StarTouch Subscriber Agreement
STARTOUCH RESIDENTIAL SUBSCRIBER AGREEMENT AS OF JUNE 1, 2017 – REV 1
This agreement is between STARTOUCH, INC. ("The Company") and the Customer ("The Subscriber"). THIS IS A LEGALLY BINDING CONTRACT AND BY USING COMPANY'S SERVICES THE SUBSCRIBER AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. DEFINITIONS - "The Company" means STARTOUCH INC., located at 1354 Pacific Place, Suite 102, Ferndale, WA 98248 which provides Microwave, Wireless, IP Transport, Colocation, Internet backbone connectivity, and other related services. "The Subscriber" refers to an individual, corporation or legal entity who incurs usage charges for the Company services, for its own use or who incurs such charges on behalf of a third party user. "The User" refers to any individual who uses the services provided by Company with the permission of both the Subscriber and the Company.
2. BACKGROUND & SERVICE COMPONENTS - 2.1 The Company is in the business of providing Microwave, Wireless, IP Transport, Co-Location, Internet backbone connectivity, and other related services. 2.2 The service (“the Service”) to the Subscriber may consist of Internet, Layer2, bridging, or IP transit between its Network related sites as specified under the Subscriber Agreement (“the Subscriber’s Sites(s)”), including (unless otherwise specified) the Internet Connectivity. Unless otherwise specified in the Service Order, the Company remains the sole owner of all equipment used to provide services to the Subscriber’s premises and will be removed by Company upon termination of services. 2.3 Unless otherwise specified in the Service Order, the Service includes the following principal components (“the Service Components”): Connectivity to the Internet using the Company as the Gateway; Port connectivity (upstream and downstream) from the Company’s access devices positioned at the Subscribers premises; and, Base Station facilities to backhaul the data from locations as defined in the Service Order.
3. THE SERVICE - 3.1 In accordance with the online order submission that the Subscriber has placed. 3.2 To order a Service, the Subscriber has accepted these conditions upon submitting an order via www.startouch.com. This Subscriber Agreement is binding on all Service Orders to the Company. This Subscriber Agreement shall constitute the binding commitment of the Subscriber to purchase the Service described in the Service Order on the terms set forth in this Agreement and of the applicable Service Order. In the event of any inconsistency between a Service Order and this Subscriber Agreement, the Subscriber Agreement shall take precedence. Unless expressly stated otherwise in a Service Order, activation of a particular Service shall constitute the Company’s acceptance of the relevant Subscriber Agreement. 3.3 In order that it may continue to maintain the level and quality of the Service, the Company reserves the right to change or alter the configuration of the Service Components under the Service Order and this Subscriber Agreement. 3.4 The service allows the Subscriber to access the Internet (if part of the Service Order). The use of the Internet service is at risk of the Subscriber and subject to any applicable laws. The Company has no responsibility for any goods, services, information, software or other materials that the Subscriber obtain when using the Internet. 3.5 Subscriber agrees not to share, or provide Company-owned services to any third party who is not designated to obtain services without the consent of the Company. 3.6 All connections are provided at Half-Duplex.
4. SUBSEQUENT SERVICE ORDERS - All subsequent Service Orders submitted by the Subscriber shall be subject to the General Terms of this Subscriber Agreement herein, or according to any separate and unique Subscriber Agreement associated with the particular Service Order.
5. TERM AND TERMINATION OF THE SERVICE - 5.1 The Term for Products and Services is 1 Year or as outlined in the Service Order. This Agreement commences upon the Subscriber's ability to receive IP packets or has received proper notification from the Company's Network Operations Center (NOC), and remains in effect for the selected rate plan period or until terminated as herein provided. Only the first month's service is subject to prorating based on turn-up date. All further months of service will be billed in full and not subject to proration in the event of termination. 5.2 Upon the expiration of the Term set forth in the Service Order, or this Subscriber Agreement, this Agreement shall automatically renew on each Term or Anniversary date, for an additional 1-year Term. 5.3 The Subscriber may terminate this Agreement upon sixty (60) days advanced emailed or faxed notice (email@example.com or 360-384-3867), or other written notice sent to the address stated herein prior to the end of renewal date (i.e., THE DATE WHICH SERVICES WERE INITIATED WHICH WILL MOST OFTEN VARY FROM THE DATE THIS AGREEMENT WAS SIGNED). (StarTouch, Inc. - 1354 Pacific Place, Suite 102, Ferndale, WA 98248) 5.4 Early Termination Buy Out: Subscriber shall pay to StarTouch, Inc. upon discontinuance of service the required monthly service fee equal to the number of months remaining in the current term, in addition to any past due amounts, outstanding Gig usage fees, unrecovered equipment or other related fees owing or invoiced on the account. Any discounts that were provided to the customer for the service (set-up or monthly recurring fees), would be subject to be paid at the full “standard-rate” and any discounts provided, would be included with the buyout balance” should the customer terminate early. The balance for the Buy Out shall be paid to StarTouch, Inc. within five (5) business days of the final invoice being issued. 5.5 The Company shall have the right to suspend or terminate this Agreement at any time without prior notice to the Subscriber and without any liability to the Subscriber or the User. 5.6 The Subscriber also agrees that the Company has the right to delete all data, files or other information that resides or is stored on the Company's hardware, should the Subscriber's account with the Company be terminated, for any reason, by either the Company or the Subscriber. 5.7a No Show/Appointment cancellation Fees. Customers who are not present when a technician arrives for an activation appointment agree to be assessed a fee of $100.00 for a truck roll fee. This is not refundable. Customers who cancel an activation appointment after the work order has been issued agree to be assessed both a truck roll fee of $100.00 and an administrative fee of $85.00, for a total of $185.00. 5.7.b Customers who cancel an activation appointment and terminate the service order after the work order has been issued, but before a truck roll has occurred agree to be assessed an $85.00 nonrefundable administration fee. 5.7.c StarTouch technicians always work to place our equipment in the best possible position on your building for both appearances and service quality, however, signal quality is the sole determining factor for a StarTouch technician. Customers who are determined to be qualified for service upon original site evaluation, but reject a set-up of an external dish or antenna on the building's roof, designated property or structure due to the StarTouch-required location agree to be assessed both a truck roll fee of $100.00 and an administrative fee of $85.00, for a total of $185.00. 5.8. Termination by StarTouch. STARTOUCH MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR ANY AGREEMENT BETWEEN STARTOUCH AND YOU WITHOUT NOTICE FOR ANY GOOD CAUSE, INCLUDING, WITHOUT LIMITATION, upon receipt of adverse credit information about you at any time, or if you or any user on your account: (i) breaches these Terms; (ii) pays late; (iii) provides credit information that StarTouch is unable to verify; (iv) provides StarTouch with any inaccurate or incomplete information; (v) damages or tampers with, or allows anyone else to damage or tamper with, any Equipment; (vi) incurs charges greater than any billing or credit limitation on your account (even if StarTouch has not yet billed for those charges); (vii) transfers Service to another person without StarTouch's advance written consent; (viii) becomes insolvent, goes bankrupt, or threatens bankruptcy (except as prohibited by law); (ix) uses the Service in a way that violates StarTouch's Acceptable Use Policy, any other agreement you may have with StarTouch, or any other policy affecting your Service that StarTouch may choose to develop and implement; or (x) otherwise acts in a malicious or unsavory manner.
6. SUBSCRIPTION CHARGES AND PAYMENT - 6.1 The Subscriber shall pay to the Company the charges associated with any Service Order issued to the Subscriber by the Company, including without limitation, deposits, set-up fees, equipment purchase and/or rentals, service charges, applicable retail sales tax, use tax, or regulatory fees, etc., all as set forth in the attached Service Order. Except for the first month of service, service fees are not prorated. 6.2 Usage-Based Pricing - In addition to the charges set forth in Section 3, the Company shall also have the right to establish incremental service charges for use of Company's services exceeding stated thresholds as set forth herein. Said usage-based pricing will be billed in arrears. For example, incremental usage above the threshold for the month of January will be billed on February's invoice. 6.3 Changes - All charges are subject to change at Company's discretion upon thirty (30) days advance notice. 6.4 Payment - With the exception of usage-based fees, which will be billed in arrears, payment of all charges are due, on the first day of the month. All periods of service shall begin on the first day of the month after service is initiated. 6.5 Accounts past due will be assessed a $25.00 late fee. Accounts more than ten (10) days overdue will be temporarily disabled until full payment, including late fees, is received. 6.6 A $45.00 reconnect fee will be assessed on all disabled accounts. Returned checks will be charged a fee of $30.00. 6.7 Accounts more than forty-five (45) days overdue will be canceled and all STARTOUCH INC. owned equipment must be returned to Company.
7. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES - 7.1 The only warranty being made about the service and equipment is the manufacturer's express limited warranty if a router or other hardware device is sold to the customer. The StarTouch company disclaim any and all other representations and warranties of any kind, express, implied or statutory, including but not limited to any warranties of merchantability, fitness for a particular purpose or use, availability, non-interference with your enjoyment of the service or equipment, or non-infringement. 7.2 Any statements made in any packaging, manuals, or other documents not expressly incorporated herein, and any statements made by any StarTouch employees or representatives, are provided for informational purposes only and not as representations or warranties of any kind by any StarTouch parties. Startouch does not authorize anyone to make a warranty of any kind on StarTouch's behalf, and you should not rely on any such statement. You assume all responsibility and risk for use of the service and the equipment. Some states do not allow the disclaimer of implied warranties, so the exclusions in this section may not apply to you, in whole or in part. 7.3 Limitation of liability. The StarTouch company shall not be liable or obligated in connection with these terms, under any theory, whether in contract, tort, negligence, privacy, security, strict or product liability, breach of warranty, or other legal or equitable theory, for: any amounts in excess of the total fees paid to StarTouch for the service or equipment during the six (6)-month period immediately preceding the occurrence giving rise to liability; any cost of procurement of substitute goods, technology, service, products, or rights; any loss or corruption of data; delayed, degraded or interrupted use of the service or access to the internet or between any two or more locations. 7.4 Subject solely to the provisions of section 7; inability to make, complete or receive calls using internet phone service; or damage to any hardware, software, or the service location; any indirect, consequential, incidental, punitive, exemplary, or special damages and/or lost profits of any kind or amount, including, without limitation, any such damages or lost profits that may arise from or relate to the inability of StarTouch (for whatever reason) to transfer and maintain your existing phone connection from another voice service provider when you desire to transfer such telephone number for use in connection with your establishment of internet phone service with StarTouch or (ii) for another voice service provider when your internet phone service with StarTouch is terminated (by you or by StarTouch, for any reason, including your non-payment of any amount(s) due to StarTouch) and you are switching to such other voice service provider; any lack or breaches of security of the service or in the storage or integrity of your data or any other user's data; or any damages arising from any delay or failure in performance due to events or causes outside of StarTouch's reasonable control. 7.5 The exclusions and limitations contained in this section 7 shall apply whether or not StarTouch was informed of the likelihood of any particular type of damages, and even if any remedy fails of its essential purpose. Subject solely to your rights as expressly set forth in sections 22.5 and 7.4 above, if you are dissatisfied with the service or equipment, or if you have any other dispute with StarTouch or claim against StarTouch, then your sole and exclusive remedy is to discontinue using the service (subject to your obligation to pay any early termination fee and/or restocking fee applicable to your service plan and any other charges theretofore incurred in connection with your use of the service), and any liability will be limited to the recovery of your direct damages, limited to the amount and by the exclusions set forth in this section 7. Some states do not allow the exclusion or limitation of incidental or consequential damages, or other modifications of or limitations on certain remedies, so the above exclusion or limitation may not apply to you, in whole or in part.
8. WARRANTIES OF THE COMPANY - Provided that the Subscriber performs its obligations under the Subscriber Agreement, the Company warrants subject to fair practice that it shall use reasonable skill and care to establish that the Service, including all the relevant service segments under its control, Service specifications when these have been delivered.
9. FAULT & FAULT RESOLUTION - Where the supplied equipment or Service is faulty, or there is a reported outage, and it has been reported by the Subscriber by creating a trouble ticket with the Company, the Company shall use its best effort to resolve such faults or outages.
11. FORCE MAJEURE - 11.1 No failure or omission by either Party to carry out or to perform any of the terms or conditions of the Subscriber Agreement shall give the other Party a claim against such Party, or be deemed a breach of the Subscriber Agreement, if and to the extent that such failure of omission arises from Force Majeure. 11.2 The term “Force Majeure” as used in the Subscriber Agreement shall include events beyond the commercially reasonable control and without the fault of negligence of the Party and includes (without limitation): acts of God, natural or manmade catastrophe; earthquake; fire; flood; solar disturbances; sun outages; acts of any government in their sovereign or contractual capacity including acts of government controlled companies or any acts that may impinge on or affect the RF frequencies; national emergencies; riots; act of war whether declared or not; strikes; epidemic; labor disputes; externally caused interferences; blockade, insurrection or other causes beyond the reasonable control of either of the Parties.
12. LIABILITY - 12.1 The Company's obligation under the Subscriber Agreement is to use its best effort to put the Service at the disposal of the Subscriber in accordance with the terms of the Service Order. 12.2 The Company shall not be liable for direct or indirect; incidental; special; consequential exemplary or punitive damage; non-pecuniary damage or damage arising without limitation from loss of time, Subscribers, goodwill, profits, data, content and information or income loss or damage caused by disruption to business activities under any theory of tort, contract indemnity, warranty strict liability or negligence, even if the Company knew or should have known of the possibility of such damages, irrespective of how such damage may occur. For the purposes of this clause, indirect damage shall also be taken to mean any damage arising from the negative effects on the Subscriber of an error committed or negligence demonstrated by the Company by the calling into question of the Subscriber’s contractual or extra-contractual liability in respect of third parties, such a its officers, staff, subcontractors, Subscribers and suppliers, following this fault or negligence. 12.3 The Company shall not be liable for the acts or omissions of other providers of telecommunication services and / or interferences by other telecommunications and / or any radio equipment or for faults or failures of network and equipment. 12.4 The Company may never be declared liable for damage caused by Force Majeure or a fortuitous incident or through the fault of the Subscriber or third parties. The same shall be applicable in case of an interruption of the Link Degradation or a total decrease in transmission quality however the interruption or quality decrease that harmed or caused any loss to the Subscriber may arise.
13. SERVICE CALLS - Subscriber is responsible for the entire cost of service calls including labor, materials, and equipment for all failures which are not the fault of the Company including without limitation, phone support, online support, or service truck deployment to Subscriber’s premises. Truck roll fees are billed hourly.
14. INDEMNITY - The Subscriber shall indemnify and hold the Company harmless against loss, damage or expenses resulting from: Breaches or alleged breaches on intellectual property rights, arising from the signals transmitted by the Subscriber, the Subscriber’s subscribers and/or end users or third parties working for the Subscriber.
15. ACCEPTABLE USE - 15.1 Subscriber shall ensure that the Users shall comply with the terms and conditions of this Subscriber Agreement.15.2 Subscriber shall not use or permit its Users to use the Services in ways that violate laws, infringe the rights of others, interfere with users of Company's service or other service networks. Subscriber is responsible for the knowledge of and adherence to any and all laws, statutes and regulations pertaining to or in any way connected with the services provided by the Company and all use of any information, data, material or service in violation of any such law, etc., is strictly prohibited. 15.3 By posting information in or otherwise using any communications service, chat room, message board, news group, software library, or other interactive service that may be available to the Subscriber and the User on or through this site, the Subscriber agrees that the Subscriber and the User will not upload, post, or otherwise distribute or facilitate distribution of any content -- including text, communications, software, images, sounds, data, or other information -- that: (i.) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates Company's rules or policies; (ii.) Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (iii.) Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling. (iv.) Contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or other information of any third party; or (v.) Impersonates any person or entity, including any employee or representative of the Company. You further agree that you will not knowingly solicit or collect personal information from a minor without appropriate prior verifiable parental consent. Company generally does not pre-screen, monitor, or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or through Company’s services unless requested to do so by Customer or any authoritative, legal or government agency. However, Company and its agents have the right at their sole discretion to remove any content that, in Company's judgment, does not comply with these rules or is otherwise harmful, objectionable, or inaccurate. Company is not responsible for any failure or delay in removing such content. 15.4 Subscriber shall not nor shall it permit or assist others to: (I) use Products and Services for any purpose other than that for which they are intended or entitled to, (ii) fail to maintain a suitable environment as specified by Company., or (iii) alter, tamper with, adjust or repair the Products and Services. Subscriber agrees to abide by the terms of the Acceptable Use Policy posted on Company’s Web site (www.startouch.com). Upon the occurrence of any of the above, Company shall be completely released from any liability or obligation (Including any warranty or indemnity obligation) to Subscriber relative to the Products and Services; and Subscriber shall be liable to Company for costs or damages Incurred by Company resulting therefrom. Subscriber shall not nor shall it permit or assist others to abuse or fraudulently use Products and Services, Including but not limited to the following: Obtaining or attempting to obtain service by any means or device with intent to avoid payment; or unauthorized access, alteration, destruction, or any attempt thereof, of any information of another Company subscriber by any means or device; or using Products and Services in violation of the law or in aid of any unlawful act; or using Products and Services so as to interfere with the use of similar products or services by other STARTOUCH INC. Subscribers or authorized users or in a manner which, in the sole opinion of the Company is not in accordance with generally accepted standards of Internet access and bandwidth usage. Upon the occurrence of any of the above, STARTOUCH INC. may suspend its performance and/or terminate the Service Order and Subscriber Agreement with no further obligation to Subscriber. Subscriber will still be liable for payment of any remaining term stated on the Service Order or Subscriber Agreement.
16. CONFIDENTIALITY - Each party agrees to maintain in strict confidence all trade secrets, business and other proprietary information of the other Party that is disclosed pursuant to the Subscriber Agreement. Neither Party shall disclose to any third party such confidential information without the express written consent of the other.
17. NO PARTNERSHIP OR LICENSE - Nothing in the Subscriber Agreement and no action taken by the parties pursuant to the Service Order shall constitute or be deemed to constitute between the parties a partnership, association, joint venture, or other cooperative entity. No license, express or implied, is granted by either party pursuant to the Subscriber Agreement.
18. SEVERABILITY - If any provision of the Subscriber Agreement is held by a court or any governmental agency or authority to be invalid, void, or unenforceable, the remainder of the Subscriber Agreement shall nevertheless remain legal, valid and enforceable, providing always that if such a provision is of a fundamental nature to the Service Order and/or Subscriber Agreement either party may terminate the Subscriber Agreement forthwith.
19. NO WAIVER - Failure by either party to exercise or enforce any right conferred by the Subscriber Agreement shall not be deemed to be a waiver of any such right, nor operate so as to bar the exercise or enforcement thereof or to any other right on a later occasion.
20. VARIATION - This Agreement may be changed or modified from time to time by Company. Notice of such changes or modifications will be provided online and by mail or email to the address(es) provided herein. Such changes or modification shall be effective as stated in the notice or as limited in this Agreement. The Subscriber's continued use of the services provided by Company following the notices and implementation of any such changes, modifications shall constitute Subscriber's acceptance of any such changes and/or modifications. An Agreement Number may be added to this Agreement by StarTouch Inc. without affecting the validity or enforceability of this Contract.
21. LAW & JURISDICTION, NOTICES - This License shall be governed by Washington law. Exclusive jurisdiction and venue for any dispute arising under this Subscriber Agreement shall be the Whatcom County Superior Court. Without limiting the foregoing, the Subscriber specifically waives any
jurisdiction of the federal district court or the right to seek removal to the federal district court. In the event the Company is required to engage the services
of an attorney because of a breach by the Subscriber of any of the terms herein contained, or arising out of the Subscriber's use of the services provided by the Company, the Subscriber agrees to pay all of the Company's reasonable attorneys fees and court costs. Upon breach of this Subscriber Agreement, all of Subscriber’s rights and privileges shall be immediately terminated. And, upon any such termination for breach of the provisions of this Agreement, or the breach of any applicable law or statute governing the use of the services provided, all Subscriber fees shall be forfeited as liquidated damages to the Company. Notices to either party shall be sent by registered mail and by fax to the Subscriber and to the Company at their respective addresses and fax numbers provided herein.
22. SERVICE LIMITATIONS - This Section describes certain Service availability limitations, variations on speed and bandwidth, service coverage, maintenance outages, how StarTouch manages the network, and credits for Service outages. 22.1 Availability of Service. The Service, may not be available at any or all times in all areas. Even within coverage areas, and for a variety of reasons that may be beyond StarTouch's reasonable control, service availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your desired use of the Service. You agree that StarTouch is not liable for problems relating to Service availability or quality, regardless of the cause(s) of these problems. 22.2 Maintenance. To provide the best possible service to its customers, StarTouch periodically performs maintenance on its network. In some cases, this may require StarTouch to conduct either a planned or unplanned interruption of the Service. StarTouch will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on customers, but StarTouch cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that StarTouch shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages. 22.3 Network Management. StarTouch reserves the right to engage in reasonable network management to protect the overall integrity of its network, including detecting malicious traffic patterns and attempting to prevent the distribution of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at a particular location at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to StarTouch's Acceptable Use Policy, posted at http:www.startouch.com, which forms a material part of, and is incorporated by reference within, these Terms. 22.4 VARIATIONS OF SPEED; SERVICE QUALITY DISCLAIMER. The speed and bandwidth available to each computer or device connected to the StarTouch network, and hence the quality of the service, may vary for many reasons, within or beyond StarTouch's control, including without limitation: (i) the number of users, computers or devices connected simultaneously to the network, and the types of usage in which they are engaged; (ii) the amount of data being transferred over the network, (iii) network signal quality; (iv) performance capabilities of your equipment and the equipment of third parties; (v) terrain and foliage; (vi) weather and atmospheric conditions; and (vii) building structure and materials. Neither StarTouch, nor its affiliates, agents or suppliers, warrant or represent that the equipment or service (a) will meet your requirements or (b) will be uninterrupted, without delay, error-free, or free from service degradation. 22.5 Credits. StarTouch's sole liability for interruptions or degradations of the Service shall be as set forth in this Section 22.5. In the event of an interruption of the Service that continues for a consecutive period of twenty-four (24) hours or more, StarTouch will credit your account for an amount equal to the prorated charges (including any applicable taxes) for your Service during the affected period, provided that you must request the credit within fifteen (15) days of the commencement of the Service interruption or degradation. Such request may be made by a telephone call to StarTouch's customer service department at 360.543.5679. Alternatively, StarTouch may elect in its sole discretion to issue credits to customers for Service problems. No credit will be available if the interruption or degradation period results from any "Excluded Causes", (Failed Equipment). Any credit that StarTouch issues to you pursuant to this Section 22.5 may be used by you for/toward future Service that you order or purchase from StarTouch; provided, however, that you specifically acknowledge and understand that such credit shall not be refundable to you, in whole or in part, under any circumstances. THIS SECTION 22.5 SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR DEGRADATION OF THE SERVICE.