Intenna Systems LLC Terms of Service
These Terms of Service (these “Terms of Service”) set forth the general terms and conditions upon which Intenna Systems LLC, a Delaware limited liability company (collectively with its affiliated companies, “Provider”, “we” or “us”), will provide Customer (as such term is hereinafter defined), the Services (as such term is hereinafter defined) and Deliverables (as such term is hereinafter defined) set forth in the Proposal (as such term is hereinafter defined) and any applicable Work Order (as such term is hereinafter defined).
By signing the Proposal or accessing, paying for, using or receiving the benefit of any of the Services and/or Deliverables, Customer agrees to be bound by these Terms of Service. From time to time, Provider may modify these Terms of Service, effective upon posting such modified Terms of Service on Provider’s website located at uniform resource locator https://intennasystems.com/about/intenna-systems-llc-terms-of-service/ (the “Site”). For any Work Orders that were in effect at the time of us implementing such modifications that do not specify a service term length or other minimum service period, Customer’s continued access to or use of the Services and/or Deliverables constitutes Customer’s immediate acceptance of the modified Terms of Service. For any Work Orders that were in effect at the time of us implementing such modifications that specify a service term length or other minimum service period, such modifications to these Terms of Service shall become effective for any renewal period under such Work Orders.
1. Definitions.
a. “Customer” shall mean the person or entity for which the Proposal was prepared, as indicated in the Proposal.
b. “Deliverables” shall mean the deliverables to be developed and/or provided by or on behalf of Provider as specifically identified in the Proposal and associated Work Order(s).
c. “Party” shall mean Provider or Customer, as the context requires.
d. “Proposal” shall mean the Proposal for Distributed Antenna System executed by Customer.
e. “Services” shall mean the services to be provided by or on behalf of Provider as specifically identified in the Proposal and associated Work Order(s).
f. “Work Order” shall mean a written sales order, purchase order, work order, statement of work or other ordering document issued by Customer to Provider that sets forth the Services and/or Deliverables purchased by Customer from Provider in connection with a Proposal.
2. Payment Terms. The fees and terms of payment for Provider performing the Services and delivering the Deliverables are set forth in the Proposal and applicable Work Order(s). Provider will invoice Customer for the Services and Deliverables upon Provider’s completion of the Services and/or Deliverables, in whole or part, in accordance with the Proposal. Unless otherwise agreed to in a writing signed by Provider, the invoice from Provider will be due and payable by Customer within 30 days of Provider’s delivery of such invoice, and any unpaid sum due to Provider after such 30-day period will bear interest at a rate equal to the lesser of 5% per month or the maximum interest rate permitted under applicable law. To secure Customer’s obligations under these Terms of Service, the Proposal and the Work Order(s), Customer grants Provider a security interest in the Deliverables and Provider is authorized to file a financing statement in respect of such security interest. If Provider is not timely paid in accordance with this Section 2, Provider will have a claim against Customer and the owner of the premises at which the Services and/or Deliverables are furnished, if other than the Customer, which may be enforced against the applicable property in accordance with the applicable lien laws.
3. Term and Termination.
a. Each Work Order shall begin on the effective date indicated in such Work Order and continue for the initial term specified in such Work Order (“Initial Work Order Term”). With respect to Network Monitoring and Maintenance services and Rapid Replacement Spares Depot services provided by Provider (as specified in the Proposal and/or associated Work Order(s)), at the conclusion of the Initial Work Order Term indicated in the applicable Work Order(s), unless otherwise expressly stated in such Work Order(s), each such Work Order shall automatically renew for additional periods equivalent to the Initial Work Order Term (each, a “Renewal Work Order Term” and together with the Initial Work Order Term, collectively, the “Work Order Term”), unless notice of termination is given at least ninety (90) days prior to the expiration of the Initial Work Order Term or the then-current Renewal Work Order Term, as applicable. These Terms of Service and the Proposal shall continue and remain in effect for so long as any Work Order Term remains in effect.
b. In the event that either Party is in material breach of the terms of these Terms of Service, the Proposal or any associated Work Order(s), the non-breaching Party may terminate the Proposal and the applicable Work Order(s) on thirty (30) days prior written notice; provided, however, that the Proposal and the applicable Work Order(s) shall not be terminated as provided for herein in the event that the breaching Party cures the breach to the reasonable satisfaction of the non-breaching Party within such thirty (30)-day period or takes material steps reasonably satisfactory to the non-breaching Party to do so within such thirty (30)-day period. Furthermore, Provider may terminate the Proposal and any Work Order immediately by delivering written notice to Customer upon the occurrence of any of the following events: (i) Customer’s breach of its payment obligations under these Terms of Service, the Proposal and/or any Work Order; (ii) a receiver is appointed for Customer or its property; (iii) Customer makes a general assignment for the benefit of its creditors; (iv) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (iv) Customer becomes insolvent or is liquidating, dissolving or ceasing business operations.
c. Provider may terminate the Proposal and any Work Order(s) for any reason (or no reason at all) upon thirty (30) days written notice to Customer, provided that Customer shall not be required to pay any future fees attributable to the remainder of the applicable Work Order Term after the effective date of such termination without cause.
d. For the avoidance of doubt, in the event of any termination pursuant to this Section 3, Customer will be responsible for paying Provider any amounts owed under the terminated Proposal and/or Work Order for Services performed and/or Deliverables delivered by Provider through the effective date of the termination.
e. Notwithstanding anything to the contrary contained in these Terms of Service, the Proposal or any Work Order(s), all rights and obligations that accrued prior to termination of the Services or expiration of the applicable Work Order Term or that by their nature are intended to survive the termination of the Services or expiration of the applicable Work Order Term, shall survive expiration or termination in accordance with their respective terms, including, without limitation, the provisions of Sections 1, 2, this 3.d, the last sentence of 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.
4. Access; Updates. Customer shall provide Provider and its representatives, agents and subcontractors all access necessary for Provider to furnish the Services and Deliverables. Provider is authorized to access the premises at which the Services and/or Deliverables are to be furnished and make preparations such as drilling holes, driving nails, making attachments or doing any other thing necessary in Provider’ sole discretion to provide the Services and/or for the installation, maintenance, monitoring, service, replacement and removal of the Deliverables, and Provider shall
not be responsible for any condition created in connection therewith. Customer shall notify Provider in writing of any undisclosed, concealed or hidden conditions (including, without limitation, the presence of suspected asbestos or other hazardous material) in any area where installation of the Deliverables is planned or where the Services are to be performed, and it shall be Customer’s sole obligation to remove such conditions from the premises. Under no circumstances shall Provider be liable to Customer for any such conditions or damage caused thereby.
5. Representations and Warranties. Each Party represents and warrants to the other Party that these Terms of Service and the Proposal constitute valid and legally binding obligations of such Party, enforceable against such Party in accordance with their respective terms. Customer represents and warrants to Provider that Customer and the owner of the premises, if other than the Customer, authorize Provider’s access to the premises, the provision of the Services and the installation, maintenance, monitoring, service, replacement and removal of the Deliverables. EXCEPT AS EXPRESSLY PROVIDED UNDER THESE TERMS OF SERVICE AND THE PROPOSAL, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. Indemnification. Customer hereby agrees to defend, indemnify and hold harmless Provider and its affiliates, and Provider’s and its affiliates’ respective officers, directors, managers, owners, employees, representatives, agents, subcontractors, successors and assigns (each, an “Indemnified Party”) from and against all claims, demands, actions, causes of action, lawsuits, damages, liabilities, losses, settlement payments, judgments, fines, penalties, costs and expenses (including, without limitation, court costs and reasonable attorneys’ fees) incurred by or asserted against any Indemnified Party (each, a “Third Party Claim”) arising from, in connection with or relating to (a) Customer’s acts or omissions and (b) Customer’s use, or any other person’s or entity’s use, of the Services or Deliverables; provided, that such indemnification obligations will not extend to any Third Party Claim that is directly caused by Provider’s gross negligence, willful misconduct or fraud.
7. Limitation of Liability. IN NO EVENT WILL PROVIDER’S LIABILITY FOR ANY AND ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, SETTLEMENT PAYMENTS, COSTS OR EXPENSES OF ANY KIND ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE PROPOSAL, ANY WORK ORDER, THE SERVICES OR DELIVERABLES, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER FOR THE APPLICABLE SERVICES AND/OR DELIVERABLES IN THE SIX MONTHS IMMEDIATELY PRIOR TO THE DATE UPON WHICH THE CLAIM AROSE. UNDER NO CIRCUMSTANCES WHATSOEVER WILL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, LOST DATA, DAMAGED DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE DELIVERABLES OR SERVICES, OR LOSSES RESULTING FROM BUSINESS INTERRUPTION) HOWEVER ARISING, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 7, THE LIMITATIONS DESCRIBED IN THIS SECTION 7 WILL NOT APPLY IN THE EVENT OF A CLAIM DIRECTLY CAUSED BY PROVIDER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
8. Taxes. All amounts paid by Customer to Provider in connection with the Services and/or Deliverables are exclusive of taxes unless otherwise specified on an invoice delivered by Provider to Customer in connection with the Services and/or Deliverables. Customer agrees to bear and be responsible for the payment of all taxes which may be levied or assessed in connection with the Services and/or Deliverables (except for taxes on Provider’s income, net worth or capital), including, without limitation, all sales, use, rental receipt, personal property, royalty, value added or other taxes which may be levied or assessed in connection with the Services or Deliverables. To the extent any such tax is specified on an invoice delivered by Provider to Customer in connection with the Services and/or Deliverables, Customer shall pay such billed amount of tax to Provider and Provider shall remit such billed amount of tax to the appropriate tax authorities as required by law. For the avoidance of doubt, there shall be no restriction or prohibition on the time at which Provider can bill Customer for such taxes in connection with the Services and/or Deliverables, even if billed separately by Provider after the completion of such Services and/or Deliverables, as applicable. If Provider pays any tax that is payable by Customer in accordance with this Section 8, Customer shall promptly reimburse Provider for the amount of such tax paid by Provider.
9. Non-Interference. During the term of the provision of Services set forth in the Proposal and any associated Work Order(s), and for a period of one year thereafter, Customer shall not, and shall cause such Customer’s affiliates not to, directly or indirectly, solicit or entice, attempt to solicit or entice, or assist any other person or entity in soliciting or enticing, or take any other action with respect to, any client or customer of Provider for purposes of diverting such client’s or customer’s business or services from, or otherwise reducing, diminishing or diverting such client’s or customer’s business or services with, Provider.
10. Confidentiality. Customer shall have the right to disclose the existence of the Proposal and any associated Work Order(s) but not the terms and conditions contained therein, unless such disclosure is (a) approved in writing by Provider prior to such disclosure or (b) is required to be disclosed pursuant to any order of a court of competent jurisdiction or duly authorized regulatory body, provided that the Customer gives Provider sufficient prior notice to contest such order.
11. Assignment. Customer shall have no right to transfer, delegate or assign these Terms of Service, the Proposal or any Work Order, or Customer’s rights or obligations under any of the foregoing, in whole or in part, without Provider’s express prior written consent, and any attempted transfer, delegation or assignment in violation of the foregoing shall be null and void. Provider may transfer, delegate, assign or subcontract these Terms of Service, the Proposal or any Work Order, or Provider’s rights or obligations under any of the foregoing, in whole or in part, without the consent of Customer, to Provider’s affiliates or in connection with a merger or sale of all or substantially all of Provider’s assets. Subject to the foregoing, these Terms of Service, the Proposal and the Work Order(s), as applicable, shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Notwithstanding anything to the contrary contained herein, Provider may retain and use licensed subcontractors to fulfill its duties and obligations with respect to any Services and/or Deliverables.
12. Entire Agreement. These Terms of Service, the Proposal and the Work Order(s) set forth the entire agreement and understanding of Provider and Customer relating to the subject matter herein and therein and merge all prior discussions between them. For the avoidance of doubt, by signing the Proposal or accessing, paying for, using or receiving the benefit of any of the Services and/or Deliverables, Customer acknowledges and agrees that (a) no terms or conditions or other agreement, document or instrument (including, without limitation, any terms and conditions set forth in, referenced in or attached to any Work Order(s) or posted, available or accessible on Customer’s website (collectively, “Customer T&C”)) shall apply to the Services or Deliverables other than the terms and conditions contained in these Terms of Service and/or the Proposal, (b) the Services and Deliverables described in the Work Order(s) and/or the Proposal are expressly limited to, and expressly made conditional on, Customer’s acceptance of and assent to the terms and conditions set forth in these Terms of Service and/or the Proposal, and Provider expressly objects to any different or additional terms, and (c) Customer expressly accepts Provider’s offer to provide the Services and Deliverables solely in accordance with, and subject to, these Terms of Service and the Proposal. Failure by either Party to enforce any provision of these Terms of Service or the Proposal will not be deemed a waiver of future enforcement of that or any other provision. No waiver of any right hereunder shall be effective unless set forth in a writing signed by the Party entitled to the benefit of such right. All rights and remedies will be cumulative and not exclusive of any other rights or remedies. Except to the extent expressly contemplated by these Terms of Service, any amendment or other modification of any provision of these Terms of Service, the Proposal or any Work Order will be effective only if in writing and signed by Provider and Customer.
13. Order of Precedence; Severability. In the event of a conflict or inconsistency between the provisions of these Terms of Service, the Proposal and/or any Work Order, then the following order of precedence shall apply: (a) these Terms of Service shall take precedence over the Proposal and Work Order(s) (including any Customer T&C); (b) the Proposal shall take precedence over the Work Order(s) (including any Customer T&C); and (c) the Work Order(s) (including any Customer T&C) shall not take any precedence over these Terms of Service or the Proposal. If any provision of these Terms of Service or the Proposal is held by a court of competent jurisdiction to be invalid or unenforceable under the circumstances, such provision’s application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
14. Governing Law and Venue. These Terms of Service, the Proposal and the Work Order(s) are governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any action to enforce or interpret this Agreement shall be brought in the state or federal courts located in New York County, New York. EACH PARTY HEREBY WAIVES ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY SUIT, ACTION OR OTHER PROCEEDING ARISING UNDER OR RELATED IN ANY WAY TO THESE TERMS OF SERVICE OR THE PROPOSAL, THE RELATIONSHIP OF THE PARTIES HERETO, THE TRANSACTIONS CONTEMPLATED IN THESE TERMS OF SERVICE OR THE PROPOSAL, THE INTERPRETATION OR ENFORCEMENT OF THE RIGHTS OR DUTIES OF THE PARTIES HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS OR OBLIGATIONS.
15. Force Majeure. Except for the payment of fees, if Provider’s or Customer’s performance of any of its obligations under these Terms of Service, the Proposal or any Work Order is delayed due to labor dispute, act of war, act of God, terrorism, governmental action, civil or military authority, embargo, pandemic, flood, fire, explosion or other act of nature or any other matter not within such party’s reasonable control, then the date for performance shall be extended by the time of such delay.
