Customer Agreement
By utilizing the services of ATS Internet, customer agrees to the following terms and conditions of service.
The following terms and conditions govern the provision and use of all interstate and intrastate telecommunications service under this Agreement and any Service Order or Subscription entered into between customer and ATSInternet.
1. Provision of Service: ATSInternet will provide Customer with use of ATSInternet communications facilities and such other services as requested and agreed to between customer and ATSInternet, including website hosting, private co-located server hosting, email hosting, and other related services.
2. Agency Authorization: This Agreement authorizes ATSInternet to act as agent for Customer as necessary to provide the Service, including but not limited to, ordering telecommunications and other services or facilities and increasing, adding to, terminating, decreasing, removing or rearranging such service or facilities on Customer’s behalf.
3. Term and Renewal: Subject to Section 6 below, The Service shall be provided on a month-to-month basis or as separately specified on any Service Order or Subscription (“Initial Term”). Upon expiration of the Initial Term of all or any part of the Service, this Agreement and the affected Service and all the terms and conditions hereof shall continue on a month-to-month basis unless renewed for a different term or terminated by either party upon thirty (30) days prior written notice or until otherwise terminated pursuant to the provisions of Section 6 hereof.
4. Service Charges: Customer shall pay to ATSInternet all Monthly Recurring Charges and Installation Charges set forth on the reverse side hereof or on any Service Order or Subscription and all non-recurring charges related to the Service plus all applicable excise, sales, use or other taxes, fees or charges applicable to the Service. Such fees, taxes, charges, etc. will be separately stated in ATSInternet’s invoices. Service Charges shall be due and payable commencing on the earlier of the Request for Service date specified on the reverse side hereof or the date on which Customer first utilizes the Service for non-test purposes. Service Charges for local access or other service or facilities arranged for or ordered by ATSInternet on Customer’s behalf shall become due on the Request for Service date.
5. Payment: ATSInternet will bill Customer for Service Charges each month in advance. Customer will pay all invoices within thirty (30) days after the invoice date and shall send its payments to the address specified on the invoice. ATSInternet may, in addition to any
other remedies available to it, impose a late payment charge of one and one-half percent (1.5%) per month on any invoice not paid within such 30 day period.
6. Termination: ATSInternet may terminate this Agreement, or any Service Order or Subscription, in whole or in part, or suspend the Service at any time upon: (a) Any failure of Customer to pay any undisputed amounts due hereunder; (b) Any breach by Customer of any material provision of this Agreement or any Service Order or Subscription; (c) Any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to Customer; or (d) Any governmental prohibition or required alteration of the Service provided hereunder or any violation of applicable law, rule or regulation.
No such termination shall relieve Customer of its obligations under this Agreement, or any Service Order or Subscription, including, without limitation, the obligation to make payments for the Service provided prior to termination. The rights and obligations of the parties shall survive any such termination or other cancellation or expiration of this Agreement or any Service Order or Subscription. In the event Customer cancels or terminates the Service under this Agreement or any Service Order or Subscription prior to the end of the Initial Term or any subsequent Renewal Term, Customer agrees to pay ATSInternet a termination charge (as liquidated damages and not as a penalty) as follows:
(a) All non-recurring charges specified in this Agreement or any Service Order or Subscription, plus
(b) All disconnection early cancellation or termination charges reasonably incurred by ATSInternet on Customer’s behalf, plus
(c) If such termination occurs within the first year of the term of this Agreement or Service Order or Subscription, all recurring charges specified for the balance of the first year, 50% of the recurring charges for the second year of the term, and 25% of the recurring charges for the remaining term.
If termination occurs after the first year of the term, then the charge shall be 50% of the balance of the second year, and 25% of the remaining years of the term. All termination charges shall be due and payable within thirty (30) days of the effective date of termination.
7. Interruption of Service: In the event of interruption in the Service (“Outage”), customer shall be entitled to a credit in an amount equivalent to the proportionate monthly charge for the period during which such Outage occurs. An Outage will be deemed to have occurred only if the Service becomes unusable to Customer as a result of failure of ATSInternet’s facilities, equipment or personnel to provide the Service, and only where the interruption is not the result of: (a) the fault or negligence of Customer; (b) the failure of interconnecting facilities or other equipment not part of the ATSInternet facilities or within ATSInternet’s control; (c) any planned interruption or routine maintenance; or (d) other circumstances beyond the control of ATSInternet.
Credit allowance for an Outage starts upon the earlier of (a) ATSInternet’s receipt of notice from the Customer of an Outage, or (b) ATSInternet’s actual knowledge, and ceases when the Service has been restored and ATSInternet has attempted to notify the Customer thereof.
Credit as a result of Outage shall be given only when Customer notifies ATSInternet that credit is due. Only that portion of the Service which is interrupted due to the Outage shall be credited. The Service is offered twenty-four (24) hours per day, seven (7) days per week. For purposes of credit computation, every month shall be considered to have 720 hours. No credit shall be allowed for an Outage of less than thirty (30) minutes or a major fraction
thereof.
The foregoing states Customer’s sole remedy for service interruption. If ATSInternet is unable to restore the Service, or provide alternative service within 30 days from the point of interruption, Customer will have the right to terminate the Service Order or Subscription without liability.
8. Excusable Delay or Failure: Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement or any Service Order or Subscription to the extent such delay or failure arises by reason of any act of God, the elements, adverse weather conditions, fire, flood, riots, strikes, accident, war, embargo, governmental requirement, act of civil or military authority, inability to secure materials, labor or transportation, cable cuts, or other cause beyond the control and without the fault or negligence of the affected party. Any such delay or failure shall suspend the Agreement or any Service Order or Subscription until the delay or failure ceases, and the period of the Agreement or Service Order or Subscription shall be deemed extended accordingly.
9. Liability and Warranties: Except as otherwise set forth expressly in this Agreement, ATSInternet makes no warranties, representations or other agreements, expressed or implied with respect to the Service, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose. ATSInternet shall use reasonable efforts to provide and maintain the Service to Customer as specified herein. However, in no event shall ATSInternet be liable for any claim of any kind, including but not limited to, actions, damages, judgements losses, costs, expenses, liabilities and loss of monies (including reasonable attorney’s fees) arising out of this Agreement or the performance hereof, and resulting from any act, omission, negligence, mistake, error, interruption, delay, defect or otherwise of ATSInternet, its employees, agents, contractors or affiliated companies. In no event shall ATSInternet be liable for special, incidental, consequential, indirect or punitive damages, including but not limited to, loss of revenue or profit, loss of use of any property, cost of substitute performance, equipment or services, downtime costs and claims of the Customer for damages. ATSInternet’s entire liability for any claim, loss expense, or damage under this Agreement or any Service Order or Subscription shall in no event exceed sums actually paid by Customer to ATSInternet for the Service which gives rise to the claim.
10. Indemnification: Each party shall indemnify and hold the other harmless from and against all liabilities, claims, damages, losses, costs, expenses and judgments (including reasonable attorney’s fees) and causes of action arising out of or in connection with this
Agreement or any Service Order or Subscription for bodily injury (including death) or damage to tangible property caused by the negligence or willful misconduct of the other party or the other party’s employees, agents, or invitees.
11. Equipment and Location: Customer will not allow or cause any facility or equipment of ATSInternet to be rearranged, moved, modified, repaired or relocated without ATSInternet’s consent. Customer will not create or allow any liens or other encumbrances
to be placed on any such facilities or equipment of ATSInternet. If Customer relocates or changes the place of the Service provided under any Service Order or Subscription, Customer will pay all additional installation and related charges associated with such relocation. All ATSInternet equipment shall be returned to ATSInternet upon termination of this
Agreement.
12. General:
(a) Assignment: Upon written notice, either party may assign this Agreement to any subsidiary, parent or affiliated company, or pursuant to any reorganization or merger of its business, or pursuant to any sale or transfer of all or substantially all of its assets. No other assignment by either party will be permitted without the prior written consent of the other party, which consent will not be unreasonably withheld or denied.
(b) Governing Law: This Agreement is deemed to be made in the State of New York and will be governed by the laws of such State, without regard to choice of law provisions. In the event of legal action between the parties with respect to this Agreement,
the prevailing party will be entitled to recover reasonable attorney’s fees and court costs.
(c ) Severability: Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and effect.
(d) Waiver: Failure of either party to enforce any of the provisions of this Agreement, or the waiver thereof in any instance, shall not be construed as a generalwaiver or relinquishment of rights.
(e) Notice: Any notice given or made pursuant to this Agreement or any Service Order or Subscription will be effective if in writing and delivered in person or by certified mail, return receipt requested, and delivered at the address provided above, or such other address as may hereafter be furnished by either party to the other.
(f) Entire Agreement: The terms of this Agreement constitute the entire Agreement between the parties, and no previous communications, representations or agreements either oral or written, between the parties shall vary the terms of the Agreement. The Agreement may be modified only in a writing signed by both parties. If this service includes any access or service related to the Internet, ATSInternet’s Internet Acceptable Use Policy applies and is included by reference herein.