TONCOM, INC. DSL/High Speed Internet Service Agreement
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY.
BY USING THESE SERVICES, (i) YOU ACKNOWLEDGE THAT YOU ARE AN ADULT (18 YEARS OR OLDER) AND (ii) YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN EFFECT AND AS UPDATED BY TONCOM FROM TIME TO TIME. IN ADDITION, BY PLACING AN ORDER FOR THE SERVICES, YOU ACKNOWLEDGE THAT TONCOM WILL COMMENCE PROCESSING SUCH ORDER AND WILL INCUR EXPENSES AND OBLIGATIONS IMMEDIATELY.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES AND YOU SHOULD CANCEL YOUR ORDER. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, TONCOM WILL BE UNDER NO OBLIGATION TO PROVIDE YOU WITH THE SERVICES.
THE TERMS AND CONDITIONS ARE SUBJECT TO REVISION FROM TIME TO TIME. THE LATEST VERSION OF THE TERMS AND CONDITIONS MAY BE FOUND AT HTTP://WWW.TONICACOM.NET. FOR PURPOSES OF THE TERMS AND CONDITIONS; YOU WILL BE REFERRED TO AS THE "CUSTOMER."
Terms and Conditions
1. Definitions: This Service Order Confirmation and Acknowledgment of the Terms and Conditions shall serve as confirmation of your digital subscriber line ("DSL") service order with TONCOM, INC., an ILLINOIS corporation ("TONCOM"). Your acceptance of such order, including acceptance of all of the terms and conditions ("Terms and Conditions") set forth below and will authorize TONCOM to provide you with the Services (as defined below) for a period agreed to by you ("Customer") upon placing an order for the Services.
2. Service: You agree to purchase telecommunication and/or network access services ("Services") from TONCOM. In the event you attempt to resell the Services, TONCOM may, at its sole discretion, increase the fees associated with the Services, or terminate the Services.
3.Term of Agreement:. The term of this agreement will continue on a month-to-month basis. Either party may terminate this Agreement upon thirty (30) days written notice. The term begins the day the Customer?s DSL line is successfully installed by TONCOM as recorded in its database. If TONCOM cannot successfully deliver the Service, this contract is implicitly terminated without penalty or cost.
4. Rates and Payment Terms: The rates for DSL/High Speed Internet service ("Rates") are set forth in the attached Rate Schedule. The Rates will be in effect for the term of this agreement, and may be changed by TONCOM after giving the Customer written notice of the new Rates at least thirty (30) days before their effective date. In addition to the Rates, TONCOM will bill the Customer for all federal, state, county, and local taxes, surcharges, fees, and universal service contribution fees on the Service. Charges for the Services will begin when the Services are installed. Charges for the Services will appear on the Customer?s monthly telephone bill, unless the Customer makes other arrangements with TONCOM. Payment options for the Services include pre-pay via check or payment of the Customer?s monthly telephone bill. The Customer agrees to keep TONCOM informed of any changes in the Customer?s credit information. Failure to update credit information with TONCOM will be a default of this agreement.
5. Default and Remedies: You will be considered in Default of the Agreement if 1) payment for any Service has not been made within ten (10) days after we have sent you a notice that such payment is overdue and 2) for any other breach of this Agreement that is not remedied within ten (10) days after notice of such breach, or for any breach of our Acceptable Use Policy for our Internet Access Service. If you are in Default of this Agreement, we may terminate all Services under this Agreement without further notice to you and you will be charged an early termination fee of $250.00
6. Early Termination Charges: The Customer must notify TONCOM in writing of any intention to terminate no less than 30 DAYS prior to termination date to avoid additional monthly charges. The Customer will be responsible for the early termination fee of $250.00 if terminating this Agreement without a 30 day written notice; The Customer will also be responsible for all service charges that would have been incurred for the next 30 days of the Services billing cycle and a $250.00 early termination fee.
7. Limited Warranty - DSL Service: TONCOM warrants that, subject to the limitations set forth below, the DSL service will operate in substantial accordance with the terms of this Agreement. The limitations include:
7.1 NO 911 SERVICE: The Customer is hereby notified that DSL Service provides only point-to-point communication services, and does not provide 911, E911, or other emergency, operator or ancillary services that are usually available through local telephone services.
7.2 Quality of Service: The Customer understands and acknowledges that the actual transmission speeds may vary from the transmission speeds that the Customer might otherwise expect, due to such factors as the length and gauge of the telecommunications line serving the Customer?s premise, and other operation characteristics of the facilities and equipment used in the DSL Service. It is possible that there may be a lack of facilities or other operational impediments may preclude or delay the actual installation, repair and maintenance of DSL Services to the Customer?s premise. TONCOM reserves the right to terminate this Agreement without liability to the Customer if TONCOM is not able to provide, repair or maintain DSL Services to the Customer?s premise. TONCOM and its DSL Service providers will use commercially reasonable efforts to provide installation, repair and maintenance services. If you experience a substantial reduction in transmission speed or significant interruption of service, please notify us and we and, the DSL Service provider will undertake commercially reasonable efforts to restore the DSL service. TONCOM will not be responsible for service issues relating to your computer, network or software.
7.3 Limitations: The limited warranty shall not apply if: 1) Your equipment has been subjected to unusual physical or electrical stress, misuse, neglect, accident or abuse, or damaged by any other external causes; 2) The DSL Service or related equipment has been installed, repaired or altered by any one other than our DSL service supplier or its subcontractors or affiliates, without prior written approval; or 3) the DSL Service or related equipment is used in violation of applicable law or in violation of instruction furnished by us or our DSL service provider, if any.
7.4 The foregoing limited warranties shall be in lieu of and shall exclude all other express or implied warranties, including without limitation, warranties of merchantability, and fitness for a particular use or purpose.
8. Use of Services: The Customer agrees not to use the Services in a manner prohibited by any federal or state law or regulation. The Customer further agrees to adhere to TONCOM's Acceptable Use Policy ("AUP") as set forth on TONCOM's web site at http://www.tonicacom.net. Transmission of any material in violation of federal or state law or regulation, including, but not limited to any copyrighted material, material protected by a trade secret or material that is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable in any manner or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation, is prohibited.
9 Installation of Equipment: TONCOM WILL INSTALL, AT ITS DISCRETION, ONE HIGH SPEED CONNECTION USING ITS PARTS, EQUIPMENT AND EXPERTISE, TO A LOCATION NEAR YOUR INTERNET ACCESS POINT "COMPUTER" AND PROVIDE YOU WITH 1 MODEM OF TONCOM?S CHOOSING, WHICH WILL BE THE PROPERTY OF TONCOM OR ITS CONTRACTORS. IF THIS MODEM IS TO BE REPLACED IT MUST BE OF THE SAME OR GREATER VALUE AND BE PURCHASED FROM TONCOM. TONCOM HIGHLY RECOMMENDS THAT THE CUSTOMER SUPPLY SURGE PROTECTION AND CURRENT VIRUS PROTECTION SOFTWARE (WITH FIREWALL CAPABILITY) FOR THEIR COMPUTER EQUIPMENT USED IN CONJUNCTION WITH THE SERVICES.
10. Limitation of Liability:
10.1 ANY LIABILITY OF TONCOM ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS) IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES.
10.2 NOTWITHSTANDING THE FOREGOING, TONCOM'S TOTAL LIABILITY TO ANYONE UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT THAT YOU WOULD HAVE PAID TONCOM UNDER THIS AGREEMENT DURING THE PERIOD OF TIME THAT SUCH LIABILITY WAS INCURRED, OR TWO HUNDRED FIFTY DOLLARS ($250.00) WHICHEVER IS LESS.
10.3 YOU ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING THE PRICES FOR SERVICE UNDER THIS AGREEMENT.
11. Force Majeure: TONCOM will not be responsible for any failure to perform any obligation or provide any Services hereunder because of any Act of God or nature, strikes, work stoppage, equipment or facilities shortages, governmental acts, directives or abuse, war, riot or civil commotion, or any other force beyond its immediate and reasonable control.
12. Entire Agreement: Amendments in Writing; Severability: This Agreement, which includes all Attachments and Schedules referenced herein, if any, constitutes the entire Agreement between TONCOM and the Customer concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. Any changes to this Agreement, or any amendment or supplement to the Agreement must be in writing and signed by TONCOM to be enforceable. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the original intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
13. Faxed Copies: You may sign this Agreement and fax it to us, and it will have the same effect as if you had returned the original signed document to us. In approving this Agreement, it will not be necessary for us to produce or account for the original document signed by you if we produce the faxed copy that you sent to us.
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND HAVE NO QUESTIONS.
Executed by the Customer: TONCOM Representative:
Name: _____________________________ Name:________________________
Title: ______________________________ Signature:_____________________
Company: __________________________ Date:_________________________
Date: ____________________________________
Signature: _________________________________
MONTHLY CHARGES AND SPEED
MODEM NO.___________________________ DATE INSTALLED________________
(CIRCLE ONE)
TONCOM L.D. Tonica Telephone Co.
Customer Price Customer Price Internet Only Price
256KBPS $24.95 $29.95 $39.95
512KBPS $39.95 $44.95 $54.95
768 KBPS $49.95 $54.95 $64.95
1536 KBPS $59.95 $64.95 $74.95
SECRET WORD (eg.MOTHERS MAIDEN NAME,BIRTH PLACE,SSN)______________________
YOUR USER ID IS ________________________@TONICACOM.NET (AT LEAST 6)
YOUR PASSWORD 8 ALPHANUMERIC STARTING WITH A LETTER_____________________
Upper case and lower case
Amendment A
1. Line conditioning
Circle "YES": Initials __________
By selecting the yes box, if Line Conditioning is required, the Customer authorizes TONCOM to remove (taps and/or load coils) and agrees that line Conditioning may be required in order to make a copper loop useable for the DSL Services. Line Conditioning may add up to 30 days to the installation interval. Additional issues, including pair gain devices or excessive loop length may prevent an End User Circuit from being turned-up successfully.
Circle "NO": Initials __________
By checking this box the Customer agrees, that if Line Conditioning is required (removal of bridge taps and/or load coils) this End User order will automatically be cancelled by TONCOM