(TOS) Terms of Service & AUP (Acceptable Use Policy)

  Definition:
Provisioning: To supply with provisions. Provision: the act or process of providing. Provide: to supply or make available (something wanted or needed). Offplanet, Inc provides high-speed Internet connections, for the purpose of providing content or applications to the World Wide Web(Internet).

Provision of Services:
Offplanet owns, controls, Leases, or is affiliated with entities (herein called “Offplanet Affiliates”) having leasehold interests in certain office and storage space (herein called “Premises”), which may be suitable for the provisioning, placement and operation of certain telecommunication equipment, computer equipment, cabling and connections (herein called “Connections”). Connections to be referred to herein as a “Terminal Facility”

Intention: It is the purpose of this agreement to provide to CLIENT high speed Internet connections, Through Offplanet Inc’s network, located at the Terminal Facility.

License to Occupy, Permissible Use & Relocation Provisions:
This document shall comprise a complete and binding agreement between the Parties only upon execution by Offplanet and Client of a provisioning Schedule pertaining to an individual Terminal Facilities. Each provisioning Schedule and any amendments thereto, when dated and subscribed by the Parties, shall incorporate the terms and conditions of this Agreement. Each provisioning Schedule shall have attached thereto the following Exhibits unless otherwise noted: General Description of Work Tasks & Special Terms & Conditions, identified as “Exhibit 1”; Generally Accepted Rules of Conduct, identified as “Exhibit 2”; provisioning Schedule, identified as “Exhibit 3”. References in this Agreement to rights or obligations of Offplanet shall refer to the right and obligations of Offplanet n the appropriate provisioning Schedule for the Terminal Facility to which it pertains. In the event of any other conflict or inconsistency between this provisioning Agreement and the terms set forth in a provisioning Schedule, terms of the provisioning Schedule shall in all cases prevail, but only for the Terminal Facility identified in the conflicting or inconsistent provisioning Schedule. Client acknowledges that it has been granted only a license to occupy the Space and that it has not been granted any real property interests in the Space. Except as expressly provided in this paragraph, Client shall utilize the Space only for provisioning, interconnection of the Equipment to the network services of Offplanet. All interconnections and cross connections must go through Offplanet. If Client requires telecommunication services that Offplanet is unable or unwilling to provide (after having been given a reasonable opportunity by Client to provide the required services) Client shall have the right to interconnect the Equipment to facilities of the dominant local exchange carrier (LEC). Client must obtain the prior written consent of Offplanet before allowing the Equipment to be interconnected with the LEC network, which consent shall not be unreasonably withheld, and any consent not given or denied within 45 business days after such written notice shall be deemed to be granted.

Termination & Renewal:
Following the expiration of the Term for each Provided Internet Connection or failure of the Parties to enter into any renewal periods, Client’s license shall continue in effect on a month-to-month basis for up to three months, upon the same terms and conditions specified herein, unless terminated by either Client or Offplanet upon fifteen days prior written notice. This agreement shall be terminated after 90 days following the expiration of the Term. Upon termination or expiration of the Term for each Provided Internet Connection, Client agrees to remove the Equipment and other property that has been installed by Client or Client’s agents. Client agrees to reimburse Offplanet for all reasonable repair or restoration costs associated with damages and/or destruction caused by Client’s personnel, agents, suppliers/contractors or visitors during the Term or as a consequence of Client’s removal of the Equipment or property installed in the Space. In the event such Equipment or property has not been removed within Thirty- (15) days of the effective termination or expiration date, the Equipment shall be deemed abandoned and Client shall lose all rights and title thereto. Unless otherwise specified, Offplanet will handle all equipment installation and disassembly which shall be in compliance with their specifications. In the event the Terminal Facility becomes the subject of a taking by eminent domain by any authority having such power, Offplanet shall have the right to terminate this Agreement. Offplanet shall attempt to give Client reasonable advance notice of the removal schedule. Client shall have no claim against Offplanet for any relocation expenses, any part of any award that may be made for such taking or the value of any unexpired term or renewal periods that result from a termination by Offplanet under this provision, or any loss of business from full or partial interruption or interference due to any termination. However, nothing contained in this Agreement shall prohibit Client from seeking any relief or remedy against the condemning authority in the event of an eminent domain proceeding or condemnation that affects the Space.

Prices & Payment Terms:
Client shall pay Offplanet monthly recurring fees (“Recurring Fees”), which shall include charges for use, connection fees as well as cross-connect fees (“Cross Connect Fees”), and Bandwidth charges (“Bandwidth Charges”), if applicable. Client also shall be charged non-recurring fees for build-out of Space (“Build-Out Charges”), including cross-connect installation fees and/or Dispatch Labor Charges where applicable. If Client requests that Offplanet provide services not delineated herein or in the provisioning schedules at any time during the Term, Client agrees to pay Offplanet price for such services at the time services are rendered. Prices do not include taxes, except as specifically stated herein. Client agrees to pay or reimburse Offplanet for any applicable taxes that are levied based on the transaction hereunder, exclusive of taxes on Offplanet income and real estate taxes on the Terminal Facility. Any such charges shall be invoiced and payable within the payment terms of this Agreement. Offplanet agrees to provide Client with reasonable documentation to support invoiced amounts for taxes within thirty days of receipt of a Client’s written notice. The provisioning fee, electric charges and/or bandwidth charges shall be increased by any increases incurred by Offplanet and required under the lease relevant to the Premises on which the provisioning equipment is located. Client shall pay to Offplanet its pro rata share of any increases based on the number of square feet of the provisioned connections compared to the number of square feet leased by Offplanet under the applicable lease. Offplanet shall notify Client of any such increase as soon as feasible, but not less than 30 days. Client shall not have the right to approve or disapprove any rate increases for rack space or Bandwidth charges in relation with any increases incurred by Offplanet. All Recurring Fees shall be for a set amount, for a set period and shall be due without further invoicing or reminder process each month commencing on the first day of the Term as identified in the provisioning Schedule and thereafter, on the first day of each month. Charges for partial months will be prorated accordingly. All recurring fees shall be invoiced and payable net ten (10) days from the 1st day of the month for which payment is to be applied. Late payments shall be subject to late charges if payment is not received within the payment term period. Charges delineated in the provisioning Schedule for build-out and implementation of the provisioning service shall be invoiced and paid by Client when invoiced. Offplanet may require payment up to fifty percent of the “Build-Out Fees” prior to commencing construction.

Additional Terms Governing Use of Provisioning Connections or Equipment Space & Installation of Equipment:
Before beginning any delivery, installation, replacement or removal work, Client must obtain Offplanet’s written approval of Client’s choice of suppliers and contractors, which approval shall not be unreasonably withheld or unduly delayed. Offplanet may request additional information before granting approval and may require scheduling changes and substitution of suppliers and contractors as conditions of its approval. Approval by Offplanet is not an endorsement of Client’s supplier or contractor, and Client will remain solely responsible for the selection of the supplier or contractor and all payments for any such work. Client’s use of the provisioning connection, space, installation of equipment and access to the terminal facility shall at all times be subject to Client’s adherence to the generally accepted industry standards, security rules, and rules of conduct established by Offplanet for the terminal facility. Client agrees not to erect any signs or devices to the exterior portion of the space. Offplanet shall not arbitrarily or discriminatorily require Client to relocate the equipment; however, upon 30 days prior written notice or, in the event of an emergency, such time as may be reasonable, Offplanet reserves the right to change the location of the provisioning connection or the terminal facility to a site which shall afford comparable environmental conditions for the equipment and comparable accessibility to the equipment. Offplanet and Client will work together in good faith to minimize any disruption of Client’s services as a result of such relocation. Offplanet shall be responsible for the cost of improving the provisioning connection and space to which the equipment may be relocated, and for relocation of equipment interconnected to Offplanet services, except that Offplanet shall not be responsible for relocating facilities installed in violation of Section 2 above.

Insurance:
Client agrees to maintain, at Client’s expense, during the entire time of this Agreement any Insurance coverage they deem necessary. Offplanet is not responsible for any liability for lack of any type of insurance coverage not carried by Client.

Default:
If Client fails to perform its obligations, or fails to pay for services rendered hereunder, Offplanet, at its sole discretion, with Written or Email notice, will issue a default notice letter to Client demanding the default condition to be cured. If the default condition is not remedied within the time period specified in the notice letter, which shall not be less than five (5) calendar days, Offplanet may then, without the necessity of any further notice, discontinue performance and terminate this Agreement and pursue any other remedies available at law or in equity. Offplanet’s failure to exercise any of its rights hereunder shall not constitute or be construed by Client as being a waiver of any past, present, or future right or remedy. At any time during the term of this Agreement, Offplanet may, at Offplanet’s sole discretion, immediately terminate this Agreement if Client is not then maintaining the equipment solely for the purpose of originating and/or terminating telecommunications transmissions carried over the Offplanet network or as otherwise set forth in the Provisioning of Services paragraph of this Agreement, or pursuant to the terms and conditions, if any, contained in any Provisioning Schedule identified herewith. If Client commits an act of default under any Provisioning Schedule to which this Agreement pertains, Offplanet may declare Client to be in default of any and all other Provisioning Schedules in effect without the necessity of showing separate failures, acts or omissions by Client. If Client commits an act of default with respect to the purchase of telecommunications services from Offplanet, which would entitle Offplanet under its separate tariffs and agreements to terminate its services to Client, then Offplanet shall be entitled to terminate this Agreement and all Provisioning Schedules & Addendums to which this Agreement pertains.

Late Charges: Invoicing is normal Net 10, invoices are all due on the first 1st day of billing month: Client failure to pay in timely manner shale under this ‘Late Charges’ result in one of the following: $100.00 Late Fee Penalty for every 5 Days Late; Or 10% Late Fee Penalty: Offplanet’s failure to exercise any of its rights hereunder shall not constitute or be construed by Client as being a waiver of any past, present, or future right or remedy provided here-in.

Warranties, Remedies & Disclaimers:
Offplanet shall, at Offplanet’s expense, defend Client against any and all claims that the Provided Connection used by Client hereunder infringes upon any third party’s property or ownership rights. Offplanet shall, at Offplanet’s sole-option either (I) settle any such claim, (II) secure valid rights for Client’s continued use, or (III) furnish equivalent Provisioning that is not infringing and that can be used to satisfy the original specifications in Offplanet’s determination. This warranty and remedy by Offplanet shall be valid only if Client gives Offplanet prompt written notice upon Client’s receipt of any such claim, Client provides Offplanet with all pertinent information in its possession relative to such claim and Offplanet shall have sole control over the settlement of defense of such claim. The Provided Connections (Provisions) is accepted “as is” by Client. Client acknowledges that Offplanet has made no representation as to the fitness of the Provision connections for Client’s intended purpose. Except for the warranties set forth in this article, there are no warranties, whether express, implied, oral, or written, with respect to the provisioning or services covered or furnished pursuant to this agreement, including but not limited to, any implied warranty of merchantability or fitness for a particular purpose. Moreover, the remedies provided in this article are exclusive and in lieu of all other remedies.

Force Majeure:
Neither Party shall be liable to the other Party under this Agreement for any failure nor delay in performance that is due to causes beyond its reasonable control, including but not limited to, acts of god or nature, governmental actions, fires, civil disturbances, interruptions of power, transportation problems, Acts of War, Acts of Crackers, Hackers or any other malicious or natural entity.

Assignment/Transfer:
Client shall not assign or transfer the rights or obligations associated with this Agreement, in whole or in part, without Offplanet’s prior written consent.

Indemnification/Release:
In no event shall Offplanet, its Affiliates, Client, or any of their respective officers or employees, be liable, one to the other, for any loss of profit or revenue or for indirect, incidental, special, punitive, or exemplary damages incurred or suffered by each other, arising from or pertaining to Client’s use or occupancy of the space or provisioned connection including (without limitation) damages arising from interruption of electrical power or HVAC services. Client shall indemnify and hold harmless Offplanet, Offplanet Affiliates, and their respective officers and employees, servants, and agents from and against any and all claims, costs, expenses, or liability (including reasonable attorney’s fees) arising out of Client’s use of the provisioned service or Client’s operation of the Equipment within the terminal facility. Each party shall be liable to the other for damage to property and death or injury to persons if such damage, loss or injury is caused by the negligent or willful acts or omissions of such party or its officers, employees, servants, agents, affiliates or contractors, or by the malfunction of any equipment supplied or operated by said party.

Governing Law and Venue:
The laws of the State of Florida shall govern the terms of this Agreement. The parties hereto stipulate and agree that the exclusive venue for the resolution of all disputes concerning this Agreement shall be Brevard County, Florida .

Arbitration & Attorneys Fees:
The parties agree that any controversy or claim between them arising out of or relating to this Agreement shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the commercial arbitration rules then in force of the American Arbitration Association. The arbitration award shall be final and binding on both parties. Judgment upon such arbitration award may be entered in any court having jurisdiction. The Parties agree that should either party bring action for enforcement, interpretation or otherwise under this Agreement the prevailing party in such action shall be entitled to its attorney’s fees and costs including those incurred in any appeal.

Entire Agreement:
This Agreement constitutes the entire Agreement between the parties and no other representations or statements will be binding upon the parties. If any part of this Agreement is held to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall remain in full force and effect.

Clerical or Typographical Errors:
This Agreement has been prepared with care and consideration to the Parties. Any Clerical or Typographical errors including but not limited to, spelling errors, grammatical errors, Clerical errors, Alignment errors or Typographical errors; shall not be construed to divert, change, or misinterpret the intentions of this Agreement.

Acceptable Use Policy (AUP):
Email: No spamming.
Web Content: All content must be of a legal nature as per Federal, State, Provincial and Local statutes. It is the Clients responsibility to know and understand any applicable Statutes or Laws governing the Client.
Network Control: Packet sniffing: No “packet sniffing”, “hacking”, or other actions that may be observed as being of malicious nature, to be solely determined by Offplanet, Inc.
Trespassing: No trespassing. You may only access your own equipment space with an Offplanet, Inc. Employee or Officer.
Caching: Client expressly (I) grants to Offplanet, Inc. a license to cache the entirety of Customer’s Web Site(s), at Offplanet, Inc`s discretion including content supplied by third parties, Provisioned by Offplanet, under this Agreement and (II) agrees that such caching is not an infringement of any of Customer intellectual property rights or any third party’s intellectual property rights.
IP Address Ownership: Offplanet, Inc. shall maintain and control all IP numbers and addresses that may be assigned to Customer by Offplanet, Inc. Offplanet, Inc. reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

Confidential Information:
Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party’s use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in receiving party’s possession, as evidenced by receiving party’s records; (c) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the receiving party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing party; or (f) is required by law to be disclosed.

VOIP SERVICES:

911/E911 SERVICE INFORMATION
Terms & Conditions 911 - Emergency call service typically used for delivering emergency calls to a public safety access point. PSAP: Public Safety Answering Point, VOIP: Voice over IP Due to recent pursuant FCC rulings and regulations, all customers who are using Offplanet Voice Services as their primary residential or business telephone carrier must activate 911 Emergency Services on at least one of their DIDs (PHONE NUMBERS). Enhanced 911, the portion of our 911 service which delivers physical address information to your local PSAP is not guaranteed. It is possible that your physical address information may not be passed to the PSAP dispatcher. On occasions such as this you will be required to give the dispatcher the location of your emergency in order to receive emergency service assistance. It is recommended that you always give the dispatcher the location of your emergency Due to the nature of VOIP networks we cannot guarantee your emergency call will go through. Loss of power, Internet access and or several other conditions may cause 911 to be inoperable. We have no control over those types of situations and therefore are not liable. The specific DID you are purchasing e911 service for; your caller ID value must be set to the 10 digit number only. Therefore, by agreeing to these Terms & Conditions you the customer agree to have the outbound Caller ID number set to the DID you have e911 service for when making an outbound 911 emergency call. Agents, employees, carriers, 911 providers, and any anyone else associated with Offplanet Voice Services is not held liable for emergency calls failing, even if it is determined that it is the fault of Offplanet Voice Services or it's associates, shareholders, partners and affiliates. Client agrees to not hold Offplanet or its associates, shareholders, partners and affiliates liable. We reserve the right to make changes to our site, services, policies and these Terms & Conditions at any time. You acknowledge and understand that the Service does not function in the event of interruption of your broadband or high speed Internet access service.
B: Late Fee: LATE FEES: 10% or 50.00 which ever is greater.
C: NO WARRANTIES WE MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D: THE ENTIRE LIABILITY OF US AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS OR DAMAGES OF WHATEVER NATUREARISING FROM OR IN ANY WAY RELATED TO THE AGREEMENT ON THE PROVISION OF SERVICE (INCLUDING THE FAILURE TO PRSERVICE), INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTUOUS CONDUCT, REPRESENTATIONS, ERRORS, OR OTHER DEFECTS, WHETHER CAUSED BY ACT OF COMMISSION OR OMISSION (INCLUDING DECEPTIVE TRADE PRACTICE CLAIMS) and WHETHER OR NOT SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR PURSUANT TO SOME OTHER THEORY AND WHETHER OR NOT SUCH ARE FORSEEN OR UNFORSEEN SHALL BE LIMITED TO THE LESSER OF (1) AMOUNTS PAID TO US UNDER THE AGREEMENT OR (II) REFUNDS IN AN AMOUNT EQUAL TO THE PROPORTIONAL MONTHLY CHARTO YOU FOR THE PERIOD OF SERVICE DURING WHICH ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, OR DEFECT ISERVICE OR EQUIPMENT, OR ANY OTHER EVENT OR ACTION GIVING RISE TO ANY CLAIM, OCCURS. THIS LIMITATION OF LIABILITAPPLIES TO ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, COSTS OR ATTORNEYS' FEES ARISING IN WHOLE OR IWARRANTIES, EXPRESS OR IMPLIED, DEFECTS IN MATERIALS, WORKMANSHIP OR DESIGN, NEGLIGENCE, STRICT LIABILITOF CONTRACT, OR ANY OTHER BASIS OF LIABILITY FROM US. YOU ARE SOLELY RESPONSIBLE FOR ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS AND EXPENSES ARISING OUT OF THE USE OF THE SERVICES BY YOU. YOU’RE USERS, OR ANY OTHER ENTITY USING THE ACCOUNT WITH OR WITHOUT YOUR KNOWLEDGE OR(Continued) CONSENT. SOME JURISDICTION MAY NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY, AND WE LIMIT OUR LIABILITY IN SUCH ONLY TO THE DEGRRE ALLOWED BY APPLICABLE LAW