not intentionally monitor private electronic mail messages sent or received by its subscribers unless required to do so by law, governmental authority, or when public safety is at stake. LiveWireNet may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, LiveWireNet may disclose information, including but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request. LiveWireNet assumes no obligation to inform the subscriber that subscriber information has been provided and in some cases may be prohibited by law from giving such notice. Finally, LiveWireNet may disclose subscriber information or information transmitted over its network where necessary to protect LiveWireNet and others from harm, or where such disclosure is necessary to the proper operation of the system.
LiveWireNet expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of on-line communications. A subscriber’s failure to comply
with those laws will violate LiveWireNet policy.
6. SERVICE DATE: The Service Date will be the day on which the Customer has full access to and use of Services. LWN will use reasonable efforts, subject to the other provisions hereof, to make Services available by the estimated service date specified in the quotation. LWN will not be liable for any damages whatsoever resulting from delays in meeting estimated service dates attributable to general industry delays. In the event there is a Customer delay, and such delay continues for thirty (30) days after the estimated service date for any Services, LWN may commence billing Customer for the services effective on such date.
7. FEES AND PAYMENTS: [a] Nonrecurring charges such as equipment and installation are due in advance. [b] Recurring charges are billed in advance and payable within ten (10) days of the invoice date. Billing is effective on the Service Date. [c] Payment not received within thirty (30) days of the invoice date is subject to LWN’s standard late payment charge of 1-1/2% per month. [d] Customer agrees to review each invoice promptly and to notify LWN of any discrepancies within 10 days of receipt of each invoice. [e] Customer agrees to pay any sales, use, excise or other local, state and federal taxes or surcharges based upon the provision or use of the Services provided under this Agreement. Taxes and surcharges will be itemized on Customer’s invoice.
8. CREDIT CARD AUTHORIZATION: Acceptance of the terms of this service agreement authorizes Live Wire Networks, Inc to use the Customer’s credit card for the initial installation charge and any past due charges for the monthly service.
9. CREDIT ALLOWANCES: [a] A credit allowance will be given for interruptions in service specifically attributable to a failure of LWN’s equipment or network. [b] Credit allowances do not apply to interruptions caused by Customer; due to failure of service provided by a telecommunications carrier other than LWN; due to failure of power or equipment provided by Customer or others; or due to scheduled maintenance or repair. [c] Credit allowances, if any, will be applied on the next bill to Customer. [d] Credit allowances are calculated as the pro-rated hourly rate from the time the service to
the customer premise router is unavailable, as determined by the LWN 24x7 monitoring system, to the time when the affected Service is available to the customer premise router. No credit allowances will
be provided for any communications failures within the local network behind the customer premise router at the customer premise.
10. OTHER CARRIERS: LWN will have no responsibility with respect to billings, charges or disputes related to services used by Customer which are not Services provided by LWN including, but not limited to leased lines from the local incumbent phone company, other carriers, long distance or 800 / 888 service providers, products ordered or purchased over the World Wide Web, etc. Customer will be fully responsible for the payment of any bills for such services and for the resolution of any disputes or discrepancies with any other service provider.
11. INSTALLATION AND MAINTENANCE: LWN’s administrative and maintenance services are included in the monthly recurring charges. At Customer’s request, and to the extent possible, LWN will perform diagnostic or troubleshooting maintenance services by telephone. On-site technical assistance will be billed at the prevailing technical consulting rate. LWN will have no responsibility for the maintenance and repair of any equipment or cabling not provided by LWN. LWN will assess Customer its standard charges for any maintenance visits with respect to Service problems which are determined to arise from equipment or cabling not provided by LWN.
12. EQUIPMENT AND CABLING: Customer will maintain appropriate insurance protection against fire, theft, vandalism or other casualty on its premises, and will see that the locating of LWN cabling and equipment thereon complies with all applicable leases or other contractual agreements to which Customer is a party. Customer will bear the risk of any loss or damage to LWN’s equipment or cabling located in Customer’s premise, except where such loss or damage is caused by LWN.
13. RENTAL EQUIPMENT: Any equipment that is provided with the service that is not purchased by the customer is to be considered rented equipment. This rented equipment will remain LWN property and will be made available for the customer use only for the term of this agreement. The customer has no rights to the rented equipment and agrees to compensate LWN in the event this equipment is lost, stolen, or damaged after being installed on the customer premises. It is agreed that if the service is cancelled, the customer will allow LWN personnel to retrieve this equipment. LWN reserves the right to replace any rented equipment at our expense and with minimal interruption to the service.
14. CUSTOMER EQUIPMENT COMPATIBILITY: LWN will approve of the use of Customer’s equipment unless such equipment is technically incompatible with LWN’s facilities.
15. ACCESS TO PREMISES: Upon reasonable notice from LWN, Customer is responsible for arranging access to its premises at a reasonable time so that LWN’s authorized employees or agents may install, repair, maintain, inspect, replace or remove, in accordance with this Agreement, any equipment and cabling provided by LWN. Access to such premises will be made available at a time mutually agreeable to Customer and LWN.
16. BANDWIDTH OR DATA THROUGHPUT PERFORMANCE: LWN does not guarantee bandwidth or performance of our service beyond our network. To enable objective testing of digital lines a bandwidth speed test is available on the LWN support web site.
17. LIMITATIONS OF LIABILITY: [a] Liability for Service Interruptions – To the extent that any part or portion of the Services is unavailable, interrupted, degraded or otherwise unsatisfactory for any
reason, LWN and Customer agree that Customer’s sole and exclusive remedy will be the credit allowances for interruptions as provided in Section 7. [b] Liability for Damages to Property – LWN will not be liable for any damages to property at Customer’s premises resulting from the installation, maintenance, repair or removal of equipment and associated cabling, unless the damage is caused by LWN’s willful misconduct or negligence. [c] Liability for Services and Equipment Not Provided by LWN – LWN will not be liable for any damages associated with services or equipment which it does not furnish, or for any act or omission of any entity furnishing to Customer facilities or equipment used for or with the Services. [d] Liability for Force Majeure Events – LWN will not be liable for any failure of performance or Services for reasons beyond its reasonable control including casualty, condemnation or inability to earn a profit due to material changes in the regulatory or competitive environment. Likewise LWN will not be liable for any failure of performance or services due to wars or terrorism, riots, embargoes, strikes, earthquakes, floods, lightning, or other acts of God. [e] Liability for Negligence or Fault of Customer – LWN will not be liable for any interruptions or damages due to the fault or negligence of Customer, or due to the failure or malfunction of Customer-provided equipment or facilities. [f] Liability Regarding Government Authorization – LWN will use its best efforts to obtain and keep in effect all government authorizations necessary to provide Services under this Agreement. LWN will be entitled to take and will have no liability for any action necessary, including termination, to bring the Services into conformance with any governmental regulations or authorizations, and Customer will fully cooperate in and take such action as may reasonably be requested by LWN as part of such compliance. [g] No Special Damages – In no event will LWN be liable for special, consequential, exemplary or punitive damages as a result of its performance or nonperformance of this Agreement. [h] Content LWN will not be liable for the content of the information passing over our network. [I] Remote Access Security Breaches: LWN will not be liable for any unauthorized access to the customers’ equipment or local area network systems or servers. [j] Loss of Data – LWN will not be liable for any loss or destruction of data, records, or software of the customer. These losses include but are not limited to Web Site content, E-Mail messages stored or kept on a LWN server, or any other content stored on a LWN server. [k] Consequential Economic Damages: LWN will not be liable for any consequential economic losses or damages.
18. INDEMNIFICATION: LWN will be indemnified, defended and held harmless by Customer against any and all claims, suits, proceedings, expenses, losses, liabilities or damages (collectively “Claims”) arising from the use of Services pursuant to this Agreement, involving: [a] Claims of third parties arising out of, resulting from, or related to the Customer’s utilization of Services; [b] Claims for libel, slander, invasion of privacy, or infringement of copyright arising from any communication using Services; and [c] all other Claims arising out of any act or omission of Customer, or customers or patrons of Customer, in connection with Services made available to Customer under the terms of this Agreement.
19. DEFAULT: If Customer [a] will fail to pay any amount required under this Agreement and such failure continues for ten (10) days after written notice to Customer that the same is due and payable; or[b] fails to comply with any other material provision of this Agreement and such noncompliance continues for thirty (30) days after written notice to Customer thereof, then LWN, at its sole option, may elect to pursue one or more of the following courses of action: either (1) terminate this Agreement, whereupon in addition to all sums then due and payable, all future monthly or other charges hereunder will become immediately due and payable; (2) take appropriate action to enforce payment, including suspension of all or any part of Services; and/or (3) pursue any other remedies as may be provided at law or in equity.
20. ASSIGNMENT: LWN may, without obtaining any further consent from Customer, assign any of its rights, privileges, or obligations under this Agreement. Customer will not, without prior written consent of LWN, which consent will not be unreasonably withheld, assign, transfer, or in any other manner dispose of, any of its rights, privileges, or obligations under this Agreement.
21. WARRANTIES: There are no agreements, warranties or representations, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability and fitness for a particular purpose or use, except those expressly set forth herein.
22. HIRING LWN EMPLOYEES: To provide you with great service we hire the best people we can find. Unless you have our written agreement, you agree not to hire any of our employees, or anyone who has been employed with LWN in the last 180 days. If you breach this agreement LWN will be entitled to collect damages equal to three times the employee’s annual salary as a liquidated damages award.
23. MODIFICATION AND WAIVER: This Agreement may be modified, waived or amended only by a written instrument signed by both parties. This agreement will be binding upon the parties’ respective successors and assigns, and along with a signed LWN service quotation constitutes the entire agreement between LWN and the Customer.
24. SEVERABILITY: If any of the terms of this agreement are held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining terms will not be effected.
25. JURISDICTION: The rights and obligations of the parties under this Agreement will be governed by, construed and enforced in accordance with the laws of the State of Colorado.