MHO Networks Service Agreement
This MHO Networks Service Agreement ("Agreement") is entered into between MHO Networks ("MHO" or "we"), having an office at 1190 S Colorado Blvd., Denver, CO 80246, and the customer designated on the Work Order ("Customer" or "you"). The parties agree to the following:
TERMS AND CONDITIONS
1. INSTALLATION.
1.1 You authorize MHO or its authorized contractors to install a customer premise unit, software, wiring and other equipment ("Equipment"), at the address you provide ("Premises") for MHO DirectWave™ service ("Services").
1.2 To provide the Services, MHO is required to complete the installation of various equipment ("RF Installation") at the Premises. The standard RF Installation includes but is not limited to the installation of the antenna, digital transceiver, down converter, routing of cable, and wireless modem, as applicable (" Equipment") by the most direct path to your computer. Any custom installation work that you request, including placing cable under carpet, through cabinets, through interior walls or inside molding, may require an additional charge. MHO will not be liable for any alterations to Premises that result from the installation or removal of Equipment, including but not limited to, any holes in walls, cable wiring or antenna mounting brackets.
2. SERVICES.
2.1 MHO will provide the Services to you subject to the terms and conditions of this Agreement and a work order signed by you and us ("Work Order") and any applicable tariffs.
2.2 You represent and warrant to MHO that you are at least 18 years of age and verify and acknowledge that the Services are being installed with your permission in your home, business, or designated location.
2.3 MHO may revise, modify or discontinue at any time any or all aspects of the Services, including but not limited to the Service and Equipment prices, any applicable tariffs, and any terms and conditions in this Agreement.
2.4 You must install, operate, and maintain any hardware or software not provided by MHO ("Customer provided"). You agree that MHO is not responsible for the information transmitted or received on any hardware or software provided by you.
2.5 You will ensure that any hardware or software you provide is compatible with the Services. If this hardware or software impairs your use of the Services, you will continue to pay MHO for the Services. If MHO notifies you that hardware or software provided by you impairs or is likely to impair the Services, you agree to immediately eliminate the impairment. MHO may suspend the Services until the impairment is corrected. At your request, MHO may troubleshoot difficulties caused by hardware or software provided by you at MHO's then current standard list prices.
2.6 MHO is not liable if any changes in the Services cause any hardware or software provided by you to become obsolete, require alteration, or affect performance of the hardware or software.
2.7 To prepare for Services you will:
2.7.1. At your expense, prepare your site(s) to comply with MHO's installation and maintenance specifications;
2.7.2. Pay MHO any applicable charges to relocate any installed Services.
2.7.3. Provide MHO and its suppliers reasonable access to Premises to perform any required acts.
2.7.4. Be responsible for cabling that connects equipment not provided by MHO for the Services.
3. TERM AND TERMINATION; TERMINATION FEE.
This Agreement will have a term ("Term") as designated on the Work Order. At the end of the Agreement's initial Term, this Agreement will automatically renew for successive one month periods ("Renewal Terms") unless either party provides the other party written notice of its intent not to renew at least 30 days before the end of the current term. If you terminate this Agreement before the end of the Term or Renewal Term, you agree to pay to MHO a termination fee of $299 divided by the number of months in the Term multiplied by the number of months remaining at the time of termination. Upon termination of this Agreement, you will not attempt to utilize or utilize the Equipment to connect to, or otherwise utilize the Services or assist any third party to connect to or utilize the Services.
4. PAYMENT TERMS.
4.1 You agree to pay for the Equipment and Services and all other charges described in this Agreement, including the Work Order, and to comply with all of the terms and conditions of this Agreement. You will pay MHO's invoice(s) in U.S. currency by the invoice due date. You will pay any applicable sales, use, excise and like taxes that are stated separately on each invoice. If you fail to pay all valid charges for the Services when due, MHO may charge you interest on those charges equal to the lesser of 1½% per month or the maximum rate allowed by MHO tariff(s) or by law.
4.2 You agree to pay for the Equipment and the Services by the use of a valid credit card or an automatic withdrawal from your checking account, provided that MHO may elect to implement new payment policies, in its sole discretion at any time. You agree that all Service Charges, and if applicable, late fees, reconnection charges and all applicable fees and other taxes will be collected automatically through the existing method of payment.
4.3 If you fail to pay any amounts owing to MHO within 30 days, MHO will have the absolute right to disconnect the Services without notice. Upon disconnection, you agree to immediately pay all amounts owing to MHO.
4.4 You may in good faith withhold payment of any disputed charges. You agree to pay all undisputed charges. A charge is not "disputed" until you provide MHO with written explanation of the disputed charge. You agree to cooperate with MHO to resolve any disputed charge expeditiously. If MHO in good faith determines that the disputed charges are indeed valid, you agree to pay the charges within 10 days after being notified of this determination by MHO.
4.5 You authorize MHO to perform a credit check prior to providing Equipment or the Services. MHO may refuse to provide Equipment or the Services or may require a security deposit based on your credit standing. If a security deposit for the Services or Equipment is required, MHO will hold the deposit as partial guarantee of payment. The deposit cannot be used by you to pay any bills or to delay payment. 90 days after termination of this Agreement, any remaining deposit will be returned to you without interest after deducting any charges owed by you to MHO.
4.6 MHO will have the right to convert the monthly Service Charge to a usage based billing system ("Usage Based Billing") by delivering to you a written notice or electronic mail that MHO intends to commence usage based billing.
4.7 Subject to availability, MHO may offer to you additional services, subject to terms and conditions of MHO's current price list.
5. SERVICE INTERRUPTIONS.
5.1 Although MHO will make commercially reasonable efforts to maintain the Services, you may experience service interruptions. MHO assumes no responsibility or liability for interruption of the Services, whether due to (without limiting the generality of the foregoing):
5.1.1. Failure or of any part of the Services for any reason, whether related to hardware, software, wiring or any other equipment;
5.1.2. Interruptions due to periodic testing or system alterations, including modifications to Equipment;
5.1.3. Power failures, riots, civil unrest, acts of war, or acts of God, including hurricanes, floods, ice, wind, lightning, and accidents; or
5.1.4. Regulations, orders, decisions or acts of any lawfully constituted authority or court.
6. SERVICE AND REPAIRS; LIMITED WARRANTY.
6.1 MHO assumes no responsibility and is not responsible for the operation, maintenance, or repairs of your computers or existing wiring or other equipment.
6.2 If MHO damages the Premises during the Services' installation or maintenance, MHO will compensate the owner of Premises for reasonable, actual and documented costs of necessary repair, not to exceed $1,000.
6.3 MHO will provide you, the original purchaser, with a limited warranty of the modem, transceiver and installation thereof during the Term of this Agreement or 12 months, whichever is greater. Pursuant to this warranty, if a problem develops with the modem, transceiver or installation thereof, MHO will repair or replace the affected modem, transceiver, and/or correct the installation problem at no charge to you. This warranty excludes any damage to the modem or transceiver resulting from Customer abuse or negligence and/or Acts of God, as determined solely by MHO. If you sell the modem or transceiver during the Term or thereafter, the warranties provided herein will immediately terminate. Any other equipment will be covered by manufacturer's warranties and will not be separately warranted by MHO.
6.4 Any repair or replacement of the Equipment and/or correction of an installation problem following the expiration of this Agreement will be the responsibility of the customer. Any services performed by MHO at that time will be at the then-current MHO hourly rate and/or list price.
6.5 If the Equipment contains software, you understand and agree that:
6.5.1 You are granted a personal, nontransferable and nonexclusive right to the use of software for your own business purposes;
6.5.2 No title to the software is being transferred
6.5.3 The software will not be reproduced or copied in whole or in part except as necessary for authorized use, and such copy shall contain the same copyright notice and proprietary marketing as appears on the original; and
6.5.4 You will not reverse engineer, de-compile or disassemble the software.
7. ACCEPTABLE USE POLICY.
7.1 When you use the Services for Internet access, you must protect the MHO network by either disabling or password protecting file and print sharing on your computer(s) or have a firewall solution that prohibits unauthorized access to your computer. When using the Service, you may not:
7.1.1 Restrict or inhibit any other user from using the Internet;
7.1.2 Post or transmit any unlawful, threatening, abusive, libelous, defamatory, vulgar, obscene, indecent, profane, hateful, bigoted or otherwise objectionable information of any kind, including without limitation any transmissions, constituting or encouraging, conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation US export control laws and regulations;
7.1.3 Post or transmit any information or software that contains a virus, trojan horse, worm or other harmful component;
7.1.4 Post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through Services for commercial purposes;
7.1.5 Upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other materials, or other proprietary right, or derivative works without obtaining permission of the copyright owner or right holder;
7.1.6 Upload, post, publish, reproduce, transmit or distribute in any way any component of the Services or derivative works, as Services are copyrighted as a collective work under US copyright laws;
7.1.7 Remove or alter copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;
7.1.8 Avoid, bypass, remove, deactivate or circumvent by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;
7.1.9 Send unwanted or unsolicited e-mail that causes complaints from the recipients of the unwanted or unsolicited e-mail;
7.1.10 Send large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as "spamming" or "mailbombing");
7.1.11 Make any unauthorized attempt to gain access to any account or computer resource not belonging to that user
7.1.12 Attempting to send e-mail or newsgroup articles or postings using a name or address of someone other than yourself, attempting to impersonate any person or using forged headers or other identifying information.
7.1.13 Engage in conduct which interferes with MHO's ability to provide the Services or interferes with the rights of others including, but not limited to hacking, circumvention of user authentication or security of any host network, or account, "denial of service" attacks (port scans, flooding of networks, deliberate overload attempts, etc.);
7.1.14 Can or probe the security of the MHO or any other network for any purpose whatsoever by the use of packet sniffers, siphons, decoders or other methods;
7.1.15 Obtain or attempt to obtain Services by any means or device with intent to avoid payment;
7.1.16 Unauthorized access, alteration, destruction, or any attempt, of any information of any MHO customers or end-users by any means or device;
7.1.17 Use MHO's products and services to interfere with the use of the MHO network by other customers or authorized users;
7.1.18 Violate the law or aid another in any unlawful act;
7.1.19 Resell the Services or any other MHO service to any third parties without prior express written consent from MHO;
7.1.20 Engage in any commercial or business activities using a residential account without prior express written consent from MHO;
7.1.21. Run programs or servers that provide network services to others through the Services which includes, but is not limited to, web hosting, multi-user interactive forums, game servers, operating an internal mail/http/ftp/irc/dhcp server to serve external connections or support multi-user interactive forums;
7.2 You are responsible for ensuring that your usage of the Services does not improperly restrict, degrade or adversely affect any other user's use of the Services, nor represent, in MHO's sole judgment, an unusually large burden on the network itself. You must comply with the then current bandwidth, data storage and other limitations on the Services. If MHO determines that your account is exceeding the bandwidth limits, you will be notified by e-mail. If the excess use continues for more than 10 days, the Services may be suspended or terminated. If excessive bandwidth utilization is determined by MHO to adversely affect MHO's ability to provide the Services for its other customers, immediate action may be taken to alleviate the problem. In such event, you will be notified by e-mail as soon as practicable.
7.3 Except for information, products or services clearly identified as being supplied by MHO, MHO does not operate or control any information, products or services on the Internet.
7.4 The Internet contains unedited materials that may be offensive or objectionable to you. You access these materials at your own risk. MHO has no control over and accepts no responsibility for these materials. Customer may wish to utilize software designed to limit access to certain material on the Internet.
7.5 IF AT ANY POINT IN TIME MHO DISCOVERS THAT THE CUSTOMER IS 'SHARING' THEIR NETWORK CONNECTION, WITHOUT THE EXPRESS PERMISSION OF MHO, THEN THE CUSTOMER WILL BE SUBJECTED TO A $10,000.00 FINE PLUS ANY LEGAL FEES.
7.6 YOU UNDERSTAND THAT YOU MAY BE HELD LIABLE BOTH UNDER CIVIL AND CRIMINAL LAW FOR INFRINGEMENTS OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. YOU MAY BE HELD LIABLE FOR ALL ACTUAL DAMAGES AND PROFITS, ATTORNEY'S FEES, COSTS, OR THE COURT MAY AWARD STATUTORY DAMAGES UNDER THE COPYRIGHT ACT. CRIMINAL LIABILITY CAN ALSO INCLUDE FINES AND IMPRISONMENT.
7.7 MHO may take any action it deems appropriate without notice to protect the Services and its facilities for provision of the Services. If MHO denies you access to the Services pursuant to this Section, you will have no right: (I) to access through MHO any materials stored on the Internet, or (ii) to access third party services, merchandise or information on the Internet through MHO, and MHO will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility to any consequences resulting from lack of notification.
7.8 MHO has no obligation to monitor the Services. You agree that MHO has the right to monitor the Services electronically from time to time, and you consent to MHO's access, use and disclosure of any information as necessary to satisfy any law, regulation or other governmental request, to operate the Services properly, to improve the Services, or to protect itself or its customers. MHO reserves the right to refuse or to remove any information or materials, in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Agreement.
7.9 If you wish to make purchases on the Internet, you may be asked by the merchant or service provider from whom you are making the purchase to supply certain information, including credit card or other payment mechanism information. You agree that all information you provide any merchant or information or service provider on the Internet for the purposes of making purchases will be accurate, complete and current. The merchants and information and service providers offering merchandise, information and services on the Internet set their own prices and may change prices or institute new prices at any time. You agree to pay all charges incurred by users of your account and credit card or other payment mechanism at the prices in effect when the charges are incurred. You also will be responsible for paying any applicable taxes relating to purchases on the Internet.
Section 8. USE OF PERSONAL IDENTIFIABLE INFORMATION.
8.1 You understand and agree that MHO's network gathers information about Internet usage such as the sites visited, session lengths, bit rates and number of messages and bytes passed. MHO uses this information in the aggregate. MHO may share this aggregated information with other parties from time to time. MHO will not use or disclose any personal identifiable information regarding Internet usage unless compelled by a court order or subpoena or You consent to the use or disclosure or to protect MHO's Services and facilities.
Section 9. LIABILITY AND INDEMNIFICATION.
9.1 MHO AND ITS SUBCONTRACTORS WILL NOT BE LIABLE FOR ANY LOSS OF DATA OR DAMAGE TO HARDWARE THAT OCCURS DURING INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICES. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO COMPLETELY BACKUP YOUR COMPUTER BEFORE INSTALLATION. YOU FURTHER AGREE THAT MHO OR ITS SUBCONTRACTORS ARE NOT RESPONSIBLE FOR ANY PROBLEMS WITH YOUR COMPUTER AFTER INSTALLATION OF OR ANY SUBSEQUENT SERVICE PERFORMED ON YOUR COMPUTER IN SUPPORT OF THE SERVICES.
9.2 MHO is not liable in contract or tort for unauthorized access by a non-MHO individual or entity to customer's transmission facilities or customer premise equipment, or for unauthorized access to, or alteration, theft, or destruction of customer's data files, programs or other information through accident, wrongful means or any other cause.
9.3 YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CAUSE, INCLUDING MHO'S OR ITS SUBCONTRACTOR'S NEGLIGENCE, WILL BE A REFUND OF ANY SERVICES, CHARGES AND FEES PAID TO MHO UP TO THE TIME THE DAMAGE IS DISCOVERED. NEITHER MHO NOR ITS SUBCONTRACTORS WILL BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DAMAGES TO PROPERTY, OR LOSS OF BUSINESS.
9.4 THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. ANY WARRANTIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE FOR PARTICULAR PURPOSE OF WARRANTIES OF NON-INFRINGEMENT. NO MHO ADVICE OR INFORMATION GIVEN WILL CREATE A WARRANTY. NEITHER MHO NOR ITS AFFILIATES WARRANT THAT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9.5 IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE, PROVIDED THROUGH SERVICES OR ON THE INTERNET GENERALLY. MHO, ITS AFFILIATES OR ITS SUBCONTRACTORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM YOUR USE OF OR INABILITY TO USE SERVICES OR TO ACCESS THE INTERNET OR YOUR RELIANCE ON OR USE OF OFFERS, CLAIMS, REPRESENTATIONS, PROMOTIONS AND TRANSACTIONS, INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE INTERNET OR INTERNET SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE.
9.6 You agree that you will properly use the Services and will not, nor will it permit or assist others to, use the Services for any purpose other than their intended purpose, fail to maintain a suitable environment according to the manufacturer's specifications, or tamper with the Services. If you fail to comply with this Section, you will release MHO from all liabilities or obligations (including any warranty or indemnity obligation) to you under this Agreement and you will pay MHO all costs or damages MHO incurs. If any person not a party to this Agreement makes any claim against MHO, its affiliates or its subcontractors, relating to Equipment or the Services that are the subjects of this Agreement, or arising out of the use of the Equipment or the Services by you or an authorized user of your account, including the placement or transmission of any message, information, software or other materials on the Internet, you agree to indemnify and hold MHO, its affiliates and subcontractors harmless from any and all such claims and lawsuits, including the payment of all damages, expenses, costs and reasonable attorney's fees..
9.7 The limitations on liability and indemnification provisions expressed in this Agreement will inure to the benefit of and apply to MHO's parent, subsidiary and affiliated companies, and to any subcontractors performing work on MHO's behalf.
9.8 This Section 9 will survive any termination of this Agreement.
Section 10. MISCELLANEOUS.
10.1 You agree to notify MHO in writing of any change of occupancy or ownership or tenancy. If you vacate the Premises, this Agreement will be subject to termination and MHO will have the right to disconnect the Services.
10.2 You warrant that you own the Premises to which Services will be provided, or you have obtained the valid consent of the owner for any necessary changes to the Premises or with the Premises wiring that arise out of the installation, maintenance, repair and removal of Equipment. In addition, Customer has reviewed any restrictive covenants or homeowners restrictions ("Restrictions") to confirm that Customer may place an antenna on the Premises. If it is later determined that the installation of the RF Equipment violates any Restrictions or that Customer failed to obtain appropriate permission, MHO may immediately terminate this Agreement and discontinue the Services. Customer agrees to hold harmless MHO for any damages or losses caused by your (I) failure to comply with the Restrictions or (ii) failure to secure appropriate permission. MHO may in its discretion, require evidence that Customer has obtained appropriate permission.
10.3 You agree that you will not permit or assist others to abuse or fraudulently use the Services, including, but not limited to, unauthorized or attempted access, alteration, or destruction of another MHO customer's information, or using the Services that cause interference with another customer's or authorized user's use of the MHO network. Illegal and unauthorized attachments to its facilities are costly to MHO and may create interference and a degradation of the Services to other customers. MHO will be obligated to seek legal redress and assist in the criminal prosecution in matters involving illegal and unauthorized connections and attachments and injury to its wiring or facilities.
10.4 MHO's failure to enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice will act to modify any provision of this Agreement.
10.5 This Agreement will be governed by applicable federal laws and regulations and the laws of Colorado excluding choice of law principles.
10.6 MHO will assign to you an Internet Protocol address from the address spaces assigned to MHO ("IP Address"). You acknowledge that the IP Address is the exclusive property of MHO, is assigned to you as a service by MHO, and is not portable. MHO reserves the right at its sole discretion to change the IP Address assignment scheme at any time during the Term of this Agreement without prior notice and without liability. MHO will use reasonable efforts to avoid any disruption to you resulting from any renumbering requirement by notifying you via e-mail before the change. You agree that any IP Addresses provided by MHO will be returned to MHO on the termination date of this Agreement.
10.7 With e-mail notification, MHO reserves the right to charge for customer calls into technical support or for on-site technical support.
10.8 Additional services may be offered as available and may be subject to service specific terms and conditions and pricing.
10.9 Subject to availability, MHO will support and charge for the connectivity of multiple computers to a single connection. MHO may install wiring for additional computers, setup a hub purchased from MHO, and configure computers for Internet connectivity. MHO will not support file and print sharing or other local area network functionality.
10.10 In accepting this Agreement, you are not relying on any representations or promises not in this Agreement. When signed by the parties, this Agreement together with the Work Order will constitute the parties' entire understanding regarding Equipment and the Services; and supersedes all agreements or discussions, oral or written, regarding the Equipment and the Services, unless explicitly in this Agreement.
10.11 MHO is an independent contractor under this Agreement. The parties' relationship and this Agreement will not constitute or create an association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates.
10.12 If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party.
10.13 This Agreement's benefits do not extend to any third party, unless expressly stated in this Agreement. MHO may assign this Agreement without your prior written consent if: (I) the assignment is to a successor in interest, by merger, operation of law, or by assignment, purchase, or otherwise of MHO's entire business, or (ii) the assignment is to the parent, affiliate or subsidiary of MHO.
10.14 Neither party will use the name, service marks, trademarks, or trade secrets of the other party or any of its affiliates for any purpose, including, but not limited to, press releases, without the other party's written consent.
10.15 MHO may modify this Agreement at any time. Notice to you will consist of updating the Terms and Conditions on the MHO DirectWave™ website (http://www.mho.net/info/legal.asp) or sending an e-mail to your primary MHO Services address.
10.16 You grant to MHO or any appointed subcontractors an irrevocable license to enter into or onto your Premises during normal business hours, Monday through Saturday, in order to install, repair, replace or remove Equipment. This license will survive termination or cancellation of this Agreement and will run with the land and inure to the parties' successors and assigns.
10.17 If You change your address, You will notify MHO in writing of your new address before the move and You will remain liable for all of its obligations under this Agreement. You agree to pay the standard MHO transfer charges plus any additional payments required for installation of Equipment at Customer's new location.