AGREEMENT TERMS AND CONDITIONS
1. Coverage – Wyrenet Technologies, Inc. – a Florida Corporation (“Wyrenet Technologies”), and (“Customer”)—a company agree that the following Terms and Conditions will govern the Customer’s order for network installation (low voltage wiring) and support/managed services as described on Page 1 (“Products”) located on service agreement, and a separate service agreement(s) will govern the Terms and Conditions related to any other service provided to Customer through Wyrenet Technologies. Further, this Agreement for the purchase and/or lease of Products consists of an equipment order form, or forms of even date with this Agreement, as there may be more than one form, and these Agreement Terms and Conditions apply. Any and all subsequent orders by Customer must be in writing and are subject to the Terms and Conditions in those subsequent agreements, though absent such Terms and Conditions, the Agreement Terms and Conditions herein shall apply.
2. Contract Period – This Agreement will become effective when signed by the Customer and accepted by Wyrenet Technologies, as evidenced by the signature of an authorized representative of Wyrenet Technologies and will be in effect for the stated contract period of ("x..x") months (located on your copy of your contract).
3. Installation/Delivery – The Customer agrees to provide and to bear the expense of the proper environment and electrical connections for the Products. Further, it shall be the responsibility of the Customer to correct any hazardous conditions, including but not limited to removal of any material which may pose a hazard to the Products, services, and/or employees of Wyrenet Technologies. Said scheduling will be based upon Wyrenet Technologies’s normal Product delivery and installation periods. If for some reason not caused by the Customer, that Wyrenet Technologies should fail to complete delivery, and if applicable, installation of the Product within thirty (45) days of the scheduled date, THE EXCLUSIVE REMEDY AFFORDED THE CUSTOMER SHALL BE TO CANCEL THIS AGREEMENT WITHOUT INCURRING A CANCELLATION CHARGE. If Customer is unable or unwilling to accept said delivery on the scheduled date of delivery, and if applicable, installation, Wyrenet Technologies may begin billing for any contracted amounts due hereunder effective the date delivery and installation where tendered. Product and service prices may be subject to change in the event of delay in delivery not caused by Wyrenet Technologies, and if applicable, installation, for more than thirty (30) days after the initially scheduled deliver/install date. If that instance should arise, Wyrenet Technologies may bill Customer the prices for Products as of the actual date of shipment or installation, unless Wyrenet Technologies has opted to begin billing as calculated based upon their originally scheduled delivery date. If after acceptance of this Agreement Wyrenet Technologies discovers an error or misstatement in the process or charges provided to Customer, Wyrenet Technologies will notify Customer of said error or misstatement and of the correct prices or charges. Customer will have the option of canceling the existing Agreement or ratifying the amended Agreement. However, CANCELLATION WITHOUT CANCELLATION CHARGE SHALL BE CUSTOMERS EXCLUSIVE REMEDY FOR SUCH ERRORS OR OMISSIONS.
4. Wiring – “Wire” or “Wiring” under this Agreement refers to all inside cable/wire connection blocks, cross connect field, structured cabling and any associated hardware on the customer side of the local exchange company’s or common carrier’s network interface. Excluded from the definitions of “wire” and “wiring” are outside cable, riser cable, local area network and/or wide area network not installed or provided by Wyrenet Technologies, and any/all other network wiring or facilities such as poles, conduit, local access lines and trunks. Charges for wire are included in the total amount due under the Agreement unless Time and Materials charges are indicated in the “Additional Remarks” section as provided.
5. Shipment and Use – Products or services sold hereunder are for installation at and shipment to locations within the United States. Further, Customer warrants and agrees that Products or services sold hereunder are primarily for Customer’s commercial use, not for any personal, family or household use. In addition, Customer warrants and agrees that Products are for use in ordinary course of business in the United States and not for export or resale.
6. Payment – Customer agrees to pay one time set fee due under the Agreement upon signature. The balance under this Agreement is due upon equipment delivery to Customer premises. Wyrenet Technologies will consider any amounts that remain unpaid by Customer after Customer Delivery and Acceptance Date to be overdue. In the event of an overdue balance, the Customer will be billed one and one-half percent (1.5%) of the overdue amount per month until paid in full. Customer using a third-party lease and/or service agreement is to make payment consistent with the Terms and Conditions of any such separate Agreement. Charges will be billed as incurred. Customer will be liable for any costs, including collection agency and/or attorney’s fees and costs, incurred in the collection of any past due amount owed to Wyrenet Technologies. A cash deposit paid prior to installation may be required by Wyrenet Technologies from Customer at the sole discretion of Wyrenet Technologies under this Agreement. CUSTOMER’S OBLIGATION TO PAY WYRENET TECHNOLOGIES OR ITS ASSIGNS AMOUNTS SHALL BE ABSOLUTE, UNCONDITIONAL AND NOT SUBJECT TO CANCELLATION, SET-OFF, REDUCTION OR ABATEMENT FOR ANY REASON. NO ASSIGNMENT OF WYRENET TECHNOLOGIES’S RIGHT TO RECEIVE PAYMENT SHALL RELIEVE CUSTOMER OF ITS OBLIGATIONS HEREUNDER. WYRENET TECHNOLOGIES MAY ASSIGN ITS RIGHT TO RECEIVE PAYMENT HEREUNDER IN WHOLE OR IN PART AND WITH OR WITHOUT NOTICE TO CUSTOMER. CUSTOMER WARRANTS IT HAS THE ABILITY OR REASONABLY EXPECTS TO HAVE THE ABILITY TO SATISFY PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
7. Cancellation Charge – If Customer should cancel all or a portion of the Agreement after Wyrenet Technologies has ordered Product from manufacturer or distributor, Customer shall be obligated to pay one hundred percent (100%) of the purchase price of Product, less any refund amount Wyrenet Technologies is able to obtain by returning or cancelling its order of Product on behalf of Customer. All payment obligations are non-cancelable, and all amounts paid are nonrefundable, except as provided in Section 6 and as otherwise set forth in the Agreement.
8. Taxes – Taxes are not included in the prices for Products under this Agreement. All applicable state taxes will be added to the total price of Products and Services provided under this Agreement and must be paid by Customer upon the sale of Products and Services under this Agreement.
9. Use of Software – Customer agrees to comply with all manufacturers’, producers’ and service providers’ software licensing requirements and restrictions. Customer is granted a personal, non-exclusive right to use, in object code form, all software and related documentation furnished to Customer under this Agreement. This grant shall be limited to use for which the software was obtained, or as limited in any applicable end-user licensing agreement, or on a temporary basis, on back-up equipment when the original equipment is inoperable. Use of software on multiple processors is prohibited unless otherwise expressly agreed to in writing by Wyrenet Technologies. Customer agrees to refrain from taking any steps, such as reverse assembly or reverse compilation to derive a source code equivalent of the software. Customer is permitted to make a single archive copy of software. Any copy must contain the same copyright notice and proprietary markings as are on the original software. Use of software on any equipment other than that for which it was obtained, removal of software from the United States, or any other material breach shall automatically terminate Customer’s right to use the software furnished hereunder. If the terms of this Agreement differ from the terms of any agreement packaged with the software, the terms of the agreement packaged with the software, including but not limited to any warranties, warrant disclaimers and limitations of liability, shall govern and prevail.
10. Title and Risk of Loss – By this Agreement, Customer may either purchase Products or lease Products from or through Wyrenet Technologies. Risk of damage or loss of Product shall pass to Customer upon the initial shipment of Product by Wyrenet Technologies or its Agent, to Customer’s premises or designated location. For Products purchased in-place, Customer shall receive title and bear risk of loss or damage upon full payment of the purchase price.
11. Limited Warranty & Limited Support – Products, including wiring installed or certified by Wyrenet Technologies, are warranted by Wyrenet Technologies to Customer during the period of this Agreement. Wyrenet Technologies warrants that said Products will be in good working order on the delivery or installation date of Product; whichever is later (“Warrant Date”). Included within this Agreement is free unlimited remote troubleshooting, maintenance and repair access 24/7. If the problem cannot be resolved remotely, a technician is available at an hourly rate of $_0.00_ for onsite work. Please see schedule for additional services and hourly fees included on page 1. If it is determined that an installed Product is not in good working order due to a defect in the Product itself or installation performed by Wyrenet Technologies during the Warranty Period, then without charge to the Customer, the Product component which is not in working order, at the option of Wyrenet Technologies, will either be repaired or replaced. Some newly manufactured Products may contain circuit packs that are remanufactured by equivalent to new in performance. New, remanufactured or refurbished replacement parts may be provided at the option of Wyrenet Technologies and will be provided on an exchange basis and consistent with the manufacturer’s warranty. If, upon the determination of Wyrenet Technologies that the Product cannot be repaired or replaced, the Product will be removed by Wyrenet Technologies, and at the option of the Customer, the Product purchase price and related installation charges will be refunded to the Customer towards the purchase and installation of any other Product offered by Wyrenet Technologies. Should Customer agree to a separate Service Agreement, warranty labor will be provided by Wyrenet Technologies in accordance with Terms and Conditions of that Service Agreement. If Customer does not purchase said Service Agreement, warranty labor will be provided by Wyrenet Technologies at the then current time and material rate. The Limited Warranty & Limited Support obligation of Wyrenet Technologies as provided in this section, is contingent upon the full payment of the Product purchase price by the Customer. Wyrenet Technologies does not warrant, nor accept any liability for, carrier or system failures or interruptions of service(s). Except as expressly stated herein, Wyrenet Technologies does not offer any other warranty or support under this Agreement. Wyrenet Technologies will not be responsible under this Limited Warranty for Product damage, or obligated to provide Limited Support due to failures or malfunctions resulting in whole or in part from following acts, omissions or circumstances: (a) failure to follow Wyrenet Technologies and/or manufacturer’s Products installation, operation or service instructions; (b) unauthorized modification of the Products or the movement of any Product other than by Wyrenet Technologies or its authorized agents (c) misuse, abuse or negligent acts other than by Wyrenet Technologies or it authorized agents; (d) acts of public enemies and/or acts of God; or (e) when Products are used in conjunction with products or components not provided or installed by Wyrenet Technologies or its agent(s). WYRENET TECHNOLOGIES’S OBLIGATION TO REPAIR, REPLACE OR REFUND AS SET FORTH ABOVE IS CUSTOMER’S EXCLUSIVE REMEDY, EXCEPT AS SPECIFICALLY SET FORTH ABOVE, WYRENET TECHNOLOGIES AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND, WHERE ALLOWED BY APPLICABLE STATE AND FEDERAL LAW, SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability – Except as provided below, the liability of Wyrenet Technologies and its affiliates and suppliers for any claims, losses, damages or expenses from any cause whatsoever, (including acts or omissions of third parties) regardless of the form of the action, whether in contract, tort or otherwise, shall not exceed the lesser of: (1) the direct damages proven; or (2) the actual repair cost, replacement cost, license fee, lease fee or purchase price, as the case may be, of the Product that directly gives rise to the claim. Wyrenet Technologies and its affiliates and suppliers shall not be liable for any incidental, special, reliance, consequential or indirect damages arising out of this Agreement, including, but not limited to, any problems, complications or disruption to Customer services. “Consequential damages” include but are not limited to, the following lost profits, loss revenue, and losses arising out of unauthorized use (or charges for such use) of services or facilities accessed through or connected to Products. This limitation shall not apply to Wyrenet Technologies’ liability and claims for personal injury and property damage (including death) arising out of the gross negligence or willful misconduct of Wyrenet Technologies or any of its affiliates and suppliers. For infringement, Wyrenet Technologies liability shall be limited to the remedies provided in Section 14 (infringement). THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND DICTATES EXCLUSIVE REMEDY EXCEPT AS SET FORTH IN PARAGRAPHS 14 & 19.
13. Infringement –If the Product becomes, or is in the opinion of Wyrenet Technologies, likely to become the subject of a claim of infringement, Wyrenet Technologies will, at its option, either procure for the Customer the right to use said Product, replace the Product with a non-infringing Product, or modify the Product so it becomes non-infringing and performs in a manner similar to the original Product. Should the foregoing fail as a remedy or be deemed inappropriate by Wyrenet Technologies, then Wyrenet Technologies will refund the purchase price or license fee of the infringing Product to the Customer, less a reasonable allowance for Customer’s prior use. THIS PARAGRAPH STATES CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIM OF OR ACTION FOR INFRINGEMENT BY ANY PRODUCT PROVIDED HEREUNDER.
14. Binding Effect – The terms of this Agreement shall be binding upon and inure to the benefit of the successors, assigns, heirs, beneficiaries and representatives of the respective parties hereto.
15. Force Majeure – Neither party shall have liability for damages due to: fire, wind, explosion, power variances, strikes or other labor disputes, water, acts of God, war or other engagement by the United States in hostilities, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials or transportation facilities, fuel or energy shortages, acts or omission of communication carriers, or unauthorized use (or charges for such use) of common carrier telecommunications services.
16. Choice of Law – The construction, interpretation and performance of this Agreement shall be governed by the local laws of the State of Florida. Venue shall be any court of competent jurisdiction in Orange County, Florida.
17. Events of Default – The occurrence of any of the following shall constitute an event of default (“Event of Default”): (a) Failure on the part of Customer to make any payment of any sum owed to Wyrenet Technologies when due and Customer failed to cure such default within fifteen (15) days of written notice by Wyrenet Technologies; (b) If Customer breaches any representation or statement made or furnished to Wyrenet Technologies by Customer in connection with this Agreement; (c) If, before all payment obligations are made to Wyrenet Technologies by Customer, Customer files for insolvency, liquidation or appointment of receiver of any part of the property of, assignment for the benefit of creditors, or commences any proceeding under State or Federal Bankruptcy laws; (d) if Customer creates any lien on the Purchased Products or Leased Products, prior to such products having been paid for in full, that is superior in any way to Wyrenet Technologies; or (e) if Customer creates or becomes subject to any situation whereby Wyrenet Technologies reasonably believes any rights in any Products not completely paid for may be in jeopardy of physical damage or a reduction in rights of Wyrenet Technologies thereby.
18. Remedies - In the event that Customer commits an Event of Default, Wyrenet Technologies shall be entitled to any and all of the following non-exclusive remedies: (a) Wyrenet Technologies shall have the option to declare the entire unpaid principle amount due from Customer for the remainder of the term of this Agreement immediately due and payable; (b) Wyrenet Technologies, shall be entitled to pursue all rights and remedies available to it under this Agreement and under applicable law, including, but not limited to the right to immediate possession of any and all Products, installed hardware or software provided by Wyrenet Technologies to Customer, the right to set-off, the right of Wyrenet Technologies to terminate this Agreement and/or the right to provide no further services on behalf of Wyrenet Technologies under this Agreement; (c) injunctive relief or declaratory judgment. Customer shall be responsible for all costs of Wyrenet Technologies and its assigns in enforcing the Terms of this Agreement, including all reasonable attorney fees and expenses, whether as part of a bankruptcy proceeding or otherwise.
19. Attorneys’ Fees & Legal Costs – In the event a lawsuit is filed by either party in regard to this Agreement, the party prevailing on the merits shall also be awarded an amount equal to the prevailing party’s reasonable attorneys’ fees and legal costs related to the action, off-set by failure to prevail on any merits by a percentage, as determined by the court. If the losing party fails to pay the prevailing party’s reasonable attorneys’ fees and expenses upon demand, the prevailing party may apply for an order compelling such payment and shall be awarded all reasonable attorneys’ fees and expenses incurred in connection with such application.
20. No Waiver – Any waiver by Wyrenet Technologies of any Default by Customer shall only be made in writing and would not be considered a waiver of any subsequent default
21. Assignment/Subcontracting – This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be
unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all or substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be null and void and have no effect.
22. Electronic & Duplicate Copies - A facsimile, scanned, copied or electronic copy of this Agreement and any signatures hereof shall be considered for all purposes as originals.
23. Time is of the Essence – If this Agreement is not executed by an authorized representative and returned to Wyrenet Technologies by the Offer Expiration time and date listed on the first page herein, Wyrenet Technologies my void this Agreement. Time is of the essence of this Agreement and each of its provisions.
24. Severability - If any provision of this Agreement shall be held invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of the remaining part of such provision, and the validity, legality and enforceability of the other provisions hereof shall not be affected thereby. Any provision of this Agreement that is held invalid, illegal or unenforceable in any jurisdiction shall not be deemed invalid, illegal or unenforceable in any other jurisdiction.
25. Dispute Resolution - If a dispute between the parties arises out of or relates to this contract, the breach thereof, or any performance or obligation due hereunder, and if the dispute cannot be settled through direct negotiation, the parties agree first to try in good faith to settle the dispute by mediation conducted by a mediator chosen by the Parties. If mediation is unsuccessful the Parties must resolve any dispute between them, except for non-payment of the invoice amount by Customer, by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in Orange County, FL.
26. Entire Agreement – THIS AGREEMENT, INCLUDING THE ATTACHED EQUIPMENT ORDER FORM OF EVEN DATE, IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR UNDERSTANDING WHETHER WRITTEN OR ORAL, REGARDING PRODUCTS. THIS AGREEMENT MAY NOT BE AMENDED EXCEPT BY A SUBSEQUENT, MUTUALLY AGREEABLE WRITTEN DOCUMENT SIGNED BY THE AUTHORIZED REPRESENTATIVE OF BOTH PARTIES. NO HANDWRITTEN CHANGES WILL BE ACCEPTED, EXCEPT AS TO PAGE 1 ON THE SERVICE LEVEL AGREEMENT.