Inyo Networks, Inc., with an office at 10621 Church Street, Suite 100, Rancho Cucamonga, CA 91730 ("Inyo Networks"), has adopted the following terms and conditions (“Terms”) for providing the framework to govern customer’s, as named on the Service Agreement(s) (“Customer”), use, purchase and ordering of certain communication services from Inyo Networks. Inyo Networks and Customer may each be referred to herein as a “Party” and collectively as the “Parties.”
These Terms, along with the Service Agreement(s) (defined below), Acceptable Use Policy, any exhibits, attachments, and any filed tariff(s), comprise the entire agreement between the Parties (“Agreement”) all of which, excluding the individual Service Agreement, may be found at www.inyonetworks.com.
Please read these Terms carefully, prior to signing any Service Agreement(s), as Customer’s access and use of Inyo’s cable television and other video delivery service, Internet service, voice service and other such services as Inyo Networks may determine are ancillary to the applicable offering (each a “Service” and collectively the “Services”) is conditioned upon its acceptance of these Terms which attached to and become a part of the Service Agreement(s) executed between Inyo Networks and Customer.
Customer's use of the Services shall be deemed acknowledgment that Customer has read and agreed to these Terms and the Acceptable Use Policy. Any user who does not agree to be bound by these terms should immediately stop their use of the Service(s) and notify Inyo Networks’ Customer Service to terminate the account.
1. ORDERING OF SERVICE
1.1. Service Agreement: Customer may, from time to time, request Inyo Networks provide it with Services as further
delineated, and agreed to, in an order (“Service Agreement”). Customer is solely responsible for the accuracy of the information provided in the Service Agreement(s). Inyo Networks agrees to provide to Customer, and Customer agrees to procure from Inyo Networks the Service(s) at the location(s) set forth in the applicable Service Agreement. Each Service Agreement shall clearly set forth the type of Service(s), location(s), monthly recurring charge (“MRC”), non- recurring charge (“NRC”), as well as any additional specific terms for the Service(s).
1.2. Service Term: The term for the Service(s) will commence once all Services ordered, under such Service Agreement, are delivered to the Customer and will continue on a month-to-month basis until either Party provides the other with thirty (30) day notice of its desire to terminate (“Service Term”). Inyo Networks shall use commercially reasonable efforts to deliver the Service(s) to Customer on the date set forth in the Service Agreement(s); however, Inyo Networks does not guarantee that Service will be installed and provisioned on such date. Customer is responsible for providing all reasonable information, authorizations, and access required by Inyo Networks for the purpose of performing installation, maintenance and repair of the Service(s).
2. GENERAL COMMERCIAL TERMS
2.1. Commencement of Billing: Upon installation and testing of the ordered Service, Inyo Networks will deliver to Customer a notice that such Service is installed, meets the agreed upon specifications, and is ready for Customer’s use (“Acceptance Date”). The Acceptance Date occurs per Service, per location, and billing shall commence for such Service on its respective Acceptance Date. The Acceptance Date is not contingent upon Customer’s need to procure equipment, support or other services from a different provider.
2.2. Payment of Invoices: Invoices are sent monthly for the Service(s) currently being used. All invoices are due for payment within thirty (30) days of the invoice date. Past due amounts bear interest at a rate of 1.5% per month, or the highest rate allowed by law, whichever is less, and continue to accrue until paid in full. Inyo Networks shall be entitled to recover all costs of collection of past due amounts, including without limitation, reasonable attorneys’ fees.
2.3. Billing Disputes: Customer must notify Inyo Networks in writing of any disputed charge within one hundred and twenty (120) days from the date of the invoice, unless applicable law requires a longer period. Any charge not disputed within said 120-day period will be deemed correct and Customer will be deemed to have waived its right to dispute the same. Inyo Networks will review any disputed charge, respond to all complaints within five (5) business days of the receipt of the complaint, unless an investigation requires a search of historical records in which case we will respond within fourteen (14) business days and, as appropriate, credit Customer’s account for any charge erroneously billed to Customer.
2.4. Taxes and Fees: Taxes, surcharges, fees, universal service fund charges associated with the Service, and other payments contractual or otherwise, are not included in the MRC stated in the Service Agreement and will be billed and paid by Customer as separate line items to the extent imposed on a pass-through basis without mark-up of any kind whatsoever. Customer shall not be liable for any taxes, fees, or other charges based upon Inyo Networks’ income.
3. CUSTOMER OBLIGATIONS
3.1. Customer’s Equipment: Customer is responsible for connectivity to the Service(s) and any inside wiring, facilities, or equipment located on Customer’s side of the Service will, at all times, be installed, maintained, repaired, operated, controlled, and remain the sole and exclusive property of Customer (“Customer’s Equipment”). Customer must procure and maintain, at its sole cost and expense, Customer’s Equipment to be technically compatible with the Service(s) delivered.
3.2. Security: Customer shall be solely responsible for all the security and confidentiality of information it transmits using a Service. Inyo Networks exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer’s Equipment, and use of any such Service is at Customer's own risk. Customer is responsible for payment of any charges incurred due to fraud, abuse, or misuse of the Services, whether known or unknown, to Customer. It is the Customer’s obligation to take all measures to ensure against such occurrences. Customer shall be solely responsible for its, or third parties’, improper use of the Service in violation of any applicable law or in violation of any provision of the Agreement.
3.3. Inyo Networks’ Supplied Equipment: It is Customer’s obligation, and at its sole expense, to provide for space any equipment Inyo Networks installs at the Customer’s location (“Inyo Networks’ Supplied Equipment”). Customer will be responsible for providing and maintaining, at its own expense, the proper environment for all Inyo Networks’ Supplied Equipment. In the event Customer fails to do so, Customer shall reimburse Inyo Networks for the actual cost of repairing or replacing any of Inyo Networks’ Supplied Equipment damaged or destroyed as a result of Customer's failure. Except as otherwise agreed, title to all of Inyo Networks’ Supplied Equipment shall remain with Inyo Networks. Inyo Networks will provide and maintain Inyo Networks’ Supplied Equipment in good working order. Customer shall not, and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any of Inyo Networks’ Supplied Equipment without the prior written consent of Inyo Networks. Inyo Networks’ Supplied Equipment shall not be used for any purpose other than that for which Inyo Networks provides. Customer shall not take any action that causes the imposition of any lien or encumbrance on Inyo Networks’ Supplied Equipment. In no event will Inyo Networks be liable to Customer or any other person for interruption of Service or for any other loss, cost or damage caused or related to improper use or maintenance of Inyo Networks’ Supplied Equipment by Customer or third parties provided access to the Inyo Networks’ Supplied Equipment by Customer in violation of these Terms. Customer shall reimburse Inyo Networks for any damages incurred as a result thereof. Customer agrees, which agreement shall survive the expiration, termination or cancellation of these Terms or of any Service Agreement, to allow Inyo Networks to remove Inyo Networks’ Supplied Equipment from the Customer’s location(s) after termination, expiration or cancellation of the Service Term; or during the Service Term, for repair, replacement or otherwise as Inyo Networks may determine is necessary or desirable, but Inyo Networks will use commercially reasonable efforts to minimize disruptions to the Service caused thereby.
3.4. Access to Customer’s Location(s): As a condition to Inyo Networks’ obligation to provide and maintain the Service hereunder, Customer shall provide Inyo Networks access to Customer’s location(s) for the installation, inspection and scheduled or emergency maintenance of Inyo Networks’ Supplied Equipment. If Inyo Networks requires access to Customer’s location(s) for maintenance, which is not an emergency event, Inyo Networks will provide Customer with two (2) business days’ prior notice. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions at the Customer’s location(s). To facilitate Inyo Networks access for regular and emergency service, Customer shall provide Inyo Networks the contact name and telephone number(s) where such contact can be reached on a 24 X 7 X 365 basis. It is the obligation of the Customer to keep this contact information up to date.
4. Cable Television: In the event Customer orders the Service of cable television from Inyo Networks, the following additional terms and conditions apply:
4.1. In addition to providing video programming and video-related services, Inyo Networks’ Supplied Equipment may
provide Customer access to purchase or order additional programming or access other services and transact other forms of electronic commerce such as purchasing third party products and services. Customer acknowledges that charges incurred as a result of accessing certain information, or purchasing or subscribing to certain offerings using such service, shall be paid by Customer, including applicable taxes, and in no event, is Inyo Networks’ liable for such payment or use.
4.2. Inyo Networks’ has no obligation to provide, and Customer has no right to receive, any particular programming service or channel as part of the Service of cable television. Additionally, Customer acknowledges that it is not purchasing such Service in reliance of an expectation or promise (explicit or implicit) that any particular programming service or channel is included as part of the Service of cable television from Inyo Networks. If a particular program or channel becomes unavailable, either on a temporary or permanent basis, Inyo Networks shall not be liable for compensation, damages (including compensatory, direct, indirect, incidental, special, punitive or consequential losses or damages), credits or refunds of fees for the missing or omitted programming. Customer's sole recourse in such an event shall be termination of the Service in accordance with these Terms, thirty (30) day prior written notice.
5. Default: A default shall occur under the Agreement if: (a) the Customer failures to pay any amount by the due date provided on the applicable invoice, and Customer continues to fail to pay such amount within ten (10) days after Inyo Networks notifies Customer in writing of such nonpayment, (b) any other material breach of the Agreement, which is not cured with-in thirty (30) days of receipt of written notice thereof; provided, however, a default shall not have occurred if the relevant Party has taken actions to cure within said time period and thereafter diligently pursues such actions to complete the cure, (c) Customer makes a material misrepresentation in any submission to Inyo Networks, (d) Customer violates Inyo Networks’ Acceptable Use Policy, or (e) a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankrupt-cy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; or an involuntary petition in bankruptcy or other insolvency protection is filed against either Party and not dismissed within one hundred twenty (120) days thereafter. In the event of any default, the non-defaulting Party may: (a) take such actions as it determines, in its sole discretion, necessary to correct the default; (b) terminate the Service and the applicable Service Agreement; and/or (c) pursue any legal remedies it may have under applicable law or principles of equity, including specific performance.
6. Prohibited Uses and Activities: Customer shall not use any Service or Inyo Network's Supplied Equipment for illegal or inappropriate activities or otherwise engage in any illegal or inappropriate activities in their course of dealings with Inyo Networks. If Customer violates any applicable laws, statutes, or other legal requirements with respect to a Service, or if Customer’s use of a Service interferes with or impairs Inyo Networks, or creates a risk of injury to any person or property damage, Inyo Networks may block Customer’s signals or suspend the Service. Inyo Networks will notify Customer immediately when such blockage or suspension occurs. Both Parties shall work diligently to restore the affected Service.
7. Disruption of Service: In no event shall Inyo Network be liable for any failure or interruption of any Service resulting in part or entirely from circumstances beyond Inyo Network's s reasonable control (including without limitation, any interruption or degradation of Service arising from Customer's interference, modification or tampering with the Service of digital receiver connection). Subject to requirements under applicable law, credit may be given for qualifying outages.
8. Limitation of Liability: NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES OR THE COST OF PURCHASING REPLACEMENT SERVICES, ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT REGARDLESS OF THE FORESEEABILITY THEREOF EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. ANY INFORMATION SENT BY CUSTOMER UTILIZING THE FUNCTIONS OF SERVICE(S) IS SENT AT CUSTOMER'S SOLE RISK, AND INYO NETWORKS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO SUCH ACTIONS BY CUSTOMER. CUSTOMER’S RIGHT TO CREDITS AS PROVIDED IN THESE TERMS SHALL BE CUSTOMER’S SOLE REMEDY FOR DAMAGES WITH REGARD TO ANY ERRORS, LOSSES, OUTAGE, OR INTERRUPTIONS IN ANY SERVICE OR ANCILLARY FEATURE OF A SERVICE. CUSTOMER’S SOLE REMEDY FOR ANY UNCURED BREACH OF THESE TERMS IS TO TERMINATE THE USE OF SERVICE WITHOUT PENALTY. INYO NETWORKS’ LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER, FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS INVOICED TO CUSTOMER BY INYO NETWORKS DURING THE MONTH PRIOR TO THE OCCURRENCE OF ANY CLAIM. IN THE EVENT OF CUSTOMER’S MATERIAL BREACH OF ANY PROVISION OF THESE TERMS, INYO NETWORKS, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO IT HEREUNDER, AT LAW, IN EQUITY, OR UNDER ANY APPLICABLE TARIFF, MAY SUSPEND OR TERMINATE THE PROVISION OF SERVICE TO CUSTOMER.
9. Disclaimer of Warranties: INYO NETWORKS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INYO NETWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Force Majeure: Neither Party is liable for any failure of performance nor shall any credit allowance or other remedy be extended, for any failure of performance due to any cause or causes beyond such Party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, power outages or failure, war, revolution, civil commotion, acts of public enemies, terrorism or national emergency, governmental action or inaction (such acts including without limitation any regulatory or administrative decisions making said performance or obligation economically or technically unfeasible), condemnation or the exercise of rights of eminent domain, labor difficulties, failure of any third party, including any other carrier or supplier, to provide services, facilities or equipment required for such performance or obligation, or any other act or omission by said third party. Either Party’s invocation of this clause shall not relieve Customer of its obligation to pay for any Services provided to Customer prior to the force majeure event. In the event Inyo Networks is unable to deliver Service for seven (7) consecutive days as a result of any force majeure event, Customer shall not be obligated to pay Inyo Networks for the affected Service for so long as Inyo Networks is unable to deliver; provided, however, that the Service Term of such Service shall be extended for the period of time that the force majeure event continues.
11. Indemnification: Subject to the limitations set forth in Section 8 above, each Party shall indemnify and hold harmless the other Party, its employees, agents, officers and directors from and against all liabilities, claims, damages, losses, costs, expenses and judgments, including reasonable attorneys’ fees, and causes of action arising out of the negligence or willful misconduct of the indemnifying Party in the performance of, or related to the indemnifying Party’s duties or obligations under the Agreement or any Service Agreement. In addition, Customer will indemnify, hold harmless, and defend Inyo Networks and its affiliates, and their respective officers, directors, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever, including reasonable attorneys’ fees, arising out of or in connection with (a) any and all costs, claims, taxes, charges, and surcharges levied against Inyo Networks relative to Customer’s claim for tax exempt status with respect to Taxes to the extent that such exempt status is not found to be valid, (b) any liens placed on Inyo Networks’ provided Customer premises equipment due to Customer’s action or inaction, (c) personal injury or death or damage to property related to Customer’s failure to meet any 911/E911 requirements or agreements or the failure to give end users appropriate warnings if VoIP services are provided by Inyo Networks, or the failure to maintain the necessary databases, (d) claims by Inyo Networks or third parties for damage to real or tangible personal property or for bodily injury or death which is caused by Customer and is directly due to Customer’s negligence or willful misconduct or which is caused by hazards created by Customer’s equipment or facilities, and (e) Customer’s improper use of the Services and/or Customer’s end-users or third parties improper use of the Services, resale, or sharing of the Services in violation of any applicable law or in violation of any provision of these Terms.
12. Governing Law: Inyo Networks has filed, or may elect to file, with the appropriate regulatory agency(ies), tariffs respecting the delivery of certain Service(s). Tariff(s) are, or upon filing will be deemed to be, incorporated herein by this reference and made a part hereof and, upon posting on Inyo Networks’ website, will be incorporated herein by this reference. Such tariff(s) in effect at the time of the Service Agreement, is binding upon all Services ordered by Customer, and in the event such provisions are inconsistent with the terms of a Service Agreement the terms set forth in the applicable tariff shall control. The Agreement shall be governed and interpreted under the laws of the State of California, without regard to California’s conflict of law principles. The Parties agree that any action related to the Agreement shall be brought under the jurisdiction and venue of the State of California, County of San Bernardino regardless of the appropriateness of any other jurisdiction. The Parties agree that any claims, actions, disputes or controversies of any kind arising out of the Agreement shall be adjudicated in the State of California County of San Bernardino.
13. Prevailing Party: If suit is brought, by either Party, to enforce the Agreement, the prevailing Party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred.
14. Confidentiality: During the course of the Parties’ relationship, either Party may have access to certain information, the ownership and confidential status of which is highly important to the other Party and is reasonably designated by one of the Parties as confidential (herein referred to as “Confidential Information”). The Each Party shall use the highest degree of care in safeguarding the other’s Confidential Information against loss, theft, or other inadvertent disclosure and take all steps necessary to maintain such confidentiality. The Parties agree that neither shall publish, communicate, disclose or cause to be published, communicated, or disclosed in any manner whatsoever or to any person whatsoever, such Confidential Information, except information that is: (a) publicly available other than through a breach of the Agreement, (b) lawfully in the possession of the recipient before disclosure by the other Party and is not otherwise subject to a confidentiality undertaking, (c) obtained through a third party that is free to disclose it, and (d) required by law to be disclosed and then only to the extent legally permissible, and only after reasonable advance notice to the disclosing Party.
15. Insurance: During the Service Term, each Party shall obtain and maintain not less than the insurance coverage as required by statute or as standard within the Party’s industry. Such insurance coverage will not limit the liability of either Party.
16. Entire Agreement: These Terms, any tariff(s), Inyo Networks’ Acceptable Use Policy, and Service Agreements are attached to and incorporated by reference herein, and constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings, and agreements with respect hereto, whether oral or written, and the terms of any Customer paper issued in connection with these Terms. Customer has been provided with the opportunity to review and negotiate the Agreement and consult counsel; therefore, in the event of any ambiguities, no inferences shall be drawn against Inyo Networks.
17. Severability: In the event any language contained in these Terms is held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of these Terms shall in any way be affected thereby.
18. Amendments: These Terms may be amended only by a written instrument executed by the Parties.
19. Waiver: No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power, or privilege hereunder shall operate as a waiver thereof, except as expressly provided herein.
20. Relationship to Parties: The Parties shall perform all of their duties under these Terms as independent contractors or independent parties and shall discharge their contractual obligations at their own risk, subject, however, to the terms and conditions thereof. The relationship between the Parties shall not be deemed to be that of an agent and principal, partners, or joint venturers, and nothing contained in these Terms shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to, tax purposes. The Parties understand and agree that, except as specifically provided in these Terms, neither Party grants the other Party the power or authority to make any commitments on behalf of the other Party.
21. Notices: All notices, demands, requests, or other communications which may be, or are required to be, given or served, or sent by any Party to any other Party pursuant to these Terms, or the Agreement, shall be in writing and will be deemed to have been duly delivered or given when: (i) delivered by hand, with written confirmation of receipt, before 5:00 p.m. PST on a business day, or otherwise on the next succeeding business day; (ii) sent by facsimile before 5:00 p.m. PST on a business day, or otherwise on the next succeeding business day, and a written confirmation of the transmission is received by the sender; or (iii) the next business day after being deposited for delivery with a nationally recognized overnight delivery service, such as Federal Express, and addressed or sent, as the case may be, to the appropriate addresses or facsimile numbers set forth on the cover sheet. All notices to Customer under these Term, or the Agreement, may also be delivered by bill message or insert incorporated in or with the Customer’s invoice by its normal means of transmission. Customer’s notices will be sent to the address provided on the Service Agreement, and in the event of multiple addresses, to the billing address. In the case of a notice to Inyo Networks, all notices shall be sent to 10630 Town Center Drive, Rancho Cucamonga, CA 91730, to the attention of Nick Keller President/COO. Each Party may designate by written notice a new address, to which any notice, demand, request or communication may thereafter be so given, served or sent.
22. Emergency 911 Service (“911” also known as Enhanced 911): 911 is a system used to link emergency calls with the appropriate public resources corresponding to the address of record on Customer’s account. However, because of the unique nature of VoIP telephone calls, emergency calls to 911 through Customer’s VoIP Service will be handled differently than traditional phone service and could result in delays of emergency resources. In the event Customer orders VoIP Service, a separate acknowledgement will be explained and signed by Customer.
23. Battery Backup Power: In the event Customer selects VoIP Service, Inyo Networks will provide Customer a backup power solution that offers twenty-four (24) hours of standby backup power. Inyo Networks will maintain and replace the battery and will provide Customer with instructions for testing in a separate acknowledgment that will be signed by the Customer at the time of installation.