CUSTOMER TERMS AND CONDITIONS
The customer named on the Service Order (“Customer”) and Andrena agree that the terms and conditions on the Service Order and these terms and conditions constitute the agreement (the “Customer Terms and Conditions”) for the provision of the Services selected by Customer and designated on a Service Order.
Article 1 DEFINITIONS
- “Affiliate” means any entity that controls, is controlled by or is under common control with Andrena.
- “Agreement” means these Customer Terms and Conditions, and each Service Order accepted by Andrena under the Agreement.
- “Andrena” means Andrena, Inc.
- “Andrena Equipment” means Any and all facilities, equipment or devices provided by Andrena or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by Andrena, shall not be considered Andrena Equipment.
- “Andrena Website or Website” means the Andrena website where the Customer Terms and Conditions, and other Andrena security and privacy policies applicable to the Agreement will be posted. The current URL for the Website is https://andrena.com/. Andrena may update the Website documents and/or URL from time to time.
- “Confidential Information” means all information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
- “Customer-Provided Equipment” means any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
- “Licensed Software” means computer software or code provided by Andrena or required to use the Services, including without limitation, associated documentation, and all updates thereto.
- “Party” means Andrena or the Customer; and in the plural, a reference to both companies.
- “Service(s)” means the Internet services provided by Andrena to Customer described in one or more Service Order(s). All Services are for domestic U.S use only. Services are subject to availability.
- “Service Commencement Date” means the date(s) on which Andrena first makes Service available for use by Customer. A single Service Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
- “Service Order” means a mutually agreed upon order that references this Agreement for Andrena to provide the Services to Service Location(s) submitted by Customer to Andrena (a) on a then-current Andrena form designated for that purpose or (b) if available, through a Andrena electronic or verbal order processing system designated for that purpose.
- “Service Location(s)” means the Customer location(s) where Andrena provides the Services. For multi-tenant buildings, Service Location shall mean the customer’s leased and/or owned business space.
- “Service Term” means the duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order.
- “Tariff” means a federal or state Andrena tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
- “Termination Charges” except as otherwise provided herein, means charges that may be imposed by Andrena if, prior to the end of the applicable Service Term (a) Andrena terminates Services for cause or (b) Customer terminates any Service without cause. Termination Charges with respect to each Service terminated during the initial Service Term shall equal all amounts payable by Customer in accordance with Section 5.3.
Article 2 CHANGES TO THE AGREEMENT TERMS
Andrena may change or modify the Agreement, and any related policies from time to time (“Revisions”) by posting such Revisions to the Andrena Website. The Revisions are effective upon posting to the Website. Customer will receive notice of the Revisions in the next applicable monthly invoice or via email. Customer shall have thirty (30) calendar days from the invoice notice of such Revisions to provide Andrena with written notice that the Revisions adversely affect Customer’s use of the Service(s). If after notice Andrena is able to verify such adverse effect but is unable to reasonably mitigate the Revision’s impact on such Services, then Customer may terminate the impacted Service(s) without further obligation to Andrena beyond the termination date, including Termination Charges, if any. This shall be Customer’s sole and exclusive remedy.
Article 3 DELIVERY OF SERVICES
Article 4 Orders. A Service Order must be completed to initiate Service to a Service Location(s). A Service Order shall become binding on the parties when (i) it is specifically accepted by Andrena either electronically or in writing, (ii) Andrena begins providing the Services described in the Service Order or (iii) Andrena begins installation of the Services described in the Service Order, whichever is earlier. When a Service Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
Article 5 Speed. Andrena makes no representation regarding the speed of the Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
Article 6 Access. Customer, at no cost to Andrena, shall secure and maintain all necessary rights of access to Service Location(s) for Andrena to install and provide the Services, unless Andrena has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Andrena Equipment used to provide the Services within the Service Location(s). Andrena and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice, but in any event not less than two weeks prior notice, from Andrena, Customer shall provide all required access to Andrena and its authorized personnel.
Article 7 Service Commencement Date. Upon installation and connection of the necessary facilities and equipment to provide the Services, Andrena shall notify Customer that the Services are available for use, and the date of such notice shall be called the Service Commencement Date. Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
Article 8 Andrena Equipment. Andrena Equipment is and shall remain the property of Andrena regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time Andrena may remove or change Andrena Equipment in its sole discretion in connection with providing the Services. Customer shall not move (unless otherwise instructed by Andrena), rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Andrena Equipment or permit others to do so, including without limitation, disassembling, opening, or reverse engineering any Andrena Equipment, and shall not use the Andrena Equipment for any purpose other than that authorized by the Agreement. Andrena shall maintain Andrena Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Andrena’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Andrena Equipment. Customer is responsible for damage to, or loss of, Andrena Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of Andrena. Customer agrees not to take any action that would directly or indirectly impair Andrena’s title to the Andrena Equipment, or expose Andrena to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following Andrena’s discontinuance of the Services to the Service Location(s), Andrena retains the right to remove the Andrena Equipment including, but not limited to, that portion of the Andrena Equipment located within the Service Location(s). To the extent Andrena removes such Andrena Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.
Article 9 Customer-Provided Equipment. Andrena shall have no obligation to install, operate, or maintain Customer-Provided Equipment. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the cable modem, route and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Andrena’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment. Andrena shall not be responsible to the Customer if changes in any of the facilities, operations or procedures of Andrena utilized in the provision of Service render any Customer-Provided Equipment or other equipment provided by a Customer obsolete or require modification or alteration of such equipment or system or otherwise affect its use or performance.
Article 10 Administrative Portal. Andrena may, at its sole option, make one or more administrative web sites or applications available to Customer in connection with Customer’s use of the Services (each an “Administrative Portal”). Andrena may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Portal. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify Andrena if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Portal. Customer shall be solely responsible for all use of the Administrative Portal, and Andrena shall be entitled to rely on all Customer uses of and submissions to the Administrative Portal as authorized by Customer. Andrena shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Portal or any information on the Administrative Portal. Andrena may change or discontinue the Administrative Portal, or Customer’s right to use the Administrative Portal, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Portal. These terms and policies will be posted on the site.
Article 11 CHARGES, BILLING AND PAYMENT
Article 12 Charges. Customer further agrees to pay all fees and charges associated with the Services, as set forth or referenced in the applicable Service Order(s) or invoiced by Andrena. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of Andrena Equipment, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Except as otherwise indicated herein or on the applicable Service Order(s), monthly recurring charges for Internet Services shall not increase during the initial Service Term.
Article 13 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by Andrena. These may include, without limitation, charges resulting from purchasing or subscribing to other offerings via the Internet. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
Article 14 Payment of Bills. Except as otherwise indicated herein or on the Service Order(s), Andrena will automatically charge the payment method provided by Customer, such as a valid credit card, in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. The date of your monthly charge for a recurring Service will coincide with the date you signed up for that Service, unless that date does not appear in a given month, in which case Andrena will bill you on the last day of that month. All other charges will be billed monthly in arrears. Customer shall make payment to Andrena for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to Andrena within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a prorated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, Andrena may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. Andrena shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party. Customer agrees that by providing its credit card number and associated payment information, Andrena is authorized to immediately invoice and charge such credit card and that no additional notice or consent is required. Customer also agrees to immediately notify Andrena of any change in its billing address or the credit card used for payment hereunder.
Article 15 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by Andrena. No acceptance of partial payment(s) by Andrena shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
Article 16 Payment by Credit Card. Upon Customer’s written request and Andrena’s acceptance of such request, Andrena will accept certain credit card payments for charges generated under the Agreement. By providing Andrena with a credit card number, Customer authorizes Andrena to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that Andrena stop charging the credit card. Customer agrees to provide Andrena with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If Andrena is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by Andrena. Andrena may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
Article 17 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide Andrena with credit information requested by Andrena. Customer authorizes Andrena to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Andrena will be true and correct. Andrena, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Andrena may require Customer to make a deposit (in an amount not to exceed an estimated two-month’s charge for the Services) as a condition to Andrena’s provision of the Services, or as a condition to Andrena’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by Andrena as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if Andrena determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined by Andrena.
Article 18 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
Article 19 Other Government-Related Costs and Fees. Andrena reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether Andrena or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. These obligations may include those imposed on Andrena or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that Andrena or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs This regulatory recovery fee is not a tax, and it is not government-mandated. Taxes and other government-related fees and surcharges may be changed with or without notice,
Article 20 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Andrena for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to Andrena, all disputed amounts shall become immediately due and payable to Andrena. Under no circumstances may Customer submit a billing dispute to Andrena later than sixty (60) days following Customer’s receipt of the applicable invoice.
Article 21 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, Andrena may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Andrena Equipment that Customer fails to return in accordance with the Agreement. If Andrena is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Andrena Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Andrena under the Agreement or at law or in equity.
Article 22 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
Article 23 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Andrena may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Andrena reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.
Article 24 TERM
Article 25 Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Service Order entered into under this Agreement. The term of a Service Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these terms and conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) month from the Service Commencement Date.
Article 26 Service Order Renewal Upon the expiration of the initial Service Term, this Agreement and each applicable Service Order shall automatically renew for successive equivalent periods (each a “Service Term(s)”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the then current Service Term.
Article 27 Changes in Monthly Recurring Service Charges. Effective at any time after the end of the initial Service Term and from time to time thereafter, Andrena may modify the monthly recurring charges for Internet Services, provided that any increase in pricing will be subject to thirty (30) days prior notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing. Nothing within this Section 5.3 is intended to limit Andrena’s ability to increase charges associated with the Services as set forth in Section 4.1.
Article 28 TERMINATION OF AGREEMENT AND/OR A SALES ORDER
Article 29 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order or this Agreement, in whole or part, at any time during the Service Term, and subject to payment to Andrena of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of any and all Andrena Equipment. Such termination shall be effective immediately after Andrena’s receipt of the termination notice.
Article 30 Termination for Cause.
Article 31 If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, Andrena may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. However, Andrena will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.
Article 32 If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Service Order materially affected by the breach.
Article 33 A Service Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
Article 34 Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
Article 35 Effect of Expiration or Termination of the Agreement or a Service Order. Upon the expiration or termination of a Service Order for any reason: (i) Andrena may disconnect the applicable Service; (ii) Andrena may delete all applicable data, files, electronic messages, or other information stored on Andrena’s servers or systems; (iii) if Customer has terminated the Service Order prior to the expiration of the Service Term for convenience, or if Andrena has terminated the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, Andrena may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, at Andrena’s direction, either (1) Customer shall return the Andrena Equipment to Andrena using the shipping label(s) and information provided by Andrena, or (2) permit Andrena access to retrieve from the applicable Service Locations any and all Andrena Equipment (however, if Customer fails to permit access, or if the retrieved/returned Andrena Equipment has been damaged and/or destroyed other than by Andrena or its agents, normal wear and tear excepted, Andrena may invoice Customer for the full replacement cost of the relevant Andrena Equipment, or in the event of minor damage to the retrieved Andrena Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to Andrena.
Article 36 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Andrena may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects Andrena’s ability to provide the Services herein.
Article 37 LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
Article 38 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY ANDRENA OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF ANDRENA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE ANDRENA EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
Article 39 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, ANDRENA EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANDRENA DOES NOT WARRANT THAT THE SERVICES, ANDRENA EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, ANDRENA EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, ANDRENA EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
Article 40 ANDRENA MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, ANDRENA EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
Article 41 IN NO EVENT SHALL ANDRENA, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
Article 42 DISRUPTION OF SERVICE. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High Risk Activities. Andrena shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer-Equipment; inability to obtain access to the Service Locations; failure of any television signal at the transmitter; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
Article 43 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Andrena and its affiliates and agents is limited to the maximum extent permitted by law.
Article 45 Subject to Article 7, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Andrena Equipment, and Licensed Software.
Article 46 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 8 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
Article 47 BINDING ARBITRATION
Article 48 Purpose. If Customer has a Dispute (as defined below) with Andrena that cannot be resolved through an informal dispute resolution process between the parties, Customer or Andrena may elect to arbitrate that Dispute in accordance with the terms of this arbitration provision (“Arbitration Provision”) rather than litigate the Dispute in court. Arbitration means the parties will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may result in limited discovery and may be subject to limited review by courts.
Article 49 Definitions. The term “Dispute” means any dispute, claim, or controversy between you and Andrena regarding any aspect of Customer’s relationship with Andrena, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, “Andrena” means Andrena and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
Article 50 Right to Opt Out. IF CUSTOMER DOES NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, CUSTOMER MUST NOTIFY ANDRENA IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE COMPANY EXECUTED THE AGREEMENT BY VISITING, WHEN AVAILABLE, [EMAIL] OR BY MAIL TO ANDRENA, 902 BROADWAY, 7TH FLOOR, NEW YORK, NY 10010, ATTN: JAMES SMITS. YOUR WRITTEN NOTIFICATION TO ANDRENA MUST INCLUDE THE CUSTOMER’S NAME, ADDRESS AND ANDRENA ACCOUNT NUMBER, THE NAME AND POSITION OF THE PERSON SUBMITTING THE NOTIFICATION ON BEHALF OF THE CUSTOMER, AS WELL AS A CLEAR STATEMENT THAT CUSTOMER DOES NOT WISH TO RESOLVE DISPUTES WITH ANDRENA THROUGH ARBITRATION. CUSTOMER’S DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON CUSTOMER’S RELATIONSHIP WITH ANDRENA OR THE DELIVERY OF SERVICE(S) TO CUSTOMER BY ANDRENA. IF CUSTOMER HAS PREVIOUSLY NOTIFIED ANDRENA OF ITS DECISION TO OPT OUT OF ARBITRATION, CUSTOMER NEED NOT PROVIDE NOTICE AGAIN.
Article 51 Initiation of Arbitration Proceeding/Selection of Arbitrator. If Customer or Andrena elect to resolve a Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may open a case with JAMS, www.jamsadr.org under the Streamlined Arbitration Rules of the JAMS “JAMS.”
Article 52 Arbitration Procedures.
Article 53 The Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where Customer receives the Service from Andrena may apply to and govern the substance of any Disputes. No state statute pertaining to arbitration shall be applicable under this Arbitration Provision.
Article 54 If there is a conflict between this Arbitration Provision and the rules of the arbitration organization, this Arbitration Provision shall govern. If JAMS will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve Customer’s dispute with Andrena. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.
Article 55 A single arbitrator will resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
Article 56 The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Article 57 If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
Article 58 Location of Arbitration. The arbitration will take place at a location convenient to Customer in the area where Customer receives Services from Andrena.
Article 59 Payment of Arbitration Fees and Costs. Each party will be responsible for its own fees and costs associated with arbitration.
Article 60 Severability.
Article 61 If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court.
Article 62 In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, Customer and Andrena have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
Article 63 Exclusions from Arbitration. CUSTOMER AND ANDRENA AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY CUSTOMER OR BY ANDRENA THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS OR (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Article 64 Continuation. This Arbitration Provision shall survive the termination of Customer’s Agreement with Andrena and the provisioning of Service(s) thereunder.
SOFTWARE & SERVICES
Article 65 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Andrena, including, without limitation, end-user license agreements for the Licensed Software. Andrena and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
Article 66 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Andrena; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
Article 67 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Andrena Equipment or Customer-Provided Equipment. If Andrena has agreed to provide updates and changes, Andrena may perform such updates and changes remotely or on-site, at Andrena’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Andrena.
Article 68 Ownership of Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any Internet/on-line addresses provided, including but not limited to Internet Protocol (IP) addresses, e-mail addresses and web addresses.
Article 69 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by Andrena, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from Andrena or other owner of such material, is prohibited.
Article 70 CONFIDENTIAL INFORMATION AND PRIVACY
Article 71 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
Article 72 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
Article 73 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to,
Article 74 CUSTOMER PRIVACY POLICIES
Article 75 Privacy Note Regarding Information Provided to Third Parties. Andrena is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
Article 76 PROHIBITED USES
Article 77 Resale. Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
Article 78 Use Policies. Customer agrees to ensure that all uses of the Andrena Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. Andrena reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Andrena (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Andrena’s ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of Andrena personnel or third parties.
Article 79 Violation. Any breach of this Article 12 shall be deemed a material breach of this Agreement. In the event of such material breach, Andrena shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of Andrena, and then to notify Customer of the action that Andrena has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
Article 80 SERVICE CREDITS
Article 81 Credit Allowances. Unless otherwise addressed in a service level agreement attached to this Agreement, Andrena will allow a pro-rata credit against future payment of the net monthly recurring charge (exclusive of nonrecurring charges, other one-time charges, measured charges, regulatory fees and surcharges, taxes, and other governmental and quasi-governmental fees) for a Service Interruption, except as specified below or as may otherwise be legally required (“Credit”). “Service Interruption” shall mean a break in transmission that renders the Service unusable for transmission and reception. For the purposes of calculating a Credit allowance, the Service Interruption period begins when the Customer reports an interruption in the portion of the Service to Andrena, a trouble ticket is opened, and the Service is released to Andrena for testing and repair. The Service Interruption ends when the affected portion of the Service has been restored and Andrena has closed the trouble ticket. Service Interruption time does not include interruptions of less than thirty (30) minutes’ duration. Credits will be as follows:
|Length of Service Interruption||Amount of Credit|
|At least 4 hours||1 full day|
The total number of credit allowances per month shall not exceed the total monthly recurring charge for the affected Service. To qualify, Customer must request the Credit from Andrena within thirty (30) days of the Service Interruption.
Article 82 Exceptions to Credit Allowances. Except as otherwise provided in a Service Order, a Service Interruption shall not qualify for the Credits set forth herein if such Service Interruption is related to, associated with, or caused by: scheduled maintenance events; Customer actions or inactions; Customer-provided power or equipment; any third party not contracted through Andrena, including, without limitation, Customer’s users, third-party network providers; any power, equipment or services provided by third parties; or an event of force majeure as defined in this Agreement, unless otherwise provided under applicable law. The remedies set forth in this Article 13 shall be Customer’s sole and exclusive remedy for any Service Interruption in the Services, outage, unavailability, delay or other degradation in the Services or any Andrena failure to meet the objectives of the Services.
Article 83 MISCELLANEOUS TERMS
Article 84 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control (a “Force Majeure Event”), except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
Article 85 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, Andrena may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, Andrena may assign its rights and obligations hereunder in connection with any merger, reconsolidation, or sale of all or substantially all of Andrena’s business or assets. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
Article 86 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Andrena, Customer also agrees to sign written assurances and other export-related documents as may be required for Andrena to comply with U.S. export regulations.
Article 87 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing address; notices to Andrena shall be sent to Andrena, 902 Broadway, 7th Floor, New York, NY 10010, Attn: James Smits. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
Article 88 Entire Understanding. The Agreement constitutes the entire understanding of the parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of Andrena may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of Andrena who has not been specifically authorized to make such modifications shall be binding upon Andrena. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.
Article 89 Tariffs. Notwithstanding anything to the contrary in the Agreement, Andrena may elect or be required to file tariffs with regulatory agencies for certain Services. In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forth in the applicable Service Order shall be treated as individual case based arrangements to the maximum extent permitted by law, and Andrena shall take such steps as are required by law to make the rates and other terms enforceable. If Andrena voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that Andrena is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either party, the affected party may terminate the applicable Service Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.
Article 90 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.
Article 91 Survival. The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Service Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Service Order.
Article 92 Choice of Law. The laws of the State of California shall govern this Agreement, except for conflicts of law principles.
Article 93 No Third Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
Article 94 No Waiver. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
Article 95 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Article 96 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
Article 97 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
Effective: October 5, 2018