DNA Communications Terms and Conditions
Service Provider: Upon Acceptance (as defined below), Digital Network Access Communications, Inc., a/k/a DNA Communications (“DNA”) will provide and Client will purchase the services and products (“the Services”) selected on the first page of this Application for Service and Agreement (“Agreement”) during the Term, under the terms and conditions set forth below and in DNA’s Tariffs and AUP (as defined below). “DNA” means Digital Network Access Communications, Inc., a/k/a DNA Communications or its affiliate(s) certified in Client’s state(s) to provide the Services.
Acceptance by DNA: This Agreement is not enforceable until accepted by DNA. If Client fails to provide complete, accurate, and satisfactory installation, credit or other required information, or if DNA is unable to provide the Services due to unavailability of facilities or any other reason, DNA may, in its sole discretion, reject Client’s Application for Service. “Acceptance” will occur upon the earlier of commencement of the Services or Client’s first invoice date. DNA makes no representation as to when Service will commence. DNA will use commercially reasonable efforts to initiate Service, but Client understands that service initiation may be dependent upon the actions of third parties not in DNA’s control.
Term: The initial Term for any Services will begin upon Acceptance of those Services and will continue for the number of Months set forth on the first page of this Agreement or on a Multiple Location Form, as applicable. For purposes of this Agreement, “Month” will mean a full billing cycle. If one or more Multiple Locations Forms are included in this Agreement, this Agreement will remain in effect until the last to expire of the Terms set forth on the first page or on any Multiple Location Form. Upon completion of a Term, except where prohibited by law, the Term will automatically renew for a period of 12 Months, unless DNA receives written notice of non-renewal to DNA at least 30 days prior to the end of the current Term. The rate(s) in the renewal term shall be the same rate(s) in the client’s existing agreement, unless the Client is notified in writing of the rate change(s) at least sixty (60) days prior to the end of the term. In the event Client continues to use Services without renewing a term plan, DNA’s month-to-month rates will apply.
Tariffs and AUP: Client understands that in addition to the terms and conditions explicitly set forth in this Agreement, DNA’s relevant state and federal tariffs, as modified from time to time (the “Tariffs”), will govern this Agreement and the provision and use of the Services and are incorporated herein. Tariffs are published with the Illinois Commerce Commission. Use of all Internet Services must comply with DNA’s Acceptable Use Policy (“AUP”), which may be modified from time to time and is published at www.dnacom.com.
Multiple Locations: If one or more Multiple Location Forms are initialed by Client and attached to this Agreement, DNA shall provide, and Client shall purchase, the Services set forth therein for each location that has been accepted by DNA.
Client Satisfaction Guarantee: If DNA fails to resolve any Major Service Outage within 3 business days from Client’s notification to DNA via 1-888-562-4290, Client may, for the affected Client location(s) only, convert to its previous provider(s) (or other provider(s) if Client had no previous provider(s)), without liability for an early termination charge and DNA will pay such provider(s)’ standard tariffed conversion charge.
Price Guarantee: For Terms of 12 months or longer: (a) DNA will not increase Client’s tariffed monthly recurring rates for the Services (excluding taxes and surcharges) during the Term, and (b) if DNA’s standard tariffed Service rates for the same term plan decrease during the Term, Client will have the right to enter into a new agreement for the Services for a new Term at least as long as the original Term.
Moves and Disconnection of Service: To disconnect Services, Client must inform DNA in writing of Client’s desired disconnect date, by letter addressed to: Client Services, DNA Communications Inc. PO Box 302, Sycamore, IL 60178. If Client desires to move Services to another location, Client shall provide DNA at least 30 day notice by calling (888) 562-4290. If DNA is able to continue providing Services, Client shall pay DNA’s applicable standard tariffed service activation and install charges for each new location. If DNA determines, in its sole discretion, that it is unable to provide Services at the new location, DNA shall have no obligation to do so, and Client may terminate such Services as prescribed in Section 9.
Early Termination: Except as set forth in Section 8 above, if this Agreement or any Service is terminated after installation but prior to the end of the Term (including any lines ported to another carrier), for any reason other than pursuant to the Client Satisfaction Guarantee, Client shall, immediately upon demand, pay DNA an early termination charge equal to 85% of the remaining contract or $3,000.00, whichever is less. If Client cancels a service order after signing an Agreement but prior to Acceptance or disconnects within three (3) days of initiating service, Client shall pay DNA a fee of One hundred fifty and 00/100 ($150.00) Dollars for its operating and handling expenses in addition to expenses incurred by DNA purchasing equipment directly related to your new service and directly attributed labor expenses (including sub-contractor labor). DNA shall have the right to terminate the Services due to Client’s non-payment, breach of this Agreement, misuse of the Services or due to other reasons in accordance with and as set forth in the Tariffs.
Resale and Use of Services: Client or any of its authorized representatives shall not resell or redistribute the Services without the prior written approval of an Authorized DNA Representative. DNA shall have the right to immediately terminate this Agreement in the event of a violation of this.
Assignment: Client shall not assign its rights or obligations under this Agreement without the prior written consent of DNA, which shall not unreasonably be withheld. In the event of any attempted assignment or change in control of Client’s equity or assets (including change in control of a Service location) without such consent, DNA will have the right to terminate this Agreement and Client will be liable for the early termination charge described in Section 9 above. Client has no right in, and no right to assign, any telephone number used by Client. DNA has the right to assign this Agreement at any time.
Limitation of Liability: DNA’s liability to Client or to third parties for any cause of action arising out of this Agreement or the Services shall in no event exceed the limitation of liability set forth in the Tariffs, or, if there are no applicable Tariff provisions, the total amount paid for the affected Service for the period in which Service was interrupted or unavailable. Under no circumstances shall Client hold DNA liable for damages arising from delays in commencement of the Service, loss of information, numbering or directory listing errors, loss of business, pre-existing contracts or obligations (including any minimum payment or usage agreement), however arising. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL DNA BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST PROFITS OR REVENUES, ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
Governing Law and Venue: This Agreement shall be construed and governed by the laws of the State of Illinois. The parties’ consent to the exclusive personal jurisdiction and venue of the state or federal courts in DeKalb County, Illinois.
Payment Obligations: Client shall pay for all Services provided by DNA at the rates set forth in this Agreement and the Tariffs. In the event of any conflict between the rates set forth in this Agreement and those in the Tariffs, this Agreement shall control. All past due invoices are subject to interest at the lower of 1.5% per month or the highest rate permitted by law. All invoices not disputed in writing by Client within 30 days from the invoice date, or such other period as stated in the Tariffs, shall be deemed binding on Client. In the event of a dispute, Client shall pay all undisputed amounts by the due date. Client agrees to pay all costs of collection, including reasonable attorney’s fees for any past due amounts and other actions. DNA may require Client to make a reasonable security deposit at any time. Monthly recurring charges shall be billed one month in advance.
Rates, Taxes, and Surcharges: Additional taxes and surcharges may be imposed in addition to the rates specified on the first page of this Agreement or on a Multiple Location Form. Taxes and surcharges may be subject to change without notice, consistent with federal and state laws and regulations. Rates are based on DNA’s bundled Service offerings and vary with quantity and types of Services purchased. DNA may modify Client’s rates due to changes in the quantity and/or types of Services purchased, Client’s failure to meet any required minimum, or, DNA’s determination that, despite exercising reasonable efforts, installation of the Services as requested is not feasible.
E-mail Notification: Client agrees that DNA may contact Client via e-mail for service and marketing notifications (e.g., service initiation and service and product information). Client will hold DNA, its officers, directors, employees and agents harmless from any liability arising from DNA’s communication with Client via e-mail or the Internet.
Equipment: DNA-provided customer premises equipment (“CPE”) will at all times remain the property of DNA. In the event that Client fails to return any CPE to DNA (or, at DNA’s option, to permit recovery of CPE by DNA) in good working order, reasonable wear and tear excepted, within 30 days after the termination or expiration of this Agreement, Client shall be responsible for the full replacement cost and shall pay to DNA all recovery charges and any other charges set forth in the Tariffs. DNA makes no representations or warranties of any kind with respect to CPE. Warranties are specifically disclaimed in the Tariffs.
General Terms: This Agreement together with the Tariffs, AUP, Multiple Location Form(s) and Additional Pricing Form(s) (if applicable) and Letter of Agency constitute the entire agreement between the Parties with respect to the Services. There are no other written or oral understandings, promises or agreements related hereto. No agreement will be accepted by DNA that is modified in any way by the client or any authorized representative of Client, including handwritten modifications and strikeouts. Amendments and waivers to this Agreement will be valid only if in writing and executed by an authorized representative of Client and a DNA authorized representative. If any provision of this Agreement is found to be unenforceable, the remainder of the Agreement will continue in full force and effect.
Severability: If any provision of this Agreement shall be held to be invalid or unenforceable by reason of the operation of any applicable law, or by reason of the interpretation placed hereon by any court or other governmental body, (i) this Agreement shall be construed as not containing such provision and a substitute provision shall be inserted therefor by such court or other governmental body which effectuates to the maximum extent permitted by law the intent of this Agreement, and (ii) any and all other provisions hereof which otherwise are lawful and valid shall remain in full force and effect.
Entire Agreement: This Agreement, together with the Tariffs, contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties (whether written or oral) with respect to the subject matter hereof.
Amendment: This Agreement may be amended, modified or superseded, and any of the terms, covenants or conditions hereof may be waived, only by written instrument executed by all of the parties hereto.
Additional Terms and Conditions for Data Services
E-mail: If Client has not ordered e-mail Services with the initial order for Services, Client may do so at any time, but e-mail Services may be delayed by at least two weeks after an access line is installed.
Inside Wire: If Client has selected DNA to install inside wire, DNA will do so at prevailing rates.
IP Addresses: IP Addresses are not portable and are not assigned for independent administration or distribution. IP assignments cannot be guaranteed and may be modified by DNA or the American Registry for Internet Numbers (ARIN).
NOTICE OF CLIENT’S RIGHTS CONCERNING CUSTOMER PROPRIETARY NETWORK INFORMATION (“CPNI”): CPNI includes the Client’s Service selections, feature selections, demographic information, and usage data for the Services. CPNI does not include Client’s name and address. DNA has an obligation under federal law to protect the confidentiality of Client’s CPNI. By signing this Agreement, Client authorizes DNA to record, maintain, modify, use, and exchange Client’s CPNI (i) to install and manage the Services, (ii) to enhance the benefits of Client’s existing Services, and (iii) to enhance DNA’s ability to offer products and services tailored to Client’s needs, by determining whether additional local, long-distance, data, CPE, Internet, wireless, or other services would be of benefit to Client. Client may deny DNA’s use of CPNI at any time by written notification to Client Services, DNA Communications Inc., PO BOX 302, Sycamore, IL 60178. Client’s approval or denial will be effective until revoked. Denial will not affect the provision, management, or quality of Services that Client receives from DNA. Client is under no obligation regarding new Services unless Client explicitly agrees to accept them. Client shall indemnify and hold harmless DNA from any and all liability resulting from DNA’s authorized use of Client’s CPNI.[/cs_content_seo]
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