Atlas Networks Services Contract (Terms & Conditions)
Customer (herein after “Customer,” “you” or “your”) and Atlas Networks Corporation (hereinafter “Company,” “Atlas,” “Atlas Networks” “we” “our” or “us”) agree to the terms and conditions stated herein (“Agreement”) for the provision of video, high-speed internet, voice over internet telephone, security cameras or other service (“Service”). Activation of Service means you agree to be bound by this Agreement herein and the Order Form.
- TERM. Commercial/Business Users: The initial term (“Initial Term”) of this Agreement commences on the Effective Date indicated on the “Order Form” and shall continue until the end of the Service Term as further defined on the Order Form. After expiration of the Initial Term, this Agreement shall automatically renew on a month to month basis (“Renewal Term”) unless written notice is given by either party no sooner than one hundred and twenty (120) days and at least thirty (30) prior to the expiration of the Initial Term if no third party fees (“TPF”) charged to Atlas Networks for transmitting your data through networks controlled by third-parties (“Third Party Networks”)) or ninety (90) days prior to the expiration of the Initial Term if TPF is utilized. Residential Users: Unless agreed to in writing as part of a promotional or discounted services offering, the default term for residential services is month to month.
- START OF SERVICE: The term(s) of this Agreement and those stated on the Order Form shall begin on the requested (in writing) service date contained therein or at the time service first becomes available, whichever is later.
- SERVICE. Atlas Networks agrees to provide you services as specified on the Order Form or in your request for service. Services provided by Atlas Networks may include, but are not limited to; IP version 4 and version 6 transit (Internet access), colocation, private line (any point to point service delivered via any media), voice services, television and video, network management, wireless access point management, IP camera services, or other services. Atlas Networks agrees to provide its services to you from the point at which Atlas Networks’ network connects to your network, hereafter referred to as the “DEMARC”. This “DEMARC” may or may not be located on your premises but will always have the unified characteristic of being dedicated exclusively to a single party which is you. The Service Level Agreement (“SLA”) you have with Atlas Networks for each connection leading up to your DEMARC outlines the performance and reliability specifications of Atlas Networks’ service to be provided and is incorporated in this Agreement by this reference. You have been advised and understand that Atlas Networks’ service relies on and is limited by the inherent shared nature of the internet, and that Atlas Networks will use its actual best efforts to provide you with the highest speed at which data will pass through networks controlled by third-parties reasonably available. Atlas Networks will provide all equipment (“Equipment”) and installation services up to and including your “DEMARC” point, but will not be responsible for configuration beyond the “DEMARC.”
- ACCESS TO THE CUSTOMERS PREMISES & EQUIPMENT. You agree to allow us and our agents the right, at reasonable times, to enter upon the property at the address specified on your account (the “Premises”), for the purposes of installing, maintaining, upgrading, replacing and removing our equipment and auditing the Service you receive. In the event your premises are leased from a third party, you also agree that you have obtained or will obtain appropriate authorization from your landlord for (i) the placement of Equipment on your premises and (ii) reasonable access for Atlas Networks personnel and independent contractors to install, repair, and remove Equipment.
- CUSTOMER (non-Atlas) EQUIPMENT CONFIGURATION. It is understood that under the terms of this Agreement, Atlas Networks is under no obligation to configure any of your (non-Atlas) equipment. All configurations of your equipment, including Border Gateway Protocol (“BGP”), router configurations, and the like are your sole responsibility. At its discretion Atlas Networks may, but is not required to, assist you in configuring your equipment to utilize Atlas Networks’ service. Any assistance by advice or workmanship which Atlas Networks may provide to you with your personal or your (non-Atlas) company equipment is on an “ AS IS” basis without warranty of any kind, and Atlas Networks shall not be liable for any damages including loss of data for its requested actions in this regard.
- MAINTENANCE AND OWNERSHIP OF EQUIPMENT: All wiring, connectors and mounting hardware installed by Atlas shall, upon installation, except where the Premises is part of a multiple dwelling unit building (“MDU”) or commercial building, shall thereafter be deemed a “fixture” on the Premises and shall become the property of the owner of the Premises. You acknowledge ownership of such equipment. Ownership of Atlas installed wiring and facilities in MDU’s and commercial buildings shall be governed by any agreement between Atlas and the building owner and applicable rules and regulations of the Federal Communications Commission (“FCC”) where/when applicable. You shall be responsible for the repair and maintenance of any equipment you own or provide. Atlas is not responsible or liable for any loss or impairment of Service, due in whole or in part, to the failure of any equipment you own or provide to work properly. Should any device or any facility owned or provided by you not comply with the technical specifications established by the FCC, we reserve the right to discontinue providing the Service until such non-compliance is corrected. It is unlawful to alter or tamper with any device owned by or belonging to Atlas in order to receive, intercept or assist in receiving, or intercepting, any communication service offered over our network unless specifically authorized to do so in writing by law or Atlas Networks. Violators are subject to fines and/or imprisonment. All other equipment installed or provided by Atlas, including but not limited to, security devices, set-top devices, remote control units, and/or anything identified with an Atlas asset tag, shall at all times remain Atlas and/or our Vendors property (“Company Equipment”). During the term of this Agreement, we will repair and maintain any of our Company Equipment at our expense, unless such repair or maintenance is made necessary due to your misuse, failure to keep external equipment cabinets secured from weather or damage of any kind, abuse or intentional damage. In order to ensure compliance with applicable laws and performance standards, you agree that Company Equipment shall not be serviced by anyone other than our employees or agents. You agree not to tamper with Company Equipment. Upon termination of Service or if you move you are responsible for returning all Company Equipment and/or Company will remove Company owned equipment from your premise. Company Equipment must be returned to us in undamaged condition, reasonable wear and tear excepted, at a location we designate or by pickup by our employees or agents. All Company Equipment must be received by Atlas no later than ten (10) days after Service is disconnected. You agree to pay us the fair market value of any un-returned or damaged Company Equipment or we may deduct it directly from your account if there is a balance remaining.
- INVOICING, PAYMENTS, REFUNDS, & LATE FEES. You agree to pay all fees and other charges billed to your account as set forth herein, including the Order (Connectivity) Form. Services will be billed by Atlas Networks in advance of service approximately 10 days before the start of each month in which the service is to be used. The invoice on the first of the month will include any base service charges for the month in which it is billed along with any additional usage charges above the Customer’s base service charges in the previous month. You are required to provide Atlas Networks with your first month’s base service charge and setup or activation fees, as set forth in the Order Form, which will be invoiced upon execution of the Order Form. Atlas Networks will not provide any service until such fees have been paid in full. Other charges, such as for pay-per-view selections, interactive television fees and transactional fees are billed after the Service is ordered and may be billed by Atlas or our Vendors. You agree to pay all applicable charges for Services rendered and Company Equipment up to the date such equipment is appropriately received by Atlas Networks. Payment is due on the 1st of the month (approximately 10 days after invoicing) and is deemed “late” on or after the 10th day of the month. All charges are due upon receipt of our invoice or by the invoice due date. Rates for Service and other charges may be changed by us at any time without direct written notice to you. We shall furnish to you at any time upon your request, a list of our current rates and charges. We shall issue a credit (or refund at our discretion) for any billing error, which is brought to our attention by you within fifteen (15) days of the invoice date. The issuance of a credit or refund, if any, for errors brought to our attention beyond fifteen (15) days will be at our sole discretion. Any adjustments to your invoice shall be in the form of a credit for service. Your invoice may also contain charges for other service provided by us or our subsidiaries or affiliates. If we receive partial payment of any such invoices, we will apply such payment in the amounts and proportions to the outstanding charges as we determine and likely to the oldest unpaid invoice. In the event Atlas Networks does not receive any undisputed payment in full when due, the following will be charged to your account: (i) a five dollar ($5.00) service late fee; (ii) a fee equal to thirty percent (30%) of the third party fees charged to Atlas Networks for transmitting your data through networks controlled by third-parties “loop fee”; and interest on the outstanding balance due Atlas Networks at the rate of 1.5% per month. Atlas Networks reserves the right to temporarily suspend your service in the event that your account becomes 60 (sixty) days or more days past due. If your account becomes suspended, Atlas may, in addition to requiring the current balance being paid in full, also require a 2 month deposit be placed on your account to restore service. If after ninety (90) days your account remains unpaid, we may use a collection agency or attorney to collect money that you owe us, and or assert any other right we may have under this Agreement, you agree to pay our reasonable costs of collection or of any action to enforce our rights, including without limitation, attorney’s fees and court costs. In the event of default, Atlas Networks will add 35% of the total claim for collection costs. This is in pursuant to RCW 19.16.250 (18). No acceptance of partial payment by us shall constitute a waiver of our right to collect the full balance owing The Customer understands and agrees that after the initial installation is completed Atlas Networks will charge $100- an hour labor to fix an issue that is caused solely by the Customer’s own (non-Atlas) equipment. Any UPGRADES in service or equipment requested after 30 calendar days from the initial signed order form will require a new signed order form and services contract, and will be subject to a new installation date (if needed) but no change fee applies. Any changes in requested service or equipment after signing this order form must also be made directly with the Atlas Networks office and may result in a new or later installation date and or additional charges beyond the change fee. Atlas Networks is not responsible for any fees charged to you by your bank as a result of payments to Atlas via automated or manual methods even if payment is errantly taken by our systems; Atlas’ sole liability for overpayments is a refund of the original payment amount, if any, based on these terms and conditions. Invoices and notices are sent only via email; paper invoices may be requested but incur a $5.00 monthly administrative service charge.
- BUILDING ACCESS FEES. Atlas Networks works diligently to maintain a low cost of service delivery to our customers. In the majority of cases, buildings/properties do not charge us for access to the building/property to deliver services to tenants. In the rare cases that a building/property charges any access fee to provide services in your building/property, Atlas will extend these fees based on a prorated calculation to all Atlas customers within the building/property. The prorated fee is derived from the total access fees charged to Atlas divided by your percentage portion of the total billed services in the building/property. If at the time you subscribe for services, Atlas is currently paying any access fees in your building/property, your estimated prorated share will be disclosed on your sales Order Form. These fees will be adjusted monthly based on the total revenue in the building/property. If a building/property imposes an access fee on Atlas anytime during your service term, you will be notified in writing by Atlas Networks and will be charged your prorated portion of access fees moving forward.
- DISRUPTION OF SERVICE: We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of Service, directly or indirectly caused by, or proximately resulting from, any circumstance beyond our control. This is including but not limited to, causes attributable to you, your property or your equipment; inability to obtain access to the Premises; failure of any television signal at the transmitter; failure of a communications satellite; failure of a fiber optic circuit, loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire; flood; lightning; electrical magnetic pulse; earthquake; wind; ice; extreme weather condition; or other acts of God; failure or reduction of power; or any court order; law; or act or order of government restricting or prohibiting the operation or delivery of Service. In all other cases of Service interruption you shall be entitled upon request, provided it is made within thirty (30) days of such interruption, to a pro-rata credit for any Service Interruption exceeding one (1) consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically otherwise provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service interruption. Such credit unless specifically provided by law, shall be your sole and exclusive remedy for an interruption of services. In no event shall Atlas be liable for any incidental, special, exemplary, consequential, or punitive damages from whatever cause, including but not limited to, loss of business, data, income or wages. Further credit specifications may be found in our Service Level Agreement.
- USE AND ABUSE OF SERVICES. You understand and agree that services provided to you by Atlas Networks may only be used for lawful purposes; that the you are fully responsible for any data or traffic originating from your customer IP connections; and to assist Atlas Networks in investigating all uses not permitted by this Agreement (“Abuses”) which Atlas Networks believes have originated from the your customer IP connections. Abuses include, but are not limited to (i) transmission of unsolicited bulk email (“SPAM”), (ii) transmissions from computers involved in DOS and DDOS attacks, IRC bots, (iii) illegal “Hacking” activity and (iv)any other activity which is generally defined by the global internet community as malicious or illegal. Furthermore, if you are utilizing BGP to exchange routing information with Atlas Networks, you represent and warrant that you have the requisite authority to “route” any IP address space to which you are announcing via our network to the Global Internet. You also understand that while Atlas Networks makes an effort to properly filter announcements, you are responsible for all liability resulting from your actions including the incorrect or malicious announcement of a third party’s IP address space.
- MAINTENANCE. Upon reasonable prior written notice, Atlas Networks reserves the right to interrupt service for routine maintenance at such times as may be reasonably necessary. You agree that except as set forth in the Service Level Agreement under “Credit for Loss of Service”, Atlas Networks will not be liable to you for any consequences of any interruptions to the service, which may render you unable to access the Internet or telephone. "Maintenance" means Scheduled Maintenance or Emergency Maintenance. Scheduled Maintenance" means any maintenance in the Atlas Networks data center or networks (a) of which the customer is notified at least 24 hours in advance, or (b) that is performed during Atlas Networks’ standard maintenance windows defined in your agreement (if any). "Emergency Maintenance" means any maintenance in the Atlas Networks data center or networks that: (a) in Atlas Networks’ sole discretion, is necessary to avoid an immediate threat to the continuity or service (b) safety of personnel (c) safety of equipment (d) or any other reasonable scenario requiring immediate action.
- SERVICE MOVE. Customer may request to move their service anytime during their contract term under the following conditions: (a) commercial services: (i) if services are being moved within the same building, Atlas will move the DMARC up to one time per year at no charge, and the suite in which the Customer is moving to does not require above average materials/labor to cable the DMARC, and excluding any cabling work required inside the Customer’s suite which is billed at time and materials; (ii) if services are being moved to a building that is already on Atlas’ network, and the building can currently support the service capacity subscribed by the Customer, and the suite in which the Customer is moving to does not require above average materials/labor to cable the DMARC, a move service fee of the lesser of $500.00 or one month’s service fees are charged; (iii) if services are being moved to a building that is already on Atlas’ network, and the building cannot currently support the service capacity subscribed by the Customer, and the suite in which the Customer is moving to does not require above average materials/labor to cable the DMARC, a move service fee of the lesser of $1,500.00 or the equivalent of six month’s service fees are charged; (iv) if services are being requested to be moved to a building that is not currently on Atlas’s network and Atlas can service (and elects to service) a move service fee of the lesser of $1,500.00 or the equivalent of six month’s service fees are charged; (v) if Customer moves to a building that Atlas cannot service or elects not to service, refer to the Termination section below; (vi) if the DMARC move or additional DMARC cabling is above average time and materials, Atlas will be its standard time and materials rate to move/add the DMARC in any of the above conditions, a detailed work order will be provided to the Customer upon request; (vii) if none of the above move conditions apply, Atlas and the Customer will negotiation a reasonable move fee that helps Atlas cover the costs associated with the Customer’s move; (b) residential services (excluding Fiber To The Home): (i) if services are being moved to a building that is already on Atlas’ network and the suite in which the Customer is moving to does not require above average materials/labor to cable the DMARC, no move service fees are applied; (ii) if Customer is under contract and services are being requested to be moved to a building that is not currently on Atlas’s network and Atlas can service (and elects to service) a move service fee of $100.00 are charged; (iii) if Customer is under contract and moves to a building that Atlas cannot service or elects not to service for reasonable cause , refer to the Termination section below; (iv) if the DMARC move or additional DMARC cabling is above average time and materials, Atlas will be its standard time and materials rate to move/add the DMARC in any of the above conditions, a detailed work order will be provided to the Customer upon request; (v) if none of the above move conditions apply, Atlas and the Customer will negotiation a reasonable move fee which alleviates Atlas’ costs associated with the Customer’s move.
- COPYRIGHT INFRINGEMENT & DMCA. Atlas Networks is committed to complying with U.S. copyright and related laws, and requires all customers and users of the Service to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Service (or any part of the Service) in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the "DMCA") to report alleged infringements. It is Atlas Networks’ policy in accordance with the DMCA and other applicable laws to reserve the right to terminate the Service provided to any customer or user who is either found to infringe third party copyright or other intellectual property rights, including repeat infringers, or who Atlas Networks believes in its sole discretion is infringing these rights. Atlas Networks may terminate the Service at any time with or without notice for any affected customer or user. Copyright owners may report alleged infringements of their works that are stored on the Service or transmitted across our network by sending Atlas Networks a notification of claimed infringement that satisfies the requirements of the DMCA. Upon Atlas Networks receipt of a satisfactory notice of claimed infringement for these works, Atlas Networks will respond expeditiously to either directly or indirectly (i) remove the allegedly infringing work(s) stored on the Service or (ii) disable access to the work(s). Atlas Networks will also notify the affected customer or user of the Service of the removal or disabling of access to the work(s). If the affected customer or user believes in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then that person may send a counter notification to Atlas Networks. Upon Atlas Networks receipt of a counter notification that satisfies the requirements of DMCA, Atlas Networks will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA's procedures with respect to a received counter notification. In all events, you expressly agree that Atlas Networks will not be a party to any disputes or lawsuits regarding alleged copyright infringement. Copyright owners may send Atlas Networks a courtesy notification of claimed infringement to report alleged infringements of their works to:
Atlas Networks Corporation
3131 Western Ave. Suite M330
Seattle, WA 98121 U.S.A.
Copyright owners may use their own notification of claimed infringement form that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act. Under the DMCA anyone who knowingly makes misrepresentations regarding alleged copyright infringement may be liable to Atlas Networks, the alleged infringer, and the affected copyright owner for any damages incurred in connection with the removal, blocking, or replacement of allegedly infringing material. If a notification of claimed infringement has been filed against you, you can file a counter notification with Atlas Networks using the contact information shown above. All counter notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act.
- PROGRAM SERVICE: You acknowledge and agree that we have the right at any time to preempt, without prior notice, specific programs or services advertised as available and to determine what substitute programming or services if any, shall be provided. We may at our discretion make additions, deletions or modifications to our current and future program line-ups without liability to you. We shall not be liable for failure to deliver any programming or services.
- TERMINATION: You agree that you will be responsible for notifying Atlas should you require to terminate your use of services. You may notify Atlas by sending a cancellation request to firstname.lastname@example.org from the primary email address listed on your account or by calling us; email is the preferred method as it creates a tracking ticket and date/time stamp of your request. Upon advance request Atlas will prorate your final month invoice except for any applicable taxes due for the service month. The Agreement and the Service provided hereunder may be terminated by us at any time without prior notice: (i) if you fail to comply in full with the contract terms, (ii) you breach any other agreement you have with us or our affiliates, or (iii) if we lose the right to use rights-of-way necessary to provide Service to you. (B) The Agreement and the Service provided hereunder may also be terminated by you at any time provided all outstanding amounts are paid in full, including those that may be stipulated by a separate contracted promotional service agreement, and, you are not still within the minimum 1 or 2 year television commitment required by one of our TV service providers and all Company Equipment is returned by you. Any remaining term on a one or two year annual contract must be paid in full prior to termination of service. You agree that you shall be responsible for and pay all charges for Services rendered up to the date such equipment is received back by Atlas Networks. Specifically regarding terminating service where third party facilities are used, if you are in a contract you are entitled to terminate this Agreement at any time upon ninety (90) days advance written notice (remaining annual contract term excluded) except where Atlas Networks utilizes third party facilities (“TPF”) for delivery of your services as indicated on your Order Form; in which case you may not terminate this Agreement upon ninety (90) days advance written notice only unless your termination is due to chronic problems (as described in the Service Level Agreement). If there is any remaining contract term on this Agreement (except in the case of your termination due to chronic problems as described in the SLAs, failures to meet services levels or except Atlas Networks’ breach of this Agreement in which case the following does not apply), you will remain responsible for 100% of the loop fees, location charges, and minimum service fees for the remaining duration of the contract which shall become immediately due and payable on the termination date. Any unpaid amount in this regard shall be subject to interest at the rate of 1.5% per month if not fully paid within thirty (30) days of the termination date. If Atlas Networks’ Communications License to service the Building is terminated for any reason, you understand and agree that Atlas Networks may terminate our Agreement with you at any time with written notice delivered to you via the primary billing contact email thirty (30) days prior to termination. Termination of this Agreement by Atlas Networks will not affect your continuing responsibility for ALL fees and costs relating to your account prior to the date of termination. FTC rule 17 CFR 429 a buyer in a home solicitation sale must be given a three business day cooling off period in which they may cancel without obligation.
- SUSPENSION OF INTERNET SERVICE. Residential customers may suspend Internet service under the following guidelines: (a) Customer agrees to pay a $10 monthly 'Ready to Serve' fee during the suspension period to support the cost of maintaining equipment and service in a "ready" mode which minimizes reconnect time and cost; (b) Customer is limited to a single suspension of service for not more than 4 consecutive months in any 12 month period; (c) Customer’s regular Internet service automatically resumes at the start of month five (5); (d) Customer agrees to be on automatic credit card payments for all services; (e) Customer agrees to notify Atlas before the 15th of the current month to affect service billing for the upcoming month, any requests received after the 15th of the current month will not be effective until the 2nd (or following) month forward; AND (f) no suspension for any other services is available including hardware, routers, or wireless access services related to internet services.
- IP ADDRESS ALLOCATION. IP address allocations are made for dedicated capacity circuits based on established standards as defined by ARIN, the American Registry for Internet Numbers. Atlas Networks makes allocations based on these reasonable standards and reserves the right to request justification for IP address assignments larger than a /30 subnet (1 address) of globally routable IP addresses. Such justifications may require a host-count and/or a planned network map to be provided to Atlas Networks prior to the allocation of IP address resources. Once the Customer reaches a full /24 (256 addresses) Atlas Networks reserves the right to commence charging of a monthly fee for address space or to refuse the allocation and direct the Customer to ARIN for a direct allocation.
- ATLAS VOICE AND E911 SERVICE LIMITATIONS OF SERVICE AND LIABILITY: Limitations of Service Affecting Access to 911 Services: Customer acknowledges and understands that: a) The Service does not function in the event of power failure. IF THE ELECTRICAL POWER AND/OR ATLAS’S NETWORK OR FACILITIES ARE NOT OPERATING, ATLAS PHONE, INCLUDING THE ABILITY TO ACCESS EMERGENCY 911 SERVICES, MAY NOT BE AVAILABLE. b) The address associated with an E911 call is the authorized address where Service was originally provided. Movement of the voice over IP (VoIP) modem, VoIP Phones, VoIP ATA’s, or equipment from the original service location will result in the identification of the E911 call from the ORIGINAL service location. Customer is required to notify Atlas of any change of address of the voice enabled advanced modem for E911 calling service to work properly. c) CUSTOMER AGREES THAT TO THE MAXIMUM EXTENT ALLOWED BY LAW, ATLAS SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED, DIRECTLY OR INDIRECTLY, BY CUSTOMER’S INABILITY TO ACCESS THE SERVICES, INCLUDING E911 SERVICES. Customer agrees to defend, indemnify, and hold harmless Atlas Networks, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney’s fees) by or on behalf of, Customer or any third party or user of Customer’s Account relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of Customer’s Service to be able to dial 911 or to access emergency service personnel.
- LIMITATION OF WARRANTY: Atlas Networks warrants only that it shall, subject to the terms and conditions of this Agreement, provide you with the service contracted for. YOU AGREE THAT THE SERVICE AND EQUIPMENT ARE BEING PROVIDED “AS AVAILABLE” AND “AS IS,” WITH ALL FAULTS ACCEPTED. ATLAS NETWORKS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ATLAS NETWORKS MAKES NO WARRANTIES WITH RESPECT TO (i) THE EQUIPMENT, OR (ii) THE SERVICES PROVIDED BY ANY THIRD PARTY. ATLAS NETWORKS SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, EVEN IF THE ATLAS NETWORKS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, BOTH PARTIES’ AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO A CLAIM UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO ATLAS NETWORKS IN ANY SINGLE MONTH UNDER THIS AGREEMENT.
- USE OF SERVICE FOR RESIDENTIAL CUSTOMERS: You agree not to use the Service or the programming we furnish except for non-commercial home use, unless otherwise specifically authorized by us in writing. You shall not use the Company Equipment or the Service, directly or indirectly, for any unlawful purpose. Use of the Company Equipment or IService for transmission or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited. In addition to the foregoing you acknowledge and agree that you shall be solely responsible for any transaction, including, without limitation, purchases made through or in connection with the Service. You may not share, sell, or otherwise allow access to Services by others except those in your household.
- TAXES: You agree to pay all taxes, including, but not limited to, all sales, excise, state, federal, real and personal property taxes, which may be levied or imposed by any government entity with respect to your property and services provided by Atlas.
- MANDATORY AND BINDING ARBITRATION: We will first try to resolve any Claim informally with you however EXCEPT AS PROVIDED BELOW, ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS RULES FOR THE RESOLUTION OF COMMERCIAL DISPUTES, AS MODIFIED BY THIS AGREEMENT, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF; PROVIDED, HOWEVER, THAT THIS ARBITRATION CLAUSE SHALL NOT LIMIT THE COMPANY’S RIGHT TO FILE A LAWSUIT (OR TAKE OTHER MEASURES) TO RECOVER SUMS DUE TO THE COMPANY AS A RESULT OF CUSTOMER’S FAILURE TO MAKE PAYMENTS FOR SERVICE OR TO PREVENT THE UNAUTHORIZED RECEPTION OF SERVICE. EACH CLAIM OR CONTROVERSY SUBJECT TO ARBITRATION UNDER THIS AGREEMENT SHALL BE ARBITRATED BY THE CUSTOMER ON AN INDIVIDUAL BASIS AND WILL NOT BE COMBINED OR CONSOLIDATED OR MADE PART OF A CLASS ACTION WITH THE CLAIM OF ANY OTHER CUSTOMER. EACH PARTY SHALL BEAR ITS OWN EXPENSES AND FEES, INCLUDING, WITHOUT LIMITATION, COUNSEL FEES, INCURRED IN THE CONDUCT OF THE ARBITRATION. THE ARBITRATOR MAY NOT VARY THE TERMS OF THIS AGREEMENT, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE ARBITRATOR HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES OR ANY OTHER SUMS WHICH EXCEED THE PREVAILING PARTY’S ACTUAL DAMAGES, NOR SHALL ANY PARTY SEEK PUNITIVE OR OTHER DAMAGES RELATING TO ANY MATTER ARISING OUT OF THIS AGREEMENT IN ANY OTHER FORUM. IF FOR SOME REASON THE ARBITRATION REQUIREMENTS DO NOT APPLY, THE CUSTOMER AND COMPANY EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.
- AUTHORITY: You represent and warrant that you are the owner of, or a tenant in, the Premises and have authority to enter into this Agreement and abide by its terms. You agree to indemnify and hold us harmless from any claims arising from a breach of the previous sentence.
- ASSIGNABILITY: This Agreement and the Service furnished hereunder may not be assigned by you. You agree to notify us of any changes of ownership or occupancy of the Premises immediately upon such transfer of ownership or occupancy. We may freely assign our rights and obligations under this Agreement.
- LIABILITY OF CUSTOMER: You agree to defend, indemnify and hold harmless Atlas Networks and all of their officers and employees from any damages, losses or expenses (including without limitation, reasonable attorney’s fees and costs) incurred by us in connection with any claims, suits, judgments and causes of action arising out of but not limited to (i) your use of the Service; (ii) infringement of patents or other proprietary rights arising from combining or using in connection with the Service any unauthorized apparatus or system; and (iii) you breach any provision of this Agreement.
- SUBSCRIBER PRIVACY NOTICE: Atlas will not sell, distribute, reveal, or otherwise make available any customer information without a court order. Should we need to contact you directly regarding your specific account or service we will do so only via email or phone.
- FORCE MAJEURE. You acknowledge that both parties ability to comply with its obligations hereunder may be impeded by events or actions outside of such party’s reasonable control, including, without limitation, acts of God, floods, fires, hurricanes, earthquakes, acts of war, labor actions, failure of third party suppliers, changes in applicable laws and regulations, or any similar action or event (“Force Majeure”). Both parties agree that in the event of a Force Majeure, the party affected shall not be responsible for any failure to meet its obligations for the duration of the Force Majeure. Atlas Networks agrees if such an event precludes Atlas Networks from providing service, you will not be liable for payment of the fees otherwise due under this Agreement.
- ENTIRE AGREEMENT. This Agreement, the Order Form, the SLA and any exhibits, addenda and/or amendments signed by both parties, shall constitute the entire understanding of the parties related to the subject matter hereof and are incorporated by reference herein. In the event of any conflict between either: (a) the Order Form and this Agreement; and/or (b) any Customer purchase order, the Order Form and this Agreement, the terms and conditions of this Agreement shall control.
- NO WAIVER. The failure of either party at any time to enforce any right or remedy available to it under the Order Form, this Agreement, or the SLA with respect to any breach or failure by either party shall not be construed to be a waiver as such right or remedy with respect to any other breach or failure by either party.
- ATTORNEYS FEES AND COST OF COLLECTIONS. In any dispute whether or not suit is filed including but limited to costs incurred prior to any action, during said action and appeal and collection of any judgment of said action arising out of this Agreement, the substantially prevailing party shall be entitled to an award of its reasonable attorneys’ fees and other costs incurred therein.
- MISCELLANEOUS: Atlas Networks may amend this Agreement on thirty (30) days prior notice to you and such amendment may be provided to you in hard copy, delivered via email, posted on our website(s) (www.atlasonnet.com, or www.suncadianet.com, or www.gigabitseattle.com or others) or other available electronic means, as determined at our sole discretion. Your election to continue receiving the Service hereafter shall be deemed to constitute your acceptance of such amendment. No alteration or modification of the terms of this Agreement by you shall be accepted and each alteration or modification shall be void. If any provision of this Agreement is determined to be illegal or unenforceable by a court, such provision shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement. If any provision of this Agreement conflicts with a provision of an applicable ordinance or other government regulation, the provision of such ordinance or regulation, to the extent of such conflict, shall apply. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provisions of this Agreement. The Agreement and all matters relating to the validity, construction, performance and enforcement are governed by applicable federal and state law, the rules and regulations of the FCC, and local ordinances or regulations where Service is provided.
Service Level Agreement
This Service Level Agreement (“SLA”) supplements the Terms and Conditions for Delivery of Service and your Order Form, which are incorporated herein by this reference. This SLA defines the Atlas Networks Corporation (“Atlas Networks”) service performance standards. This SLA will become effective on the first day following installation of Atlas Networks’ service.
This SLA applies to Internet, VoIP “Voice Services”, IP Cameras, and Enterprise (Business) Wireless services delivered over Atlas Networks’ Shared Network Backbone which is exclusively owned and operated by Atlas Networks and does not cover any local loop or service provided via that local loop, to your premise where the local loop is owned and operated by a third party. In the event where services are delivered to the your premises via a single local loop owned and operated by a third party provider Atlas Networks will extend the same SLA terms provided by that specific third party provider to you. If your local loop consists of multiple, redundant local loops to your premise which are owned and operated by a third party Atlas Networks’ SLA outlined below will apply.
- TECHNICAL SUPPORT. For Commercial Customers, Atlas Networks supports and monitors its service up to the demarcation point where the border router connects to your computer “(DEMARC”), via ICMP echo-reply packets, every 60 seconds, 24 hours per day. The Atlas Networks Network Operations Center (“NOC”) is available 24 hours per day for support. For Residential Customers, you must open a support ticket with the NOC by sending an email to email@example.com to report an outage. Once a customer ticket is opened with the NOC, either though monitoring alarm or you report trouble to NOC staff, any outage SLA credits will begin to accrue.
- PERFORMANCE STANDARDS. If Atlas Networks’ network is not performing as described herein, you are entitled to a service credit to a maximum of the amount billed by Atlas Networks on the given month, excluding third party fees charged to Atlas Networks for transmitting your data through networks controlled by third-parties (“Third Party Networks”).
- LATENCY, PACKET-LOSS, JITTER AND NETWORK AVAILABILITY. Network Latency: Atlas Networks network delivers no more than 30ms of intra-state latency within the shared network backbone 1 between the aggregation router to which the your local-loop 2 is connected and Atlas Networks’ network transmits your data though Third Party Networks. Packet loss: Atlas Networks’ standard is no more than 0.5% packet loss 3 across the shared network backbone, from the aggregation router to which the your local-loop is connected and Atlas Networks’ network transmits your data though Third Party Networks. Packet loss in excess of 0.5% constitutes a service outage. Jitter: The Atlas Networks network will provide jitter of less than 5 ms between any two nodes on the network backbone; jitter in excess of this 5 ms threshold constitutes a service outage.
Network availability for Residential, Office Class Internet, FlexGig Internet, VoIP Services, IP Camera Services, and Wireless Access Services: Atlas Networks’ shared network backbone availability in any given month is 99.99% for these products; our ‘Dedicated’ services SLA is defined below. Network availability for Dedicated Class Internet: Atlas Networks’ shared network backbone availability in any given month is 99.999% for these products.
- SOLE REMEDY FOR LOSS OF SERVICE. Your exclusive remedy for loss of service from Atlas Networks is limited to reinstatement of service and a credit for the period of lost connectivity. Credits will be paid for Atlas Networks network outages resulting in a continuous loss of connectivity as set out below:
Network service outage exceeding 4 hours: 5% of monthly-billed IP services.
Network service outage exceeding 6 hours: 10% of monthly-billed IP services.
Network service outage exceeding 8 hours: 15% of monthly-billed IP services.
For every additional 4-hour incremental network outage, you shall be entitled to receive an additional 5% of monthly-billed base service credit up to the monthly 100% maximum credit limit. The period of lost service shall be determined by records kept by Atlas Networks at its NOC and based on ICMP ping packets to the customer DEMARC.
Dedicated (Ultra)-Class Products with a 99.999% uptime guarantee shall receive, in addition to the prorated credit, a $50.00 per incident service credit. Cumulative credits shall not exceed the total billed services for the month.
- CHRONIC OUTAGE. Customer shall have the right to terminate the Agreement specifically in the event of and after any Chronic Service Quality Problem (as hereinafter defined) upon thirty (30) days written notice to Atlas Networks. As used herein, the term “Chronic Service Quality Problem” shall mean: (i) any one Interruption (as defined in the SLA) lasting more than seven (7) days at a particular Service Location or (ii) five (5) or more Interruptions (as defined in the SLA) at a particular Service Location, with each Interruption lasting at least thirty continuous minutes, in any thirty day period. For the purpose of applying this provision, Customer must document in writing (through the opening of a trouble ticket) the Interruption with Atlas Networks promptly. In the event of a termination for a Chronic Service Quality Problem, Customer only shall be responsible for the payment of charges for the Service incurred prior to the termination date.
- OTHER CREDITS. SLA credit is capped at 20% of the base service amount for issues relating to port or router failures on Atlas Networks owned equipment which result in the failure of your local-loop. This does not apply if you have multiple local-loops or Shadow Circuits, nor does it apply to any failures inside the shared network backbone. SLA credit is capped at 20% of the monthly fee.
- SLA CREDIT EXCLUSIONS. SLA credits do not apply to third party fees charged to Atlas Networks for transmitting your data through local-loop connections provided by Third Party Networks.
- LEASED & MANAGED ROUTERS AND/OR FIREWALLS. Atlas Networks provides both leased and managed firewalls and routers to customers for a monthly rental fee. Both devices are supported by our NOC staff.
- Support for Leased Routers. Commonly known as SOHO Routers (small office home office), Atlas will provide the following support services for Leased Routers. As these devices are not remotely accessible by our support staff, customers must authorize and assist in granting access to the devices for remote support. Support is limited to the following: assistance in establishing a connection to our network, setting up wireless access if supported by the device, assisting with basic firewall and port forward rules, resetting the device to factory defaults, static IP configuration on the WAN port, and static IP configuration for LAN ports (we do not provide support for setting static IP’s on your network devices/computers). Atlas only provides remote support for these devices which often requires you to provide access to the device remotely. We are not responsible for your network security and you use these devices at your sole risk.
- Support for Managed Routers and Firewalls. Atlas can offer enhanced router and firewall products that leverage a more powerful and feature rich platform and hardware that is provided as a managed service. Support is limited to the following: initial on-site setup and configuration on your network, wireless access and security if supported by the device, advanced firewall and port forward rules, VPN access, pseudowire emulation between two Atlas endpoints, static IP configuration on the WAN port, and static IP configuration for LAN ports (we do not provide support for setting static IP’s on your network devices/computers). Atlas only provides remote support for these devices. We are not responsible for your network security and you use the device and service at your sole risk.
- HARDWARE REPLACEMENT & MONITORING. All IP Cameras, Managed Enterprise Wireless Access Points, Managed Routers, and Managed Switches are monitored via ICMP echo-reply packets, every 60 seconds, 24 hours per day. Upon failure, our monitoring system will automatically open a trouble ticket with our NOC within 60 minutes of failure. Atlas guarantees a 1 business day replacement of defective managed hardware. Your exclusive remedy for loss of service from Atlas Networks is limited to reinstatement of service and a credit for the period of lost service. Credits will be paid for Atlas Networks network outages resulting in a continuous loss of connectivity as set out below:
Hardware service outage exceeding 1 business day: 25% of monthly billed services for affected device
Hardware service outage exceeding 2 business days: 50% of monthly billed services for affected device
Hardware service outage exceeding 3 business days: 100% of monthly billed services for affected device
The period of lost service shall be determined by records kept by Atlas Networks at its NOC and based on ICMP ping packets to the device. For the purposes of this SLA, a business day constitutes normal business hours of Atlas Networks and excludes weekends and holidays. A hardware failure registered by the NOC after 5PM on a weekday would be calculated from 8AM the next business day.
- SPECIFIC SERVICES.
- IP Camera Recordings. All IP Camera recordings are provided “as-is” and Atlas does not warranty the clarity or availability of the images. Atlas will make best efforts to provide recordings during the retention period listed on your sales order. Atlas is not responsible for lost, unusable, blurry, or any recording losses resulting from vandalism of the cameras, network and/or network hardware failure, power failure, Network Video Recorder (NVR) failures, or camera hardware failure. Atlas offers an optional high-availability solution for an additional cost that creates near-real time backup of the recordings to prevent loss due to failures of digital storage servers (NVR’s).
- Leased & Managed Wireless Access Points. Due to the complex nature of wireless access services, interference, load, radio frequency congestion, and other variables, Atlas only guarantees leased and wireless access point hardware per Section 9 above. The availability of the service is not guaranteed and is provided as a best attempt.