THIS AGREEMENT (“Agreement”) is made this Tuesday the 1st of April 2025 @ 2:24 PM MST (“Effective Date”) by and between Telcom West, an Arizona Limited Liability Company (“Telcom West” or “Provider”) at 411 North Grand Canyon Boulevard, Suite C, Williams, AZ 86046, and Customer.
01. SERVICES
A) Internet Connection Service Telcom West shall provide Customer with fiber optic services, including but not limited to,
B) Changes The capabilities and services available through the Internet as a whole regularly change and expand. In order to improve and adapt the Internet Connection Service to these changing conditions, Telcom West may add, delete or change the Internet Connection Service, at its sole discretion, by providing thirty (30) days prior written notice; provided, however, Telcom West shall not change the price during the Service Period (as defined in Attachment 1). In the event that Telcom West makes a material change to the Internet Connection Service which Customer elects not to accept, Customer may terminate this Agreement as provided for in Subsection 10(b) below.
02. PERMITTED USE
A) Internal Use/Third Party Access. Subject to the terms and conditions set forth herein, authorizes Customer: to provide access to the Internet Connection Service to Customer for internal personal or business use; B) Non-Exclusive Arrangement Customer acknowledges and understands that this is a non-exclusive arrangement and nothing herein shall preclude Internet Technology Provider from providing Internet Connection Service or related services to any third party.
03. Terms
The term of the Agreement shall extend so long as any Attachment to this Agreement remains in effect and Telcom West is providing Internet Connection Service to Customer.
04. PRICE, PAYMENT AND TAXES
A) Price The price for Internet Connection Service shall be set forth in Section C of the Attachment then in effect. B) Invoices and Payment Telcom West will submit invoices to Customer as provided for in the Attachment then in effect. Payment shall be made in U.S. dollars and is due net fifteen (15) days from the date of invoice. C) Taxes Prices payable by Customer to Telcom West under this Agreement are exclusive of any tax, levy, customs duty, import tax or similar governmental charge that may be assessed by any jurisdiction whether based on gross revenue or delivery of services, except for net income taxes assessed on Telcom West. All such taxes are the responsibility of Customer.
05. TRADEMARKS/PUBLICITY
A) Use of Telcom West’s Name and Trademarks All trademarks, service marks and trade names identifying Telcom West or Telcom West products or services (the “Marks”) are the exclusive property of Telcom West. Customer shall take no action which jeopardizes the Marks. Customer shall not use a Mark or the name of Telcom West in any advertising, promotional material, or public announcement without the prior written approval of Telcom West. B) Use of Customer’s Name Customer acknowledges that use of the Internet Connection Service will require that Telcom West include Customer’s name in registrations and administrative filings which are available to the public. In addition, Customer agrees that Telcom West may include Customer’s name in Telcom West marketing brochures and literature and indicate that Telcom West is a Telcom West Customer.
06. CONTENT RESPONSIBILITY AND INTERNET SERVICE USE RESTRICTIONS
A) Customer acknowledges and agrees that it is solely responsible for the Content of its transmissions which pass through the Internet Connection Service. Customer also agrees it will not use the Internet Connection Service: 1. for illegal purposes; 2. to transmit threatening, obscene or harassing materials, or 3. to interfere with or disrupt other network users, network services or network equipment. B) Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms or viruses, and using the network to make unauthorized entry into any other machine accessible via the network.
07. LICENSES
In the event that Customer purchases equipment from Telcom West in conjunction with the Internet Connection Service, Telcom West grants Customer a limited license to use any software provided with such equipment (the “Software”) subject to the following terms and conditions: A) Software provided is copyrighted and licensed for use solely on the equipment with which it is provided for Customer’s end use only. B) Software provided hereunder is licensed by Telcom West from third parties. Title to and copyright in Software remains with the licensor. TELECOM WEST AND ITS LICENSOR DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF SUCH SOFTWARE, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. C) All limitations of liability and indemnification provisions in this Agreement apply to the licensor. D) Customer agrees it shall not reverse assemble, reverse compile, or otherwise translate Software or any portion thereof.
08. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
A) Telcom West provides services hereunder strictly on an “AS IS” and “AS AVAILABLE” basis without any express guarantee or assurance of quality, reliability or functionality. Except as expressly set forth herein, Customer accepts all risk, including all risk with respect to suitability, use and performance of Internet Connection Service. TELCOM WEST DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In any instance involving performance or nonperformance by Telcom West with respect to services provided hereunder. Customer’s sole remedy shall be refund of a pro rata portion of the price paid for Internet Connection Service which was not provided. Refunds will be provided only for periods of lost service greater than ten (10) days. B) Telcom West will not be liable for any damage that Customer may suffer arising out of use, or inability to use, the Internet Connection Service Except for intentional acts by Telcom West personnel, Telcom West will not be liable for unauthorized access to Customer’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of Telcom West’s negligence. Telcom West shall not be liable for indirect, consequential, incidental, or special damages even if advised of the possibility in advance. Telcom West shall not be liable for any lost property or data of Customer. Telcom West liability for damages to Customer for any cause whatsoever, regardless of form of action, shall be limited to the greater of $500 or the amounts paid by Customer to Telcom West hereunder during the month (1) month period preceding the incident giving rise to the claim for damages.
9. INDEMNIFICATION
A) Indemnification by Telcom West. Telcom West will defend, indemnify and hold Customer harmless from and against any claim or demand asserted by any third party that any hardware or software provided to Customer hereunder infringes any U.S. copyright, patent, trade secret or other intellectual property right. B) Indemnification by Customer. Customer agrees to defend, indemnify and hold Telcom West harmless from and against any claim or demand asserted by any third party due to or arising out of use by Customer of services provided hereunder. C) Conditions. The indemnification obligations set forth above are contingent upon compliance with the following conditions by the party seeking indemnification: 1. Providing prompt written notice of a claim; 2. Providing all information and evidence within its control which is necessary for the indemnifying party to conduct a defense; and 3. Providing the indemnifying party with sole control of the defense and all related settlement obligations.
10. TERMINATION
A) Termination By Either Party. If any of the events below occur with respect to one party, then the other party may terminate this Agreement effective immediately upon the delivery of written notice: 1. A party becomes insolvent; files a voluntary petition in bankruptcy; proposes any dissolution, liquidation, reorganization or recapitalization; has filed against it an involuntary petition in bankruptcy, or a receiver is appointed or takes possession of the party’s property, and such petition is not dismissed or stayed within thirty (30) days of such filing, appointment or taking possession; makes an assignment for the benefit of creditors, or is adjudicated as bankrupt; or takes any similar action under the laws of any jurisdiction. 2. Material breach of this Agreement which is not remedied within three (3) days after written notice (describing the breach with particularity) has been given. 3. Customer is merged into or acquired by another entity or there is a substantial change in Customer’s direct or indirect ownership or control of its voting securities or the sale of substantially all of its assets. B) Termination By Customer. Customer may terminate this Agreement upon thirty (30) days written notice in the event that Telcom West makes material changes to the Interact Connection Service which Customer elects not to accept. C) Effect of Termination. Upon termination, Customer agrees to cease all use of the Internet Connection Service and to return any Telcom West-provided equipment and software within three (3) days of termination.
11. EXPORT COMPLIANCE
The transfer of technology across national boundaries, including electronic transmission thereof, is regulated by the U.S. Government. Customer agrees not to export or re-export (including by way of electronic transmission) any technology transmitted through Internet Connection Service without first obtaining any required export license or governmental approval. Customer agrees it will not directly or indirectly export or re-export such technology to Iran, Iraq, the Federal Republic of Yugoslavia (Serbia and Montenegro), the People’s Republic of China, Sudan, Syria or any of those countries listed from time-to-time in supplements to Part 770 to Title 15 of the Code of Federal Regulations in Country Groups Q, S, W, Y or Z. The parties acknowledge that the foregoing lists are subject to regulatory change from time to time and agree to update the lists as appropriate.
12. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
13. NOTICE AND PAYMENT
A) Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express. B) Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
14. JURISDICTION/DISPUTES
A) Any claim or controversy (“Dispute”) between or among the Parties and their employers, agents, affiliates, and assigns, including, but not limited to, Disputes arising out of or relating to this Agreement, this arbitration provision (“Arbitration Clause”), or any related agreement or instruments relating hereto or delivered in connection herewith (“Related Agreements”), and including but not limited to, a Dispute based on or arising from an alleged tort, shall be resolved by binding arbitration in accordance with the applicable arbitration rules of the American Arbitration Association. This Agreement shall be governed in accordance with the laws of the State of Arizona.
15. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall insure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
16. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
17. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
18. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
19. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
20. EASEMENT
Customer shall permit Telcom West to erect, use, maintain, replace, and repair pipes, cables, conduits, and telephone, electric and other wires or other items, in, to, and through the Premises, as and to the extent that Telcom West may now or hereafter deem necessary and appropriate for the proper operation and maintenance of Internet Connection Service, provided that Telcom West shall not unreasonably interfere with Customer’s use and occupancy of the Premises.
21. SHARING SERVICES
In the United States, sharing your internet service with someone who is not authorized by your internet service provider (ISP) is generally considered illegal, as most ISP contracts prohibit this practice, and unauthorized access to a network can be considered a violation of contract law and potentially even criminal depending on the state and circumstances; essentially, "piggybacking" on someone else's internet without their permission is illegal. Telcom West can monitor usage patterns and may take action against accounts suspected of excessive sharing, which could include termination of service or additional fees.
22. POINT to POINT CONNECTIONS
"Illegal point-to-point WiFi" refers to setting up a direct wireless connection between two devices without Telcom West's permission to access the network you're connecting to, essentially "piggybacking" on someone else's internet signal, which is considered illegal in most jurisdictions and can be considered a form of theft of service or unauthorized access to a network.