Terms and Conditions

These terms and conditions are subject to change without notice to you and you agree that any such change shall be binding upon you.

Services

Customer agrees to purchase the Aspen Wireless Technologies, Inc. (“ASPEN”) Services outlined in the Service Agreement on these terms and conditions.

Customer agrees to remain a subscriber of the service for the minimum period indicated on the Service Agreement from the date of service activation, which is the date on which ASPEN notifies Customer that the Services have been provisioned and are ready for use by Customer, regardless of when Customer actually commences use of the Services. Our agreement shall automatically renew for successive periods of the same duration as the initial term and under the same terms and conditions contained herein until terminated by either party by providing written notice no less than 30 days prior to the end of the then-current term. Notwithstanding, Customer may terminate the Service within the initial 30 days following service activation in the event Customer, in its good faith judgment, is not satisfied with the Service.

Unless otherwise specified in the Service Agreement or these terms and conditions, all notices, requests, demands, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given if mailed, certified mail, return receipt requested, with postage prepaid, to, in the case of Customer, the address listed on the Service Agreement, or, in the case of ASPEN, to Aspen Wireless Technologies, Inc., POB 468, Glen Arbor, MI 49636. In addition, ASPEN may deliver notices to Customer by electronic mail to Customer’s email address for Contract Administration as set forth on the Service Agreement or as may be updated in writing by Customer.

Rights and Obligations of Customer

ASPEN’s Services are to be used only for lawful purposes and in accordance with ASPEN’s Acceptable Use Policy. Failure to comply with these obligations and the obligations in the Acceptable Use Policy shall constitute a violation of these terms and conditions, and ASPEN may, in its reasonable discretion, terminate this agreement or take such other action as ASPEN may deem necessary to address the non-compliance. If Customer operates hardware or software that ASPEN determines in its sole discretion may cause a hazard, interference, or a service interruption to ASPEN-provided equipment or Services or ASPEN’s network or other customers, Customer shall immediately remove the offending hardware or software upon notice, and ASPEN reserves the right to partially or entirely suspend service as needed in such situations. Customer agrees that ASPEN, with notice and approval, may access Customer’s network in order to deliver an Internet Control Message Protocol (ICMP) ping and/or SNMP queries in order to determine the number of IP addresses being utilized by Customer and to validate delivery of service.

Proprietary Rights

ASPEN grants Customer a non-exclusive, non-transferable license to use the Services provided hereunder. Title, property rights, software licenses, and hardware licenses and agreements, including all intellectual property rights to such Services, are and shall remain with ASPEN or ASPEN’s licensee, whether or not they are embedded in any Service. Customer shall not attempt in any way to alter, re-engineer, tamper with, or otherwise misuse such Services. In all cases, the IP addresses assigned for Customer use remain the property of ASPEN and shall revert back to the same upon Customer termination.

Customer Equipment

Aspen requests that the purchase of new equipment be supported, or the replacement of existing equipment, be made through ASPEN-approved vendors and suppliers. In cases where ASPEN provides customer-premise equipment, ASPEN shall provide the initial equipment configuration and verify the connection with the ASPEN network. ASPEN shall determine the configuration and type of equipment to be used. Customer is responsible for operating the equipment within the parameters of the manufacturer’s specifications. ASPEN may choose, at its sole discretion, to provide software upgrades for hardware. Additional personnel support required due to misuse or unauthorized modifications by Customer shall be chargeable to Customer at ASPEN’s then-current rates. Unless otherwise specified, ASPEN’s point of demarcation shall be the Customer Local Area Network side of the router. In cases where the customer provides premise equipment, ASPEN must be allowed administrative rights to the equipment as needed. ASPEN is not responsible for the repair or replacement of damaged, customer-owned equipment.

Service of Equipment Provided by ASPEN

In the event of failure of equipment sold by ASPEN to Customer during the warranty period covering the equipment, ASPEN shall replace the faulty equipment with like equipment in a reasonable time frame after notice of failure. In the event of failure of equipment sold by ASPEN after the expiration of the manufacturer’s warranty covering the equipment, ASPEN shall service the equipment for Customer at its then-current rates. ASPEN shall provide basic troubleshooting of out-of-warranty equipment. Ruckus indoor APs are a lifetime warranty, Outdoor APs are 1 year. 

Invoicing and Payment of Service

Initial rates for the Services are set forth in the Service Agreement. The initial rates shall be in effect for the duration of the initial service commitment. ASPEN shall invoice Customer monthly, in advance. The price of the Service described in the Service Agreement does not include sales, usage, excise, ad valorem, property, or any other taxes now or hereafter imposed, directly or indirectly, by any governmental authority or agency with respect to the Services. Customer agrees to pay such taxes directly or reimburse ASPEN for any such taxes. This invoice is due and payable in full on the due date shown on the invoice.

Non-Payment/Customer Termination

A late charge equal to the lesser of 1-1/2% per month or the maximum rate permitted by law may be applied to each of Customer’s service bills not paid by the due date. This late charge is applicable to unpaid balances as of the due date. Customer shall pay ASPEN all costs, including, without limitation, reasonable attorney fees, the fees of any collection agency, and any other costs incurred by ASPEN in exercising any of its rights under this agreement. If Customer is late with more than one payment, ASPEN may, upon written notice to Customer, require a security deposit or other reasonable assurances to secure Customer’s payment obligations hereunder, or ASPEN may suspend Services until any overdue payments have been made. If Customer terminates the Service Agreement, or if ASPEN terminates the Customer for a breach by Customer, Customer shall immediately pay a lump sum equal to the monthly recurring charges for the remainder of the then-current term of the Service Agreement, plus any disconnection, early cancellation, or termination charges imposed on ASPEN by any of its third-party contractors.

Right to Terminate

Either party shall have the right to terminate this agreement with 60 days of written notice upon the breach, by the other party, of the Terms and Conditions, Acceptable Use Policy, and/or of the Service Agreement, with the understanding that either party must allow the other an opportunity to remedy any problems or concerns within a reasonable time frame of 30 business days. At that time, principles from both companies shall meet to review the resolution of any identified issues. Customer shall remain obligated to pay ASPEN for all charges for Services performed and all expenses incurred up to the effective date of such termination.

Non-solicited Term

During the term of our agreement and for twelve (12) months thereafter, ASPEN and Customer each agree not to solicit or induce any employee of the other to terminate his or her employment with the other, to hire any employee or previous employee of the other.

Limitation of Liability

ASPEN exercises no control whatsoever over the content of any information passing through its network. Customer agrees that ASPEN makes no representation that it can provide uninterrupted service. ASPEN is not responsible for any damages Customer may suffer for any reason, including, but not limited to content passing through its network, loss or degradation of data resulting from delays, non-deliveries, wrong deliveries, or for any and all service interruptions whether caused by the acts or omissions of ASPEN and its employees, of Customer, or of any other party other than the credits outlined herein. ASPEN shall not be liable for acts or omissions of other carriers, equipment failures or modifications, acts of God, strikes, government actions, or other causes beyond its reasonable control. Customer further agrees to indemnify and hold harmless ASPEN from any and all claims resulting from Customer’s use of the equipment or Services, or violation of the Acceptable Use Policy. If for any reason, the foregoing disclaimers of damages are found to be unenforceable by a court of competent jurisdiction, then ASPEN’s liability for damages to Customer for any cause whatsoever, regardless of the form of action, shall be limited to the amounts paid by Customer to ASPEN in respect of the Services giving rise to the claim during the 6 month period immediately preceding the events giving rise to the claim.

ASPEN MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY PROVIDED IN THE SERVICE AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED. ASPEN SHALL NOT BE LIABLE TO ITS CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.

Indemnification for Customer

Subject to the limitations set forth in the “Limitation of Liability” section, ASPEN shall indemnify, defend and hold harmless Customer, its subsidiaries, its subcontractors, and their respective Personnel from all Claims attributable to claims of third parties (i) to the extent directly and proximately caused by the negligence or willful misconduct of ASPEN, its subsidiaries, its subcontractors, or their respective Personnel, while engaged in the performance of Technical Support Services or the non-performance of any obligation under this agreement, provided, however, that if there also is fault on the part of any entity or individual indemnified hereunder or any other entity or individual acting on Customer’s behalf, the foregoing indemnification shall be on a comparative fault basis, or (ii) caused by any breach by ASPEN, its subsidiaries, its subcontractors, or their respective Personnel.

Indemnification for ASPEN

Subject to the limitations set forth in the “Limitation on Damages” section, Customer shall indemnify, defend and hold harmless ASPEN, its subsidiaries, its subcontractors, and their respective Personnel from all Claims attributable to claims of third parties (i) to the extent directly and proximately caused by the negligence or willful misconduct of Customer, its subsidiaries, its subcontractors, or their respective Personnel, while ASPEN is engaged in the performance of Technical Support Services; provided, however, that if there also is fault on the part of any entity or individual indemnified hereunder or any other entity or individual acting on ASPEN’s or any subcontractor’s behalf, the foregoing indemnification shall be on a comparative fault basis, or (ii) caused by any breach by Customer, its subsidiaries, its subcontractors, or their respective Personnel.

Transfer and Assignment 

Customer may not assign any of its rights under this Agreement, except with the prior written consent of ASPEN. All assignments of rights are prohibited under this subsection, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. Customer may not delegate any performance under this Agreement. Any purported assignment of rights or delegation of performance in violation of this paragraph is void.

Governing Law

This Service Agreement is governed by the laws of the State of Michigan without regard to its choice of law provisions. Internal mediation failing, any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Leelanau County, Michigan, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.