These Business and Enterprise Terms and Conditions apply to and are incorporated into an Agreement for the provision of Service(s) between RiverStreet and the Customer. The entire Agreement shall include one or more orders for Service(s) shown in a “Schedule of Services and Equipment,” these Business and Enterprise Terms and Conditions, any applicable Service Level Agreement specified in the Schedule of Services and Equipment, the Supplemental Terms and Conditions for E-Rate Customers (if applicable), and any other terms or policies expressly agreed in writing between the Parties.
1. Ordering and Installation. RiverStreet will use good faith efforts to deliver and install all Service(s) and Equipment by the applicable installation date shown in the associated Schedule of Services and Equipment. RiverStreet will not be liable for any damages whatsoever related to delays in meeting any such installation date. RiverStreet will notify Customer when the Service(s) is operational (the “Service Start Date”). Unless Customer notifies RiverStreet within ten (10) business days after the Service Start Date that the Service(s) is not fully operational, Service(s) will be deemed accepted by Customer as of the Service Start Date and Customer will pay for such Service(s) as of such date.
To facilitate the installation and maintenance of the Service(s), Customer will: a) prepare its premises (including the disconnection and removal of existing service) as necessary; b) provide any inside wiring, equipment and/or software necessary to connect Service(s); and c) provide RiverStreet all required access and security as necessary. Title to all Equipment and software provided by RiverStreet will remain exclusively with RiverStreet unless explicitly listed as a purchase in a Schedule of Services and Equipment incorporated into this Agreement. Customer further agrees not to create or permit to be created any lien or other encumbrances on RiverStreet’s Equipment and software. Customer hereby grants RiverStreet, its successors and assignees, the right and privilege to enter the Customer’s lands or premises, as needed, with vehicles and equipment to install, construct, operate, inspect, test, replace, maintain, remove, or repair communications and utility facilities, network equipment, cables, and lines owned or operated by RiverStreet on or under such lands and premises, and upon or under all streets, roads or highways abutting said land and premises, as necessary in RiverStreet’s sole discretion to deliver or maintain the Service(s) or other services RiverStreet may seek to provide. RiverStreet and Customer shall execute and record any easements necessary, in a form mutually agreeable to the parties, to effectuate access by RiverStreet to Customer’s lands or premises for the purposes stated above.
2. Additional Charges. Customer may request moves, adds, changes, and upgrades (except ordinary software upgrades) concerning Service(s) covered by this Agreement, subject to a separate Service Start Date and additional charges, as determined by RiverStreet or as set forth in an applicable RiverStreet federal or state tariff. In the event of a conflict between the terms of this Agreement and the applicable RiverStreet tariff, the terms of this Agreement shall control. Service records will constitute full proof of the content and nature of Customer’s Service(s).
3. Invoicing and Payment. The start date for billing is the Service Start Date. Usage charges and any non-recurring charges, such as installation charges or charges for purchase of Equipment, are billed in arrears. Fixed monthly recurring charges are billed in advance. Customer remains financially responsible for all charges incurred in connection with the Equipment and Service(s). Customer holds RiverStreet harmless and assumes full responsibility for any and all calls, authorized or unauthorized, that are placed or received via Customer’s telecommunications system. Customer agrees that all calls made to any toll-free number(s) assigned to Customer are the responsibility of the Customer. No credits will be issued for wrong numbers dialed.
4. Taxes, Assessments, Fees, and Surcharges. RiverStreet may add applicable international, federal, state or local taxes, assessments, fees, or surcharges (including to recover universal service or other regulatory costs incurred by RiverStreet in connection with the Equipment and Service(s)) to any invoice, which shall be the sole payment responsibility of Customer, unless Customer provides a valid exemption certificate. Customer will notify RiverStreet if Customer’s tax-exempt status changes during the term of this Agreement. Payment for Equipment and Service(s), including applicable international, federal, state, and local taxes, assessments, fees or surcharges, will be due within twenty (20) days of receipt of invoice. Customer may in good faith withhold payment of any disputed charges; provided, however, that a charge is not disputed unless Customer provides RiverStreet with a written explanation of the disputed charge within twenty (20) days from the date of the invoice. If RiverStreet determines the disputed charges are valid, RiverStreet will notify Customer and Customer must pay all such charges within ten (10) days. Invoices not paid when due will incur at the lesser of 1% per month or the maximum rate allowed by law, on the unpaid balance, plus a $2.00 late fee. Once service becomes suspended, Customer will be required to pay all past due balances, a reconnect fee and a security deposit. Customer will be liable to RiverStreet for any costs and/or expenses incurred directly or indirectly, including reasonable attorney’s fees and expenses, in collection of any amounts due and owing to RiverStreet.
5. Use of Service. Customer may use the Equipment and Service(s) for any lawful purpose provided that such use does not: a) interfere with or impair service over any of the facilities and associated equipment constituting RiverStreet’s network; or b) impair the privacy of any communications over the facilities and equipment of RiverStreet. Customer is solely responsible for the content of any transmissions of Customer and any third party utilizing Customer’s Service(s). Use of any other organization’s network or computing resources is subject to such other organization’s respective permission and usage policies. Customer agrees to abide by all applicable RiverStreet policies, as disclosed via RiverStreet’s publicly available internet web site at https://myriverstreet.net/legal, each as amended from time to time, and specifically including RiverStreet’s Acceptable Use Policy for Broadband Internet Service, Broadband Internet Service Privacy Policy, and Privacy Statement, and to require any and all employees, contractors, end-user customers or other representatives using the Customer’s Internet Services to abide by same. Customer will use the Equipment and Service(s) in accordance with all applicable laws and regulations, and the terms and conditions contained in this Agreement. RiverStreet may make changes to Service(s) and RiverStreet-owned Equipment provided that any such change will not, materially adversely affect the performance of the Service(s).
6. Ongoing Support of Service. Unless otherwise specified in a Service Level Agreement (Exhibit A) incorporated into this Agreement, standard response time for trouble support requests is six (6) hours during weekdays from 8AM to 8PM, US Central time, and ten (10) hours during other times. Unless otherwise specified under Section 2, above, standard response time for adding, disconnecting or reconfiguring services is twenty-four (24) hours during weekdays and forty-eight (48) hours during weekends. RiverStreet will use best efforts to shorten response times in the event of an outage or serious disruption to the Service(s) but cannot guarantee to do so. If RiverStreet personnel are enlisted to help debug, configure or otherwise assist Customer with the setup or functioning of any hardware, network and/or software that is not the responsibility of RiverStreet, Customer agrees to pay RiverStreet at the rate of $125 per hour for such assistance, billed to the nearest half hour. Unless covered under a Wire Guard Protection subscribed maintenance plan, maintenance of cables, wire, and jacks, and other inside wiring are not covered under this Agreement and will be repaired on a time and materials basis if needed and requested by Customer.
7. Term of Agreement. This Service Agreement shall commence on the Service Start Date and continue for an initial term (the “Initial Term”) set forth in the Schedule of Services and Equipment, unless earlier terminated as set forth in this Agreement. At the end of the Initial Term, unless otherwise specified in the Schedule of Services and Equipment, this Agreement shall automatically renew on a month-to-month basis at its then-current month-to-month rates, and otherwise under all applicable terms specified in this Agreement. Such month-to-month services may be terminated by either party upon written notice, to be effective at the end of the following full billing month. Customer’s obligations under Sections 1, 3, 11, 12, and 14 shall survive the expiration or termination of this Agreement, and shall continue in force indefinitely thereafter.
8. Termination by Customer. Customer may terminate any Service not covered by a Service Level Agreement provided under this Agreement without liability for a termination penalty upon 30 days’ written notice to RiverStreet, if RiverStreet fails to meet the industry standards for network quality and is unable to resolve the issue within one (1) week of receiving notification of the failure, provided that all of the following conditions are met: (a) RiverStreet’s failure is attributable to facilities or causes within RiverStreet’s reasonable control; (b) Customer provided any required notice to RiverStreet of the failure, and met all other obligations under the Service Level Agreement (when applicable) ; and (c) Customer’s account balance is current as of the termination date. For any Service covered by a Service Level Agreement, Customer may terminate any Service if RiverStreet fails to meet the Service Level Agreement (network availability, network latency, packet loss, network jitter, and mean time to repair metrics) applicable to such Service for three consecutive months, provided that all of the above conditions are met.
9. Termination by RiverStreet. In addition to any other remedy available, RiverStreet may immediately terminate any Service(s) under this Agreement, in whole or in part, in the event of a material breach of this Agreement by Customer which includes, but is not limited to the following: (a) Customer non-payment of undisputed amounts due and owing to RiverStreet; (b) other material breach of this Agreement by Customer; (c) Customer’s unlawful or fraudulent use of Service(s); (d) Customer intentionally providing false or misleading information to RiverStreet in connection with the Service(s); (e) violation of any law, rule or regulation of any governing authority having jurisdiction over the Service(s); or (f) a violation giving rise to a right of termination as set forth in RiverStreet’s applicable federal or state tariffs, provided, however, that Customer does not cure such breach within thirty (30) days after being given notice specifying the nature of the breach. Upon such termination, Customer will immediately: (i) cease utilizing the Service(s) and associated Equipment; (ii) pay RiverStreet for all undisputed charges incurred by Customer, including taxes and surcharges, through the date such Service(s) is discontinued; and (iii) pay a termination charge as specified in this Agreement. If Customer wishes to reinstate any Service terminated under this Section, Customer will be required to pay all past due balances, a reconnect fee, and an additional security deposit.
10. Termination Charge. Except as provided in Section 8, above, Customer understands and agrees that it will be liable to RiverStreet for a charge (which Customer acknowledges and agrees is a reasonable approximation of damages and does not represent a penalty) for termination of any Service(s) under this Agreement prior to the expiration of the then-current Initial or Renewal Term, equal to the monthly revenue commitment for the remainder of the then-current Initial or Renewal Term, and for the reversal of any promotional credits or incentives previously provided by RiverStreet. Customer agrees to pay such sum immediately upon termination of such Service(s), in addition to any previously waived charges for such Service(s). In the event that Type II services are being resold, the early termination fee will be equal to the remaining contract value at time of service disconnect.
11. Maintenance and Return of Equipment. Maintenance and updating of RiverStreet-owned Equipment and software, if any, provided in connection with the Service(s) will be at no additional charge unless such charges are: (a) specifically set forth in this Agreement; or (b) for maintenance that is necessitated by unauthorized modifications or other acts or omissions of Customer or others. Customer will surrender any RiverStreet-owned Equipment or software promptly upon the expiration of this Agreement or termination or other discontinuance of the Service(s) for which such equipment or software is being used, in the same condition as delivered subject only to reasonable wear and tear. If RiverStreet-owned Equipment is surrendered in damaged condition, Customer will pay RiverStreet any additional charges necessary to repair or replace the damaged Equipment. Should Customer fail to surrender RiverStreet-owned Equipment or software within thirty (30) days after termination of the associated Service(s), and unless otherwise specified in a Schedule of Services and Equipment, Customer will be liable to RiverStreet, as liquidated damages and not a penalty, in the amount of ten thousand dollars ($10,000), representing the reasonable value of the RiverStreet Equipment or software. Customer’s obligations pursuant to this Section 5 will survive termination of this Agreement.
12. Limitation of Liability. The liability of RiverStreet for any interruptions, delays, errors or defects in transmission, Equipment, Service(s), or other services, facilities or equipment owned or provided by RiverStreet shall be limited to an amount set forth in the Service Level Agreement, if any, applicable to the Service(s) for which such condition occurred, and as set forth herein. Customer acknowledges that RiverStreet shall not be liable for any consequential, indirect, special, incidental or other damages whatsoever arising from any failures, interruptions, delays, errors or deficiencies of the Service(s), Equipment, or any other services, facilities or equipment owned or provided by RiverStreet. IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, ARISING OUT OF ITS PROVISION OF SERVICES OR FAILURE TO PROVIDE SERVICES UNDER THIS AGREEMENT, WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT. EXCLUDING INDEMNIFICATION OBLIGATIONS, A PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED AS FOLLOWS: THE TOTAL CHARGES FOR THE SERVICE(S) PROVIDED UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NO PARTY SHALL BE LIABLE TO THE OTHER FOR CLAIMS OR DAMAGES RESULTING FROM OR CAUSED BY (A) SECOND PARTY’S FAULT, NEGLIGENCE OR FAILURE TO PERFORM ITS RESPONSIBILITIES; (B) CLAIMS AGAINST THE SECOND PARTY BY A THIRD PARTY; (C) ANY ACT OR OMISSION OF ANY THIRD PARTY; OR (D) EQUIPMENT OR SERVICES FURNISHED BY A THIRD PARTY. THIS SECTION WILL SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.
13. Indemnification. Customer will defend, indemnify and RiverStreet, its affiliates, agents and contractors, and each of their respective owners, directors, officers, employees and agents, from and against all third party claims for damages, liabilities, expenses, losses, demands, actions, causes of action, including costs and reasonable attorneys fees and expenses of any kind or nature for any and all damages of any kind arising from RiverStreet’s performance of this Agreement or provision of the Equipment or Service(s) that is alleged to have been caused in whole or in part by the negligence or willful misconduct of Customer.
14. Force Majeure. Neither Party shall be liable for failure to perform its obligations hereunder where such nonperformance is caused, in whole or in part, by force majeure, including but not limited to acts of God or government, war, national emergencies, riot, insurrection, acts of terrorism, vandalism, criminal action taken against a Party or its affiliates, disturbance, strike, lockout, work stoppage or other labor dispute, failure of usual sources of supply, unavailability, failure or malfunction of equipment or facilities provided by third parties, pole hits, storm, fire, flood, earthquake, accident, or any other cause not within such Party’s reasonable control, including, but not limited to local or foreign telephone company action and any law, order, regulation or other action of any governmental entity. In addition, RiverStreet will not be liable for claims or damages resulting from or caused by: (a) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (b) claims against Customer by a third party; (c) any act or omission of any other party; or (d) equipment or services furnished by a third party. This section will survive termination or expiration of the Agreement.
15. Assignment. RiverStreet may assign its rights, privileges or obligations conveyed under this Agreement without Customer’s consent (a) in connection with the sale of all or substantially all of its assets, (b) to the surviving entity in any merger or consolidation; or (c) to an entity controlled by, controlling or under common control with RiverStreet, upon 30 days’ prior written notice to Customer. Any other assignment by RiverStreet, or any assignment by Customer, will require the prior written consent of the other Party, which will not be unreasonably withheld, and shall require, in any case, that the Party receiving assignment expressly assumes, in writing, the obligations of the assigning Party under this Agreement.
16. Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, THERE ARE NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORILY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, MADE WITH RESPECT TO ANY EQUIPMENT OR SERVICE(S). EXCEPT AS OTHERWISE PROVIDED IN THE APPLICABLE SERVICE LEVEL AGREEMENT, RIVERSTREET MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, ALL SUCH WARRANTIES BEING EXPRESSLY EXCLUDED AND DISCLAIMED. USE OF ANY INFORMATION OBTAINED VIA RIVERSTREET’S INTERNET SERVICE IS AT THE CUSTOMER’S OWN RISK. RIVERSTREET SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS INTERNET SERVICES.
17. No Agency. This Agreement does not create any agency, joint venture, or partnership between RiverStreet and Customer, each of which are independent business entities. Neither Party will have the right, power or authority to act for the other in any manner, except as expressly provided herein.
18. Miscellaneous. This Agreement is binding upon the Parties’ respective successors and permitted assigns, and together with any applicable tariff(s), constitutes the entire agreement between RiverStreet and Customer. No prior agreements, understandings, statements, proposals or representations, either oral or written apply. This Agreement can be modified only in writing signed by the authorized representatives of both Customer and RiverStreet. If any provision of this Agreement is held to be illegal or unenforceable, this Agreement’s unaffected provisions will remain in effect. No Customer order for any Equipment or Service(s) will vary or add to the terms of this Agreement, except as permitted under these Business and Enterprise Terms and Conditions. If either Party fails to enforce any right or remedy under this Agreement, that does not waive the right or remedy. The rights and remedies of the Parties shall be cumulative and in addition to any other rights or remedies provided by law or equity.
Customer agrees to receive all emails from RiverStreet and its affiliates including, but not limited to, promotions, campaigns, newsletters, and organizational updates with the right to unsubscribe at any time.
19. Customer Proprietary Network Information. Customer Proprietary Network Information (“CPNI”) is information obtained by a telecommunications carrier solely as a result of providing Customer telecommunications services, and includes the quantity, technical configuration, types, destination, location and amount of use of telecommunications services Customer purchases, as well as related information appearing on Customer’s bills. Federal law requires telecommunications carriers to protect the confidentiality of CPNI. To the extent the Service(s) are classified as telecommunications services, and in order for RiverStreet to serve Customer better and offer new services that meet Customer’s needs, RiverStreet needs Customer’s permission to share CPNI among our company affiliates, agents and contractors. Customer hereby grants consents for RiverStreet to share Customer’s CPNI among these authorized entities, which shall remain valid unless and until Customer notifies RiverStreet of its withdrawal of such consent, in accordance with the Notice provisions of this Agreement. Grant or withdrawal of such consent shall have no effect on any Service(s) covered by this Agreement. In order to authenticate Customer for purposes of responding to Customer’s requests for CPNI without requiring a password, Customer authorizes RiverStreet to provide CPNI detail to Customer in response to Customer’s requests made using the following methods: (i) using the assigned dedicated RiverStreet Account Representative in person or by telephone or email; or (ii) in response to a request by email on Customer’s letterhead signed by Customer’s authorized representative. RiverStreet may also disclose CPNI to the extent necessary to comply with any laws, court orders or subpoenas, or as necessary to provide the Service(s).
20. Health Insurance Portability and Accountability Act. This Section 20 shall apply to the extent Customer is a covered entity or business associate, as defined by the Health Insurance Portability and Accountability Act at 45 C.F.R. § 160.103, such that RiverStreet may be a business associate or subcontractor (also as defined at 45 C.F.R. § 160.103). Customer and RiverStreet acknowledge and agree that Provider does not need to receive from, or create, receive, transmit, or maintain protected health information (as defined at 45 C.F.R. § 160.103) (“PHI”) in order to provide the Service(s). To the extent RiverStreet does have access to such PHI, it is incidental to provision of the Service(s) and is not for the purposes of performing HIPAA covered functions on behalf of Customer. Customer shall be responsible for ensuring PHI is not disclosed to or made available to Provider or its agents or personnel, including in RiverStreet’s provision of Service(s) on-site at Customer premises, by virtual connection to Customer’s network for technical support, or other means.
Customer shall not use any Equipment or Service(s) or other support of RiverStreet that require more than incidental access to PHI by RiverStreet or a RiverStreet subcontractor, or that is not subject to the conduit exception or other exceptions under HIPAA, unless RiverStreet shall have agreed and confirmed to Customer in writing that (a) RiverStreet and Customer have executed a business associate agreement as required by 45 C.F.R. § 164.502(e)(1); (b) the Service(s) are being provided in accordance with applicable provisions of HIPAA, including the HIPAA Security Rule at 45 C.F.R. Part 164, Subpart C (“HIPAA Security Rule”); (c) any RiverStreet subcontractors functioning as a subcontractor business associate (as defined by HIPAA) will also maintain administrative, technical, and physical safeguards required by the HIPAA Security Rule; and (d) RiverStreet has executed a business associate agreement with any such subcontractors for performance of HIPAA regulated functions, as required by 45 C.F.R. § 164.502(e)(1).
21. Notices. Any notices required or permitted to be provided under this Agreement shall be in writing and delivered via email, with a confirmatory copy sent by overnight courier with tracked delivery as follows:
(a) If to Customer, to the Customer’s authorized representative identified in the signature block of this Agreement; and
(b) If to RiverStreet, to RiverStreet Business Sales, 1400 River Street, Wilkesboro, NC, 28697, and bizsales@myriverstreet.net, with a copy to Caressa D. Bennet, Womble Bond Dickinson (US) LLP, 2001 K Street, NW, Suite 400 South, Washington, D.C. 20006, and carri.bennet@wbd-us.com.
22. E911 Notice. PLEASE READ THIS INFORMATION REGARDING 911 VERY CAREFULLY. IF YOU PURCHASE PACKET-BASED VOICE-OVER-INTERNET-PROTOCOL OR SIP TRUNKING SERVICE UNDER THIS AGREEMENT, BY ACTIVATING AND PAYING FOR SUCH SERVICE, YOU ACKNOWLEDGE AND AGREE TO THE LIMITATIONS OF 911 EMERGENCY DIALING ASSOCIATED WITH THAT SERVICE AND UNDERSTAND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR E 911 CALLS
- 911 service will not work if you fail to register or update your current location in RiverStreet’s system;
- 911 service will not work if there is an electrical or internet service outage due to any cause;
- 911 service will not work if your Service(s) has been canceled by you or terminated by RiverStreet;
- You indemnify RiverStreet for any failure in the 911 service.
With traditional E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. If you live in locations where the emergency center is not equipped to receive your telephone number and address, you have basic 911. With basic 911, the local emergency operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number and location, he/she may not be able to call you back or dispatch help if your call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. For more E911 information visit our website.
23. Registration of Physical Location Required. For each primary phone number that you use for the Service, you must register with RiverStreet the physical location where you will be using the Service and any associated Equipment with that phone number. When you move your Service and any associated Equipment to another location, you must register your new location. If you do not register your new location, any 911 calls you make using the 911 Service may be sent to an emergency center near your old address. You must register your initial location of use when you subscribe to the Service and keep it updated if you move the Service and any associated Equipment to a new location. You hereby expressly assume all responsibility for securing assignment of a 911 address specifically for the physical location where you will be using the Service and any associated Equipment that you are requesting RiverStreet to furnish. If your local 911 service provider/administrator is unable, unwilling or otherwise refuses to assign a separate 911 location address for the telephone number that would be associated with the physical location at which you have requested Service, and you nonetheless choose to have RiverStreet furnish the Service you requested to that location, then in such event, and in order to incentivize RiverStreet to furnish the Service you requested at that location:
- You assume all risks associated with having RiverStreet install and provide Service to this new location despite not having a separate 911 location address assigned to this physical location;
- You hereby waive any right or claim you, your heirs, assigns, successors or executors may ever have, whether in contract, tort or otherwise, arising from, caused by or otherwise relating to your inability to secure assignment of a 911 location address for the physical location where you have requested RiverStreet to provide the Service; and
- You hereby agree to defend, indemnify and hold harmless RiverStreet, its officers, directors, employees, affiliates, and agents from any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, you or any third-party user of the Service caused by, arising from or otherwise relating the lack of an assigned 911 address for that physical location.
24. Choice of Law, Jurisdiction, and Venue. This Agreement shall be governed, construed and interpreted according to the laws of the state in which the Services are provided without giving effect to its conflict of laws provisions. Customer consents to the personal jurisdiction of the courts in North Carolina and Virginia to adjudicate any claim or action based on this Agreement and expressly waives any right to commence or defend such claim or action in any other jurisdiction.
Supplemental Terms and Conditions for E-Rate Customers
The provisions of this Supplement shall apply to Customers that intend to request or receive support from Schools and Libraries Universal Service Support Mechanism implemented by the Federal Communications Commission (“E-Rate”).
(a) Choice of Invoice Method. The E-rate program permits Customer to elect between two alternative methods of receiving E-rate support, either using the “Service Provider Invoice” method (“SPI”) or “Billed Entity Applicant Reimbursement” method (“BEAR”). Under the SPI method, RiverStreet will bill Customer monthly in advance for the Customer’s expected share of the cost of the Service(s) and submit the SPI form (Form 474) to request reimbursement from the FCC’s E-rate administrator, the Universal Service Administrative Company (“USAC”), to request disbursement of E-rate support for the remaining share. Under the BEAR method, RiverStreet will bill Customer for the full amount of the cost of the Service(s), either monthly or, upon request, annually in advance. Customer is responsible for paying that full amount to RiverStreet when due and submitting the BEAR form (Form 472) to seek reimbursement from USAC of the portion of the cost expected to be supported by E-rate. Under either method, Customer is responsible for the full amount of the cost of the Service(s) not covered by E-rate support.
Customer hereby elects to use the ◻BEAR or ◻SPI method (as marked) for the initial E-rate funding year covered by the Term of this Agreement. If no explicit election is made, Customer will be deemed to have elected the BEAR method. Customer may notify RiverStreet in writing of a change to its election for any subsequent E-rate funding year. To be effective, RiverStreet must receive such notice at least 30 days before the start of the E-rate funding year to which it will apply. Customer may not change its election during an E-rate funding year. If no such notice is received and effective, Customer’s most recent election will continue to apply.
(b) Customer and Service Eligibility. Customer hereby represents and warrants that (1) it is eligible for E-rate discounts under applicable FCC rules, and will remain eligible for the throughout the Term of this Agreement; (2) each Customer Location specified in the order for Service(s) is an elementary school, secondary school, or library location that, in each case, is eligible for E-rate; (3) notwithstanding any other provision of this Agreement, the Service(s) will be used primarily for educational purposes and will not be sold, resold, or transferred, except to the extent permitted under applicable FCC rules; and (4) in the case of any equipment or services eligible for support under E-rate Category Two, the cost will not exceed any remaining portion of the Customer’s Category Two budget, as established under 47 CFR § 54.503 and any other applicable FCC rules and orders.
(c) Notice of Changes. Customer will promptly notify RiverStreet of any change to the E-rate eligibility of the Customer, any Customer Location, or use of any supported Service. Upon receipt of such notice, RiverStreet may, in addition to other remedies it may have under this Agreement or otherwise at law, (1) bill Customer for the full cost of the affected Service(s), irrespective of any previous Customer election of SPI billing under this Agreement, which the Customer shall be responsible to pay; (2) recover from Customer the full amount of any fine, forfeiture, or other penalty incurred by RiverStreet as a result of such ineligibility; and/or (3) terminate the ineligible portion of the Service.
(d) E-Rate Compliance. Customer agrees to comply in all material respects with all applicable FCC rules, orders, policies, and USAC procedures concerning its request for E-rate support for the Service(s) specified in Exhibit A. Without limiting the foregoing, Customer shall file its Form 471 “Description of Services Ordered and Certification Form” requesting E-rate support for the Service(s) promptly upon execution of this Agreement and, in any event, before the applicable filing deadline, and such Form 471 shall include the full amount of all taxes, assessments, fees or surcharges applicable to the Service(s), in addition to all recurring and non-recurring charges specified herein. Customer shall promptly file all other FCC or USAC forms before applicable filing deadlines and shall promptly respond within the time permitted to all inquiries or other requests from USAC or the FCC for information concerning the Customer’s request for E-rate support for the Service(s). RiverStreet reserves the right to delay the Service Start Date for the Service(s) until the Customer has received a Funding Commitment Decision Letter from USAC.
(e) Liability. Notwithstanding any other provision of this Agreement, Customer liability associated with any misrepresentation or change of E-rate eligibility, or other failure to comply with the requirements of this Supplement shall not be limited.