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TERMS OF SERVICE These Terms of Service (these “Terms of Service”) govern the provision of all Services by IZone Networks, (“IZone Networks, ”) to any customer purchasing or subscribing to Services from IZone Networks,  (“Customer”) through any IZone Networks,  service/sales order form and/or sales agreement (in written or electronic format, as the case may be) submitted by or on behalf of Customer to IZone Networks,  (the “Agreement”). These Terms of Service are made an integral part of the Agreement and any other agreement which expressly incorporates these Terms of Service by reference. As used herein, the term “Service(s)” shall reference the various high-speed telecommunications data services offered by IZone Networks, either via DS1 technology for T-1 service (“T-1 Service”) or via digital subscriber line technology for DSL service (referred to herein as either “DSL,” in general, “SDSL,” in reference to IZone Network’s standard, symmetric DSL service offerings, or “IDSL,” in reference to IZone Network’s limited provision of symmetric IDSL service; as the case may be, “DSL Service”), or via such other channels and technologies as IZone Networks,  may make available for subscription hereunder, for Internet access and/or network connectivity purposes (“Connectivity Service”), together with any optional services (the “Optional Services”), all as subscribed to by Customer under the Agreement. IZone Networks,  reserves the right, in its sole discretion, to reject any service order submitted by or on behalf of Customer.

 

1. INSTALLATION & EQUIPMENT. In support of Connectivity Service, IZone Networks,  shall install an end user circuit at the telephone company’s recognized “minimum point of entry” or “local loop demarcation point” (the “MPOE”) at Customer’s premises where the Services are to be deployed (the “Premises”). For purposes hereof, a “Broadband Service Line” shall refer to any Connectivity Service circuit provisioned hereunder. IZone Network’s basic installation responsibilities shall be limited to establishing connectivity between the MPOE and the IZone Networks,  wide area network (“WAN”) interface (the path over which available bandwidth shall be measured), testing of the circuit connection, and WAN side installation of the supporting data service unit or Customer Premises equipment (e.g., a router, DSU or high-speed modem; the “CPE”), if such CPE has been obtained from IZone Networks, subject to the other terms here of. Subject to the next sentence, basic installation shall also include, if requested by Customer and deemed reasonable by IZone Networks, running limited inside wiring from the MPOE to a CPE location at the Premises requested by Customer. Notwithstanding the foregoing, basic installation shall not include inside wiring in excess of 50 feet, inside wiring which would take more than 15 minutes to install, wiring across more than 1 floor of space at the given location, or any other extraordinary wiring or installation services, all as determined by IZone Networks,  or its authorized contractors, all of which shall be billable at IZone Network’s then current rates (on a time and materials basis), if requested by Customer and performed by IZone Networks,  at its election. IZone Networks,  shall not be responsible for wiring or configuring Customer’s local area network. Additional service and maintenance (e.g., service calls, circuit downgrades/upgrades, non-basic inside wiring, etc.) are billable at IZone Networks, ’s then current rates (on a time and materials basis). If IZone Networks,  determines that the installation requires non-basic wiring, IZone Networks,  shall advise Customer and shall continue with the installation only after Customer’s authorization. In the event Customer chooses not to authorize the non-basic wiring necessary for installation, Customer shall pay IZone Networks,  the cancellation fee referred to in Section 3 below, whereupon such service order shall terminate without further liability to either party. Performance by IZone Networks, at Customer’s request, of any non-recurring services (e.g., non basic installation, wiring or repairs, etc.) shall constitute conclusive evidence of Customer’s agreement to be responsible for any charges associated therewith. All equipment provided by IZone Networks,  in connection with Service (the “Equipment”), except for any CPE specifically purchased by Customer, shall be leased by IZone Networks,  to Customer and shall remain IZone Network’s property. As a condition to receiving Connectivity Service, Customer must purchase or lease, depending upon IZone Networks, ’s then current provisioning protocols, an appropriate model of CPE from IZone Networks,  commensurate with the order for Service hereunder, or must provide its own compatible CPE. IZone Networks,  may, in its discretion, use commercially reasonable efforts to perform WAN-side hook-up of Customer-provided CPE as part of installation services, however, Customer shall be responsible for any incompatibility or other performance issues associated therewith. In any event, IZone Networks,  is not responsible for any Customer-provided CPE which may be utilized in connection with Service. All CPE purchased by Customer from IZone Networks,  hereunder shall be “self administered” by Customer. Customer’s use of the Services is location -specific to the Premises. The date and approximate time of installation shall be conveyed by IZone Networks,  to Customer prior to installation. Customer represents and warrants that Customer has the right to grant access to the Premises. Customer hereby grants to IZone Networks,  and its contractors a revocable license to enter onto the Premises for the purpose of installing the Equipment. Customer will cooperate in good faith to enable such installation. Customer is responsible for securing any licenses, permits, easements, rights-of-way or other third party consents necessary for installation. If Customer fails to do so and IZone Networks,  is required to remove the Equipment, Customer shall bear the costs of disconnection and removal and any other associated costs incurred by IZone Networks, . IZone Networks,  shall use commercially reasonable efforts to install the Equipment and provide the Services as promptly as practicable, but IZone Networks,  shall not be liable for any delays in commencement of service. Customer’s sole remedy for any such delay shall be cancellation of the affected Service pursuant to Section 2 or Section 3 below.IZone Networks,  warrants to Customer that any Equipment obtained from IZone Networks,  hereunder shall be free from defects in materials and workmanship for a period of 12 months from the date of installation (for purchased Equipment)or the term of service hereunder (for leased CPE), as the case may be. This warranty is limited to the original Customer and is not transferable. If any Equipment shall become defective during the warranty period, IZone Networks, shall, at its option, repair or replace such Equipment with comparable equipment (which may be reconditioned), provided it is reported (in the case of defective inside wiring) or returned (in the case of defective CPE) toIZone Networks,  during the warranty period in accordance with IZone Network’s return material authorization procedures. This warranty shall be void if, in IZone Network’s determination, malfunction is the result of such Equipment having been abused, misused, repaired, modified or tampered with by, or accidentally damaged by, a party other than IZone Networks,  or its authorized contractors. Any such repair or replacement of purchased Equipment will not extend the original warranty period; provided, however, that the warranty period for replacement parts for purchased CPE shall be the longer of 90 days or the balance of the original warranty period. If IZone Networks,  determines that the Service failure is attributed to defective CPE, then this warranty shall be limited to the shipment by IZone Networks,  of replacement CPE to the Premises and shall not include on-site re-installation which, if requested, shall be billable at IZone Network’s then current rates (on a time and materials basis). All returned Equipment shall become property of IZone Networks, . Other wise, Customer shall be solely responsible for any loss, theft, failure or damage of or to the Equipment while in Customer’s possession or installed at the Premises. If Equipment malfunction is reported after expiration of the warranty period or is the result of a warranty exclusion, and Customer requests repair assistance from IZone Networks, Customer shall be responsible for all applicable repair costs, including on-site assistance, if required, and Equipment purchase costs, at IZone Network’s then current rates (on a time and materials basis). In the unlikely event that IZone Networks,  determines that it cannot repair or replace the Equipment within a commercially reasonable period of time, then IZone Networks,  may provide Customer with immediate written notice of termination of the affected Service or the Agreement, in IZone Network’s discretion, without liability to either party and, in the case of purchased Equipment under warranty, IZone Networks,  shall refund to Customer the pro-rated one-time fees paid to IZone Networks,  which were attributable to such purchased Equipment (net of any previously issued discounts or credits), depreciated on a straight-line basis over a one-year term.

 

2. TERM. Connectivity Service. The initial term for Connectivity Service is twelve (12) months for each Broadband Service Line. The billing period for each service (and, for Connectivity Service, the Initial Service Term)commences upon delivery by IZone Networks,  of such service; provided, however, if delivery of a service is prevented or delayed by Customer, the billing period and term will commence on the date IZone Networks,  notified Customer thatIZone Networks,  stood ready to deliver such service (e.g., if Customer does not grant access to IZone Networks,  or its contractors to perform inside wiring upon such date and time proposed by IZone Networks, then billing shall commence upon the date of circuit installation, regardless of non-performed CPE connection or extension of the primary point of demarcation). Following expiration of the Initial Service Term, Connectivity Service shall automatically continue on a month-to-month basis (i) until Customer provides IZone Networks,  with one (1)month’s prior written notice of cancellation, at which point all Services associated with such Broadband Service Line shall terminate effective as of the end of the immediately succeeding month, or (ii) until cancelled pursuant to the other terms here of. Optional Services. Prior to commencement of any given Optional Service, Customer may cancel the order for such pending Optional Service upon written notice to IZone Networks,  without liability. All active Optional Services shall be provided on a month-to-month basis. Customer may cancel any active Optional Service upon one (1) month’s prior written notice, effective as of the end of the immediately succeeding month. Otherwise, all Optional Services provided in association with a given Broadband Service Line shall terminate automatically without liability to IZone Networks,  upon the termination for any reason of Customer’s underlying Broadband Service Line. Customer shall not incur any termination liability for cancellation of any active Optional Service, but Customer shall remain responsible for all charges associated with such Optional Service through the effective date of cancellation. General. For purposes hereof, a “month” shall refer to a monthly billing period, and shall correspond to Customer’s billing cycle and not necessarily to a calendar month. A termination of Connectivity Service by either party for any reason shall constitute a termination of all other Services associated there with, and shall be subject to the applicable provisions of Section 3below.

 

3. TERMINATION OF SERVICE. In the event IZone Networks,  fails through no fault or delay of Customer to effect basic installation of Connectivity Service at the Premises within thirty (30) business days after the date of submission by Customer to IZone Networks,  of a valid service order, then Customer may, at any time prior to delivery of Service, provide IZone Networks,  with written notice of termination of the given order, and such order shall terminate without liability to either party. Customer may cancel Service at any other time upon one (1) month’s prior written notice to IZone Networks, subject to the terms hereof. If Customer cancels its order for Connectivity Service prior to commencement of Connectivity Service (other than due to IZone Network’s delay as set forth above), then Customer shall be responsible for returning any Equipment provided by IZone Networks,  in support of Service and for a $450 (for T-1 Service cancellation) or $225 (for DSL Service cancellation) cancellation fee. At IZone Network’s election, Customer shall either permit IZone Networks,  to enter the Premises at a mutually convenient time for the purpose of removing the subject Equipment or shall ship such Equipment back to IZone Networks,  in accordance with IZone Network’s return materials authorization procedures, at IZone Network’s cost. IZone Networks,  shall issue a refund to Customer for the purchase price paid by Customer for the returned Equipment within sixty (60) days of the Equipment’s return to IZone Networks, provided such Equipment is in good condition, reasonable wear and tear excepted, and in working order upon receipt by IZone Networks, . If, after commencement of Connectivity Service, but prior to expiration of the Initial Service Term, either (i) Customer cancels its Connectivity Service for any reason (including, without limitation, Customer relocation, but excluding timely notice of non-renewal under Section 2 above, and excluding cancellation due to material failure of Connectivity Service, as set forth in this Section 3 below), or (ii) IZone Networks,  cancels Customer’s Service because of a breach by Customer of the Agreement, then Customer shall pay to IZone Networks,  a cancellation fee equal to50% of the monthly recurring charge for the subject Connectivity Service then subscribed for by Customer, multiplied by the number of months remaining in the Initial Service Term (from and after the first full billing month following timely notice of termination hereunder). The parties agree to the foregoing liquidated damages as fair and reasonable compensation toIZone Networks,  for early termination of Service and acknowledge and agree that such charges are not a penalty. Following commencement of Connectivity Service, if Customer shall experience a “material failure” in Connectivity Service through no fault of Customer, then Customer may, as its exclusive remedy (other than any applicable remedies afforded under IZone Network’s then current Service Level Agreement), terminate the affected Connectivity Service (and all Services directly associated with such Connectivity Service)upon written notice of termination to IZone Networks,  received prior to correction of the Service failure by IZone Networks, . For purposes hereof, a “material failure” in Connectivity Service shall have occurred if IZone Networks,  fails to meet all the objectives stated in the applicable Service Level Agreement, as reasonably determined by Customer and verified by IZone Networks,  pursuant to the terms of the Service Level Agreement, for any three (3) months out of a consecutive six (6) month period during the term. Customer’s limited termination righthere under for material failures in Connectivity Service is only exercisable within 30 days of the latest Service failure giving rise to such termination right. In the event of a termination of Connectivity Service by Customer upon a material failure in Connectivity Service, as aforesaid, Customer shall remain liable only for those charges due and owing hereunder through the date of IZone Networks, ’s receipt of written notice of the material, unremedied failure, and Customer shall not be responsible for the early termination penalty referred to above in this Section 3. Except as expressly set forth in this Section 3, upon timely notice of cancellation of Service, Customer shall remain liable for the full monthly recurring charges for the month when notice of cancellation was provided and for any succeeding month covered by the one-month notice period. Upon cancellation of any given Service, Customer shall return to IZone Networks,  all Equipment leased in support of any cancelled Services (including power cords and Ethernet cables), in the manner directed by IZone Networks, at IZone Network’s cost. In the event Customer fails to return the leased Equipment within 30 days of notice from IZone Networks, Customer shall be liable to IZone Networks,  for the full retail price of such Equipment then charged by IZone Network’s supplier. IZone Networks,  shall not be responsible for removing any associated wiring upon termination of any given Service. If Customer intends to vacate the Premises, Customer must provide IZone Networks,  with notice terminating all Services to such Premises in accordance with these Terms of Service; any such action does not relieve Customer of any early termination fees or any other charges which may be owing hereunder. In the event IZone Networks,  makes any material changes to its Service Level Agreement or Acceptable Use Policy from the versions posted as of the date hereof on IZone Network’s website, www.IZone Networks, which would reasonably be determined to have the effect of materially limiting Customer’s use of the Services subscribed to hereunder or materially diminishing any Service credit remedies, Customer may terminate the affected Services upon written notice to IZone Networks,  effective upon expiration of the then current billing period without incurring any early termination fees which might otherwise be assessable. Otherwise, Customer’s continued use of the Services following any of such changes shall constitute Customer’s acceptance thereof. IZone Networks,  may, upon 45 days’ notice to Customer (or such shorter period as applicable law may permit), discontinue delivery of any active Service hereunder due to engineering changes in theIZone Networks,  network, a reduction in IZone Network’s service area, or other commercial reasons, including lack of availability of relevant third-party facilities on commercially acceptable terms, without liability to either party.IZone Networks,  may offer, and Customer may elect to accept, at each party’s option, alternative service offerings to replace the discontinued Service (and any related Equipment). In the event of the discontinuance of any currently provisioned Service or Equipment, as aforesaid, Customer shall be relievedfrom any further recurring fees which would have otherwise been assessable for periods of service following the effective date of discontinuance and shall not be responsible for any early termination charges relating to such terminated Services, in each case for the affected Premises whose Service sare subject to discontinuance hereunder. In addition, IZone Networks,  reserves the right to reconfigure any existing Service, as long as the modified Service substantively conforms to the contracted Service offering and, in the event any such modification would reasonably be expected to result in reconfigurations on Customer’s network (for which Customer shall be responsible), IZone Networks,  shall use commercially reasonable efforts to provide Customer with prior notice thereof.

 

4. AVAILABILITY. Irrespective of any preliminary mapping, IZone Networks, ’s services may not be available at the Premises because of factors beyond IZone Network’s control, such as the length or condition of telephone company lines. If IZone Networks,  determines that it is unable to effect installation or provide service without undue cost or burden, IZone Networks,  shall so advise Customer, where upon the applicable service order shall terminate without liability to either party. Due to DSL technology characteristics, the maximum DSL Service speed deliverable at the Premises cannot be finally determined until time of installation. In the event that tests authorized by IZone Networks,  or its contractors upon installation indicate that the delivered DSL Service speed is not the ordered speed, Customer shall accept the next highest deliverable DSL Service level which IZone Networks,  offers, at the applicable rate for such service,. However, if the next highest deliverable DSL Service level is more than 1level below the speed ordered, Customer may give IZone Networks,  written notice of cancellation of such installed Broadband Service Line within 3 business days of installation, in which case such Broadband Service Line and  all associated Services ordered therewith shall terminate without liability to either party. Otherwise, Customer shall be deemed to have accepted service upon installation, and cancellation beyond such 3-business-day period shall be subject to the terms of Section 3 above. In the event of the necessity of a speed downgrade, if SDSL Connectivity Service level is not available at the Premises, then the applicable order shall be cancelled without liability to either party and IZone Networks,  may, in its discretion, offer Customer IDSL Connectivity Service at then current rates. Customer may not order an IDSL circuit unless SDSL Connectivity Service is not available. In the event of a downgrade to IDSL Connectivity Service, a downgrade charge and, if CPE must be exchanged, an IDSL CPE purchase charge may apply. Once Connectivity Service has been established, if Customer requests a speed upgrade for which it is eligible (i.e., increasing available bandwidth of an installed Broadband Service Line, without the necessity of installing anew end user circuit), an upgrade charge shall apply, and Customer’s monthly recurring service fee shall be increased to account for the increased speed. Connectivity Service speeds are measured across the end user circuit, from the primary point of demarcation to the IZone Networks,  WAN interface, and do not guarantee available data throughput rates or that Customer will not experience latency caused by general Internet or network traffic.

 

5. IP ADDRESSES. IZone Networks, ’s ability to assign “IP addresses” is subject to restrictions on availability. IZone Networks,  may require a “justification letter” and other supporting documents in order to secure the number of IP addresses requested by Customer. IZone Networks,  reserves the right to deny requests for a number of IP addresses which IZone Networks,  deems to be excessive. Customer has no property rights in the IP addresses assigned by IZone Networks,  and cannot acquire such rights through usage, publication, announcement or otherwise. All IP addresses remain property of IZone Networks, and Customer’s right to use any given IP address shall terminate upon termination of the associated service.

 

6. OPTIONAL SERVICES. Optional Services are delivered over, or in association with, a subscribed Broadband Service Line and are thus only available to a customer who is also receiving Connectivity Service fromIZone Networks, . Certain Optional Services may not be compatible with all other offered forms of Service (check with your IZone Networks,  account representative for further information). Charges for any ordered Optional Services are in addition to those associated with Connectivity Service.

 

SECURITY PLUS / ROUTER FEATURES. General Description. Security Plus /Security Plus and Dial Backup. Router-based form of protection. IZone Networks,  shall lease an appropriate router to Customer as CPE in support of the given Security Plus package. The fee for such leased router shall be included in the monthly recurring charges for the Security Plus Service. Dial Backup (provided as part of the “Security Plus and Dial Backup Package”). Redundant Internet access via dial –up connection, accessible in the event of DSL Broadband Service Line failure. Customer may not use the user name or password associated with the dial backup account with any other equipment. Customer is responsible for all necessary supporting equipment (other than the CPE provided by IZone Networks, ),such as active phone line. IZone Networks,  shall not be responsible for any additional charges which Customer may incur from third parties through Customer’s use of dial backup service (including, without limitation, any long distance telco charges). DHCP Server. DHCP is used to dynamically assign IP addresses to workstations. DHCP eliminates the administration ofstatic IP addresses. IP Filtering (port blocking). IP filtering will, by default, allow all traffic that originates on the user's Local Area Network (LAN) to route out, but it will block most traffic directed into the LAN, unless the traffic is in response to traffic which originated within the LAN. Network Address Translation (NAT). NAT conceals a workstation’s private IP address behind a public IP address with Internet access. If Customer is using an existing private IP address range and DOES NOT wish to change them, Customer must provide them to IZone Networks,  in writing. If no IP addresses are specified, IZone Networks,  will assign them. Self Administration. If Customer utilizes its own router in support of Service, or a router purchased from IZone Networks,  hereunder, Customer is deemed to have elected the Self Administration option. Under this option, Customer shall be responsible for providing all router administrative services (including implementation of router security passwords), subject to the other terms hereof. For a Customer who is leasing a router from IZone Networks, unless this option is selected, IZone Networks,  will administer the leased router and will retain all passwords for the router. In the event Customer elects to self-administer its leased router, IZone Networks,  will provide a password to Customer and shall thereafter have no further responsibility for the administration, configuration or performance of the leased router (except as otherwise provided here under), and Customer shall be responsible for providing all router administrative services. Customer may not select the “Self-Administration” option under the “Security Plus and Dial Back-up Package.” Standard Configuration. A standard configuration is limited to enabling, or turning off, as the case may be, the basic DHCP, IP filtering and/or NAT functions of the router. Custom Configuration. Any configuration different from what would otherwise be routinely provided by IZone Networks,  as part of the standard configuration services included with Service. All custom configuration requests must be approved by IZone Networks, . In the event Customer requests a custom configuration, IZone Networks,  may elect, in its discretion, to perform such configuration at IZone Network’s then current rates, per configuration request.

 

 

Router Configuration (leased router). As part of any leased router service, unless Customer has elected “Self Administration,” IZone Networks,  will provide initial configuration of the CPE leased by IZone Networks,  so as to permit connectivity with IZone Network’s network (for which Customer shall be responsible for IZone Network’s appropriate one-time charges) in accordance with those configuration options made available by IZone Networks,  and elected by Customer upon submission of its order (prior to installation), will support unlimited standard configuration changes to the leased router upon request by Customer, and will make available to Customer any relevant CPE software updates provided to IZone Networks,  by the CPE’s manufacturer or licensor for use by end users.

 

Router Configuration (purchased router). As part of Service, IZone Networks,  will provide initial configuration, as described herein, of the CPE sold byIZone Networks,  hereunder so as to permit connectivity with IZone Network’s network, in accordance with those configuration options made available by IZone Networks,  and elected by Customer upon submission of its order (prior to installation).Customer shall be responsible for the appropriate one-time charges required under the Agreement, as applicable. Aside from configuration performed as part of initial CPE set-up, IZone Networks,  shall have no responsibility to perform any further configurations for Customer. Any subsequent configuration requests shall be subject to IZone Networks, ’s Custom Configuration protocols.

 

ROUTER PURCHASE. Limited to the sale of specific routers then made available for purchase by IZone Networks,  (only routers which are compatible with IZone Network’s network will be made available for purchase hereunder), and subject to availability. Customer shall be responsible for providing all router administrative services, including implementation of router security passwords, except to the extent any of such functions are contracted for by Customer to be performed by IZone Networks,  pursuant to the other provisions of the Agreement.

 

NETlink / NETlink Plus NETlink service is a form of virtual, routed, private network (“VPN”) service established between or among designated, installed Premises on IZone Networks, ’s network. Customer acknowledges that IZone Networks,  can not transmit multiple protocols (i.e.: SNA)via its network, and that the data protocol supported hereunder shall be IP only. Network connectivity and access shall be supported by IZone Networks, ’s Broadband Service Lines, with such relevant supporting CPE as IZone Networks,  shall so determine in order to complete the installation. Customer shall provide IZone Networks,  with such relevant assistance and information as IZone Networks,  shall request in furtherance of establishing such services for Customer. Customer acknowledges and agrees that the final technical configuration of the delivered NETlink service may deviate from that which may have been previously described or proposed by IZone Networks,  in any documentation(including, without limitation, network configuration/VPN diagrams)furnished to Customer, based upon technical limitations and/or subsequent information communicated by Customer. NETlink Service is available with or without Internet access, but NETgain Secure Firewall must be ordered for all VPN locations included in the VPN cluster if any one location requires Internet access. NETlink Plus includes the managed NETlink VPN service, NETgain Secure Firewall and Security Plus (router lease). Prices quoted are for each location.

 

7. CHARGES. Customer shall pay all of IZone Network’s invoices for all charges in connection with the Services and Equipment, including, but not limited to, late payment fees, charges for returned or “bounced” checks, charges and expenses incurred following a payment default by Customer and in connection with an account delinquency (including, without limitation, collection agency fees), reasonable attorneys’ fees and expenses in connection with enforcement of the Agreement, and applicable termination charges (provided, IZone Networks,  may recoup such attorneys’ fees and expenses only if IZone Networks,  prevails, in whole or in part, in any action, claim, suit, hearing or dispute for which such counsel was engaged). All payments shall be made to IZone Networks,  at the address indicated in each invoice. Customer shall be responsible for all applicable, invoiced federal, state, and local mandated surcharges, fees, universal service contributions, if any, and taxes applicable to the purchase of Services and Equipment under the Agreement (other than taxes attributable to IZone Networks, ’s income), other than those exempted under a valid tax exemption certificate which has been previously presented by Customer to IZone Networks, . Recurring service charges are billed monthly, in advance; provided, however; service charges for an initial partial month of service will be pro-rated and, at IZone Networks, ’s election, may be billed on the first recurring monthly bill. For each month after the initial partial month of service, the full monthly fee is due for any part of a month in which the applicable service is provided, except in instances where Customer has terminated service following the Initial Service Term upon at least 30 days’ written notice in accordance herewith, in which case recurring service charges for the final month of service during which service is to terminate will be pro-rated to the effective date of termination, and except as otherwise provided herein. Non-recurring charges, such as charges for service calls, technical assistance, configuration requests, repairs or inside wiring, will be billed as incurred. IZone Networks,  may require prepayment or a security deposit as a condition to providing certain one-time services or, if Customer is delinquent in its payment obligations, recurring services, andIZone Networks,  reserves the right to recoup any prepayments or security deposits at any time. Charges incurred by Customer for services based upon actual usage may be billed by IZone Networks,  on a subsequent bill. Payment in full is due upon receipt of invoice. Payments not made within 30 days of the date of invoice will accrue interest from the invoice date to the date of full payment at a rate that is the lesser of (i) 1.5% per month or (ii) the highest rate permitted by applicable law. If Customer has elected to pay via credit card, Customer authorizes IZone Networks,  to debit Customer’s credit card for all amounts due hereunder, except that recurring charges shall be debited at the commencement of the applicable billing period. If Customer disputes any charges, Customer must notify IZone Networks,  within 60 days of the invoice due date or such claim shall be waived. All items not in dispute must be paid when due. The parties shall cooperate with each other in good faith to promptly resolve any disputes. Notwithstanding the foregoing, if Customer has not brought its account current to IZone Network’s satisfaction within 10 days of IZone Network’s written notice to Customer of Customer’s delinquency,IZone Networks,  may terminate the Agreement and all Services or suspend Service without further notice. If any Service, or the Agreement, is terminated byIZone Networks,  for reasons other than Customer breach, or by Customer because ofa material failure in Connectivity Service, as aforesaid, IZone Networks,  shall issue a ratable credit or refund to Customer for any monthly recurring service charges which may have been prepaid by Customer for periods of service after the effective date of such termination. Except as expressly set forth herein, all fees and charges are nonrefundable. If, during the Initial Term or the Initial Service Term, as the case may be,IZone Networks,  determines that IZone Network’s (or its affiliates’) costs for providing Services have increased (as reflected by one or more increases in the prices charged by its or their direct or indirect suppliers for telecommunications circuits or facilities and/or network connectivity) as a result of, or in response to, the adoption, injunction, rescission, or modification of any governmental rule, law or regulation or applicable tariff (whether by legislative, administrative or adjudicatory action), IZone Networks,  may, upon 45days’ prior written notice to Customer, impose an increase in the prices it charges to Customer for affected Services hereunder. Customer agrees to be responsible for any pricing increase to an affected Service implemented under this paragraph; provided, that, any such increase, when aggregated with all other previous increases implemented under this paragraph, if any, for such affected Service, does not exceed 20% of the contracted price for such affected Service in effect upon commencement of the Initial Service Term or Initial Term, as the case may be. If any such price increase imposed by IZone Networks,  would result in the increase percentage being more than the aforementioned 20%, then Customer shall have the right to dispute such increase by written notice thereof to IZone Networks,  delivered within 15 days following the date of IZone Network’s notice to Customer of the pending price increase. If, following IZone Network’s receipt of such dispute notice, the parties cannot, in good faith, resolve such dispute within 10 days thereafter, Customer shall thereupon have the right, upon specific written notice there of to IZone Networks,  received at least 10 days prior to the proposed effective date of the price increase, to terminate the Services affected by the proposed price increase without penalty, which termination shall become effective immediately prior to the proposed effective date for said price increase. For avoidance of doubt, any continued use by Customer of the Services affected by the price increase after the 45th day following the date of IZone Networks, ’s written notice thereof to Customer, or failure to timely dispute the increase, shall be deemed acceptance of the new prices.IZone Networks,  reserves the right to modify pricing for any active Service then being provided to Customer following the expiration of the Initial Service Term upon 45 days’ prior written notice to Customer. Customer shall have the right to dispute such increase by written notice thereof to IZone Networks,  delivered within 15 days following the date of IZone Network’s notice to Customer of the pending price increase. If, following IZone Networks, ’s receipt of such dispute notice, the parties cannot, in good faith, resolve such dispute within10 days thereafter, Customer shall thereupon have the right, upon specific written notice thereof to IZone Networks,  received at least 10 days prior to the proposed effective date of the price increase, to terminate the Services affected by the proposed price increase without penalty effective immediately prior to the proposed effective date for said price increase. For avoidance of doubt, any continued use by Customer of the Services affected by the price increase after the 45th day following the date of IZone Network’s written notice thereof to Customer, or failure to timely dispute the increase, shall be deemed acceptance of the new prices. Customer agrees that IZone Networks,  may utilize credit reports on Customer in order to perform a credit review as part of Customer’s qualification process. As a result of such credit check, IZone Networks,  reserves the right to deny credit privileges or set appropriate credit limits, including, but not limited to, requiring Customer to provide payment in advance or a security deposit. Inthe event that an order for relief is entered against Customer by any bankruptcy court, the Agreement shall be deemed to be an executory contract for bankruptcy purposes. In connection therewith, as a condition to the continuation of service to Customer as a debtor-in-possession, IZone Networks,  reserves the right to require monthly prepayment of services and/or a deposit from Customer representing no less than two months’ of contracted monthly recurring service charges (plus usage-based charges as averagedover the prior six months of service), and may terminate or suspend service with or without further notice in the event such payment terms are notcomplied with by Customer.

 

8. LIMITED WARRANTY; LIMITATION OF LIABILITY. IZone Networks,  will guarantee the Connectivity Services to the extent of the Service Level Agreement as in effect from time to time for the given Service, as posted on IZone Network’s website. EXCEPT AS OTHERWISE EXPLICITLY SETFORTH HEREIN AND IN THE APPLICABLE SERVICE LEVELAGREEMENT, ALL EQUIPMENT AND SERVICES ARE PROVIDEDTO CUSTOMER ON AN “AS IS” BASIS, AND CUSTOMER’S USETHEREOF IS ENTIRELY AT CUSTOMER’S RISK, AND IZONE NETWORKS,  HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND,EXPRESSED, IMPLIED OR STATUTORY, OR ARISING BY CUSTOM,INCLUDING, WITHOUT LIMITATION, WARRANTIES OFSUITABILITY, MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THATIZONE NETWORKS,  DOES NOT EXERCISE CONTROL OVER THE CONTENTOR INFORMATION PASSING THROUGH THE INTERNET INCONNECTION WITH THE SERVICES, NOR DOES IZONE NETWORKS,  TAKEANY RESPONSIBILITY FOR THE ACCURACY, QUALITY ORNATURE OF THE INFORMATION OBTAINED THROUGH THESERVICES. EXCEPT FOR CUSTOMER CLAIMS OR DAMAGESATTRIBUTABLE SOLELY AND DIRECTLY TO VIOLATIONS OFLAW BY IZONE NETWORKS,  OR THE NEGLIGENCE OR WILFULLMISCONDUCT OF IZONE NETWORKS,  OR ITS AUTHORIZED CONTRACTORSIN CONNECTION WITH THE ON-SITE INSTALLATION OR REPAIROF SERVICES OR EQUIPMENT ORDERED HEREUNDER ORCLAIMS THAT THE SERVICES OR EQUIPMENT OBTAINED FROMIZONE NETWORKS,  HEREUNDER VIOLATE A THIRD-PARTY’SINTELLECTUAL PROPERTY RIGHTS, UNDER NOCIRCUMSTANCES SHALL IZONE NETWORKS,  OR ANY OF IZONE NETWORK’S AFFILIATES OR SUPPLIERS BE HELD RESPONSIBLE FOR ANYDAMAGES OR LOSSES SUFFERED BY CUSTOMER OR AN ENDUSER AS A RESULT OF IZONE NETWORK’S PERFORMANCE OR DELIVERYOF SERVICES OR CUSTOMER’S OR AN END USER’S DIRECT ORINDIRECT USE OF OR SUBSCRIPTION TO ANY OF IZONE NETWORK’S PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION,SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGESOF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSTPROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS ORSERVICES, LOSS OF INFORMATION OR INTERRUPTIONS INSERVICE, OR DAMAGES ALLEGED TO HAVE RESULTED FROMDELAYS IN PROVIDING PRODUCTS OR SERVICES OR BECAUSEOF THE INADEQUACY OR LIMITED IMPLEMENTATION OF ANYSECURITY FEATURES, SERVICES OR EQUIPMENT SOLD,PROVIDED, ADMINISTERED OR ARRANGED BY IZONE NETWORKS, ), EVENIF IZONE NETWORKS,  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. CUSTOMER ACKNOWLEDGES THAT SERVICE MAYBE TEMPORARILY UNAVAILABLE FOR SCHEDULED OREMERGENCY MAINTENANCE, AND THAT NO COMPENSATIONSHALL BE DUE OR OWING FROM IZONE NETWORKS,  TO ANY PARTY AS ARESULT THEREOF. IZONE NETWORKS,  RESERVES THE RIGHT TO SUSPENDSERVICE WITHOUT NOTICE IN THE EVENT OF ANY EXIGENTCIRCUMSTANCES AFFECTING IZONE NETWORK’S ABILITY TO PROVIDESERVICE OR IN THE EVENT THAT IZONE NETWORKS,  DETERMINES THAT,FOR TECHNICAL REASONS, AN IMMEDIATE SUSPENSION OFSERVICE IS REQUIRED IN ORDER TO PREVENT CUSTOMER’S USEOF SERVICE FROM ADVERSELY AFFECTING THEEFFECTIVENESS OF THE SERVICE FOR OTHER CLIENTS OFIZONE NETWORKS,  OR TO PRESERVE SYSTEM INTEGRITY OR PREVENTNETWORK ABUSE, IN EACH CASE, WITHOUT LIABILITY TO ANYPARTY. IN NO EVENT SHALL IZONE NETWORK’S LIABILITY FOR ANYCLAIM HEREUNDER EXCEED THE AGGREGATE AMOUNT OFSERVICE CHARGES PAID UNDER THE AGREEMENT TO IZONE NETWORKS, BY CUSTOMER DURING THE 12 MONTHS IMMEDIATELYPRECEDING THE GIVEN CLAIM, NET OF ANY CREDITS ORREFUNDS.

 

9. CUSTOMER RESPONSIBILITY. Customer is responsible for protecting all account passwords and for any authorized or unauthorized use made of the services and products provided hereunder. Customer shall comply with the rules appropriate to any network to which Customer may gain access via the Services. Customer may not resell the Services (or any part thereof)unless IZone Networks,  consents in writing. Customer shall use the Services only for lawful purposes and in a manner consistent with the terms of the Agreement and IZone Network’s Acceptable Use Policy as in effect from time-to time, as posted on IZone Network’s website. Any failure to do so shall be deemeda breach of the Agreement. Customer acknowledges that posting a changed Acceptable Use Policy or Service Level Agreement on IZone Network’s website will be sufficient notice to Customer of changes thereto. IZONE NETWORKS,  MAY,UPON PRIOR NOTICE, CANCEL OR, WITHOUT PRIOR NOTICE,SUSPEND SERVICE OR TAKE ANY OTHER APPROPRIATE ACTIONAT IZONE NETWORK’S SOLE DISCRETION, FOR BREACHES OF THEAGREEMENT, INCLUDING IZONE NETWORK’S ACCEPTABLE USE POLICY. Customer understands that Customer is responsible for complying with the eligibility requirements established by IZone Networks,  in order to participate in any written, IZone Networks, -authorized rebate program made available from time to time in IZone Network’s discretion. Unless Customer advises IZone Networks,  other wisein writing, Customer grants IZone Networks,  permission to send (via e-mail or other methods) Customer periodic notices on IZone Networks,  products and services, promotional and special offers and/or industry news.

 

10. INDEMNITY. Customer shall indemnify, reimburse and hold harmless IZone Networks, its directors, officers, stockholders, employees, agents, suppliers, contractors and representatives from and against any liability, loss, damage or expense, including court costs and reasonable attorneys’ fees and expenses, arising out of or in connection with any actual or threatened claim, suit, action or proceeding brought by any third party relating to the (i)breach or alleged breach by Customer (or its end users or those accessing the Services through Customer, whether authorized or not) of the Agreement or IZone Network’s Acceptable Use Policy or (ii) use or misuse of the Services (including, without limitation, configuration changes made to a IZone Networks, -managed or leased router by parties other than IZone Networks, ) by Customer or anyone accessing IZone Network’s network or services through Customer, whether or not authorized. Subject to Section 8 of these Terms of Service, IZone Networks,  shall indemnify, reimburse and hold harmless Customer, and its directors, officers, stockholders, employees, agents, suppliers, contractors and representatives, from and against any liability, loss, damage or expense, including court costs and reasonable attorneys’ fees and expenses, arising out of or in connection with any actual or threatened claim, suit, action or proceeding brought by any third party to the extent resulting from a violation of law by IZone Networks,  or arising from or relating to any claim that the Services provided by IZone Networks,  hereunder violate any proprietary rights of any third party or any claim arising out of personal injury or tangible property damage caused by the negligence or willful misconduct of IZone Networks,  or its agents in entering onto a Premises during the course of providing Installation or repair services.

 

11. FORCE MAJEURE. Neither IZone Networks,  nor its suppliers shall be liable, nor shall it constitute a material failure of Service or breach of the Agreement, to the extent that performance of IZone Network’s obligations are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riot, act of government, third party nonperformance (including, without limitation, the failure or delay of common carriers, inter exchange carriers, local exchange carriers, suppliers and subcontractors), or any other cause beyond IZone Network’s reasonable control. In the event a force majeure event causes a material interruption in Service which continues unremedied byIZone Networks,  for 30 days, Customer may terminate the affected Service upon written notice to IZone Networks,  without liability to either party and shall only remain liable for charges accrued through the last date of service prior to the occurrence of the force majeure event.

 

12. GOVERNING LAW. The Agreement shall be governed by the laws of the State of Connecticut (without regard to its principles of conflicts of laws),applicable federal laws and any applicable state or federal tariffs. Actions to enforce the Agreement shall be brought only in a state or federal court located in the State of Connecticut. Each party irrevocably waives the right to a jury trial in connection with any legal proceeding relating to the Agreement. IZone Networks, ’s performance hereunder shall be subject to applicable governmental rules and regulations and tariffs filed by IZone Networks,  or its affiliates with governing regulatory authorities. In the event of a conflict between the terms of any applicable tariff, rule or regulation and the Agreement, the tariff, rule or regulation shall control. The parties confirm that the Agreement is a commercial transaction between willing commercial contract parties.

 

13. CONFIDENTIALITY. Each party agrees to protect the other's Confidential Information (as defined below) from unauthorized or unlawful dissemination and use with the same degree of care that such party uses to protect its own Confidential Information and, in any event, at least a reasonable degree of care. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of the Agreement or the provision of Service. Each party will use its commercially reasonable best efforts not to disclose to third parties the other's Confidential Information without the prior written consent of the other party. Notwithstanding the foregoing, each party may disclose the other’s Confidential Information to its employees, consultants, contractors, suppliers, affiliates, and its legal and financial advisors on a need to know basis as required in the ordinary course of that party's business and to further the transactions contemplated hereby, provided that such parties agree to be bound by confidentiality restrictions materially similar to those set forth in this Section, and may disclose Confidential Information in order to comply with governmental or judicial orders and requests by law enforcement agencies. Further, the parties acknowledge that the Agreement, or portions hereof, may be required to be disclosed under applicable law or there gulations of an applicable securities market or exchange. If disclosure of the other party’s Confidential Information is required by governmental or judicial order, or requested by law enforcement authorities, the revealing party will notify the other in writing, and, if requested by such other party, the parties will jointly seek confidential treatment of such Confidential Information to the maximum extent reasonably possible (at the cost of the party desiring confidential treatment); however, it is understood that a party may acknowledge the existence and general nature of the Agreement without any obligation to contact the other party or seek confidenti all treatment. For purposes hereof, "Confidential Information" means: (i) any trade secrets or other non-public information relating to either party's products or services, including plans, designs, costs, prices, pricing discounts or concessions, finances, service areas, customers, marketing plans, web tools, business opportunities, personnel, research, development or know-how; and (ii) the specific terms and conditions of the Agreement. "Confidential Information" shall not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (ii) is known and has been reduced to tangible form by the receiving party at the time of disclosure and is not subject to restriction; (iii) is independently developed or learned by the receiving party; or (iv) is lawfully obtained from a third party that has the right to make such disclosure. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

 

14. MISCELLANEOUS. The Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns. Customer may not assign its rights or obligations under the Agreement without IZone Networks, ’s prior written consent, and attempted assignments without such consent shall be void. The Agreement, together with IZone Networks, ’s Acceptable Use Policy and Service Level Agreement, each as in effect from time to time (as posted on IZone Network’s website), constitute the entire agreement between the parties regarding IZone Network’s provision of Services hereunder, and shall supersede any other or prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, whether oral or written, with respect to the subject matter hereof. To the extent IZone Networks,  permits a change order to be processed with respect to the Services being provided to Customer hereunder (e.g., if, during the term, Customer requests a service speed upgrade for which Customer may be eligible or requests additional e-mail boxes), the Services, as revised, shall remain subject to the applicable terms of the Agreement, unless IZone Networks,  specifies otherwise, in which case such modified terms shall apply to the extent of any conflict (e.g., to account for any higher-priced or additional services). Customer acknowledges and agrees that IZone Networks,  shall have the right to rely upon any service order or signature placed withIZone Networks,  on Customer’s behalf under the Agreement or to the Agreement as being valid and binding upon Customer, notwithstanding Section 2 hereof, and Schedule 2 hereto. The Agreement may not be amended or modified except pursuant to a written instrument signed by both parties. Upon Customer breach, IZone Networks,  may pursue any remedies available to it at law orin equity, and any remedies afforded IZone Networks,  under the Agreement shall be cumulative and not exclusive in nature. Nothing expressed or implied in the Agreement is intended, or shall be construed, to confer upon or give any person, firm or entity other than the parties hereto any rights or remedies under or by reason of the Agreement. Headings used herein are used only for descriptive convenience and have no independent legal effect or connotation. The Agreement may be executed (manually or electronically)in counterparts, and transmitted via facsimile transmission or via other authorized electronic format, with all such counterparts constituting one and the same instrument. Nothing in the Agreement shall be construed as creating an employer-employee or agency relationship, a partnership, or a joint venture between the parties. Each of the individual signatories to the Agreement represents and warrants to the other party that such signing party has all legal right and authority to execute and deliver the Agreement on behalf of the indicated entity. Without limiting the foregoing, Customer’s signatory agrees to submit written documentation, acceptable to IZone Networks, of its appointment of agency from the applicable grantor/purchaser of Services if the individual executing the Agreement on behalf of and in the name of Customer is doing so in his/her capacity as an authorized agent (e.g., a “systems integrator”) of Customer. The term “business day(s)” shall refer to any weekday other than a national holiday. IZone Networks,  shall not be deemed as a consequence of any act, delay, failure, omission, forbearance or other indulgence granted from time to time to have waived, or to be stopped from exercising, any of its rights or remedies hereunder or to have modified, terminated or rescinded any of the terms of the Agreement, unless such waiver, modification, termination or rescission is set forth in writing and signed by IZone Networks, . A waiver expressly made in writing on one occasion will be effective only in that specific instance and only for the precise purpose for which given. A delay or failure in billing by IZone Networks,  for any given service provided hereunder shall not operate as a waiver or estoppel of its right to be paid for those services. If any provision shall be held to be invalid or unenforceable by any court of competent jurisdiction, the remainder of the Agreement shall not be affected thereby and shall been forced to the fullest extent permitted by law. A given Service order placed hereunder shall be deemed accepted by IZone Networks, subject to the other terms of the Agreement, once confirmed via “welcome call,” e-mail or other similar communication. Termination of the Agreement shall not relieve the parties of obligations accruing prior to the effective time of termination, nor terminate or render void any provisions, which, by their logical context, would reasonably be expected to survive termination of the Agreement (including, without limitation, Sections 7, 8, 9, 10, 11, 12, 13 and 14 of these Terms of Service) as necessary in order to resolve any claims or disputes between the parties. Service maybe provided by IZone Networks,  or its affiliates, or through authorized contractors. Certain services furnished by IZone Networks,  hereunder may be supported or provided by IZone Network’s third-party suppliers. All notices, requests, and demands hereunder shall be given in writing and shall be deemed to have been given on the date of delivery, if delivered in person, on the next business day, if sent by nationally recognized overnight courier (charges prepaid), on the third business day after deposit in the U.S. mail, if sent by certified or registered mail, return receipt requested, or upon receipt of electronic confirmation, if sent by electronic mail, facsimile or other electronic means that provides evidence of receipt, addressed to the party, in the case of Customer, at the billing address set forth in the Agreement, or, in the case of IZone Networks, to IZone Networks, at 11861 Canon Blvd Suite D Newport News, VA 23602, Attention: Customer Service Dept. (or such other address as is then posted on its website), as the case may be, or to such other address as either party shall have most recently notified the other of in writing (including any applicable e-mail addresses posted on IZone Network’s website or provided by Customer hereunder). Customer is responsible for providing IZone Networks,  with timely written notice of any billing address changes. Unless Customer has otherwise notified IZone Networks,  in writing, Customer permits IZone Networks,  to send it periodic notices on IZone Networks,  products and services, promotional and special offers and/or industry news. By submitting Customer's order for Services, Customer acknowledges its understanding of, and agrees to comply with the terms of, the Agreement, the Acceptable Use Policy, IZone Networks, 's Copyright Violations Policy(available on the IZone Networks,  website or upon written request), and any written, IZone Networks, -authorized rebate/promotional offer and all related eligibility requirements.

 


© 2008, iZone Networks [Terms of Service]