Subscriber Terms of Service Agreement

GigaBeam Networks, LLC

This is an agreement made between GigaBeam Networks, LLC,a Virginia limited liability corporation located at 387 Old Virginia Avenue, Rich Creek, VA  24147, and _______________ (hereinafter referred to as “Customer”. By ordering Internet service from GigaBeam or by using equipment or services provided by GigaBeam, Customer accepts the terms and conditions contained in this Agreement and agree to comply with its requirements. This agreement is effective upon the Activation Date specified on the “Internet Service Application”, and remains in effect for __________ or until terminated by either party according to the termination provisions specified herein.

Definitions: “Customer”, “Subscriber”, “You”, “Yours”, or “Yourself” means a person, corporation, or legal entity that contracts for or uses GigaBeam’s network.  “GigaBeam Networks”, “GigaBeam”. “Company”, “Us”, “We”, or “Ours” means GigaBeam Networks, LLC, 387 Old Virginia Avenue, Rich Creek, VA  24147. “Service” is defined as the use by the Subscriber of network connectivity and information services provided by Company and any access to services provided by others via the Global Internet or private interactions.   “User” is you or anyone you allow to gain access to the Service from your premises, whether or not they have your consent. “Internet Service Application”, or “ISA” is the service order form containing the specific details of connection speed, contract length, fees, payment arrangements, and other information needed to provision service.

Provision of Services: GigaBeam will provide services on its computing and network systems and also provide the installation of necessary equipment (which includes but is not limited to radio or ONT, cables, connectors, antennas & standard mounting equipment) to you in exchange for payment of fees as described on the ISA, and compliance with the terms and conditions of this agreement and other Company policies. Your right to use the Service is not transferable.

Installation: The Service requires the installation of equipment at your premises and may require permanent modification of the premises to install cables, outlet boxes, antenna mounts, or other items. You agree to allow GigaBeam employees or contractors to install required equipment in the manner necessary to successfully deliver the service. We will make every commercially reasonable effort to provide a fully operational Service within 14 days of initial installation.  This may require adjustments to the equipment such as relocation or re-aiming of the outdoor antenna, re-termination of cables, or configuration changes on the radio transceiver. In some situations, it will not be possible to establish a reliable link due to trees, buildings, or other obstructions. If we are unable to make the Service fully operational within 14 days after initial installation, either party may terminate this Agreement at no cost to either party. It is your responsibility to obtain any required permits or to gain landlord approval for the placement of the antenna and installation of equipment at your premises. GigaBeam is not responsible for property contract violations or other results of this installation if you or your affiliates propose ownership or false landlord.

Payment Policies & Terms: Billing will be done as set forth on the ISA form.  For email and US Mail billings, you will be billed on approximately the 10th of each month for the next month’s service. Payment is due to us by the 5th day of the service month.  Accounts not paid by the 5th day of the month are subject to a ten percent (10%) late fee.  Accounts remaining unpaid for thirty (30) days or more shall be deemed delinquent.  Delinquent accounts shall be charged interest at the rate of 1½% per month (18% APR) on all unpaid amounts.  In addition, Subscriber’s internet access service will be suspended.  Charges for accounts that are terminated, by either you or GigaBeam, are not prorated and are due for the entire month. Accounts not paid by the 5th of the service month will be subject to termination.  To reactivate a delinquent account, a Fifty dollar ($50.00) re-connection fee will be assessed on any suspended account.  Reactivation of a connection that has been placed on accounting hold requires full settlement of the unpaid balance and payment of the re-connection fee.  All payments made to GigaBeam are non-refundable.

Account Termination: You may terminate this Agreement by submitting a written request for termination to GigaBeam via the email address, physical location, or postal address listed on our Web site. Requests received by GigaBeam prior to the close of business on the twenty-fifth day of the month shall have a termination date as of the first day of the month following the receipt of the termination request.  Termination requests received by GigaBeam on the twenty fifth day of the month or thereafter shall have a termination date as of the first day of the second month following the date of the receipt.  Any subscriber agreement terminated under this provision shall be subject to a termination fee equal to thirty (30) percent of the remaining monthly fees due under this agreement from the date of the termination to the end of the agreement term.  Termination fees shall be due within fifteen (15) days of the termination date.  Fees not paid within fifteen days shall be deemed delinquent and subject to the finance charge specified in the “Payment Policies & Terms” paragraph. This Agreement and your use of the Service may be terminated by us at any time with or without notice to you for any reason, including, without limitation, nonpayment of fees, or if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Acceptable Use Policy.

Equipment & Scope of Work: All equipment deployed and provided by GigaBeam at your premises, (radios, ONTs, antennas, routers & standard mounting equipment, etc), will at all times remain the property of GigaBeam. Customer shall not attempt modifications, adjustments, configuration changes, or otherwise tamper with our equipment. You may not sell, transfer, lease, encumber or assign all or part of the equipment to any third party. Customer will pay one thousand dollars ($1,000), or the cost of repair at our sole discretion, of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered, or assigned equipment or part thereof, together with any costs incurred by us in obtaining or attempting to obtain possession of any such equipment. You agree to allow GigaBeam to collect this recovery fee from your on-file credit card.  Upon termination of this Agreement, you authorize us to retrieve GigaBeam owned equipment from your premises for the collection fee of fifty dollars ($50). We may elect to remove only the items that we deem to be valuable or reusable, and items such as in-wall junction boxes, cable, and brackets may, at the our sole discretion, be left in place. We are not obligated to return your premises for any specific condition.  Customers may also elect to return GigaBeam specified equipment and materials to GigaBeam’s office locations and the collection fee will be waived.

Functionality and Standard Maintenance: The demarcation point (“demarc”) for this service is the Ethernet port nearest the Ethernet port of the radio transceiver/ONT at your premises (the POE injector), or router if utilitizing our GigaFi service.  The technical support that we provide is limited to the connectivity itself. Support for other applications, any devices in customer’s home, and uses is not provided or implied unless it is a specifically contracted service. The Service will be considered to be fully operational and acceptable to you if GigaBeam owned diagnostic equipment connected at the demarc can transfer data to and from our Internal servers at the data rates specified in the ISA. Any trouble on your side of the demarc is the responsibility of you, your Network Administrator or vendor. Standard maintenance is limited solely to GigaBeam’s network and backbone connectivity. If your connection ceases to function properly after it has been tested and shown to be working, but our network is still functioning properly, a technician will be sent to diagnose the problem. If the problem is due to your negligence, or any of those items listed in the “Not Covered by Standard Maintenance” section, you will be billed for all labor, materials, and equipment required to restore the Service to full functionality.

Not Covered by Standard Maintenance Plan: Maintenance, repair or replacement of parts damaged or lost through act of God, catastrophe, accident, terrorism, war, lightning, neglect, misuse, theft, fault or negligence by you, or causes external to the network, such as, but not limited to failure of, or faulty, electrical power or air conditioning, operator error, or malfunction of your computer and/or peripheral equipment, or from any cause related to or other than the intended and ordinary use is not covered. Antenna re-aiming due to obstructions such as trees or buildings, or storm related damage is not covered, and we are not responsible for obstructions that may grow or be erected at your premises or elsewhere which may cause the radio signal to be blocked and the Service to degrade or become non-operational.  Any re-aiming of antennas, or reconstruction of tower/mast assemblies will be billed to you at our standard hourly rates and may be subject to equipment costs. GigaBeam is not liable for any damage to property as a result of above occurrences.

Service Outages: Routine maintenance and periodic system repairs, upgrades, and reconfigurations, public emergency or necessity, terrorism, upstream provider problems, restrictions imposed by law, acts of God, force majeure, labor disputes and other situations, including mechanical or electrical breakdowns may result in temporary impairment or interruption of service. GigaBeam does not guarantee continuous or uninterrupted service and reserves the right to occasionally reduce or suspend service without notice.

Use of Services: You acknowledge and agree that certain content may be accessible through the Service which may contain material that is unsuitable for minors (persons under 18 years of age) and GigaBeam is not responsible for content delivered by the service with regard to copyright, obscenity, safety, integrity or reliability. You agree to supervise usage of the Service by any minors whom you may permit to use the Service. Other members of the family or business must make any requests through the account owner. You agree to use this service only for lawful purposes. The transmission or reception of any material in violation of any local, state, federal, or international law or regulation is prohibited. This includes, but is not limited to, copyrighted material, threatening or obscene material, material protected by trade secret, or material that infringes upon the rights of others. You agree not to use any connectivity or computing resources provided by us to interfere with or disrupt network users, services, or equipment, on our network or on any other network reachable via the Internet. GigaBeam does not promise or guarantee the security of your computer systems. You agree to accept all responsibility for protecting your computer systems from all harmful activity that may occur due to its connection to the Internet. You may not resell connection or bandwidth without specific written agreement from us. You may not provide connection or bandwidth to any network device not physically located within the premises. You are ultimately responsible for any and all activity that originates from your Internet connection regardless of your knowledge of such activity. This includes but is not limited to activity by other household members, friends and guests, employees, contractors, or visitors. This also applies to security breaches of your own system by others who launch attacks from your computers. Should you violate any provision of this section, GigaBeam, at its sole, discretion may immediately suspend services to you and/or terminate this agreement. Our liability for termination of this Agreement under this provision shall be solely limited to a refund to you of any unearned prepaid service fees, less termination fees specified in the “Account Termination” section. GigaBeam shall not be liable for any incidental or consequential damages as a result of the termination of the Agreement under this provision.  Use of the Service is also governed by GigaBeam’s Acceptable Use Policy and Privacy Policy.  Copies of both policies are available at www.gigabeam.net.

Bandwidth Utilization and Connection Speed: Overall network performance is determined partially by the amount of bandwidth Subscribers use. GigaBeam can normally balance available bandwidth and Subscriber utilization to provide excellent service to all Subscribers. Subscribers will not be charged for bandwidth consumed on unlimited plans, and GigaBeam does not have specific limits or caps on bandwidth other than as defined in your Subscriber Service Agreement. If you use any GigaBeam service in a manner which consumes excessive bandwidth or affects our core equipment, overall network performance, or other Subscribers’ services, we may require that you cease or alter these activities, or pay additional fees for consumption of these resources. The “Connection Speed” specified in the ISA is the Maximum Information Rate that the connection will provide, but is not a guaranteed minimum rate. GigaBeam charges for its service continuously regardless of whether or not you are using it.

Appropriate Use: Subscribers are prohibited from engaging in certain activities on GigaBeam network. We maintain a separate policy document, which describes these activities. That document, the GigaBeam Networks Acceptable Use Policy (AUP), is incorporated herein by reference. The AUP is subject to revision by us from time to time at our sole discretion. Although we will make an effort to notify you of any additions to, deletions from or changes in the policies, it is your responsibility to periodically review the AUP. The most current AUP is always available on our web site and accessible 24 hours a day at www.gigabeam.net.

LIMITATION AND DISCLAIMER OF LIABILITY AND WARRANTIES: GIGABEAM DOES NOT WARRANT THAT ITS SERVICES WILL MEET ANY SPECIFIC SUBSCRIBER REQUIREMENT, OR THAT IT WILL BE ERROR-FREE OR UNINTERRUPTED. GIGABEAM SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST DATA, INFORMATION, OR PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THE INSTALLATION, USE, OPERATION, OR INABILITY TO USE THE SERVICE, WHETHER CAUSED BY WVVA.NET INC’S OWN NEGLIGENCE, OR BY YOUR ERRORS OR OMISSIONS. GIGABEAM ASSUMES NO RESPONSIBILITY FOR THE CONTENT CONTAINED ON THE INTERNET OR OTHERWISE AVAILABLE THROUGH THE WIRELESS NETWORK OR FROM ANY SOURCE ACCESSIBLE VIA GIGABEAM’S SERVICES. GIGABEAM DISCLOSES AND YOU ACKNOWLEDGE THAT THERE MAY BE CONTENT ON THE INTERNET OR OTHERWISE AVAILABLE THROUGH THE SERVICES PROVIDED BY WVVA.NET INC WHICH MAY BE OFFENSIVE TO SOME INDIVIDUALS, WHICH MAY NOT BE IN COMPLIANCE WITH LOCAL, STATE OR FEDERAL LAWS, RULES OR REGULATIONS, INCLUDING BUT NOT LIMITED TO PORNOGRAPHIC CONTENT, OR OTHERWISE INAPPROPRIATE OR SEXUALLY EXPLICIT OR OFFENSIVE CONTENT. YOU ACKNOWLEDGE TO GIGABEAM THAT YOUR USE OF GIGABEAM’S SERVICES TO ACCESS INFORMATION, CONTENT OR OTHER SERVICES IS AT YOUR OWN RISK. ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.

Indemnification: You shall indemnify and hold harmless GigaBeam and any of its underlying service providers, information providers, licensors, employees, contractors, officers, directors, or shareholders from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to your use of the Service, or any act, error, or omission by you or any user of your account in connection therewith, including, but not limited to, matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property; any defective product or any injury or damage to person or property caused by any products sold or otherwise distributed through or in connection with the Service; or violation of any applicable law.  Limitation Of Liability: In the event that a court should hold that the limitations of liabilities or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any remedies under this Agreement fail of their essential purpose, you expressly agree that under no circumstances shall our total liability to you or any party claiming by, through or under you for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, in the aggregate, exceed the amount of charges paid by you for use of the Service under this Agreement during the twelve-month period preceding the date such claim first arose.

Other Services: We may make certain other resources, such as Web services, email services, and UseNet news services available as features of our Service. If you use these resources, you shall indemnify and hold harmless GigaBeam from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to your Web pages, email, or UseNet news postings or an end user’s use thereof, or any act, error, or omission of yours in connection therewith, including, but not limited to, matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property; or violation of any applicable law.  Privacy and Law Enforcement: GigaBeam will not trade, sell, or disclose to any third party any form of your specifically identifiable information without your consent (except as required by subpoena, search warrant or other legal process or in the case where failure to disclose information will lead to imminent harm to you or others). This includes information derived from registration, subscription, and use of the Service. We may collect and use your specifically identifiable information for billing, provisioning of service, to solve problems associated with service, and to inform you of new products or services that will better meet your needs. We will use this information to market products and services to you, but will not disclose or make available any specifically identifiable information to any third parties seeking to market products. If you choose not to participate in direct marketing of new products and services from us, that information will not be used for the purpose of marketing new products. We will cooperate with law enforcement officials in the pursuit of information or access to data when presented with appropriate authorization from a court having jurisdiction over the subject matter. You release and hold GigaBeam harmless for any disclosure of information, including personally identifiable information, e-mail, confidential information or contact information, to such law enforcement officials. We will cooperate with requests for information accompanying subpoenas or similar court orders for disclosure of information in civil cases. You release and hold GigaBeam harmless for any disclosure of information, including personally identifiable information, e-mail, confidential information or contact information, in response to such subpoenas or court orders.  Governing Law and Venue: The laws of the Commonwealth of Virginia shall govern the terms of this Agreement. The parties hereto stipulate and agree that the exclusive venue for the resolution of all disputes concerning this Agreement shall be in Giles County, Virginia.  Arbitration & Attorneys Fees: You agree that any controversy or claim arising between us out of or relating to this Agreement shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the commercial arbitration rules then in force of the American Arbitration Association. The arbitration award shall be final and binding on both parties. Judgment upon such arbitration award may be entered in any court having jurisdiction. You and GigaBeam agree that should either party bring action for enforcement, interpretation or otherwise under this Agreement the prevailing party in such action shall be entitled to its attorney’s fees and costs including those incurred in any appeal. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. No action, regardless of form, arising out of the Service or this Agreement may be brought by you or any party claiming by, through or under you more than one year after the cause of action has arisen.

Legal Forms:  Copies of all legal forms are available on our website at http://www.gigabeam.net/.  This includes a copy of this agreement, Acceptable Use Policy, and Privacy Policy.

Contract Term Renewal: Following the initial contract term, this contract will automatically renew monthly unless cancelled by either party five (5) business days prior to the end of the billing cycle.  We reserve the right to change subscription rates and other fees at any time including late fees, and this contract will be subject to the rates in effect at the time of rate change.

Entire Agreement: This Agreement constitutes the entire agreement between the parties and no other representations or statements will be binding upon the parties. If any part of this agreement is held to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall remain in full force and effect.

Modification of Agreement:  This agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived at any time by GigaBeam.  Current agreements will be updated on the company website at www.gigabeam.net

Questions: If you have questions about this document, contact us via one of the methods described on our Web site.

 

I have read and agree to the terms of this agreement, as of           , 20

 

Permitting and Landlord Approval:  It is the Subscriber’s responsibility to obtain any required permits or to secure landlord approval for the placement of equipment on or in subscriber’s building.  GigaBeam can assist you and provide this service at an additional charge.

Landlord consents to the installation, maintenance, and removal of the Subcriber’s equipment required by Subscriber to receive GigaBeam Internet access services.