RESIDENTIAL SUBSCRIBER AGREEMENT
454 W. Stuart Road - Bellingham, WA 98226 ~ Phone: (360) 543-5679 - Fax: (360) 738-6601 ~ www.startouch.com
This Agreement is between STARTOUCH, INC. ("Company") and the Subscriber. THIS IS A LEGALLY BINDING CONTRACT, AND BY USING COMPANY'S SERVICES SUBSCRIBER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN.
1. DEFINITIONS - "Company" means STARTOUCH INC., located at 454 W. Stuart Rd. Bellingham, WA 98226. The "Subscriber" refers to the individual signing the Subscriber Agreement (“Agreement”) who incurs usage charges for Company provided 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 Subscriber and Company.
2. SERVICE COMPONENTS – 2.1 Company remains the sole owner of all equipment used to provide Service to Subscriber’s premises. Equipment will be removed by Company upon termination of Service. 2.2 Permitting & Landlord Approval. It is the Subscriber’s responsibility to obtain any required permits or to gain landlord approval for placement of the antenna and Set-up regarding the Subscriber building. Company is not responsible for property contract violations, damage, or other results of this installation if Subscriber or its affiliates proposes ownership or false landlord.
4. SUBSCRIPTION CHARGES AND PAYMENT OF FEES - 4.1 Prior to scheduling the Service Set-up appointment, Subscriber shall pay to Company the set-up charges for the selected Service Option below. Set-up charges include the non-recurring Set-up fees, one full month’s Service fee as provided below. (“Set-Up Fees”). No Service shall be set-up without payment of the Set-up Fees in advance. Except for the first month of Service, fees are not prorated. 4.2 Changes - All fees are subject to change at Company's discretion. Notice of fee changes shall be posted to Company website and shall be considered in effect upon posting. 4.3 Payment – Monthly invoices are generated approximately thirty (30) days in advance of Due Date. Payment of all charges are due on the first day of the Service month. 4.4 Invoiced amounts not paid on or before the Due Date shall incur a late fee of $25.00. Accounts with amounts more than ten (10) days overdue may be disabled until full payment, including late fees and the reconnect fee, is received by Company. 4.5 A $75.00 reconnect fee will be assessed on all disabled accounts. Returned checks will be charged a fee of $40.00. 4.6 Accounts more than forty-five (45) days overdue are subject to cancellation whereupon all Company-owned equipment must be surrendered to Company immediately. 4.7 Taxes, Pass Through Fees, and/or Regulatory Fees. Subscriber agrees to pay any and all applicable taxes, pass through fees, and/or regulatory fees that the Service may be subject to, either now or in the future, including Federal or State Universal Service fees. Company is not required to notify Subscriber in advance of any changes or additions to taxes, pass through fees, and/or regulatory fees. Any fees and the applicable rates will be detailed and billed as separate line items on Subscriber’s monthly invoice for Service.
5. NO-SHOW/APPOINTMENT CANCELLATION FEES - 5.1 Subscribers not present when a Company Technician arrives for a scheduled Service Set-up appointment, causing a need to reschedule, agree to pre-pay an additional Truck Roll fee of one-hundred-eighty-five dollars ($185.00) prior to rescheduling the Set-up appointment. Subscribers who cancel a scheduled appointment with the intent not to reschedule for any reason, including but not limited to, Subscriber’s disapproval of required dish/equipment location on Subscriber’s building, agree to forfeit the entire pre-paid Set-up fee: the pre-paid first month of Service will be refunded in a timely manner, thereby terminating the Agreement. 5.2 Refunds - Company will void the Agreement and refund Service Set-up fee’s in full if (i) Service speed ordered is found NOT to be available, or (ii) The Service does not meet Company specifications on the day of connection. NOTE: All appointments are considered “Intent to Set-up”, as no Service can be verified for certainty until Company Technicians are on site and/or equipment is in place. . 6. TERM AND TERMINATION OF THE SERVICE BY SUBSCRIBER - 6.1 The Initial Term for Services is One (1) Year. The Agreement commences upon Subscriber's signature on Company Technician close out documentation (“Commencement Date”), and remains in effect for the selected Service Option or until terminated (see below). Billing commences three (3) business days after the Commencement Date and will be pro-rated to the Commencement Date. 6.2 Upon the expiration of the Initial Term, the Agreement will automatically renew on a month-to-month basis. 6.3 Subscriber may terminate the Agreement upon ninety (90) days advanced emailed notice to firstname.lastname@example.org, or other written notice sent to the address stated herein prior to the renewal date (i.e., THE DATE WHICH SERVICES WERE INITIATED WHICH WILL MOST OFTEN VARY FROM THE DATE THIS AGREEMENT WAS SIGNED). (StarTouch, Inc. – 454 W. Stuart Rd., Bellingham, WA 98226) 6.4 Termination Fee: Subscriber shall pay to Company upon early discontinuance of Service a Termination Fee equal to three (3) months of service, in addition to any past due amounts, unrecovered equipment or other related taxes and/or fees owing or invoiced on the account (“Buyout”). The balance for the Buyout shall be paid to Company within five (5) business days of the final invoice being issued. 6.5 If, upon termination, the Company Equipment is unable to be recovered due to the negligence and/or willful misconduct of the Subscriber, Subscriber agrees to reimburse Company for all costs associated with replacing Company equipment (“Unrecovered Equipment Fees”).
7. SUPPORT, SUBSCRIBER-GENERATED SERVICE CALLS, AND CREDITS – 7.1 When Subscriber reports an outage by calling Company toll-free at 888-733-0203 and selecting option two (2) (Company Technical Support Department) to create a trouble ticket, Company shall use its best effort to restore Service. The Service provides for free basic diagnostic support during normal business hours Monday through Saturday. 7.2 Subscriber is responsible for and agrees to pay the entire cost of Service calls including specialized transit fees, labor, materials and equipment for all failures which are not the fault of Company including without limitation; specialized diagnostic/routing phone support or Truck Rolls to Subscriber’s premises to repair or replace Company equipment that is damaged or inoperable due to the negligence and/or willful misconduct of the Subscriber. Applicable fees are posted on the Support page of Company website (www.startouch.com) and are subject to change as defined in Section four (4) of the Agreement. 7.3 Instructions for requesting a credit for a Company Validated Service interruption can be found on the Company website (WWW.STARTOUCH.COM) under the Residential tab.
8. SERVICE MAINTENANCE & NETWORK MANAGEMENT - Company periodically performs maintenance on its network. This may require Company to conduct either a planned or unplanned interruption of the Service. Company will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on Subscribers. Company cannot guarantee that Service will not be interrupted and cannot always give advance notice of such outages. Subscriber acknowledges and agrees that Company is not responsible for any losses or damages (of any kind) that may be suffered by Subscriber as a result of any Service interruptions due to maintenance outages.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES – 9.1 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 Subscriber. Company disclaims 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. 9.2 Any statements made in any packaging, manuals, or other documents not expressly incorporated herein, and any statements made by any Company employees or representatives, are provided for informational purposes only and are not representations or warranties of any kind by any Company parties. Company does not authorize anyone to make a warranty of any kind on Company’s behalf, and Subscriber should not rely on any such statements. Subscriber assumes 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 Subscriber, in whole or in part. 9.3 Limitation of liability. Company shall not be liable or obligated in connection with these terms and Service, 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 amount including but not limited to: 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; 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. 9.4 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. 15.5 If Subscriber has any other dispute with Company or claim against Company apart from specific, limited credits available to Subscriber under Section 13 of this Agreement, Subscriber’s sole and exclusive remedy is to discontinue using the Service by submitting a request to cancel Service in writing to: email@example.com, and make Company’s equipment readily available for retrieval by a Company Technician at a mutually arranged time (subject to Subscribers obligation to pay any Buyout applicable to Subscriber Service Option and any other charges incurred in connection with Subscriber’s use of Service as referenced in Section six (6) of this Agreement).
10. INDEMNITY - Subscriber shall indemnify and hold Company harmless against loss, damage or expenses resulting from: Breaches or alleged breaches on intellectual property rights arising from the signals transmitted by Subscriber, Subscriber’s subscribers, and/or end users or third parties working for Subscriber.
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 Agreement shall give the other Party a claim against such Party, or be deemed a breach of the 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 Agreement shall include events beyond the commercially reasonable control and without the fault of and/or 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; weather; equipment failure; tree growth; or other causes beyond the reasonable control of either of the Parties.
12. 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 Agreement. Neither Party shall disclose to any third party such confidential information without the express written consent of the other.
13. NO PARTNERSHIP OR LICENSE - Nothing in the 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 Agreement.
14. SEVERABILITY - If any provision of the Agreement is held by a court or any governmental agency or authority to be invalid, void, or unenforceable, the remainder of the Agreement shall nevertheless remain legal, valid and enforceable, providing always that if such a provision is of a fundamental nature to the Agreement either party may terminate the Agreement.
15. NO WAIVER - Failure by either party to exercise or enforce any right conferred by the 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.
16. VARIATION - This Agreement may be changed or modified from time to time by Company. Notice of such changes or modifications will be provided on Company’s website. . Such changes or modification shall be effective as stated online. Subscriber's continued use of the Services provided by Company following the notices and implementation of any such changes and/or modifications shall constitute Subscriber's acceptance of any such changes and/or modifications. An Agreement Number may be added to this Agreement by Company without effecting the validity or enforceability of this Contract.
17. TERMINATION OF SERVICE BY COMPANY - COMPANY MAY LIMIT, SUSPEND OR TERMINATE SERVICE OR ANY AGREEMENT BETWEEN COMPANY AND SUBSCRIBER FOR ANY REASON OR CAUSE, including but not limited to any breach of the Agreement by Subscriber. Company may terminate or revise available Services based on changes in policy, network revisions, or other circumstances affecting your Service that Company may choose, or may have cause to develop and implement, with or without notice.
18. LAW & JURISDICTION, NOTICES - This Agreement shall be governed by Washington State law. Exclusive jurisdiction and venue for any dispute arising under this Agreement shall be the Whatcom County Superior Court. Without limiting the foregoing, Subscriber specifically waives any jurisdiction of the federal district court or the right to seek removal to the federal district court. In the event Company is required to engage the Services of an attorney because of a breach by Subscriber of any of the terms herein contained, or arising out of Subscriber's use of the Services provided by Company, Subscriber agrees to pay all of Company's reasonable attorney’s fees and court costs. Upon breach of this 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 Company. Notices to either party shall be sent by registered mail to Subscriber and to Company at their respective addresses provided herein.
BY SIGNING THIS AGREEMENT, THE INDIVIDUAL CONFIRMS THAT THEY ARE LEGALLY AUTHORIZED TO BIND THE SUBSCRIBER UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS NOT A GUARANTEE OF SERVICE, ONLY A DESCRIPTION OF THE TERMS AND CONDITIONS BY WHICH THE SUBSCRIBER AGREES TO BE BOUND.