If you do not agree to the terms and conditions of this Agreement, including any future revisions, you may not use the Service, and you must terminate your use of the Service under Section XIV below.
II. SERVICE REQUIREMENTS.
Customers must be at least eighteen (18) years old. Current prices for HiWAAY's Services may be obtained by calling your HiWAAY Corporate Sales Consultant (the 'Sales') at (256) 650-4900 for Huntsville or (205) 879-9115 for Birmingham. HiWAAY reserves the right to change prices and institute new fees at any time upon thirty (30) days' prior notice except under long-term contract pricing arrangements.
III. PAYMENT OBLIGATION OF CUSTOMER.
(a) Billing Cycle. You will be billed for Services every thirty (30) days. All invoices are due upon receipt. These and other criteria are expanded on in the Terms and Conditions.
(b) Cancellation. You may cancel the Service as stated herein and in the Terms and Conditions. However, none of your equipment located at the Internet Data Center can be removed when your payments are not current or are considered past due.
(c) Damage Caused by Misuse. In the event of damage to the Internet Data Center, its operations, other customers' services or property, or HiWAAY's property caused by misuse or negligence by the customer, you will be billed for time and materials necessary to correct the problem.
(d) Charges for Work. You may request HiWAAY network engineers or system administrators to perform specific system repairs or other services at our standard hourly rate. Such requests must be confirmed through email, fax, or other written communications before HiWAAY can begin the requested work.
(e) Charges for After-hours Work. You hereby agree that all work, which takes place outside HiWAAY's normal business hours, 8 a.m. - 5 p.m., Monday through Friday, shall be billed at twice the standard rates for such work. Such rates shall be applicable for time spent opening the Internet Data Center during non-staffed hours.
(f) Charges for Changes in Power Consumption. HiWAAY reserves the right to adjust pricing for power consumption due to increased usage by your equipment and/or increases in market pricing.
(g) You agree and understand that to access a HiWAAY Internet Data Center (IDC) you must be escorted by a HiWAAY representative. During normal business hours (8 AM - 5 PM weekdays, excluding holidays) there is no charge for Escorted Access to the IDC. HiWAAY provides After-hours (5 PM - 8 AM weekdays, and all day weekends and holidays) Escorted Access at no charge for the first two (2) hours for one (1) incident within a 24 hour period. Escorted access time exceeding two (2) hours will be charged to you at the rate of $60.00 per hour. Additional Escorted Access incidents within the same 24 hour period will be charged at the rate of $60.00 per hour from start to end of the incident(s). An Escorted Access Incident begins at the agreed upon start time. The Incident ends when the customer exits the IDC or contacts the escort to cancel or reschedule the Incident. Note: For escorted access to an IDC, contact HiWAAY at 256-650-4900 or 888-244-9229 ext. 580 at least 90 minutes prior to your requested access time. You will need to identify the IDC to which you need access and provide the name and contact information for your representative visiting the IDC and agree upon a start time. Your representative must call HiWAAY when enroute to the IDC. You must reschedule if delayed more than 30 minutes past the original agreed upon access time. Failure to notify HiWAAY of your intent to cancel or to reschedule for missed access incident(s) will result in an automatic one (1) hour minimum charge.
IV. HiWAAY REMEDIES.
Any property ('property' includes hardware, software and/or data properties) placed at the Internet Data Center by you shall be subject to a lien for the payment of the Services provided. This lien shall be similar in operation and remedy as a landlord would have on a tenant's personal property under Alabama law guaranteeing the payment of rent. If your account is one hundred twenty (120) days past due, then HiWAAY shall have the right to seize your property located at the Internet Data Center and take ownership of the same. HiWAAY shall have the right to dispose of such property at its discretion, and by execution of this Agreement, you waive any and all rights you may have to said property or redemption thereof after seizure by HiWAAY. HiWAAY may allow you to redeem your property after its seizure for the balance due on your account, interest thereon, and any charges incurred by HiWAAY to collect on your account.
V. HiWAAY's OBLIGATIONS.
HiWAAY shall be responsible for providing a reliable connection to the Internet for your server(s). HiWAAY is not responsible for problems arising from your hardware or your network. HIWAAY personnel are not responsible for repairs to hardware co-located at the Internet Data Center. If HiWAAY's assistance is required for remote management of your hardware, you will be invoiced in accordance with our standard network consulting rates, as amended from time to time.
VI. CUSTOMER RESPONSIBILITIES.
You are solely responsible for anything that may happen to your equipment while it is at the Internet Data Center.
You shall provide insurance with respect to personnel, hardware, software or any other property in any form whatsoever, located at or operating from HiWAAY.
VII. RENTAL OF NETWORK SERVERS AND HARDWARE.
You may rent network servers and hardware from HiWAAY. Rates may be obtained by calling your Sales Consultant. Rented network servers located at the Internet Data Center are subject to a separate service agreement and pricing structure.
VIII. USE OF INTERNET DATA CENTER FACILITY.
(a) Only those individuals identified in writing by you on the Customer Registration Form (the "Representatives") may access the Internet Data Center. You shall deliver prior written notice to HiWAAY of any changes to the Customer Registration Form and the list of Representatives. You and your Representatives shall not allow any unauthorized persons to have access to or enter any Internet Data Center. You and your Representatives may only access that portion of an Internet Data Center made available by HiWAAY to you for the placement of your equipment and use of the Internet Data Center Services provided, unless otherwise approved and accompanied by an authorized HiWAAY representative.
(b) You and your Representatives agree to adhere to and abide by all security and safety measures established by HiWAAY. In addition, neither you nor your Representatives shall do or participate in any of the following: (i) misuse or abuse any HiWAAY property or equipment or third-party equipment; (ii) make any unauthorized use of or interfere with any property or equipment of any other HiWAAY customer; (iii) harass any individual, including HiWAAY personnel and Representatives of other HiWAAY customers; or (iv) engage in any activity that is in violation of the law or aids or assists any criminal activity while on HiWAAY property or in connection with the Internet Data Center or the Services provided hereunder.
(c) In the event HiWAAY network engineers determine your server to be causing any network disruption, it may be disconnected or shut down immediately and without warning.
(d) You and your Representatives shall keep each area of the Internet Data Center clean at all times. You are responsible for keeping your area of the Internet Data Center clean and free and clear of debris and refuse. You shall not, except as otherwise agreed to in writing by HiWAAY, (i) place any computer hardware or other equipment in the Internet Data Center that has not been identified in writing to HiWAAY; (ii) store any paper products or other combustible materials of any kind in the Internet Data Center (other than equipment manuals); and (iii) bring any Prohibited Materials (as defined below) into any Internet Data Center. "Prohibited Materials" shall include, but be not limited to, the following and any similar items: (i) food and drink; (ii) tobacco products; (iii) explosives and weapons; (iv) hazardous materials; (v) alcohol, illegal drugs and other intoxicants; (vi) electro-magnetic devices which could unreasonably interfere with computer and telecommunications equipment; (vii) radioactive materials; (viii) photographic or recording equipment of any kind (other than tape back-up equipment); or (ix) any other item HiWAAY deems disruptive or damaging to the Internet Data Center or its operations.
IX. CUSTOMER EQUIPMENT.
Each piece of your equipment installed or placed at the Internet Data Center must be clearly labeled with your name (or code name provided in writing to HiWAAY) and individual component identification. Each connection to and from a piece of equipment shall be clearly labeled with your name (or code name provided in writing to HiWAAY) and the starting and ending point of the connection. Your equipment must be configured and run at all times in compliance with the manufacturer's specifications, including power outlet, power consumption and clearance requirements. You must use your best efforts to provide HiWAAY with at least forty-eight (48) hours' prior notice any time you intend to connect or disconnect any of your equipment.
X. SCHEDULED MAINTENANCE.
HiWAAY will conduct routine scheduled maintenance of its Internet Data Center and any rented network servers according to the maintenance schedule posted on HiWAAY's Web Site at www.hiwaay.net/support/maintenance.html. In the event a critical maintenance situation arises, HiWAAY may be required to perform emergency maintenance at any time. During these scheduled and emergency maintenance periods, your equipment may be unable to transmit and receive data and you may be unable to access your equipment. You agree to cooperate with HiWAAY during the scheduled and emergency maintenance periods.
XI. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
THE SERVICES PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. HiWAAY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HiWAAY MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION, OR SERVICE PROVIDED THROUGH THE SERVICE. NO ADVICE OR INFORMATION GIVEN BY HiWAAY OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY, WHETHER ORAL OR WRITTEN. HiWAAY AND ITS AGENTS AND EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, HiWAAY'S CUMULATIVE LIABILITY TO ANY CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE OR FEES PAID TO HiWAAY BY YOU DURING A ONE (1) YEAR PERIOD.
XII. WEB SITE USAGE.
The use of HiWAAY's Web Site as a link or hypertext link is subject to the limitations contained in the Terms and Conditions.
XIII. TERM OF AGREEMENT.
Continued use of the Service constitutes acceptance of this Agreement and any future versions. If you are dissatisfied with the Service or any related terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Service and to terminate your account.
You may terminate your account pursuant to the provisions provided in the Terms and Conditions. If your account is paid in full, upon termination of your account, any hardware located at the Internet Data Center must be removed within seven (7) business days or it will be removed and placed into storage. If your account is not paid in full, then all charges and balances due on your account must be paid in full to receive any items located at the Internet Data Center. If after one hundred twenty (120) days following the termination of your account a balance due exists, then HiWAAY shall have the remedies provided in the Agreement and the Terms and Conditions.