CUSTOMER AGREEMENT
This Customer Agreement, including the attached Annex A (together,
referred to herein as "Agreement"), is between the American Red Cross, Tampa
Bay Chapter, located at 0000 X. Xxxxx Xxx., Xxxxx 000, Xxxxx, XX 00000
("Subscriber") and SkyLynx Communications, Inc., located at Xxxxxxxx, XX 00000
("SkyLynx").
By executing this Agreement, registering for the SkyLynx Network and
accessing the SkyLynx Network Services, Subscriber is agreeing to the terms
and conditions of this Agreement which includes certain disclaimers.
AGREEMENT
Skylynx Network Services will: (1) link Subscriber's four (4) offices in
a Wide Area Network (WAN), with each location capable of sending and
retrieving e-mail, regulations, guidance, course data and class schedules and
accessing a central data base for volunteer administration; (2) provide
internet access with two-way, near simultaneous communications not requiring a
dial up (perpetually on line); (3) establish the capability for video
conferencing; and (4) maintain such equipment and links in good working order
and repair.
Following the six-month Trial Period (see Payment For Services" section),
Subscriber shall be responsible for use of Subscriber's account with SkyLynx
for any fees incurred for use of the SkyLynx Network Services, or for software
or merchandise purchased thereon, or any other expenses authorized by
Subscriber and incurred in accordance with the terms of this Agreement.
Subscriber promises to pay such amounts billed by SkyLynx for such service,
software, or merchandise and any related fees, taxes and charges. Subscriber
also agrees to the other terms and conditions of this Agreement as stated
below and the attached Annex A. SkyLynx reserves the right to change these
terms and conditions, including the applicable fees and charges, but only in
accordance with the terms of this Agreement.
SUBSCRIBER
Subscriber agrees to use the SkyLynx Network in accordance with all
applicable laws and regulations and in accordance with the terms of this
Agreement.
SUBSCRIBER EQUIPMENT REQUIREMENT AND MAINTENANCE
SkyLynx will install and maintain in good working order and repair such
suitable and fully compatible network equipment and communication devices
required to access the SkyLynx Network as Subscriber may require and request.
SkyLynx installation will be at a rate equal to one-half (1/2) the rate it
would ordinarily charge other customers. Subscriber will receive all software
updates and equipment upgrades and changes/replacements at no cost. SkyLynx
will own all transmission and antenna equipment and be responsible for the
maintenance and repair of said equipment.
Subsequent to the Initial Trial Period (see "Payment For Services"
section), Subscriber will purchase and own the SkyLynx routers and be
responsible for their maintenance and repair except that which is covered by
warranty. Subscriber will be responsible for individual PC interconnections
and functioning,
CERTIFIED INFORMATION RATE
The SkyLynx Network Services are provided to Subscriber at a Certified
Information Rate (CIR) which is initially elected by Subscriber when
Subscriber's service is established and also updated online from time to time
via the SkyLynx Network System Software. SkyLynx will make its best efforts
to maintain the CIR level of service at Subscriber's local area network
elected by Subscriber on a continuous basis, but in no case will a temporary
lack of CIR maintenance by SkyLynx be cause for service rebates, refunds or
other forms of account credit.
TERM
This Agreement shall commence on the date of registration by Subscriber
with SkyLynx for a trial period of six months from said date and may continue
to be renewed for successive twelve-month periods until termination. Either
party may terminate this Agreement at any time during the first six-month
trial period upon thirty days' written notice to the, other or upon thirty
days' written notice within any successive twelve-month contract period. (See
"Notices" section.) SkyLynx reserves the right to suspend access to the
SkyLynx Network upon five days' written notice, upon non-payment by
Subscriber, rejections of any payment arrangements by any agent appointed by
Subscriber, non-payment by Subscriber's bank of authorized charges, any breach
of the SkyLynx Software Licensing Agreement or for any breach of the terms of
this Agreement.
PAYMENT FOR SERVICES
SkyLynx Network subscriber access rates including the basic subscription
fee and charges for other basic services are Two Hundred Twenty-five Dollars
($225) per month per site, plus an installation fee of the SkyLynx System at a
cost not to exceed $2,000 per site, beginning with the first successive
twelve-month period following the six-month Trial Period. During the six-month
Trial Period, SkyLynx agrees to waive all service and access fees. After the
Trial Period, Subscriber agrees to pay SkyLynx for any and all charges arising
from Subscriber's subscription to the SkyLynx Network including the
subscription fee and the fees for any software, merchandise or other services
acquired by Subscriber or anyone else who uses Subscriber's SkyLynx Network
Account, including, without limitation, any minors. Subscriber further agrees
to pay, after the Trial Period, any adminlstratlve fees and any other fees as
provided for in this Agreement or by applicable law and all taxes and
governmental fees, including all federal, state, local and user taxes,
franchise fees and other charges, if any, which are now or may In the future
be assessed because Subscriber receives the SkyLynx Network Services.
Subscriber will receive a rebate In the sum of five percent (5%) of
Gross Profit received from any customer resulting from Subscriber's
introduction of the customer to SkyLynx or the demonstration of the SkyLynx
system at Subscriber's office that ultimately results In a sale to the
customer.
CHANGE OF ACCOUNT NAME, ADDRESS OR TELEPHONE NUMBER
Subscriber agrees to give SkyLynx prompt notice of Subscriber's change of
business name, business mailing address and applicable business telephone
number. Subscriber may do this by notifying the SkyLynx Customer Care Center
by telephone or in writing.
ASSIGNMENT OF ACCOUNT
Neither SkyLynx nor Subscriber may sell, assign, or transfer Subscriber's
account to a third party without prior notice and consent by the other, which
consent shall not be unreasonably withheld. In the absence of a notice of such
sale or transfer, Subscriber must continue to make all required payments to
SkyLynx in accordance with Subscriber's billing statement.
APPLICABLE LAW
The terms and conditions in this Agreement, including all matters
relating to their validity, construction, performance and enforcement, shall
be governed by applicable federal law, the rules and regulations of the
Federal Communications Commission (FCC), and the laws and regulations of the
state and local area where service is provided. These terms and conditions are
subject to amendment, modification, or termination if required by such
regulations or laws. If any provision in this Agreement is declared to be
illegal or in conflict with any law or regulation, that provision may be
deleted or modified without affecting the validity of the other provisions.
Use of this Service will be for only such business purposes which are legal
and allowed by state or federal law.
NOTICES
All notices mentioned in this Agreement shall be written and deemed
received by either party when sent via Registered Mail, Return Receipt
Requested, mailed to the receiving party's address given at the beginning of
this document and signed for by the receiving party; or when hand-delivered to
the receiving party's place of business.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed as of the date written below,
THE AMERICAN RED CROSS SKYLYNX COMMUNICATIONS, INC.
Tampa Bay Chapter
______________________________ ___________________________________
______________________________ ___________________________________
Typed or Printed Name and Title Typed or Printed Name and Title
Date:____________________ Date:___________________
Annex A
Terms & Conditions
A-1 CONTACTING SKYLYNX:
Subscriber may contact Subscriber's local Customer Care Center during the
hours of 8:00 a.m. to 5:00 p.m. local time, Monday through Friday by calling:
(XXX) XXX-XXXX or by e-mail at: (customer .xxxx@xxxxxxx.xxx)/
A-2 PAYMENTS:
SkyLynx will send Subscriber a monthly statement for each billing cycle
showing payments, network purchases, and other charges. Payment of the
outstanding balance is due in full each month. * If Subscriber's payment Is
not received by SkyLynx before the next statement is issued, Subscriber may be
charged interest on the delinquent balance at the rate of one and one-half
percent (1.5%) per month, prorated on a daily basis. Furthermore, If SkyLynx
does mot receive payment from Subscriber before Subscriber's next statement is
issued, SkyLynx has the right to inactivate Subscriber's service upon the
expiration of any applicable grace period as reflected on each statement as
"payment due no later than 30 days" with respect to the amount due.
*SkyLynx may, but is not required to, accept partial payments from
Subscriber. If partial payments are made, they will be applied to
statements starting with the oldest outstanding statement. Late less
will be assessed monthly as allowed by applicable law until the total
outstanding account balance, including late fees and all other charges,
are paid. If Subscriber sends SkyLynx checks or money orders marked
"payment in full" or otherwise labeled with restrictive endorsements,
SkyLynx can, but is rot required to accept them, without losing any of
its rights to collect all amounts owed by Subscriber under this
Agreement.
In the case of late payment or non-payment for any of the SkyLynx
services ordered by Subscriber or any of the charges stated below, SkyLynx may
report such late payment or non-payment to the appropriate credit reporting
agencies. If SkyLynx chooses to use any collection agency or attorney to
collect money that Subscriber owes SkyLynx or to assert any other right which
SkyLynx may have against Subscriber, Subscriber agrees to pay the reasonable
costs of collection or other action Including, but not limited to, the costs
of a collection agency, reasonable attorney's fees, and court costs, as
provided by applicable law.
Subscriber should notify SkyLynx as soon as possible of any apparent
breaches of security, such as loss, theft, or unauthorized disclosure or use
of a credit card, bank or credit union account, SkyLynx account number or
password, if any. Until SkyLynx is notified as directed in the "Notices"
section above, Subscriber will remain liable for any unauthorized use of the
SkyLynx Network. Subscriber is responsible for all charges at the time of
service is used.
A-3 REACTIVATION DEPOSIT, REACTIVATION FEE
If Subscriber's service if inactivated because Subscriber did not submit
payments on time or for any other reason, in addition to payment of past due
amounts, SkyLynx may require a Reactivation Deposit before reactivating
Subscriber's SkyLynx Network Service. Amounts deposited by Subscriber will
appear on Subscriber's, statement as credits, and service charges and other
fees will be invoiced as set forth above. Any unpaid amounts will be deducted
each billing cycle from the deposit amount. Deposits shall not earn or accrue
interest.
If SubscrIber's SkyLynx service is inactivated for any reason, including
at Subscriber's request or because of Subscriber's failure to pay any post due
amounts, and Subscriber wants to reactivate the service, Subscriber agrees to
pay a Reactivation Fee in accordance with SkyLynx's current rates, in addition
to bringing Subscriber's account up to date by payment in full of any accrued
charges, outstanding balance, fees and other charges.
A-4 CHANGE IN SERVICE
SkyLynx reserves the right to rearrange, delete, add to, or otherwise
change the SkyLynx Network Service in any way. For any material changes to
the SkyLynx Network Service, SkyLynx will notify Subscriber of the change and
its effective date. In most cases, where the change is within SkyLynx's
control, notice will be made approximately one month In advance. If the
change is not acceptable to Subscriber, Subscriber may cancel Subscriber's
SkyLynx Network Service. If Subscriber does not cancel Subscriber's service,
Subscriber's continued receipt of any SkyLynx service after the effective date
of the change will be deemed to be Subscriber's acceptance of that change, and
Subscriber will continue to be responsible for payment.
A-5 DISCLAIMER OF WARRANTIES
The SkyLynx Network Service and any information, data, software programs,
content, images, sound recording or the like provided therein ("content") are
provided "as is" without warranty of any kind, either express or implied,
including but not limited to any implied warranties of merchantability or
fitness for a particular purpose. Further, SkyLynx does not warrant,
guarantee, or make any representations regarding the use, or the results of
the use, of the SkyLynx Network Service or content in terms of correctness,
accuracy, reliability, currentness, or otherwise. The entire risk as to the
results and performance of the SkyLynx Network Service is assumed by
Subscriber.
In particular, because SkyLynx may provide its subscribers with
electronic access to the content available on the SkyLynx Network, which
content may be originated by indepor4ent publishers and/or providers and which
content Is not augmented by SkyLynx, SkyLynx cannot and does not warrant the
accuracy of any of the Information as originated by said independent
publishers and/or providers, and SkyLynx shall not be liable in any manner
whatsoever for any errors, omissions, or inaccuracies relating thereto. If
defective, Subscriber, not SkyLynx, its dealers, distributors, affiliates,
operators, agents, employees or any third-party content provider, assume the
consequences resulting therefrom.
No oral or written information or advice given by SkyLynx, its dealers,
distributors, affiliates, operators, agents, employees or any third-party
content provider, shall create any warranty in or to the SkyLynx Network
Service or the content, and Subscriber may not rely an any such information or
advice. This warranty gives Subscriber specific legal rights. Subscriber may
have other rights, which vary from state to state.
X-0 XXXXXXXXXX XX LIABILITY
Neither SkyLynx nor anyone else Who has been involved in the creation,
production, or delivery of this product shall be liable for any direct,
indirect, consequential, incIdental or punitive damages (including damages for
loss of business profits, business interruption, loss of business information.
and the like) arising out of the use of or inability to use the SkyLynx
Network Service or for any other loss from a cause or causes beyond control of
SkyLynx or any third party content provider, including, without limitations,
acts of God, power failure, or any other cause even if SkyLynx or such other
person has been advised of the possibility of such damages.
A-7 PROPRIETARY RIGHTS
Except for public domain material, all copyrightable Content distributed
over the SkyLynx Network is copyrighted by SkyLynx or the third party Content
provided. SkyLynx and/or such third party Content providers own all right,
title and interest to such Content and Subscriber may not copy, distribute,
transmit or publish, in any form, including printed, electronic, digitized,
audio or otherwise, or modify all or any portion of such Content without the
prior written consent of the copyright owner; provided, however, that
Subscriber may store one copy of the Content an Subscriber's personal computer
for Subscriber's personal use for a period not to exceed thirty calendar days.
All copyright or other proprietary rights notices contained in or associated
with the Content or contained therein must be preserved in, or on, any copies
made of such material. The placement of copyrighted material in any public
posting area, or software library whether of SkyLynx or not, without the
consent of the copyright owner is in violation of this Agreement
A-8 THIRD PARTY BENEFICIARIES
Subscriber acknowledges that the third parties providing Content
distributed over the SkyLynx Network have relied upon and are third party
beneficiaries of the provisions set forth in Sections entitled "Limitation on
Liability" and "Proprietary Rights".
A-9 LIABILITY FOR UNAUTHORIZED USE
Subscriber agrees to notify SkyLynx immediately, after Subscriber sells,
gives away or otherwise transfers Subscriber's SkyLynx equipment to anyone
else. Subscriber is considered the registered recipient of the SkyLynx
Network Services until SkyLynx receives such notice, and Subscriber may be
liable for any charges or fees incurred by the use of SkyLynx equipment by
anyone else up to the time that SkyLynx receives Subscriber's notice.
Subscriber may not assign or transfer Subscriber's services without our
written consent. If Subscriber does, SkyLynx may inactivate Subscriber's
service, If Subscribers SkyLynx equipment is stolen or otherwise removed from
Subscriber's premises without Subscribers authorization, Subscriber must
notify the SkyLynx Customer Care Center immediately, or else you may be liable
for payment to SkyLynx for unauthorized use of your SkyLynx system. You will
not be liable for unauthorized use after we have received your notification.
