Opus One Agreement Terms and Conditions
The following terms and conditions govern Opus One's provision of Services ('Products and Services') to Customer. The term 'Products and Services' is limited to the equipment, facilities, programming, or software provided by Opus One to facilitate use of Opus One services, but does not include special access lines provided by common carriers which may be utilized in conjunction with Opus One Products and Services.In the absence of a signed contract for services, these terms and conditions will apply, with a term of one year from activation of service, and with rates as set at time of activation of service.
1. Term
A. The initial term begins as of the effective date of the agreement ('Effective Date') as listed in Exhibit A. The Term for Products and Services ('Term') is listed in Exhibit A.
2. Rates
A. Rates are as set forth in Exhibit A. Opus One will provide ninety (90) days' written notice of increase in base prices. In the event of increases in base prices, Customer has thirty (30) days from the date of the effective increase to provide Opus One with a written request to terminate service and incur no termination liability. Otherwise, Customer's existing Orders will be billed according to the new base prices. Customer will be responsible for all charges applicable to Customer's account.B. Discount percentages, if applicable, are fixed for long-term Orders (those over six months in duration). For all other Orders and upon renewal of long-term Orders, the discount percentage(s) are subject to change upon ninety (90) days prior written notice.
3. Payment
A. Customer agrees to pay all charges incurred. Charges shall be invoiced monthly and payment in US currency shall be due upon receipt.B. Any amount past due over ninety (90) days will cause immediate disconnection of service, and collection process shall be started. Customer acknowledges Customer's obligation to pay for service rendered, and authorizes Opus One to place liens on Customer's business and contents up to the sum of the total balance plus late fees plus potential legal fees due.
C. Interest charges of 18% APR will accrue monthly on all balance not paid wihin 30 days of date of invoice. Payments received more than 30 days after date of invoice are subject to a 20% late fee. Customer will pay all sales and use taxes if any, as well as any duties or levies on Products and Services.
D. The provision of Products and Services by Opus One is subject to Opus One's continuing approval of Customer's credit-worthiness. Customer shall furnish financial information as Opus One may from time to time request to determine Customer's continued credit-worthiness.
4. Termination
A. To terminate Products and Services, Customer must provide Opus One with ninety (90) days prior written notice. In the event of termination of any Long-Term Order (six months or more) Customer will pay a lump sum equal to one hundred percent (100%) of the monthly base price for each service termination for the unexpired portion of the Term's first year plus the difference between a prorated month by month contact for months past the first year. If services do not qualify for month to month contract, Customer shall pay one twelfth (1/12) of the yearly fee plus twenty percent (20%) per month of service.
5. Rights and Obligations of Customer
A. Customer shall at its own expense provide all necessary preparations required to comply with Opus One installation and maintenance specifications, shall be responsible for the costs of relocation of Products and Services once installed by Opus One, and shall provide to Opus One reasonable access to perform any acts required under this Agreement.B. Customer shall properly use equipment (if any) provided by Opus One and shall surrender the equipment to Opus One upon termination. Customer shall be liable for damages to Products and Services caused by the negligence or willful acts of Customer's officers, employees, agents, contractors, subcontractors, or clients, for loss through theft or vandlism of Products and Services and for damages caused.
C. Customer shall neither permit nor assist others to use Products and Services for any purpose other than that for which they are intended.
D. Customer shall not nor shall it permit nor assist others to abuse or fraudulently use Products and Services, including but not limited to the following:
1. Obtaining or attempting to obtain service by any fraudulent means or device with intent to avoid payment.
2. Accessing, altering, or destroying any information of another Opus One client by any fraudulent or unlawful or malicious means or device or attempting to do so; or
3. Using Products and Services so as to interfere with the normal use of the Internet or Opus One's network.
D. All orders subject to the Acceptable Use Policy attached to this agreement as Exhibit B and available on the Opus One web site at http://www.opus1.com/o/aup.html. In the event that this contract is renewed, either explicitly or tacitly by continuation of service beyond the agreed-upon term, then the current Acceptable Use Policy on the Opus One web site will apply. If Customer resells IP access, Customer warrants all Customer's traffic shall be AUP compliant, and that Customer will provide and require AUP compliance of Customer's clients.
6. Equipment Belonging to Customer
A. Customer shall provide appropriate equipment (if any) to Opus One upon request. Such equipment shall be exclusively used to provide Products and Services to Customer. Upon termination of the Agreement, Opus One shall with all due haste return such equipment to customer in similar condition, reasonable wear and tear excluded.
7. Rights and Obligations of Opus One
A. Opus One shall install, operate, and maintain Products and Services. These services may include routing Customer IP packets to a network Internet Service Provider (ISP), Network Access Provider (NAP), or other point of connection.B. Opus One shall not be liable, either in contract or in tort, for protection from unauthorized access of Customer's facilities or equipment or for unauthorized access to or alteration, theft, or destruction of Customer data.
C. For any claim, Customer's damages, if any, shall be limited to those actually proven as directly attributable to Opus One, subject to the following limitation: Opus One will not be liable under any circumstances for any lost profits or other consequential damages, even if Opus One has been advised of the possibility of such damages.
8. Use of Services
A. Customer warrants network connection is for Customer's own use, and shall not be given away, resold, packaged, nor bundled for profit nor for free outside of Customer's own organization. The selling of IP connections, unless specifically mentioned in Exhibit A and priced accordingly is strictly prohibited.
9. Scope; Remedies; Changes to this Contract
A. This agreement sets for the entire understanding and agreement of the parties as to the subject matter of this agreement, and supercedes all other understandings and agreements (oral, written or otherwise) with respect to the subject matter hereof.B. The Terms and Conditions of this Agreement may not be modified except by written amendment by the parties. Exhibit terms supercede Agreement terms where applicable.
C. If any provision of this agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Opus One and Customer agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
C. Customer's sole remedy for performance or non-performance of Products and Services pursuant to Opus One service specifications shall be repair or replacement of the Products and Services. Customer acknowledges that breach of this agreement would cause irreparable damage to Opus One and agrees that, in addition to other remedies, Opus One is entitled to a temporary restraining order, an injunction or other equitable relief to prevent or remedy any such breach.
D. Any legal action arising out of failure, malfunction, or defect in Products and Services shall be brought within three (3) months of the occurrence or is deemed waived. The waiver by a party of a breach of any provision of this Agreement by the other party will not operate or be interpreted as a waiver of any other or subsequent breach by such other party.
10. Choice of Law
A. This agreement will be governed by and construed in accordance with the laws of the State of Arizona.
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