Terms & Conditions
Terms & Conditions
These terms and conditions apply to any and all services purchased from Ellumnet, LLC (hereinafter “Ellumnet”) by “Customer” as designated in a Service Order Form (“SOF”) or multiple Service Order Forms, and any additional Product Rider (“Rider”) or Product Riders. Services provided are based on the Terms and Conditions contained herein and within any relevant Rider or Riders. Customer accepts said Terms and Conditions, as acknowledged by signature on the relevant SOF and agrees to be bound by them.
Provided that Customer is not in default of its obligations stated herein, Ellumnet shall provide Customer with the Service ordered in the Ellumnet SOF and Rider for the Service Term. Customer is solely responsible to obtain, use and operate any equipment not provided by Ellumnet that may be used in association with the Service. If Customer has leased Customer Premises Equipment (“CPE”) from Ellumnet, (i) Ellumnet shall provide Customer with access to Ellumnet CPE for the length of the Service Term, (ii) if Customer installation is required, then the Customer must install Ellumnet CPE in accordance with instructions provided by Ellumnet (or its third party vendor), (iii) Ellumnet CPE must be used solely for the purpose of Service utilization. Customer acknowledges and agrees that Ellumnet retains title to its CPE at all times. Customer is solely responsible to obtain, use and operate any equipment not provided by Ellumnet that may be required in association with the Service.
Service is available throughout the Service Term, except in the case of scheduled maintenance of the Ellumnet network and/or its underlying carrier’s network. Ellumnet will use commercially reasonable efforts to provide prior notification via electronic mail (“email”) to Customer regarding any scheduled maintenance of Service. Ellumnet may interrupt its provision of Service for unscheduled emergency maintenance without notice to Customer or Customer’s customers. (This section does not apply to agreements for colocation services.) Delivery is contingent upon facilities available at time of order. The circuit will terminate at the MPOE demarcation.
The Service Activation Date shall be two (2) business days after Ellumnet deems Service ready for activation. Ellumnet recognizes that Service is ready for activation after receiving confirmation from the underlying carrier that the Service is ready to be activated and after Ellumnet has notified Customer that the Service is ready for activation. The Service Activation Date will be used for the purpose of determining the start of the Customer’s Service Term and Billing and Payment Schedule, said Schedule being defined in the Section entitled “Billing and Payment.” Ellumnet has sole discretion in determining the Service Activation Date as defined above regardless of whether Customer has completed all necessary steps to activate Service. (This section does not apply to agreements for Hosted IP PBX Services or Digital Voice Services.)
SERVICE AGREEMENT TERM AND SERVICE TERM
The initial Service Agreement Term shall be at least one (1) year and up to ten (10) years from the Effective Date of the unique, or any, SOF(s) signed by Customer, with the specific initial Term of the Service Agreement as stated on each such SOF. The term of the Service Agreement will automatically renew for successive one (1) year periods unless terminated in writing by Ellumnet or by Customer pursuant to the Termination Section of this Agreement at least ninety (90) days prior to the expiration of the then existing Term of the Service Agreement. When the Term of the Service Agreement expires or is terminated, existing Services continue in effect for the remainder of the Service Term(s) and will continue to be governed by the Agreement. In the event of automatic renewal, Ellumnet reserves the right to: (i) maintain the same prices and rates for the Service(s) as stated on affected SOF, (ii) reasonably increase the prices and rates for the Service(s), or (iii) Terminate the Service(s) as stated on affected SOF.
Ellumnet provides support for the Services as guaranteed by the Service Level Agreement (“SLA”) applicable to the specific services ordered by Customer on relevant SOF(s) or by the Ellumnet Standard Service Level agreement, posted at http://Ellum.net/sla.html. The posted SLA is incorporated herein by reference. Ellumnet reserves the right to change the SLA at any time.
CPE MAINTENANCE, SUPPORT, AND REPAIR
If Customer has rented Customer Premises Equipment (“CPE”) from Ellumnet, then Customer shall allow Ellumnet reasonable access to the CPE as required to provide Service ordered by Customer. Equipment provided for service may be new or recertified. All CPE and CPE provider service purchased from Ellumnet is subject to the terms and conditions set forth in the Manufacturer’s or Publisher’s warranty, end-user license, or agreement applicable to such CPE or CPE provider service, with no warranty of any kind from Ellumnet. Customer shall reimburse Ellumnet, on a time and materials basis as documented in an invoice, for the entire cost to repair and/or replace CPE in the event of (a) misuse, (b) failure to exercise reasonable care, (c) altering original Ellumnet configuration, (d) damage, (e) theft, or (f) disaster. If Ellumnet CPE requires maintenance not caused by one of the events set out in the sentence above, Ellumnet or its agents shall either arrange to repair the CPE at Customer’s premises or ship an equivalent pre-configured replacement to Customer. If replacement CPE is shipped to Customer, Customer shall return the faulty CPE to Ellumnet within ten (10) days of receiving the replacement CPE or pay for such CPE. Customer will not receive compensation for downtime associated with CPE replacement or repair. In addition, if Customer has rented CPE, Customer shall return (at Customer’s own expense) Ellumnet CPE to Ellumnet within ten (10) days of termination. If this CPE is not returned in good working condition to Ellumnet, Customer shall be invoiced for and shall pay for this CPE. Should Customer terminate CPE rental prior to fulfillment of initial or renewal service term, then Ellumnet may charge Customer a twenty percent (20%) restocking fee, as calculated according to the original purchase price of rented CPE.
All CPE and CPE Provider Service purchased from Ellumnet is subject to the terms and conditions set forth in the Manufacturer’s or Publisher’s warranty, End-User license or agreement applicable to such CPE or CPE Provider Service, with no warranty of any kind from Ellumnet. Should customer receive a purchased CPE that is damaged or dead on arrival, Customer must notify Ellumnet Customer Care within ten (10) days of receipt. Returns will only be accepted on brand new factory-packaged products within thirty (30) days of the date CPE was shipped. All products must be fully complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. Products returned in used or altered condition will not be accepted. After thirty (30) days from initial product ship date, all sales are final. Customer is responsible for shipping charges to the Ellumnet distribution center for all products being shipped for return or exchange. Customer is responsible for all risk of loss and damage to products being shipped for return or exchange. Should Customer desire to return or exchange purchased CPE, pursuant to the above conditions; Customer must e-mail Customer Care at [email protected] to request a Return Materials Authorization (RMA). All returns and exchanges will incur a twenty percent (20%) restocking fee, as calculated according to the original purchase price. If the RMA is in response to CPE delivered dead on arrival or damaged, and said CPE is found to be operating within manufacturer specifications upon return, said CPE shall be subject to the restocking fee outlined above.
CHARGES FOR SERVICE
- The monthly recurring charge(s) (“MRC”) and any non-recurring charge(s) (“NRC”) for Service are stated in said SOF. In addition, any Incremental Usage Charges stated in said SOF will be calculated according to the Customer’s monthly usage. Monthly usage is calculated in the following manner: Ellumnet takes usage samples every five (5) minutes throughout the month and retains the higher of two samples taken during each five (5) minute period – one sample reflects inbound utilization and the other sample reflects outbound utilization. At the end of the billing period, the samples are ordered from highest to lowest. The top five percent (5%) of the samples are discarded. The highest remaining sample, or ninety-fifth percentile (95%) peak Mbps port utilization, is used to calculate the rate. This Mbps port utilization is measured out to the 100thdecimal place, but the invoice will show it to the 10th decimal place. Ellumnet multiplies the ninety-fifth percentile (95%) peak Mbps port utilization by the per-Mb rate listed on the customer’s contract to get the Incremental Usage Charge. Ellumnet will charge the customer this usage-based charge as well as the base rate, as identified in the SOF.
- Service charges are exclusive of applicable taxes and surcharges, including the Federal Universal Service Fund surcharge that Ellumnet passes on to its Customers. At its sole discretion, Ellumnet may require a security deposit to continue provisioning of Service. After the initial term, Ellumnet may increase pricing upon at least thirty (30) days written notice. At any time, Ellumnet may pass on to Customer any local loop price increases from underlying carriers with at least thirty (30) days written notice. All rates and charges are subject to change immediately in the event there are mandated surcharges imposed by federal, state or governmental agencies. Notwithstanding the foregoing, in the event any Regulatory Activity, Ellumnet reserves the right, at any time with as much advance written notice as reasonably possible and without liability, to: (i) pass through to Customer all, or a portion of, any changes or surcharges directly or indirectly related to such Regulatory Activity; (ii) modify the Service, rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of Service under the Agreement, as reasonably determined by Ellumnet, terminate the Agreement.
BILLING AND PAYMENT
Ellumnet shall bill Customer for Service rendered at the rates stated in said SOF. Invoices shall include all applicable federal, state, and local taxes. All such taxes, and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against Ellumnet, LLC., shall be payable by the Customer. However, if Customer provides proof of its specific tax-exempt status, Ellumnet shall not charge applicable taxes due to such exemption. Customer shall supply Ellumnet with a valid and properly executed tax exemption certificate(s). In such cases the Customer remains responsible for and agrees to pay any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of the Customer and Ellumnet will not be obligated to consider any retroactive tax exemption. Ellumnet shall commence billing for the monthly recurring charges and usage (the Service) on the Service Commencement Date. First and second month charges for the recurring Service(s) are billed upon Service Commencement. Where applicable, service charges for the first partial month of service will be pro-rated and billed. Payments are due within fifteen (15) days of the invoice date. After fifteen (15) days of non-payment, all fees will accrue interest at a rate of one and one-half percent (1.5%) per month or any part thereof, or the highest rate allowed by applicable law, and customer shall pay all collection costs incurred by Ellumnet (including, without limitation, reasonable attorney’s fees). At any point beyond provided invoice due date, where Customer has failed to make satisfactory payment as so judged by Ellumnet, then Ellumnet may give Customer written notification, by email, that Customer has committed a material breach of the Agreement due to non-payment. Said notification will be provided five (5) business days prior to Service suspension or termination. Customer must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. If Service is terminated due to non-payment, then the Termination fees described in the Material Breach Section shall apply. In its sole discretion, Ellumnet may: (i) require a security deposit to continue the provisioning of Service(s) if Customer’s approved level of credit is deemed insufficient; (ii) change payment terms, billing cycle, and/or Due Date; (iii) demand immediate payment by wire or other means and discontinue Service(s) without notice should Provider determine Customer’s usage exceeds their approved level of credit; (iv) immediately block Customer’s Service(s) if a Customer’s pre-paid balance is depleted or is at a level that cannot cover Customer’s estimated traffic during the time required for the Customer to replenish their prepaid balance, or if Customer refuses to make any requested payments. Ellumnet retains the right to bill, including any amended or corrected billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to Customer. Ellumnet shall retain such billing rights for this twelve (12) month period notwithstanding any prior billing to Customer for the same period(s) and regardless of any otherwise conflicting billing conditions in this Agreement. Customer agrees that for the duration of this twelve (12) month period, Ellumnet shall not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor shall any legal or equitable doctrines apply, including estoppel or laches.
In the event Customer disputes any invoiced charges, Customer shall pay in full all charges invoiced by the Due Date and submit written notification in the form of an email sent to [email protected], with “Notice of Billing Dispute” in the subject line of the email. Such email notification must include the Customer’s contact information, the specific dollar amount in dispute, detailed supporting reasons for the dispute, and any supporting documentation, if available. Ellumnet shall respond to Customer, in writing, within thirty (30) calendar days of receiving a dispute notification from Customer. Any dispute resolved in favor of Customer shall be credited as appropriate on the next available invoice. In the event that any disputed amounts are deemed to be correct as billed and in compliance with this Agreement, Customer shall be notified in writing that the charges have been deemed valid and legitimate, and the dispute will be considered resolved by both parties; in such cases, if there should be any amount due from Customer related to the dispute, then all such amounts shall be due and payable immediately. Provider reserves the right to deny or delay any and all billing disputes and/or credits if the Customer’s account is in arrears or otherwise not in good standing.
RESUMPTION OF SERVICE
If Customer requests that Service be restored after a suspension or termination, Ellumnet has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as Ellumnet determines necessary for its protection, including requiring Customer to execute a new agreement, pay all past due invoices in full, pass Ellumnet’s credit approval, and/or make advance payments. New nonrecurring charges also may apply to restored Service.
ADDITIONAL NON-RECURRING CHARGES (IF APPLICABLE)
The following Non-Recurring Charges (NRC), if applicable, will apply:
- Changes of IP Addresses: $100.00
- Service Reinstatement Fee: $200.00 plus any charges imposed by underlying carrier(s)
- Missed Appointment Fee: $200.00
- Rejected Credit Card/Unpaid Check: $40.00 (or legal limit)
- Unregistered Number 911 Call: $100.00
- Relocation Fee: Dependent upon specific move
- Upgrade Charge: Dependent on specific upgrade
- Downgrade Charge: Dependent on specific downgrade
- Cancellation of Service prior to installation: one (1) month MRC plus any additional charges imposed by underlying carrier(s)
- Inside Wiring: The availability of inside wiring installation is dependent upon a number of factors, including but not limited to service address and LEC availability. Any inside wiring provided by Ellumnet’s underlying carrier(s) may incur additional fees to the charges listed in the SOF. Any request for inside wiring or wiring extension for this service will be provided on a best-effort basis only. In many cases, the customer’s Local Exchange Carrier (LEC) will not extend wiring beyond the Minimum Point of Entry (“MPOE”) as determined by the LEC. In all such cases it will be the customer’s responsibility to provide any needed internal wiring or extensions (and required conduit, facilities, power, etc) to the circuit required to provision service unless the customer has EXPLICITY otherwise ordered this service from Ellumnet.
- Special Construction Charge. When a Customer’s location has insufficient facilities needed to support the Service, it will be necessary for the underlying carrier(s) to add facilities which may require an additional “special construction charge.” In the event this occurs, Ellumnet will notify the Customer, via email, of the cost of these additional special construction charges, if available and if any, as well as the estimated time to complete the work. The Customer must, via email, agree to pay these additional special construction costs within three (3) business days. If Customer fails to do so, Ellumnet may cancel the order for lack of facilities and the Agreement will terminate without liability.
Customer acknowledges that Ellumnet retains title at all times to any and all IP addresses assigned to Customer in connection with the ordered Service. Upon IP address reassignment or expiration, cancellation or termination of the Agreement, Customer shall relinquish any IP addresses or address blocks assigned to Customer by Ellumnet or its underlying carrier(s) and shall perform all acts reasonably requested by Ellumnet to return to Ellumnet full use of such IP addresses and address blocks.
Ellumnet or Customer may terminate this Agreement and the Service(s) provided hereunder in the event of a material breach that is not cured within thirty (30) days following email delivery of written notice specifying said breach. But if the breach is the result of non-payment, it is a Serious Material Breach and must be cured within five (5) business days following email delivery of written notice. Such notice from Customer must be in the form of an email sent to [email protected], with “Notice of Material Breach” in the subject line of the email and Customer’s contact information and detailed explanation, including supporting documentation (if available) in the body of the email. Such notice from Ellumnet shall be in the form of an email to the Customer. In the event of an uncured material breach by Ellumnet, the Agreement and Service(s) shall be terminated without further liability to the Customer, however, in such cases Customer shall remain responsible for: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) one hundred percent (100%) of the past due balance at the time of termination, and (c) any non-recurring charges originally waived by Ellumnet. In the event of an uncured material breach by Customer, such as early termination of this Agreement, the following termination fees shall apply: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) the total of monthly minimum commitments for all components of the Service(s) for the remainder of the Service Order Term(s) and any additional early Termination fees included in any and all relevant SOF(s), (c) one hundred percent (100%) of the past due balance at the time of termination, and (d) any non- recurring charges originally waived by Ellumnet.
Upon termination of the Service Agreement and/or the Service(s) not due to a material breach, Ellumnet will disconnect, or will cause to be disconnected, the Service(s) if notified by the Customer in writing via email to [email protected] with no less than ninety calendar (90) days notice prior to termination of the Agreement and/or Service(s). In all such cases, Customer retains the sole responsibility for notifying Ellumnet of any and all requests for termination or disconnection of Service(s). Any request by Customer for cancellation or termination at any time within the Service Agreement Term and/or Service Term set forth in this Agreement, including: prior to installation, or at any time prior to the Service Commencement or Activation Date, or in the case of early termination by Customer, will be considered a Material Breach by the Customer and shall be subject to the applicable Material Breach provisions as outlined in the “Material Breach” section of this agreement. In the event Ellumnet determines, in its sole discretion, that Customer’s ongoing use of Service(s) or the specific method or technology utilized by the Customer places Ellumnet’s network, other customers, partners or the overall businesses of each in jeopardy, Ellumnet reserves the right to terminate Service(s) immediately without notification.
ACCEPTABLE USE POLICY
All use of Service must comply with Ellumnet’s Acceptable Use Policy (“AUP”), which is posted at http://Ellum.net/acceptable-use-policy.html and is incorporated herein by reference. By accepting Ellumnet Service, Customer agrees to comply with this AUP and any subsequent modifications thereto. Ellumnet reserves the right to modify this AUP from time to time, effective upon posting the AUP as modified at the URL shown above. Violation of the AUP shall be considered a material breach of this Agreement pursuant to the section of this agreement titled “Material Breach.”
DISPUTE RESOLUTION AND APPLICABLE LAW
(a) It is the mutual desire of the parties to promptly and fully resolve any dispute arising in connection with this Agreement in good faith, confidentially, and informally with minimal transaction costs, and no public statement may be made by any party regarding any such dispute. If either party determines that the dispute cannot be resolved informally, then such party shall initiate an escalation process by giving written notice (“Escalation Notice”) to the other party. Each party shall name one executive as its representative, to be a person knowledgeable of the subject matter in dispute and someone with authority to discuss the dispute (hereinafter the “Officers”). The Officers shall meet in person or by conference call, together with any persons assisting them, within fifteen (15) days after delivery of the Escalation Notice. All negotiations conducted by the Officers are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state rules of evidence. The Officers shall conduct such additional meetings as they deem necessary to exchange relevant information, will appoint staff to engage in resolution of any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable to resolve the dispute within such fifteen (15) days, or within such additional time as the parties may otherwise agree to in writing, either party may demand mediation, whereupon the parties shall, in good faith, mediate the dispute no later than thirty (30) days after such demand through the services of a mutually selected mediator, the cost of whom shall be borne equally by the parties, at a date and location selected by the mediator after consultation with the parties. If the dispute is not resolved after applying the escalation procedures set forth above, the parties agree to waive any right to trial by jury in any judicial proceeding arising under or related to the subject matter of this Agreement, and agree to submit all controversies, claims and matters of difference to arbitration according to the commercial rules and practices of the American Arbitration Association (“AAA”). Arbitration hereunder shall occur within sixty (60) days of the date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and who will selected in accordance with AAA rules. Arbitration proceedings shall take place in Dallas County, Texas. Discovery shall be permitted, including the use of interrogatories, requests for admission and production of documents and depositions. If the amount claimed to be in dispute is less than $500,000, all applicable expedited procedures of the AAA shall apply. The arbitrator’s fees and costs of the arbitration shall be borne by the party against whom the award is rendered, except that if the arbitrator issues a split decision, granting partial relief to both parties, the arbitrator shall equitably allocate the arbitrator’s fees and other costs. The arbitration award shall be final and binding on both parties of this Agreement, shall not be subject to any appeal, and shall be enforceable in any court of competent jurisdiction.
(b)This Agreement shall be governed by, construed under, and enforced in accordance with the laws of the State of Texas without reference to its choice of law principles. In the event any party brings a civil action or initiates judicial proceedings of any kind related to this Agreement (except for actions to enter or collect on judgments), the parties consent to the exclusive personal jurisdiction and venue of the courts in Dallas County, Texas.
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN THE SECTION ENTITLED “INDEMNITY,” IN NO EVENT WILL Ellumnet OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THE SERVICE(S), CPE, AND/OR ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES UNDER THIS AGREEMENT. Ellumnet’S MAXIMUM LIABILITY UNDER THIS AGREEMENT IS LIMITED TO SERVICE CREDITS NOT TO EXCEED THE FEES PAID TO Ellumnet BY CUSTOMER FOR THE SERVICE PROVIDED.
Customer shall indemnify and hold harmless Ellumnet, its Officers, Employees, Agents, and Affiliates from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages (including to any tangible property or bodily injury to or death of any person), or expense of whatever nature, (including reasonable attorneys’ fees) to or by any third party, relating to or arising from (a) the use of the Service provided to Customer, whether or not Customer has knowledge of or has authorized access for such use, (b) any damage to or destruction of CPE not caused by Ellumnet or its agents, and (c) any material breach of this Agreement by Customer. Customer has the sole and exclusive responsibility for the installation, configuration, security, and integrity of all Customer systems, equipment, software, and networks (the “Customer Equipment”) used in conjunction with or related to the Service(s) provided by Ellumnet. Customer therefore shall indemnify and hold harmless Ellumnet from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer or a third-party relating to or arising from the use or operation of the Customer Equipment. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to or use of the Service(s) by any third-party through Customer Equipment, regardless if such unauthorized access is unintentional, accidental, intentional or by fraud and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Customer agrees that it retains full and sole responsibility for any and all charges for the Service(s) provided by Ellumnet. In the event Ellumnet grants Customer access, either by online access, by application programming interface (API), or access by any other means, to a service ordering/management system and other related electronic tools (collectively, the “Electronic Tools”), Customer agrees that it is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. Customer agrees that it is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Electronic Tools, and to only allow authorized use of the Electronic Tools to persons that Customer designates. Customer therefore agrees that it shall indemnify and hold harmless Ellumnet from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer, or a third-party, relating to or arising from the use or operation of the Electronic Tools. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless if such unauthorized access is unintentional, accidental, intentional, or by fraud, and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Customer agrees that it retains full and sole responsibility for any and all charges for the Service(s) provided by Ellumnet.
NO WARRANTIES AND CUSTOMER ASSUMPTION OF RISK
Ellumnet MAKES SERVICE COMMITMENTS UNDER THE APPLICABLE SERVICE LEVEL AGREEMENT (“SLA”, located online at http://Ellum.net/sla.html), AND SAID SLA IS INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN. HOWEVER, Ellumnet MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE Ellumnet SERVICE(S) (INCLUDING Ellumnet CPE) PROVIDED UNDER THIS AGREEMENT, AND Ellumnet SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Ellumnet DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. Ellumnet EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY DATA OR CONTENT TRANSMITTED WITH THE USE OF THE SERVICE. CUSTOMER RECOGNIZES THAT Ellumnet DOES NOT OWN THE LOCAL ACCESS CIRCUIT AND IS NOT RESPONSIBLE FOR ANY PERFORMANCE OR NON-PERFORMANCE THEREOF. CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS CUSTOMERS’ USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE.
Customer acknowledges and understands that Customer is to receive the Service detailed in this Agreement, and the Customer is not relying on any affirmation of fact, promise or description from any person or entity, nor any other oral or written representation other than what is contained in this Agreement. Handwritten alterations or additions to this agreement made by Customer will not be considered part of this Agreement. This Agreement may only be modified, or any rights under it waived, by a separate written document executed by both parties. This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the State of Texas without reference to its choice of law principles. For any action or suit to enforce any right or remedy of this Agreement, (except for actions to enter or collect on judgments) the parties consent to exclusive jurisdiction and venue in the courts for Dallas County, Texas, and the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. Customer may not assign this Agreement without Ellumnet’s prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. Customer signatory certifies that (s)he is an officer or certified representative of the Customer, and as such is authorized to enter into this binding Agreement. In the event any specified time frame or deadline denotes calendar days, it is agreed that when the last date of required action or response falls on a weekend or holiday, the action and/or deadline shall automatically extend to the next business day. Agreement headings are provided for reference purposes only.
THIS AGREEMENT, TOGETHER WITH ANY ATTACHMENTS, INCLUDING ANY RIDERS, APPENDICES, SCHEDULES, ADDENDUMS, PRICE LISTS, SERVICE ORDERS, TERMS AND CONDITIONS, SERVICE LEVEL AGREEMENTS, AND ACCEPTABLE USE POLICIES (WHICH MAY BE POSTED AT: WWW.ELLUM.NET, AND WWW.ELLUM.NET, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE), CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN THE CUSTOMER AND Ellumnet, LLC, WITH RESPECT TO THE SERVICE(S) PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT CUSTOMER IS NOT RELYING ON ANY AFFIRMATION OF FACT, PROMISE OR DESCRIPTION FROM ANY PERSON OR ENTITY, NOR ANY OTHER ORAL OR WRITTEN REPRESENTATION OTHER THAN WHAT IS CONTAINED IN THIS AGREEMENT AND ANY INCORPORATED DOCUMENTS.
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