Effective February 1, 2018: Online Terms and Conditions
These Online Terms and Conditions, when referenced within any Internet Installation and Services Agreement or any other agreement binding on Zentro, LLC (“EW”) and any third party, shall be deemed to be incorporated and made a part of any such agreement. As such, references herein to “Agreement” or “this Agreement” shall be deemed to refer to not only these Online Terms and Conditions, but also to any such Internet Installation and Services Agreement or other agreement. Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in such separate agreement(s).
Initial Services CUSTOMER acknowledges that under certain circumstances, EW does not independently provide Internet access. Rather, EW will provide a network, utilizing new and existing infrastructure of the Property (the “Network”) enabling the Beneficiaries to access the Internet through an Internet provider, which may or may not be EW directly but through a partnership or relationship with another provider (the “Internet Carrier”). Upon CUSTOMER’s execution of this Agreement, EW will subsequently contract with the Internet Carrier (which may be EW directly or an affiliate thereof) to provide the Internet access and coordinate the installation of Internet from the Internet Carrier and within approximately sixty (60) days after the Internet Carrier makes Internet access available to the Property, install and deploy the Equipment to deliver Internet access to the Units and Common A reas, via the Deployment method as stated on the Order Form (the “Covered Areas”), which may include: battery backups, protective and electrical enclosures, circulating fans, enterprise network switches, enterprise routers, indoor access points, outdoor wireless bridges, outdoor access points, monitoring server, monitoring cameras, CAT6 Cable, and miscellaneous mounting equipment, brackets, conduit, fiber boxes, plywood, junction boxes, telecommunication materials and jacks (the “Equipment”) to configure and design the Network at the Property and enable and broadcast the Internet to the Covered Areas, as identified on the Order Form (“Internet Access”), subject to this Agreement (the “Internet Broadcast Date”). EW reserves the right to replace the Internet Carrier throughout the Term of this Agreement. CUSTOMER acknowledges that the Internet Carrier may install its own equipment at the Property (the “Carrier’s Equipment”) and such equipment shall remain the sole property of the Internet Carrier. The Internet Carrier will initially provide, install and provision Internet access in accordance with the Order Form, originating from the Internet Carrier’s network to the Property (the “Initial Bandwidth”). For Dedicated Internet, if at any time throughout the Term of this Agreement, the Beneficiaries utilize more than the Initial Bandwidth, CUSTOMER will be assessed a charged for such additional bandwidth (the “Burst Bandwidth”), which shall be calculated by using the industry standard, 95th Percentile Calculation, which is derived by collecting samples of average bandwidth utilization rates of both download and upload Internet traffic. A minimum of one sample per hour shall be collected in randomly selected five (5) minute intervals throughout the calendar month or respective billing period (approximately 30 days), (the “Billing Period”). The higher of such samples (download or upload) are placed on a list and sorted from highest to lowest in amount of Mbps. The highest five percent (5%) of samples are discarded and the next highest sample is chosen to represent the 95th Percentile Calculation for the Billing Period. Then, the total Mbps derived by using the 95th Percentile Calculation (the “Total Bandwidth”) less the Initial Bandwidth (as increased through any Additional Bandwidth) will constitute the Burst Bandwidth, which will incur a monthly charge of twenty-five dollars ($ 25.00) per Mbps. For example, if the Total Bandwidth calculated for the month totals 103 Mbps (with 100 Mbps of Initial Bandwidth) for the Billing Period, the CUSTOMER will owe the Service Fee plus seventy-five dollars ($75.00), which CUSTOMER agrees to pay simultaneously with the next Service Fee due. Notwithstanding the above, EW will use commercially reasonable efforts to provide email or other written notification to CUSTOMER at approximately the 80th, 90th and 95th percentile of Total Bandwidth usage. For Dedicated Internet, CUSTOMER will also have the option to increase the Initial Bandwidth to avoid any Burst Bandwidth charges – subject to such additional bandwidth being available at cost effective levels from the Internet Carrier. Such increase in the Initial Bandwidth shall be known as Additional Bandwidth and shall be charged in blocks as designated on the Order Form. CUSTOMER must provide written notice to EW to request the amount of Additional Bandwidth and CUSTOMER agrees to execute any amendment that may be necessary (the “ CUSTOMER Notice”). In the event the CUSTOMER does not provide any CUSTOMER Notice prior to incurring Burst Bandwidth charges, CUSTOMER acknowledges that it will be responsible for the charges as described herein, without the right to retroactively purchase Additional Bandwidth.
At the Internet Broadcast Date, each Unit will be configured to experience maximum speeds as dictated on the Order Form. Such limitation shall be known as the “Base Package.” For Dedicated Internet relating to Apartment, Condo/Coop and Hotel properties (“Multi-Family Properties”), the Base Package will be evaluated at the end of each twelve (12) month period (or sooner at the recommendation and discretion of EW), at which point the Base Package may be adjusted based on usage and the consensus by and between CUSTOMER and EW (the “Annual Adjustment”). CUSTOMER acknowledges that its objective is to satisfy as many Beneficiaries as possible through the Base Package and not necessarily the select percentile of Beneficiaries who may demand atypical Internet services and place atypical demands on the Network. Throughout the Term, EW reserves the right to make adjustments to the settings, limitations, configuration and other features of the Base Package to ensure CUSTOMER and Beneficiaries have equitable access to the Internet. Additionally, unless explicitly stated otherwise in this Agreement, CUSTOMER represents that the number of Units at the Property as listed on the Order Form is accurate and grants EW the right to modify the number of Units due to Customer mistakes; sub-divisions, additions, demolitions, or renovations at the Property affecting the Units; or any other event that may otherwise change the number of units, residents, tenants, or beneficiaries at the Property without prior notice to or approval of CUSTOMER.
For Multi-Family Properties, EW will offer additional services to the Beneficiaries (in excess of the Base Package), which may include speed upgrades, data upgrades, static IP addresses, private wireless networks, the addition of non-browser devices and other services that EW deems appropriate to satisfy all the demands and desires of the Beneficiaries. For any and all speed and data upgrades (utilizing the Total Bandwidth), EW will charge Beneficiaries directly using its credit card processing service and will provide such speed and/or data upgrade with the Total Bandwidth (the “Upgrade Service”). For Dedicated Internet, all revenue generated as a result of the Upgrade Service will be credited to the CUSTOMER’s next monthly bill within sixty (60) days of the end of each calendar year less one (1) minus seventy percent (70%), which will align the objectives of CUSTOMER and EW and serve to cover the expenses and overhead for providing the Upgrade Service. The Base Package will be summarized on EW’s website, whereby the Beneficiaries and prospective Beneficiaries will be able to not only view the current features of the Base Package, but also purchase Additional Services. For Apartments, CUSTOMER acknowledges that EW highly recommends implementing the following language (or some variation thereof) into each lease that is renewed after the Effective Date of this Agreement: “The Lessee(s) 1) acknowledges that Internet access is hereby provided by CUSTOMER through a third party company called Zentro; 2) has reviewed all aspects of the Internet access, such as speed, available data and other limitations, which is available on Zentro, LLC’s website (www.everywherewireless.com) and 3) agrees to all terms and conditions as stated on EW’s website, which may be subject to change at any time without notice.”
- Internet Carrier’s Agreement. CUSTOMER understands that EW may enter into an agreement with the Internet Carrier, which may be a third party, (the “Internet Carrier’s Agreement”) and CUSTOMER acknowledges and understands that the Internet Carrier’s Agreement will contain terms and conditions related to the use of the Internet Access and standards of service and that the Internet Carrier may retain the right to modify certain terms and conditions of the Internet Carrier’s Agreement, throughout the Term of this Agreement. To the extent the Internet Carrier provides notice or seeks to enforce any term or condition in the Internet Carrier’s Agreement that is more restrictive than those in this Agreement, CUSTOMER agrees, upon notice, to conform to the terms and conditions of the Internet Carrier’s Agreement, provided such terms will not exceed the financial obligations within this Agreement nor fall below the Total Bandwidth or Base Package as provided for in this Agreement. In the event the CUSTOMER defaults under this Agreement by not satisfying its financial obligations hereunder (a “Financial Default”), if the Services provided include Dedicated Internet, EW will have the option to cease meeting its financial obligations under the Internet Carrier’s Agreement, which will impact the Network. In the event of a Financial Default, the CUSTOMER shall indemnify, defend and hold harmless EW for EW’s inability to satisfy the financial obligations under the Internet Carrier’s Agreement. In the event the CUSTOMER does not take direct and immediate action to defend EW, EW may engage counsel, at CUSTOMER’s expense, to protect, negotiate and mitigate any financial loss or liability that may materialize as a result of a Financial Default, thus leading EW to default on the Internet Carrier’s Agreement.
- EW Performance Standards. EW will use its best efforts to provide useful and reliable wireless Internet service (“Wi-Fi”) and wired Internet service meeting or exceeding industry standards for speed and downtime. However, CUSTOMER acknowledges that Wi-Fi utilizes public, unlicensed radio-frequency spectrum and that it is therefore subject to external interferences, environmental influences, and other factors and variables beyond EW’s reasonable control. Actual performance in any particular Unit or area of the Property may vary, not exist, and may be affected by the following: (A) individual and cumulative upload and download data amounts; (B) general bandwidth congestion; (C) performance, configuration, and functionality of the beneficiaries Wi-Fi devices and wireless cards (including, but not limited to memory, storage and other limitations); (D) obstructions and distances between a Beneficiary’s Wi-Fi device and EW’s access points; (E) non-EW Wi-Fi routers; (F) transmission and equipment limitations, failures, maintenance or repair; and (G) error by the Beneficiaries. Wi-Fi connection may also be interrupted or limited for such reasons. EW is not responsible for data lost or misdirected due to these and other foreseeable and unforeseeable factors. The actual speed of the Network and other performance will vary. In order to maintain acceptable levels of service for all Beneficiaries and to improve the service as applicable, EW monitors use of the Network and makes adjustments to the use of the Services as necessary to maximize access to the services. Subject to all applicable federal, state or local laws, rules, regulations, codes and ordinances, CUSTOMER hereby appoints EW to be the radio frequency coordinator to provide management and coordination of the deployment and use of radio frequencies, which may include, but are not limited to 900 Mhz, 2.4 Ghz, 3.65 Ghz, 5 Ghz, 6 Ghz, 11 Ghz, 18 Ghz, 24 Ghz, 60 Ghz, 80 Ghz spectrum frequency bands (the “Frequencies”) at the Property in connection with providing the Services to Beneficiaries of the Property. CUSTOMER will reasonably cooperate in EW’s frequency coordination activities, and EW will follow any reasonable rules or procedures at the Property relating to its on-site contact with Beneficiaries. If during the performance of its frequency coordination at the Property, EW discovers interference in its use of the Frequencies at the Property, EW shall notify CUSTOMER prior to taking any corrective action and shall identify for CUSTOMER the probable source of such interference.
- Service Level Agreement. The following shall constitute the service level support standards for EW’s provision of the Services to CUSTOMER throughout the term of the Agreement, including any extensions or renewals thereof: During the term of the Agreement, the Services shall be available to the Property 99.99% of the time (“Uptime Guarantee”). Availability is calculated by dividing the average number of minutes that the Service is individually available at the respective Property by the total number of minutes in the respective calendar month, and multiplying that number by 100. Availability shall mean that CUSTOMER is able to receive the Service and/or transmit data over such Service. Specifically excluded from the Service availability calculation are regularly scheduled maintenance windows and ad hoc maintenance windows scheduled by EW, provided that such maintenance window shall not exceed two (2) hours per month without CUSTOMER’s prior written approval, not to be unreasonably withheld or delayed. For Prioritized Bandwidth, a pro-rated credit will be issued to CUSTOMER for the period of time that the Services were unavailable in excess of 1 minus the Uptime Guarantee. For Dedicated Bandwidth, a pro-rated credit will be issued to CUSTOMER for the period of time that the Services were unavailable in excess of 1 minus the Uptime Guarantee, multiplied by four (4). Credits shall be calculated on a monthly basis and not be issued for circumstances: (i) caused by the negligence, acts, or omissions of CUSTOMER and/or the Beneficiaries; (ii) due to failure of power at the Property or CUSTOMER’s location; (iii) the failure or malfunction of non-EW equipment or systems; (iv) circumstances or causes beyond the control of EW or its agents; (v) during any period in which EW is not given access to the Property; (vi) a planned service outage, unscheduled emergency maintenance, or scheduled maintenance. The performance statistics are calculated when EW is notified by CUSTOMER through the submission of a trouble report to EW’s Network Operations Center (“NOC”) or when EW becomes aware of the issue, whichever occurs first. For Dedicated Bandwidth, EW guarantees, for periods when the Service is available, that full port to port in accordance with the Order Form is available for the CUSTOMER’s use at all times. For Prioritized Bandwidth, speeds are not guaranteed and may vary, although fully supported by EW.
- Casualty Damage. Either party may have the option to terminate this Agreement in the event of any fire, casualty, physical calamity or physical damage to the Property which makes it impossible for EW to carry out the purposes of its installation, maintenance and operation at the Property, or if the Property becomes unfit or undesirable for EW’s use. CUSTOMER, at its sole option and expense, may attempt to remedy such problems within one hundred and eighty (180) days, or any such period deemed reasonable by EW under the circumstances, after written notice thereof. In the event that CUSTOMER either (a) elects not to attempt to cure or remedy such a problem, or (b) fails to provide an adequate remedy within such period, either party may terminate this Agreement upon ninety (90) days prior written notice to the other party (a “Casualty Termination”). Notwithstanding the above, in the event of a Casualty Termination, CUSTOMER shall indemnify, defend and hold EW harmless from any consequences that may occur as a result of EW’s inability to meet its financial obligations under the Internet Carrier’s Agreement. Both parties agree to use commercially reasonable efforts to negotiate with the Internet Carrier to mitigate termination fees under the Internet Carrier’s Agreement.
Default and Termination. In the event the CUSTOMER breaches this Agreement by failing to pay the Service Fee, the Installation Cost or any other fee established herein and the CUSTOMER is late by more than sixty (60) days, (i) EW reserves the right to immediately discontinue the availability of the Services and sell the Services (at any price) directly to the Beneficiaries of the Property, (ii) the CUSTOMER shall still be responsible for the terms and conditions as outlined in this Agreement, including, but not limited to, the Service Fee, Installation Cost, late fees, penalties, or other fees (iii) EW may choose to cease paying the financial considerations that are due and payable to the Internet Carrier without being in violation of this Agreement and CUSTOMER shall simultaneously indemnify, defend and hold EW harmless from any consequences that may occur as a result of EW’s election to cease meeting its financial obligations to the Internet Carrier.
If EW or the CUSTOMER defaults in the performance of any material term, condition, or covenant contained in this Agreement, and that default is not cured within a period of thirty (30) days after delivery of written notice to the other party (“Default Notice”) setting forth the nature of the default and demanding that it be cured, then the non-defaulted party may, at any time thereafter, terminate this Agreement by sending written notice of its desire to so terminate. Notwithstanding the foregoing, if a non-monetary default cannot be cured within ten (10) days from delivery of the Default Notice, and if the defaulted party has in good faith commenced to remedy the default within such thirty (3 0) day period, then the defaulted party shall have a total of ninety ( 9 0) days from receipt of the Default Notice to cure the default.
EW may terminate this Agreement upon thirty (30) days written notice for any of the following reasons: (a) EW’s Network operations are interfered with (including, without limitation, the obstruction of line of sight to or from any of EW’s antennas) and reasonable good faith efforts by EW to cure such interference have failed; (b) CUSTOMER breaches any obligation hereunder and such breach is not remedied in accordance with this section; (c) hazardous or toxic materials (including asbestos) are discovered at the Property, which materially and adversely affect EW’s ability to install the Equipment; or (d) any license, permit or zoning variance required by EW (i) is not obtainable, (ii) is not renewable, or (iii) is withdrawn; (e) if EW files for bankruptcy and (f) for any other reason as provided for herein.
In the event that CUSTOMER declares EW to be in default of this Agreement for any reason, CUSTOMER agrees not to deny EW access to the Property or remove or disconnect or cause to be removed or disconnected the Internet Access or the Equipment until such time as the claimed default has been finally adjudicated by a Court of Law or otherwise agreed in writing by the parties. Subject to the required findings under Illinois law, in the event CUSTOMER violates or threatens to violate the terms of this paragraph, then CUSTOMER hereby consents to EW restraining said violation by obtaining preliminary and permanent injunctive relief, without the need for a bond or showing of irreparable harm.
- Environmental. EW shall not have any obligation to abate, remediate, or remove hazardous substances at the Property unless EW is responsible for the presence of such substance. EW shall have three options upon discovery of hazardous material prior to the completion of the Installation Work: (i) terminate this Agreement (ii) reschedule the Installation Work to a period after CUSTOMER has completed corrective action in regard to such substances, upon condition that EW may terminate this Agreement upon written notice to CUSTOMER if such corrective action has not been commenced and diligently pursued within thirty days after CUSTOMER receiving notice of EW’s discovery of the hazardous substance; or (iii) re-route the Equipment and/or Carrier’s Equipment to avoid the hazardous substance.
- Notices. Any notice required or permitted to be given pursuant to this Agreement shall be in writing, and shall be sufficient if delivered by hand delivery, overnight delivery service, or by certified mail, return receipt requested, addressed as follows: If to CUSTOMER, then to that CUSTOMER address as stated on the Order Form and if to EW, then Zentro, LLC, Attn: Legal Department, 420 N. May Street, Chicago, IL 60642. Any notice complying with the foregoing shall be deemed given when so delivered. Either party may change the persons and address to which notices or other communications are to be sent to it by giving written notice of any such change in the manner provided herein for giving notice. It shall not be grounds for objection or to attack the sufficiency of notice sent by certified mail, if any addressee shall refuse the same, or if the same shall be returned to the sender with indications that the same was refused, or left unclaimed after notice given by the postal service.
- Disclaimers. Although EW will use commercially reasonable efforts to make the Services available to each and every Unit at the Property, if delivered via Wi-Fi, EW does not guarantee that the Services will be available to every area or space at the Property or to every area or space within each Unit at the Property. CUSTOMER shall use the Services provided by EW at the sole risk of CUSTOMER and/or the Beneficiaries. The Services provided by EW under this Agreement are provided on an as-is and as-available basis, without any representations or warranties (whether express or implied). EW HEREBY DISCLAIMS ANY ANDALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EW hereby disclaims, and CUSTOMER hereby releases EW from, any and all liability for direct or consequential damages incurred by CUSTOMER and/or the Beneficiaries that arises from or relates to the use of the Services, including, without limitation, network outages, lost data, lost profits, networking inaccessibility, incorrect instructions, viruses, and any content available on the Internet (including any false, misleading, indecent, or objectionable language, graphics, or images). Both parties further agree that any acts beyond their control, such as acts of God, affecting service, installation, maintenance or other, will not constitute a breach of this Agreement or an interruption of the Services. In the event that credits are due, payable, paid or requested by CUSTOMER, such event shall in no way constitute a breach of this Agreement.
- Confidentiality. CUSTOMER recognizes that EW’s Services and products, programming and software constitute valuable trade secrets of EW. CUSTOMER will use its best efforts to keep all such items confidential and shall not make any attempt to copy, examine, alter, re-engineer, tamper with or misuse such services, programs or software. Further, CUSTOMER agrees that it shall not, for a period of two (2) years after the expiration or termination of this Agreement contract with the Internet Carrier used by EW (at any time during the term of this Agreement) to provide the Internet Access to the Property, unless approved by EW.
- Recordation. EW may record, in any manner whatsoever, this Agreement or any memorandum or variation thereof (including, in the event of default, a mechanic’s lien for all sums due and owing by the CUSTOMER pursuant to this Agreement), in full or part, in which event EW agrees to execute, upon satisfactory termination of this Agreement, a recordable instrument evidencing such termination. Satisfactory termination shall include that the CUSTOMER has fulfilled all of its terms and obligations under this Agreement and has complied with all termination requirements provided for therein.
- Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, EW may, without obtaining CUSTOMER’s approval, assign or transfer this Agreement to any entity (a) which EW controls, is controlled by or is under common control with; (b) which has a security interest in EW’s property; (c) which succeeds to all or substantially all of EW’s stock or assets whether by merger, sale or otherwise; or (d) which is related to any financing activities involving EW. CUSTOMER agrees that in the event of any sale, transfer or conveyance of the Property, CUSTOMER will advise the purchaser and/or transferee of the existence of this Agreement and furnish them with a copy. CUSTOMER agrees that any sale, transfer or conveyance of the Property shall be made subject to the full assignment and assumption of this Agreement.
- Indemnification. Each party shall indemnify, defend, and hold the other party harmless from and against all losses, costs, damages, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise directly out of any fraud, gross negligence, willful misconduct, or illegal acts (the “Acts”) of the other party in connection with this Agreement provided that the other party’s negligence or the negligence of anyone acting on behalf of the other party is not a cause of the Acts.
- Independent Contractor. The CUSTOMER and EW acknowledge and agree that EW is an independent contractor, and nothing herein shall be construed to constitute the parties as employer/employee, partners, participants in a joint venture, co- CUSTOMERs, or otherwise as participants in a joint or common undertaking. Neither party, nor its employees, agents, or representatives shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other, except as specifically authorized herein. EW hereby accepts and assumes full and exclusive liability for, and shall hold CUSTOMER harmless from, the payment of all taxes, monies and other expenses arising from the conduct of EW’s business in the Property, including without limitation, contributions required under state and federal law providing for state and federal payroll taxes or contributions for unemployment insurance or old age pensions, or annuities which are measured by wages, salaries or other remuneration paid to EW or by EW to its employees for any and all activities in connection with this Agreement. Notwithstanding herein, the CUSTOMER authorizes EW to market and advertise the Property as defined in this Agreement and the relationship between EW and CUSTOMER.
- Authority. Each party represents and warrants that it has the full power and authority to execute, deliver and perform under this Agreement. CUSTOMER represents that it is the owner or controlling party with authorized signatory of the Property.