Network Services Agreement

1. SERVICES AND TERM

• Pursuant to the NSA, WalkerTek will provide the Services to Customer for the Service charges. Customer's signature on the Proposal or use of the Service or WALKERTEK Network constitutes its acknowledgement and agreement to be bound by the NSA. Capitalized terms are defined at the end of these Terms.
• Each Service's Initial Term is indicated in the proposal. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, the NSA will renew for successive Renewal Terms equal in length to the Initial Term unless and until terminated as provided herein.
• Customer's account must be current in order to make changes to Services or order additional Services.

2.SERVICE CHARGES AND BILLING

• Service charges are in the Proposal and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service.
• Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service via ACH automated Debit on the identified business day of each month without counterclaim, set-off, or deduction. A late charge shall be added to Customer's past due balance of the lesser of 1.5% per month or the maximum legal rate. WALKERTEK may change the specifications, Terms, or charges for the Service for any Renewal Term by providing Customer at least sixty (60) days' advance notice. Customer agrees that its obligation to pay the Service charges and Taxes under this Agreement shall survive the termination of the NSA.
• Customers claiming tax exemption must provide WALKERTEK with a properly executed exemption form.

SERVICE USE AND INTERRUPTION

• Customer's use of WALKERTEK's Services or Network may only be for lawful purposes and must comply with WALKERTEK's AUP. Transmission of any material in violation of any law, any regulation, or the AUP is strictly prohibited. Access to other networks connected to WALKERTEK's Network must comply with such other networks' rules. Resale of WALKERTEK's Internet Access Service is not allowed.
• WALKERTEK's obligations and Customer's exclusive remedies for failure of WALKERTEK's Network or any Service are stated in the WALKERTEK SLA.

TERMINATION, RESTRICTION, OR SUSPENSION

• Prior to the Service Date, WALKERTEK may terminate the NSA if not approved by WALKERTEK corporate management (including credit check). WALKERTEK also may restrict, suspend, or terminate the NSA, Customer's use of or access to any Service, or both at any time, if (a) Customer is in material breach of the NSA (including but not limited to the AUP) and, in WALKERTEK's sole judgment, an immediate restriction or suspension is necessary to protect the WALKERTEK Network or WALKERTEK's ability to provide services to other customers; or (b) Customer's account is unpaid sixty (60) days after date of invoice.
• Either Party may terminate the NSA (a) at the end of an Initial Term or Renewal Term by providing the other Party with at least thirty (30) days' written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20 is effective June 1); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this NSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same.
• If the Service is terminated prior to the Service Date, Customer shall pay WALKERTEK for all Initial Costs for Customer's Service order. If the Service is terminated after the Service Date, Customer shall pay WALKERTEK (a) for the Service through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by WALKERTEK due to loss of connectivity or building access at Customer's building(s) under Section 4.1(C) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to WALKERTEK caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at WALKERTEK's then-prevailing rates.
• If Customer defaults in any of its payment obligations under the NSA, Customer agrees to pay WALKERTEK's reasonable expenses, including but not limited to legal and collection agency fees, incurred by WALKERTEK in enforcing its rights. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to terms@WalkerTek.com.

DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

• EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS," AND NEITHER WALKERTEK NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION, OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES UNDER THIS AGREEMENT OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. WALKERTEK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WALKERTEK DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
• WITHOUT PREJUDICE TO OR LIMITING OF WALKERTEK'S RIGHT TO RECEIVE PAYMENT FOR SERVICES, WALKERTEK'S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND WALKERTEK, AND THE PROVISION BY WALKERTEK OF FACILITIES, TRANSMISSION, DATA, SERVICES, OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) IN TOTAL; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY WALKERTEK, OR FOR ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
• CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO WALKERTEK'S CONTROL. CUSTOMER AGREES THAT WALKERTEK SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO WALKERTEK'S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR BY INTERNET SERVICE PROVIDERS. WALKERTEK SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND 'DENIAL OF SERVICE' ATTACKS). WALKERTEK IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD WALKERTEK RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM WALKERTEK MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, WALKERTEK IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD WALKERTEK RESPONSIBLE FOR (A) THIRD-PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE WALKERTEK NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST WALKERTEK AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS NSA.
• NEITHER WALKERTEK NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES), OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES, OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE; LOST PROFITS; OR LOSS OF TECHNOLOGY RIGHTS, OR SERVICES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE).
• NO ACTION OR PROCEEDING AGAINST WALKERTEK MAY BE COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE THAT IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.

6.INDEMNITY

• Customer will indemnify, defend, and hold harmless WALKERTEK and its directors, officers, employees, affiliates, as well as its agents and subcontractors, from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of noncompliance by Customer with its obligations under the Agreement; (b) from any and all claims by any of Customer's customers or other third-party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that Customer will have no obligation to indemnify and defend WALKERTEK against claims for damages for bodily injury or death caused by WALKERTEK's gross negligence; or (C) from claims of copyright infringement and all manner of intellectual property claims; defamation claims; claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating, or harassing material; and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer's customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer's customers or authorized end users, or (iii) the use of Service(s) by Customer in any manner inconsistent with the terms of this Agreement, including without limitation the AUP

7. ADDITIONAL PROVISIONS

• Except as to payment obligations of Customer, neither Party shall have any claim or right against the other Party for any failure of performance due to Force Majeure.
• Neither Party is the agent or legal representative of the other Party, and this NSA does not create a partnership, joint venture, or fiduciary relationship between WALKERTEK and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This Agreement confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, Customer's subscribers or end users.
• This Agreement for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the State of New Jersey without regard to its choice of law principles. Any action arising out of or related to this Agreement shall be brought in the district or federal courts located in the state of New Jersey, and Customer consents to the jurisdiction and venue of such courts.
• Notices, if required, must be sent in writing by email, courier, or first-class mail (postage prepaid) to WALKERTEK and are considered made when received at the address listed in the Proposal. In the event of an emergency, WALKERTEK may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information in the Proposal, including points of contact.
• Customer may not assign this NSA without WALKERTEK's prior written consent, which consent shall not unreasonably be withheld. Any such assignment without WALKERTEK's prior written consent shall be void.
• Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the NSA, the expiration or prior termination of the term of the NSA shall relieve both Parties of any further obligations hereunder, except with respect to the Sections 2, 3, 4.3, 4.4, and 5 through 7, which shall survive any expiration or termination of these Terms.
• If (but only if) required by WALKERTEK's or Customer's agreement with Customer's Landlord (a) any cessation or interruption in WALKERTEK's Service does not constitute a default or constructive eviction by Customer's Landlord, and (b) Customer agrees to waive and release Landlord and its related parties from any liability in connection with any damages whatsoever incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the WALKERTEK Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR DEFECT IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF A RELEASED PARTY.
• The WALKERTEK Network is owned by WALKERTEK or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by WALKERTEK. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein.

 

DEFINITIONS

AUP — WALKERTEK's Acceptable Use Policy as posted by WALKERTEK (currently at http://www.walkertek.com/terms/aup.shtml). WALKERTEK reserves the right to amend its AUP at any time, effective upon posting on the WALKERTEK Web site. WALKERTEK — WalkerTek Internet Services, Inc., or its subsidiaries or affiliates. Network — The telecommunications network and network components owned, operated, or controlled by WALKERTEK, including WALKERTEK's fiber backbone; metropolitan fiber networks; any equipment connected to such fiber; and the software, data, and know-how used by WALKERTEK to provide the Services. Where WALKERTEK services a building through its own facilities, the WALKERTEK Network includes those facilities. The WALKERTEK Network does not include customer premises' equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by WALKERTEK. Customer — Customer identified in the attached Proposal. CSA — The entire Customer Subscriber Agreement between WALKERTEK and Customer for provision of the Service, consisting of the Proposal, NSA, the Terms, and the SLA. Equipment — Customer's equipment, if any. Force Majeure — Causes beyond a Party's control, including but not limited to acts of God; fire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action, or request of any government, including federal, state, provincial, municipal, and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lockouts, work stoppages, or other labor difficulties, supplier failures, shortages, breaches, or delays. Initial Costs — Greater of (a) installation fees (if not paid) or (b) all third-party costs and charges incurred by or charged to WALKERTEK on behalf of Customer for the Service, including but not limited to, local loop fees, cross-connect charges, and wiring fees. Initial Term — Initial length of term for the Services as indicated in the Proposal. Landlord — Customer's landlord, building owner, or property/telecom manager. Losses — Costs, fees, liabilities, losses, damages, or penalties, including reasonable legal fees. NSA — Network Service Agreement Proposal — Document identifying the specific Service(s) to be delivered. Party or Parties — WALKERTEK and/or Customer. Renewal Term — Subsequent length of term for the Services after completion of the Initial Term. Service(s) — Internet Access or Network Transport services (or colocation services, in the case of colocation Customers) provided by WALKERTEK under the Customer Subscriber Agreement. Service Date — Earlier of date on which (a) WALKERTEK deems that the Service is or will be available for Customer's use at either the WALKERTEK defined demarcation point or last-available test point or (b) Customer first uses the Service or the WALKERTEK Network. SLA — The Service Level Agreement as posted by WALKERTEK (currently at http://www.walkertek.com/terms/networksla.shtml) for Customer's specific Service(s). WALKERTEK reserves the right to amend the Service SLAs at any time, effective upon posting on the WALKERTEK Web site. Space — Rented rack space from WALKERTEK, if any. Tax or Taxes — All taxes arising in any jurisdiction, including without limitation all sales; use; excise; gross receipts; value added; access; bypass; franchise; telecommunications; property (for colocation customers); consumption; or other taxes, fees, duties, charges, or surcharges (however designated) that are imposed on or based on the provision, sale, or use of the Service(s), including such taxes imposed directly on WALKERTEK or for which WALKERTEK is permitted to invoice Customer in connection with WALKERTEK's performance under the CSA or NSA. Taxes do not include WALKERTEK's income taxes.

Termination Charge - Single payment equal to any third-party cancellation charges and the total remaining dollar value of the applicable Service order through the Term. - Terms Terms and conditions that apply to the Services WALKERTEK provides to Customer for the Service(s).

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