BOB, LLC TERMS OF SERVICES AGREEMENT PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ORDERING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICES AND AGREE TO BE BOUND BY ALL OF THESE CONDITIONS INCLUDING, WITHOUT LIMITATION THE PRIVACY POLICY, ACCEPTABLE USE POLICY (AS FOUND ON THIS WEB SITE), AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOTIFY BOB LLC IN WRITING WITHIN FIVE (5) DAYS OF ORDERING THE SERVICE THAT YOU DO NOT WANT TO USE THE SERVICES.
This Terms of Service Agreement (“Agreement”) governs your purchase and use of the fixed wireless broadband services (the "Services") and the use of any equipment provided by BOB, LLC, a Illinois limited liability company, and its affiliates (collectively, "Business Only Broadband" or “BOB”) in accordance with the order form submitted by you to Business Only Broadband (the "Service Order Form"). This Agreement also includes, and incorporates by this reference, each Service Order Form (and Business Only Broadband’s Privacy Policy as may be amended or modified from time to time (currently located at www.bobbroadband.com/privacy.php)) ordered by you. This Agreement describes the terms and conditions that apply to your purchase and use of the Services and use of the Business Only Broadband Equipment. You must accept the terms of this Agreement to use the Services and Business Only Broadband Equipment. Your use of the Services and the Business Only Broadband Equipment constitutes acceptance of the terms of this Agreement. If you are acting as an employee, you acknowledge that you are authorized by your employer to use the Services and Business Only Broadband Equipment and bind your employer to the terms and conditions of this Agreement. As used in this Agreement, "you" or "your" includes you and your employer. If you would like to print this Agreement, please click the print button on the bottom of this page.
In consideration of the terms and conditions set forth below, the parties agree as follows:
1. Fixed Wireless Broadband Services.
Specifications. Business Only Broadband shall render the Services described in the Service Order Form(s) incorporated herein (the "Services"), during the Term (defined in Section 13 below) set forth on the Service Order Form, and shall provide equipment as determined by Business Only Broadband required to render the Services ("Business Only Broadband Equipment").
Subcontractors. Customer acknowledges that Business Only Broadband may subcontract any of Business Only Broadband’s obligations under this Agreement.
Facilities. Customer shall provide Business Only Broadband, or subcontractors assigned to provide Services at Premises (defined below in Section 4), with adequate work space, supplies, office/computer equipment, system access, telephones, restroom facilities, and all other facilities necessary to perform the Services contemplated by this Agreement.
“Notice of Availability” means the document which communicates the date on which the Services are available for immediate use by Customer subject to this Agreement and lists Business Only Broadband Equipment installed on Customer’s Premises.
Business Only Broadband will provide the Services to you in accordance with the Service Order Form(s). Business Only Broadband will provide you with wireless connections to the Business Only Broadband network. Business Only Broadband’s responsibility ends at the Business Only Broadband Equipment.
2. Service Descriptions:
The following are defined terms for the Services.
“Private Connect Intra-State” provides Ethernet service interconnecting two or more Termination Ports within the same US State where 90% or greater of Customer’s usage originates and terminates in the same US State.
“Private Connect Inter-State” provides Ethernet service interconnecting two or more Termination Ports between two (2) or more US States where more than 10% of Customer’s usage originates and terminates in different US States.
“Public Connect” provides connectivity from a Termination Port to Business Only Broadband’s Internet Service.
The following are defined terms for the Services.
“Termination Port” shall mean the network point at which the Customer’s network connects with the BOB Network. Unless otherwise specified on the Service Order Form, the interface at the Termination Port shall be a RJ-45 10/100 Mbps Ethernet connection via a physical IEEE-compliant Base-TX (twisted pair).
"BOB Network" shall mean the telecommunications/data communications network and network components owned, operated, or controlled by BOB, including BOB metropolitan area networks and the BOB’s equipment at the Premises. The BOB Network does not include network equipment not operated or controlled by BOB.
3. Restrictions.
Customer agrees it shall not directly or indirectly:
enable any personnel other than its authorized users to access and use the Services or Business Only Broadband Equipment;
lease, rent, sublicense, transfer, resell, or otherwise grants rights to the Services to any third party without the express written consent of Business Only Broadband;
use the Services in a manner prohibited by any federal, state, or local law or regulation, or Business Only Broadband’s policies and guidelines described in this Agreement,
use the Business Only Broadband Equipment or Services for any abusive purpose or in any way that damages Business Only Broadband’s property or interferes with or disrupts Business Only Broadband’s network or other users;
attempt to circumvent user authentication or security of any host, network, or account (including, but not limited to, accessing data not intended for Customer, logging into a server or account that Customer is not expressly authorized to access, or probing the security of other networks);
attempt to interfere with service to any user, host, or network (including, without limitation, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host;
use any kind of program or script or command, or send messages of any kind, designed to interfere with a user’s session, by any means, locally or via the Internet; or
use the Services or take any action that may weaken network performance, or which adversely affects the performance of the Services for other Business Only Broadband customers, all as determined in Business Only Broadband’s reasonable discretion. Customer will immediately notify Business Only Broadband in writing or by email at support@bobbroadband.com, of any unauthorized use of the Services, if the Business Only Broadband Equipment is stolen, or if Customer becomes aware at any time that the Services are being stolen or fraudulently used.
4. Orders.
Customer must complete each Service Order Form and submit it to Business Only Broadband for acceptance. The Service Order Form will include, among other things,
Customer’s name;
the address of the location where the Services will be provided and the Business Only Broadband Equipment will be installed (the "Premises");
the Business Only Broadband Equipment installation date;
Customer’s billing address, phone number and email address;
the Services Customer has selected and the applicable installation charges (the “Set-up Fee”); and
other billing information, including credit card information (if applicable). Customer agrees to promptly notify Business Only Broadband whenever the billing information changes. By executing the Service Order Form, Customer represents and warrants that Customer is legally authorized to purchase the Services and Business Only Broadband Equipment and is authorized to act and affirm that the information Customer supplies to Business Only Broadband is correct and complete. Business Only Broadband will treat all activities under an account to be those of the registered subscriber.
“Subscription Fee” is the monthly recurring charge for each Service ordered by Customer payable to BOB due in accordance with the terms of this Agreement as indicated on the Service Order Form(s).
5. Modification to Services.
Business Only Broadband has sole discretion as to the operation, availability and scope of the Services. Business Only Broadband reserves the right to change or modify the Services, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion; provided, however, such change does not materially alter the scope of Services and/or the Subscription Fee for the Services. Changes to this Agreement or any policy or guidelines governing the Services will be effective fifteen (15) days after written notice to Customer. If Customer requests modifications to pending Services or previously installed Services, Customer shall pay Business Only Broadband’s then current hourly rates for reengineering and modifying the Services, including any and all minimum fees, and actual costs incurred, including any third-party charges assessed against Business Only Broadband for such modification.
6. Equipment, Facilities and Services.
Customer is solely responsible for providing, installing and maintaining at Customer’s expense, an ethernet broadband router or other suitable ethernet device (the “Subscriber Equipment”). Customer is solely responsible for the adequacy and accuracy of all the Subscriber Equipment. Business Only Broadband is not responsible for troubleshooting, repairing, or configuring the Subscriber Equipment. Customer is responsible for providing appropriate systems, procedures and safeguards, including system backups, to protect the Subscriber Equipment and prevent the loss of data or software. Business Only Broadband shall not be responsible and shall have no liability for the protection, modification or loss of Customer’s equipment, data, information or programs (including the cost of restoring or recreating such data, information or programs) resulting from the use of the Services.
7. Support.
Business Only Broadband shall provide telephone support and email support to Customer and authorized users relating to the use and operation of the Services (other than problems with Subscriber Equipment, operating system software or any other software). While Business Only Broadband will use reasonable efforts to respond to Customer’s inquiries, Business Only Broadband assumes no responsibility to resolve any problem or defect in the Services, except as expressly provided herein. Customer is responsible for integrating and troubleshooting Customer’s local area network and internal network, as necessary. Business Only Broadband will not be responsible for any loss of use of Services or degradation in performance resulting from Customer’s use of incompatible equipment or for any damage to any additional equipment Customer connects to the Business Only Broadband Equipment. Business Only Broadband Customer Support will troubleshoot and support Customer on Services and Business Only Broadband Equipment issues pertaining to the Business Only Broadband network and Services only, and reserves the right to determine that a problem or issue is Customer’s responsibility.
Business Only Broadband shall provide three (3) levels of technical support at 1-877-262-4553:
Level 1 will troubleshoot routine issues and assist in diagnosing more complex issues. Level 1 will engage Level 2 support as necessary.
Level 2 will resolve all connectivity issues involving layer 2/layer 3 and RF issues. Level 2 will engage Level 3 support as necessary.
Level 3 will dispatch a service call to customer location and/or core site to restore service.
Business Only Broadband shall provide non-technical support at 1-877-262-4533 for:
Billing - invoices, statements, credits, etc.
Service additions and modifications such as additional IP addresses, additional bandwidth, etc.
In the event that Customer requests a service call to Customer’s Premises and Business Only Broadband determines in its sole discretion that the problem is Customer’s responsibility, Customer shall pay Business Only Broadband for the service call at Business Only Broadband’s then current hourly rates for on-site service calls, including any and all minimum fees.
8.Reservation of Rights.
Business Only Broadband or its suppliers are the exclusive owners of and retain all right, title and interest (including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights thereto (collectively, "Proprietary Rights")) to all materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Business Only Broadband or its suppliers to Customer pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Business Only Broadband to provide the Services to Customer.
9. Installation.
Business Only Broadband or its third party service provider will install the Business Only Broadband Equipment (the “Installation Services”) at the Premises. If necessary, Customer will provide access to the Premises as scheduled with Business Only Broadband and the appropriate preparation and maintenance of the Premises to allow for proper installation, maintenance, and other activities of Business Only Broadband in connection with the Business Only Broadband Equipment, Installation Services and Services. Business Only Broadband will not maintain or in any way be responsible for any software, cables, or hardware attached to the Business Only Broadband Equipment or in any way related or unrelated to the use of Services, including Customer’s internal network. By signing the Service Order Form(s), Customer represents and warrants to Business Only Broadband that Customer either owns the Premises or has received permission from the owner of the Premises to make any changes to the Premises or outside the Premises necessary to install the Business Only Broadband Equipment and receive the Services, including, without limitation, securing riser or roof rights. Further, Customer represents and warrants that the installation of the Business Only Broadband Equipment at the Premises will not violate any restrictions or agreements applicable to the Premises. Customer acknowledges that Business Only Broadband or the third party service provider performing the Installation Services may refuse to perform any custom installation work, or may require inside or external wiring to complete Installation Services at additional hourly or other charges. In the event Customer fails to keep an installation appointment or the Premises are not prepared to accept installation of the Business Only Broadband Equipment and Services, Business Only Broadband may charge Customer Business Only Broadband’s then current hourly rates for the installation appointment, including any and all minimum fees. Business Only Broadband will not be liable for any alterations or damage to the Premises that result from the Installation Services, use, or removal of the Business Only Broadband Equipment, including, but not limited to, holes in walls or ceilings, cable wiring, or antenna mounting brackets, and will not be responsible for removing any of the Business Only Broadband Equipment or any costs related to the removal of the Business Only Broadband Equipment (including antennas and related cabling) upon expiration or termination of the Services for any reason. Customer agrees to indemnify Business Only Broadband from any claims or liabilities associated with Business Only Broadband’s performance of the Installation Services, including, but not limited to, claims by the owner of the Premises. All Business Only Broadband Equipment will at all times remain the property of Business Only Broadband. Customer may not sell, transfer, lease, encumber or assign all or any part of the Business Only Broadband Equipment to any third party. Customer agrees to pay the full retail price for the repair or replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Business Only Broadband Equipment or part thereof, together with any costs incurred by Business Only Broadband in obtaining or attempting to obtain possession of any such Business Only Broadband Equipment. By signing up for the Services and Business Only Broadband Equipment, Customer consents to the subsequent recurring billing for Subscription Fees, and for any outstanding Business Only Broadband Equipment, repair and replacement costs described herein.
10. Subscriber and Third Party Content.
Customer is solely responsible for all content that Customer permits to be transmitted through the Services or Business Only Broadband network ("Subscriber Content"). Customer will indemnify and hold harmless Business Only Broadband from any claim, action, demand, loss, or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to Customer’s conduct and any content Customer stores, processes, or transmits using the Services. Business Only Broadband has no control over any goods, services, links or content provided by a third party that is accessible through the Services (collectively, "Third-Party Content"). Software or other content accessible as Third-Party Content may contain computer viruses and worms, and it is Customer’s sole responsibility to take appropriate precautions to protect Customer’s computer from damage to its software, files and data. Business Only Broadband makes no claim or representation regarding, and accepts no responsibility for, the quality, contents, nature or reliability of any Subscriber Content or Third-Party Content. Business Only Broadband does not endorse or adopt any Subscriber Content or Third-Party Content and can make no guarantee as to its accuracy or completeness. Business Only Broadband does not represent or warrant the accuracy of any information contained therein, and undertakes no responsibility to update or review any Subscriber or Third Party Content. Customer should be aware that when accessing any Third-Party Content, different terms, conditions and policies apply, and, therefore, Customer should carefully review such terms, conditions, and policies. Business Only Broadband exercises no control over, and accepts no responsibility for, Subscriber Content, Third-Party Content or other information passing through the Business Only Broadband network, network hubs and points of presence, or the Internet. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM CUSTOMER DOWNLOADING, ACCESS, OR USE OF ANY THIRD-PARTY CONTENT.
11. Acceptable Use.
Customer agrees at all times to adhere to all applicable laws, rules, and regulations and to Business Only Broadband’s then current Acceptable Use Policy located at http://www.bobbroadband.com/usage_policy.php (or such other location as Business Only Broadband may specify). The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose terms substantially and materially similar to the Acceptable Use Policy on its customers or users (“End Users”), either as a warning prior to the End User using the Services or in Customer’s agreements with its End Users.
12. Business Only Broadband’s Rights.
Business Only Broadband may monitor the Services to evaluate usage patterns and use of the network by Customer or investigate any alleged violation of this Agreement, Business Only Broadband’s policies and guidelines or any third-party complaints. Business Only Broadband may access and disclose any information or content it considers necessary or appropriate (including, without limitation, registration information, IP addressing and traffic information, and usage history) to:
comply with applicable law (e.g., a lawful subpoena, warrant or court order);
enforce or apply Business Only Broadband’s customer agreements;
initiate, render, bill, and collect for services;
protect Business Only Broadband’s rights or property (including the integrity and operation of the Business Only Broadband network);
protect other users of the Services from fraudulent, abusive, or unlawful use of, or subscription to, the Services; or
if Business Only Broadband reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of communications or justifies disclosure of records without delay. In the event that Business Only Broadband determines in its sole and reasonable discretion that any Subscriber Content or conduct or actions of any subscriber (including its employees and users) are objectionable, unlawful, potentially infringing or otherwise violate this Agreement, Business Only Broadband may take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, subscribers and/or third parties. Such corrective action includes, but is not limited to:
issuing a warning;
immediately suspending or terminating the Services;
restricting or prohibiting access to any Subscriber Content that is objectionable or otherwise violates this Agreement; and/or
disabling or removing hypertext links, Subscriber Content or the content of any third party from the Business Only Broadband network. In the event Business Only Broadband takes corrective action, Business Only Broadband shall not refund any fees paid in advance of such corrective action. Notwithstanding the foregoing, Business Only Broadband has no practical ability to restrict all conduct, communications or content which might violate this Agreement prior to its transmission on or through the Services, nor can Business Only Broadband ensure prompt removal of any such communications or content after transmission or posting. Accordingly, Business Only Broadband does not assume liability to users or others for any failure to enforce the terms of this Agreement.
13. Term/Termination. Term. The terms and conditions of this Agreement shall be active from the date Business Only Broadband both: i) receives and accepts a Service Order Form executed by Customer (“Effective Date”); and, ii) issues a Notice of Availability. The Term of the Agreement shall start at the Notice of Availability and end upon the expiration of the number of months stated on the Service Order Form (“Initial Term”), unless terminated in accordance to the terms and conditions of this Section 13. Regardless of the method of the termination of this Agreement, Customer’s payment obligations under Section 15 shall survive the termination of this Agreement or such terminated Service Order Form until payment for services rendered are received in full. Upon expiration of the Initial Term, the Service will to auto-renew for twelve (12) month periods (“Term”) unless such Service Order Form is terminated in accordance with this Section 13. During any period where Services auto-renew, Business Only Broadband will charge Customer the applicable Subscription Fee as defined in each Service Order Form.
Termination of the Agreement/Service Order Form by Business Only Broadband. Business Only Broadband may terminate this Agreement if no Customer executed Service Order Form remains in effect.
Termination.
Termination for Convenience by Customer. Customer may terminate this Agreement or any Service Order Form for any reason by providing Business Only Broadband thirty (30) days prior written notice. If Customer terminates this Agreement under this section, Business Only Broadband will not refund any fees, charges or amounts Customer has paid. Further, if Customer terminates this Agreement prior to Installation, Customer agrees to reimburse Business Only Broadband for any and all costs and/or expenses incurred or owed by Business Only Broadband in connection with Customer ordering the Services, including, but not limited to, any contracts entered into by Business Only Broadband in connection with this Agreement. Additionally, if Customer terminates this Agreement under this Section after Installation has been completed, Customer agrees to pay Business Only Broadband for the entire remaining Subscription Fee for the then current Subscription Period and any other fees, charges or other amounts due and payable. In addition, Customer must return the Business Only Broadband Equipment in good working condition or Customer will be subject to an additional fee in an amount equal to the retail price to replace the non-returned equipment or defective equipment. Customer will permit Business Only Broadband to access the Premises to remove the Business Only Broadband Equipment at Customer’s expense, or Customer may remove the Business Only Broadband Equipment and return it to Business Only Broadband within 5 days of the effective date of termination or Customer will be subject to an additional fee in an amount equal to the cost to replace the non-returned equipment. In the event Business Only Broadband must access the Premises to remove the equipment, Customer will be responsible to pay Business Only Broadband’s then current hourly rates for on-site services together with any out-of-pocket expenses incurred by Business Only Broadband, including any and all minimum fees.
Termination by Business Only Broadband prior to Installation. Business Only Broadband may terminate this Agreement prior to completing the Installation if it is determined that the Services cannot be provided to Customer for any reason. Upon any termination of this Agreement by Business Only Broadband under this Section, Customer will be refunded any amounts that Customer has paid for the Set-up Fee.
Termination for Material Breach or Default. Business Only Broadband may restrict or suspend the Services and/or immediately terminate this Agreement upon written notice to Customer due to any use of the Services in violation of any term of this Agreement or policy, including the Acceptable Use Policy. Upon any termination of this Agreement pursuant to this Section, Customer will be responsible and Customer authorizes Business Only Broadband to charge Customer for the entire remaining Subscription Fee for the then-current Subscription Period and any other fees, charges or other amounts due and payable, including any and all minimum fees. Business Only Broadband will not refund, and Customer is not eligible for a refund of, any remaining portion of any fee that already has been charged.
Effect of Termination. Should this Agreement be terminated for any reason, Business Only Broadband will not be liable to Customer for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Customer’s use of the Services, or for any other reason whatsoever flowing from such termination. Except as set forth herein, any termination of this Agreement shall not relieve Customer of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by Customer to Business Only Broadband as provided in this Agreement. The provisions contained in this Agreement that by their context are intended to survive termination or expiration will survive, including without limitation, the sections entitled Restrictions, Privacy, Reservation of Rights, Installation, Acceptable Use, Disputed Charges, Term of Service, Disclaimers; Limitation of Liability, Indemnification, Jurisdiction; Applicable law, and General Provisions.
14. Fees and Payment.
Amounts and Invoices. Customer shall pay to Business Only Broadband the Subscription Fees according to the payment terms specified below. Customer shall also pay the amounts set forth in Customer’s Service Order Form(s) for the Set-up Fee and Additional Business Only Broadband Equipment (if any) as set forth in the Service Order Form(s), and any and all additional costs and expenses incurred by Customer in connection with Customer’s use of the Services according to the payment terms specified below.
Payment Terms. Customer will pay all amounts due to Business Only Broadband, including, but not limited to, Subscription Fees for Customer’s use of the Services and the fees, charges and other amounts for the Set-up Fee and such additional costs and expenses incurred by Business Only Broadband in connection with Customer’s use of the Services within thirty (30) days after receiving the invoice. For the charges due for the Set-up Fee, Customer shall pay such charges when Customer signs the Service Order Form(s). Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. All amounts payable under this Agreement are denominated in United States Dollars. Payment of such finance charges will not excuse or cure Customer’s breach or default for late payment. Further, Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Business Only Broadband to collect any amount which is not paid when due.
Taxes. Customer is responsible for all applicable taxes, duties or other charges, including, but not limited to, all federal, state, and local sales, use, value added, excise, duty and any other applicable taxes or impositions, except for taxes based on Business Only Broadband’s net income.
15. Failure to Pay; Suspension of Services.
If Customer fails to pay any amount under this Agreement when due, in addition to any other remedies available at law or in equity, Business Only Broadband will have the right, in its sole discretion, to immediately suspend the Services. Any suspension or termination by Business Only Broadband for Customer’s failure to pay will not relieve Customer from i) paying past due fees plus interest; and, ii) paying Business Only Broadband for the entire remaining Subscription Fee for the then current Subscription Period. To reestablish Services suspended or terminated for delinquency, Customer must pay all past due amounts in full and Customer may be charged an activation fee and may be required to prepay fees.
16. Charges; Disputed Charges.
All charges are considered valid unless disputed in writing within thirty (30) days after Customer receives an invoice from Business Only Broadband. If Customer does not dispute such charges within the thirty-day period, Customer agrees that Customer waives Customer’s right to dispute the charges and release Business Only Broadband from any and all liability and claims of loss resulting from any error or discrepancy. Customer may only dispute charges that Customer believes are a result of a billing error. Business Only Broadband shall not be responsible for any charges or expenses that Customer may incur resulting from overdrawing Customer’s bank account or exceeding a credit card limit as a result of an automatic charge generated by Business Only Broadband pursuant to a written authorization by Customer. If Customer’s account incurs charges that are denied by Customer’s financial institution for any reason, Business Only Broadband reserves the right to rebill Customer, regardless of Customer’s account status.
17. Independent Contractor.
Customer acknowledges and agrees that Business Only Broadband is at all times acting and performing as an independent contractor with respect to the subject matter of this Agreement. Customer shall neither have nor exercise any control or direction over the methods by which Business Only Broadband performs the Services. Each party shall be solely responsible for compliance with all state and federal laws pertaining to employment taxes, income withholding at the source, unemployment compensation contributions and other employment-related statutes regarding their respective employees, agents and servants. This Agreement shall not be construed as creating a partnership between the parties or as creating any other form of legal association that would impose liability upon one party for the act or failure to act by the other party.
18. Confidential Information.
Business Only Broadband. Except for as set forth in Section 18(c) herein, Customer agrees that any information or material concerning Business Only Broadband, its subsidiaries or affiliates, their directors, officers or employees or Business Only Broadband’s prices, terms and conditions, and clients, including, without limitation, such information or material used by Customer or its personnel in conjunction with the Services, in whatever form, tangible or intangible, is proprietary to Business Only Broadband ("Business Only Broadband Confidential Information"). Such information shall be treated by Customer as confidential and shall not be disclosed by Customer to any third-party or used by Customer or its personnel except to the extent required in conjunction with its performance of any obligations required hereunder. All such information and all other written reports, recommendations, advice, records, documents, software and other materials coming into Customer’s possession during the term of this Agreement that relate to the business of Business Only Broadband, its subsidiaries or affiliates, their directors, officers or employees shall, as between Business Only Broadband and Customer, be the sole and exclusive property of Business Only Broadband and shall be immediately returned upon request of Business Only Broadband or upon the termination of the Agreement, whichever occurs sooner. Customer shall inform its employees and agents of the confidentiality obligations set forth herein. Customer shall take all steps reasonably necessary to assure that confidentiality is maintained by its employees and agents and shall take all reasonable steps requested by Business Only Broadband to assure such confidentiality.
Customer. Business Only Broadband acknowledges that it will have access to certain confidential information of Customer concerning Customer’s business, plans, customers, technology and products ("Customer’s Confidential Information"). Except for as set forth in Section 18(c) herein, such information shall be treated by Business Only Broadband as confidential and shall not be disclosed by Business Only Broadband to any third-party or used by Business Only Broadband or its personnel except to the extent required in conjunction with its performance of any obligations required hereunder.
Confidentiality Exclusions. Neither party shall be liable (subject to any patent or copyrights of the other party) for any use and disclosure of Business Only Broadband or Customer Confidential Information, which was:
In the public domain prior to the receipt of the same by the recipient of the information or has subsequently become part of the public domain by publication or otherwise except by a wrongful act on the part of the recipient of the information;
Required to be disclosed by the recipient of the information by lawful process or judicial order, provided that the recipient shall promptly notify the provider of the information of such requirement so that the provider may seek an appropriate protective order or otherwise seek to protect the confidentiality of the Confidential Information;
In the possession of the recipient or known to it prior to its receipt hereunder as evidenced by written documentation, and was not acquired directly or indirectly from the provider of the information; or
Received by the recipient from a third party, which recipient reasonably believed had no obligation of secrecy with respect thereto.
Confidentiality Remedies. Without prejudice to the rights and remedies otherwise available to either party, the parties agree that if either party breaches or threatens to breach any provision of this Section 18, the non-breaching party shall have the right to have this Section 18 specifically enforced or enforced by injunction, temporary restraining order or other equitable relief, and without the necessity of posting a bond or other security. Nothing herein contained shall be construed to prevent or preclude such other remedy or combination of remedies that either party may elect to invoke.
19. Disclaimers.
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’S CHOOSING, FREE OF HARMFUL COMPONENTS, ACCURATE OR ERROR-FREE. THE WARRANTY AND REMEDY REGARDING THE INSTALLATION SERVICES SET FORTH IN THIS PARAGRAPH ARE EXCLUSIVE.
20. Limitation of Liability.
IN NO EVENT SHALL BUSINESS ONLY BROADBAND (OR ITS OFFICERS, EMPLOYEES, AGENTS, MANAGERS, MEMBERS OR AFFILIATES), ITS RESELLERS, SERVICE PROVIDERS AND SUPPLIERS BE LIABLE FOR (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICES, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION AND EVEN IF BUSINESS ONLY BROADBAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (B) UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF ANY INFORMATION OR DATA THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. THE TOTAL LIABILITY OF BUSINESS ONLY BROADBAND TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO BUSINESS ONLY BROADBAND BY CUSTOMER UNDER THIS AGREEMENT FOR SERVICES PROVIDED TO THE CUSTOMER AT THE LOCATION GIVING RISE TO THE CLAIM DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, WRONGFUL TERMINATION OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BUSINESS ONLY BROADBAND HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. IF BUSINESS ONLY BROADBAND BREACHES THIS AGREEMENT, CUSTOMER SHALL BE ENTITLED TO REIMBURSEMENT OF ANY PREPAID EXPENSES, EXCEPT FOR SUCH EXPENSES ASSOCIATED WITH INSTALLATION. SUCH PREPAID EXPENSES SHALL BE PRORATED AS OF THE DATE OF TERMINATION.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, BUSINESS ONLY BROADBAND’S LIABILITY SHALL BE LIMITED AS PERMITTED BY LAW IN SUCH STATES.
21. Indemnification.
Customer agrees to indemnify, defend and hold harmless Business Only Broadband and all employees, officers, directors managers, members, and agents of Business Only Broadband and any of its affiliates from and against any and all claims, suits, actions, demands or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to:
any violation or breach by Customer (or any parties who use the Services, with or without permission) of any term, representation or warranty, or policy of this Agreement;
Customer’s, or any of its agents, subcontractors, employees, customers, subsidiaries, etc., (also “End Users”) unlawful or improper use of the Services;
any damages caused to the Business Only Broadband network by Subscriber Content;
any actual or alleged violation of any Proprietary Rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) by Customer or Subscriber Content; or
any damages or liabilities arising out of any suit or action initiated by any Customer’s customers, or any other party using the Service who is not a named party to this Agreement.
use of the Services in a manner which adversely affects BOB’s ability to service other Customers, BOB’s Customers customers or their networks.
22. Warranties.
Business Only Broadband warrants that the Services will conform to the description of the Services set forth in Section 2 (Service Description) supra. Business Only Broadband will assign to Customer the manufacturer’s warranty ("Manufacturer’s Warranty") for all Business Only Broadband Equipment purchased by Customer from Business Only Broadband. Customer’s sole and exclusive remedy for breach of any such manufacturer’s warranty shall be the remedy as set forth in such Manufacturer’s Warranty and Business Only Broadband shall have no liability therefor.
23. General.
Assignment. Customer may not assign, without the prior written consent of Business Only Broadband, any rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be void. Business Only Broadband may assign this Agreement at any time without notice to Customer.
Entire Agreement. This Agreement, including the Service Order Form(s), sets forth the entire agreement among the parties and merges and supersedes all prior discussions and agreements among them with respect to the subject matter hereof. Neither party shall be bound by any condition, definition, warranty or representation with respect to any term or condition other than those provided for in this Agreement or the Service Order Form(s).
Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors and permitted assigns.
Notice. All notices, requests, demands or other communications given under or in connection herewith shall be effective only if in writing and if:
hand delivered; or
mailed by certified or registered mail, postage prepaid, return receipt requested; or
deposited for overnight delivery by recognized overnight courier service (e.g., UPS or FedEx), charges paid; and,
in each case to the applicable address listed below, or at such other address as the parties may from time to time designate by notice.
If intended for Customer, the notice shall be addressed to the person listed in the Billing Information section on the Service Order Form.If intended for Business Only Broadband: BOB, LLC Attention: CFO
777Oakmont
Suite 2000
Westmont, IL 60559
Invalid Provision. In the event that any provision of this Agreement is held to be invalid or illegal for any reason, such determination shall not affect the remaining provisions which shall be construed and enforced as if such illegal or invalid provision had never been included.
Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, without regard to its conflict of laws principles. In the event that any party hereto commences a lawsuit or other proceeding relating to or arising from this Agreement, the parties hereto agree that the United States District Court for the North District of Illinois shall have jurisdiction over any such proceeding. If such court lacks federal subject matter jurisdiction, the parties agree that the courts of the State of Illinois having venue in the County of Cook in the State of Illinois shall have jurisdiction. Any of these courts shall be proper venue for any such lawsuit or judicial proceeding and the parties hereto waive any objection to such venue. The parties hereto consent to and agree to submit to the jurisdiction of any of the courts specified herein and agree to accept service or process to vest personal jurisdiction over them in any of these courts.
Pronouns. The singular form denotes the plural and the masculine form denotes the feminine or neuter wherever appropriate.
Descriptive Headings. All section headings, titles and subtitles contained herein are inserted for convenience and reference only and are to be ignored in any construction of the provisions hereof.
Waiver. Business Only Broadband may waive any term, condition or requirement under this Agreement or Service Order Form(s) hereto which is intended for its own benefit, and any waiver of any term or condition of this Agreement or the Service Order Form(s) hereto shall not operate as a waiver of any other breach of such term or condition, nor shall any failure to enforce any provision hereof or of the Service Order Form(s) hereto operate as a waiver of such provision or of any other provision hereof or the Service Order Form(s) hereto.
Incorporation. The Service Order Form(s) attached hereto are hereby incorporated and made a part of the terms and mutual covenants and agreements contained in this Agreement.
Force Majeure. Except as otherwise provided herein, Business Only Broadband shall not be liable, or be in breach of any provision hereof, for any failure or delay on its part to perform any obligation under any provision of this Agreement because of circumstances of force majeure, including, but not limited, any act of God, flood, fire, explosion, strike, lockout, labor dispute, war, insurrection, riot, sabotage, or any injunction, law, ordinance or demand or requirements of any governmental authority, or inability to procure or use materials, labor, equipment or energy sufficient to meet the Customer’s needs, or any other cause whatsoever whether similar or dissimilar to those enumerated herein, beyond the reasonable control of Business Only Broadband.
No Third-Party Rights. No other person or entity or End User shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
