Protection Plan Agreement
Definitions: "we", "us" and "our" refers to [Smithville Telecom, LLC, an Indiana Limited Liability Company] "you" and "your" refers to you as our customer. "terms" means these general terms and conditions. "service(s)" refers to any maintenance services provided by us to you based on the maintenance plan selected by you. "equipment" means any hardware or software we use or provide to you in connection with services.
Our duties. Subject to these terms, we will provide you services and you will pay for those services. We reserve the right to amend or modify these terms by giving you notice of such revisions. You agree that your failure to cancel all services within ten (10) days after receiving notice of revised terms will signify your agreement to those revised terms. It is hereby acknowledged and agree that the services or the maintenance plans identified above shall not include: (a) repair of any equipment or facilities owned by you, such as televisions, monitors, dvd players, sound systems and personal computers; (b) installation of new jacks or connectors at new locations on your premises; (c) extensions located in detached structures and outbuildings; (d) willful damage or destruction, harm resulting from abuse, or harm or damage that is a direct or indirect result of your negligence or willful misconduct; or (e) pendant or wrist alerts for the personal security service, which must be purchased in advance and are your property. We will determine the source of service trouble and repair or replace any and all defective, damaged or improperly operating standard inside wire or standard jacks at no charge to you. It is not possible to determine the costs of custom wiring, because of widely varying needs and preferences. Therefore, custom wiring is not covered by us under any maintenance plan unless installed by us.
Term: the term shall be for a period of 6 months from the date on which you select your maintenance plan. Following such 6 month period, these terms shall automatically renew for successive six month periods unless cancelled as proved herein.
Cancellation of services by you: you may only cancel the services provided hereunder by giving 90 days advance written notice to us.
Termination by us: we may terminate these terms or any service order hereunder or suspend services, without cause, upon giving prior written notice to you of (a) the your failure to pay any amounts (including without limitation any monthly service fees) as provided herein, (b) your failure to perform any covenant or condition under these terms, which is not cured within five (5) days after written notice from us, (c) your breach of any provision of these terms or of any law, rule, or regulation governing the services, (d) any insolvency, bankruptcy assignment for the benefit of creditors, appointment of trustee or receiver, or similar event with respect you, or (e) any governmental prohibition or required alteration of the services provided hereunder. Further, we may terminate or suspend services, without the giving of prior notice, if (a) such termination or suspension is, in our sole and absolute discretion, necessary to protect our network, (b) w have reasonable evidence of your fraudulent or illegal use of the services provided hereunder or any service provided by us or our affilates, or (c) such termination or suspension is required by any governmental, regulatory, or legal authority. Any termination or suspension shall not relieve you of any liability incurred prior to such termination or suspension, or for payment of unaffected services.
Remedies: should these terms be terminated pursuant to section 3.A or 3.B above, we may, in order to protect our interest and reasonably expected profits, with or without notice or demand to you, enforce, alternatively, successively and/or concurrently, any one or more of the following remedies: (i) recover from you all accrued and unpaid amounts due and owing on the date of termination, and (ii) recover from you from time to time all amounts as and when becoming due.
Availability of the service. We are not liable to you for service performance issues which are caused in whole or in part by you, by your equipment (e.G., vcr, tv, computer) or equipment you install or maintain or have a third party install or maintain. We are not liable for unavailability of, or adverse performance of, services during periods of modifications, upgrades, relocation, repairs to the equipment used by us or a supplier.
Access. We may need to install, maintain, repair or remove equipment on your premises in connection with services, and you agree to cooperate with us in good faith to enable us to install the equipment. You hereby grant to us and our agents full right and authority of entry and access, across, under and over the premises and any property necessary to reach the premises or equipment, for the purpose of installing, inspecting, maintaining, repairing and removing the equipment, running wiring through the premises through internal and exterior walls, and for doing all things necessary and reasonable with respect to the services or equipment, for as long as we provide service or for as long as equipment is located on the premises. You represent and warrant to us that (a) you are either the owner of the premises or a tenant or other lawful occupant of the premises and (b) you have the authority to grant us the right and authority of entry and access stated above.
Monthly service fees: the service fees for the maintenance plan selected above shall be the monthly fee identified next to the maintenance plan sleeted by you ("monthly service fees"). You agree to pay us the monthly service fees. The monthly service fees shall be paid when a monthly invoice is presented to you on or around the 1st of each month. Payment is due 15 days after the date of invoice.
Payment: charges made under any provision of this agreement and payable by you shall be paid to us at our address specified in the preamble to these terms. If any payment due under this agreement (including without limitation any monthly service fees) is not received on the applicable due date, you agree to and shall pay, to the extent permitted by law, on demand, as a late charge, an amount equal to one and one-half percent (1.5%), or the maximum percentage allowed by law if less, of the amount past due ("late charges"). Late charges will accrue until billed by us. Late charges shall be charged and added to any past due amount(s) on the date such payment is due and every thirty (30) days thereafter until all past due amounts are paid in full to us. If any check for payment is returned to us unpaid, you are immediately in default. You agree to pay for our reasonable expenses, including attorney and collection agency fees, incurred in enforcing our rights under these terms.
Taxes: in addition to the monthly service fees, you shall reimburse us for all license or registration fees, assessments, sales and use taxes, rental taxes, gross receipts taxes, personal property taxes and other taxes now or hereafter imposed by any government, agency, province or otherwise upon the monthly service fee, whether the same be assessed to you or us ("taxes"). Nothing herein shall be construed to require you to be responsible for any federal or state taxes imposed upon or measured by the net income of us, or state franchise taxes of us, or any penalties or interest resulting from our failure to timely remit such tax payments.
Limitation of liability. Our liability arising out of or in connection with these terms, any services or any equipment (including liability arising out of or in connection with mistakes, accidents, omissions, interruptions, errors or defects in transmission with respect to services or equipment) shall be subject to the limitations set forth below, as well as any limitation contained elsewhere in these terms or in any applicable tariffs. Our total liability to you arising out of or in connection with these terms or any services is limited to actual, direct damages, but in no event shall we be liable to you for any amount in excess of the total amounts you paid to us for services during the twelve (12) month period prior to the time when the liability arose. In no event will we or our directors, officers, stockholders, employees, agents and affiliates be liable to you or to any third party with respect to these terms, any services or any equipment for any type of indirect, consequential, incidental, reliance, actual, special, or punitive damages, or for any lost profits, lost revenues, or lost savings of any kind, whether arising under a contract, warranty, negligence, strict liability, or other theory, and whether or not we were advised of the possibility of such damages or whether or not such damages were foreseeable. These limits do not apply to damages for death or bodily injury.
Indemnification. You hereby agree to indemnify, defend and hold harmless us, our directors, officers, stockholders, employees, agents and affiliates from and against any liability, loss, damage, or expense, including, without limitation, reasonable attorneys' fees arising out of, or in connection with, any actual or threatened claim, suit, action, or proceeding arising out of (i) use or misuse of any service or equipment by you or anyone else accessing services or related equipment, whether authorized by you or not, or (ii) any act or omission by you or anyone else accessing services or related equipment, whether authorized by you or not which violates, or is alleged to violate, these terms.
No liability for content. You acknowledge that we have no responsibility for, or obligation to control, the content available through the services, and that you access, use and transmit such content at your own risk. You agree that neither we nor our directors, officers, stockholders, employees, agents and affiliates will have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the access, use or transmission of such content by you or by any third party. However, we will have the right (but not the obligation) to electronically monitor, from time to time, content accessed, transmitted or used by you or anyone else accessing services or related equipment, whether authorized by you or not, and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the services properly or to protect us or other users. We have the right (but not the obligation) to post or to remove any information or materials, in whole or in part, that we, in its sole discretion, deem to be unacceptable, undesirable, or in violation of these terms.
Infringement. You hereby agree to indemnify, defend and hold harmless us, our directors, officers, stockholders, employees, agents and affiliates from and against any liability, loss, damage, or expense, including, without limitation, reasonable attorneys' fees arising out of, or in connection with, any actual or threatened claim, suit, action, or proceeding based upon a claim that the use of the equipment or services by you or anyone else accessing services or related equipment, whether authorized by you or not, infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other industrial or intellectual property rights, proprietary rights or contractual rights of any third party.
Acts beyond our control. We will not be in breach of our obligations under these terms if our performance is delayed or prevented by any act of god, fire, natural disaster, accident, riots, war, terrorism, acts of government, shortage of equipment, services or materials from our vendors, failure of transportation or communication, third party non-performance (including, without limitation, the failure or performance of carriers, suppliers and subcontractors), or any other cause beyond our reasonable control, and, at our election, the time for our performance is extended for length of the condition that caused the delay or prevented the performance.
Governing law. These terms have been entered into in, and shall be construed and enforced in accordance with the laws of, the state of indiana (without regard to its principles of conflicts of laws) and applicable federal laws and any applicable tariffs, rules, and regulations. Any dispute, controversy, or claim arising out of or in connection with or relating to these terms or any alleged breach hereof shall, upon our request, be first submitted to and settled by arbitration in indianapolis, indiana pursuant to the rules then in effect of the american arbitration association (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award or other determination rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction. The panel from which all arbitrators are selected shall be comprised of licensed attorneys.
Warranties. We make no warranties, express or implied, and we specifically disclaims all express and implied warranties regarding the services, including any implied warranties of merchantability, fitness for a particular purpose, and any implied warranties arising from course of performance, course of dealing or usage of trade. In particular, we do not warrant that the services will meet your requirements, that the services will be uninterrupted or error free, or that data will not be lost. We are not responsible for any loss suffered by you as a result of using the services provided hereunder, including, but not limited to, loss resulting from delays in service, incorrect or incomplete delivery of information, possible "computer viruses", or other interruption of service, regardless of cause. We specifically deny any responsibility for the accuracy or quality of information obtained through the services. We are not the manufacturer of any equipment, and we make no warranty, express or implied, regarding the fitness, merchantability, design, condition, capacity, performance or any other aspect of the equipment or its material or workmanship. We further disclaims any liability for loss, damage, or injury to you or third parties as a result of any defects, latent or otherwise, in the equipment whether arising from our negligence or application of the laws of strict liability.
Survival. The obligations contained in this agreement with respect to payment of amounts due, limitation of liability, disclaimers or exclusions of warranties, arbitration and indemnification shall survive termination of these terms. Except as expressly provided in these terms, neither party may amend or modify these terms except by a writing signed by both parties.
Entire agreement; assignment. These terms, as may be amended from time to time, along with the terms of any applicable orders accepted by us and any applicable tariffs, constitute the entire agreement of the parties with respect to services and equipment, and supersede all prior oral or written agreements, understandings, representations and warranties. In the event of a conflict between the terms of any applicable orders and these terms, these terms will control. You may not assign this agreement without our prior written consent.
Severability. Any provision or portion of these terms held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such provision in any other jurisdiction.