Last modified: June 9, 2020
If you are an individual procuring the Services on behalf of an organization or company (“organization”), you represent and warrant that you have all necessary authority to bind your organization to the terms and conditions of this Agreement, otherwise you are required to refrain from using the Services on behalf of your organization. Further, you warrant that all of your organization’s personnel and anyone using the Services by means of credentials generated through your Account (as defined herein) will abide by the terms set forth in this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ESTABLISHING AN ACCOUNT OR USING THE SERVICES.
THIS AGREEMENT INCLUDES AN AGREEMENT TO ARBITRATION WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES OR YOUR ACCOUNT TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU DO NOT WISH TO BE BOUND BY ANY OF THE FOREGOING, YOU MUST REFRAIN FROM USING THE SERVICES OR YOUR ACCOUNT. THE ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
TLDR:By using Red Bison’s Services, you accept the following terms and conditions. Please take the time to review them carefully. If you do not agree with some or all of these terms, please do not use our Services.
In order to use the Services, you must subscribe to a Red Bison Service Plan (“Service Plan”) and keep your Red Bison Account (your “Account”) in good standing. An Account is in good standing when all charges for the Services that are due have been paid in full and your designated payment methods for the Services are valid. The Service Plan is only available to persons or organizations who are tenants of buildings in which Red Bison provides the Services, and their personnel who receive credentials to sign-in to the Red Bison Wi-Fi network through the Captive Portal.
The Service Plan provides for only Wi-Fi service to you and any personnel receiving credentials through your Account. Some additional services may be available for a specific fee or there may be additional charges.
TLDR:Please keep your Account in good standing. Only you and authorized users under your Account are allowed to use our Services.
Pricing is based on a pay-per-user model. Information about Red Bison fees and rates can be found on the Red Bison website. You may buy more users or decrease the number of users in your Service Plan. We do not refund the difference for the month in which you decrease the number of users in your Service Plan.
The Services will be billed by Red Bison on a monthly basis at the beginning of each calendar month for the Services purchased for the previous month. Payment for the monthly recurring fee is due within the first 10 days of the month. We will bill one-time charges in the next monthly payment or in a later billing cycle following your authorization of such charges. Taxes and surcharges will vary depending on the Services and your location. You agree to pay all applicable taxes, surcharges, and other fees. Examples of surcharges include, but are not limited to, Federal and State Universal Service fees, and regulatory and administrative fees.
For each month, all fees and charges should be paid by the payment due date. By storing the account and credit card information with our secure Payment Gateway Provider, you authorize Red Bison to charge your default credit card or debit your checking or savings account through automated clearing house (ACH). By opting in for auto-pay recurring payments, you authorize Red Bison to charge all recurring fees from your specified credit card or from the checking or savings account you specify through ACH debit entry. You agree to be bound by any rules your financial institution applies for pre-authorized credit card and ACH transactions. You are responsible for all fees charged by your financial institution for these transactions.
The charges will appear on the bill as Red Bison. If Red Bison does not receive the full payment by the payment due date and is unable to withdraw the funds from your credit card or ACH account, you will be subject to late fees and any fees and charges from your financial institution.
Red Bison reserves the right to temporarily or permanently suspend the Services if a customer does not pay his/her/its bill. Red Bison will not re-establish the Services until it receives all due payments and charges. If you believe you were incorrectly charged by us, you must dispute those charges in an email to us within ninety (90) days of the date we charge your account. You accept all charges not properly disputed within the above time period.
Red Bison is not liable for any losses you may incur because of a payment made on incorrectly billed items, incorrect statement or invoice, or for any delay in charging your card or checking or saving account.
TLDR:Pricing for our Services depends on the number of users on your Account. You will be billed monthly and pay at the beginning of each calendar month for the Services purchased for the previous month. If you have a balance due on your Account, you may be subject to additional charges or your Account may be suspended. If you opt into auto-pay or save your billing information, that information may be used to process your payments.
You may terminate the Services for Wi-Fi only at any time after thirty (30) days of receiving the Services. To terminate the Services, you or your Account administrator must inform Red Bison 30 days before termination of the Wi-Fi service.
Red Bison will not prorate or refund any portion of the fees paid for Services in the event you terminate the Services during a month in which the Services have already been invoiced or paid.
Further, you agree to pay the balance of any outstanding charges including any additional invoices after cancellation for charges you incurred while your account was active.
Red Bison reserves the right to suspend or terminate your Account and the Services in the event of non-payment or late-payment and you agree that Red Bison may terminate your Account at any time after emailing you a notice.
Red Bison reserves the right to suspend or terminate your Account and the Services in the case of suspected fraud, un-ethical behavior or non-compliance with this Agreement.
Red Bison may terminate this Agreement and the Services for any reason with thirty (30) days’ notice to you for any reason. Such notice of termination from Red Bison (a “Red Bison Termination Notice”) may be delivered to you by any means deemed appropriate by Red Bison, including by email to the email address associated with your account.
TLDR: You can cancel our Wi-Fi Services at any time after the first month and fees are not refundable. We may also stop providing you the Services with a thirty days’ notice.
You acknowledge that all the intellectual property rights in the Services and the underlying technology, are owned by Red Bison or its licensors. All rights not expressly licensed are reserved. You agree not to reproduce, reverse engineer, modify, or create derivative works based on the Services. Except as expressly permitted under this Agreement, you agree not to rent, lease, loan, or sell access to the Services or provide the Services to any third party.
TLDR: We own all intellectual property rights in the Services.
Acceptable Use Policy. You hereby agree to agree to comply with Red Bison’s Acceptable Use Policy (“Acceptable Use Policy”), as described below. You agree not to use the Services and not to allow third parties to use the Services to:
Breach. Red Bison reserves the right (but has no obligation) to investigate and take appropriate action in its sole discretion against you if you violate Red Bison’s Acceptable Use Policy or any other provision of this Agreement. Such action may include, without limitation, refusing to provide access to and use of the Services to you, terminating your Account, reporting you to law enforcement authorities, and taking legal actions against you.
TLDR: Please use best practices when using our Services. Otherwise, we may terminate your Account and take other appropriate actions, including exercising our rights and taking legal actions.
You are advised to always use best practices to protect your privacy and security.
TLDR: We use our best practices to protect your information and we ask you to do the same.
Red Bison aims to provide reliable, quality services to our users according to industry standards and aims to protect our users, network and Services from harm. Given the limited bandwidth available at any time, Red Bison manages its network to ensure the best performance for the most users. For example, because of bandwidth limitations, the use of certain services or products available on the Internet may be prioritized. Further, Red Bison may manage an individual application that uses excessive data for short intervals of time to improve the user experience. A particular application exceeding a certain data transfer rate per hour may have its rate limited. Streams that are likely to trigger rate management include streaming video, cloud uploads, file syncing, and large email downloads. Streams that are unlikely to trigger rate management include internet browsing and standard email access.
Additionally, Red Bison may analyze network traffic to detect and prevent spam, malware, viruses and phishing distribution. We may suspend Services in case of activities which are unlawful, fraudulent or which do not adhere with our Acceptable Use Policy. Our suppliers may also apply their own network management policies to protect their services. You may only access the Services with devices that do not harm the Services or our network and comply with Federal Communications Commission regulations. If we suspect malware on your private network, we will notify you of the potential security threat. We may also suspend your device from using some or all of the Services. If you believe suspension of your services was done in error, we will work with you to restore Services.
The performance of our network is affected by your device and hardware. You and each user covered by your Account can connect a maximum of three (3) devices simultaneously to the Red Bison Wi-Fi network. Modifying or customizing your operating system could impact the performance or availability of the Services.
We do not allow stolen devices to use the Services and reserve the right to deny Service for stolen devices. We may ask you to install software on your device to provision our Services. There may be automatic software updates as we support new features.
We provide security to our network. However, Red Bison cannot and does not guarantee the complete privacy of your communications. You are responsible for ensuring that your data is not accessed by unauthorized third-parties by safeguarding your devices when running third-party applications and services. Red Bison is not responsible for any information on your device, including sensitive or personal information nor is it responsible for any third-party applications.
TLDR: We use our best effort to provide you reliable and quality services, but that can depend on various factors.
Red Bison will take reasonable care in providing the Services; subject to this we make the following disclaimers:
The Services are provided on an “as-is” and “as available” basis. Red Bison, its licensors, providers, partners, and affiliates expressly disclaim any warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Red Bison (and each of its service providers) makes no warranty that: (a) the Services will meet your requirements; (b) the Services will be available on an uninterrupted, timely, secure, or error-free and malicious code-free basis; (c) the Services will allow access to all third-party sites; (d) the Services will be any particular speed or allow any particular application or service; or (e) the results that may be obtained from the use of the Services will be accurate or reliable. Except for certain services and products specifically identified as being offered by Red Bison, Red Bison does not control any materials, information, products, or services on the Internet, some of which may be offensive to you. You assume full responsibility for assessing and evaluating the completeness, accuracy, and usefulness of all such materials, information, products, or services, and their merchantability and quality. You expressly acknowledge that there are certain security, confidentiality, and privacy risks inherent in wireless communications and technology and use of internet access generally and in particular internet access which you do not control, and Red Bison does not make any assurances or warranties relating to such risks. You acknowledge that Red Bison is not responsible for messages or pages lost or misdirected due to interruptions or fluctuations in the Services or the Internet in general.
You acknowledge that third parties that provide the third-party services may, at any time, change the means by which the third-party services are accessed, and consequently, your ability to use the Services to facilitate your access to any third-party services may be temporarily or permanently disabled. You agree that Red Bison shall have no responsibility or liability to you whatsoever in relation to the third-party services or continuing access to the third-party services, and that Red Bison makes no representations or warranties with respect to third-party services.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
TLDR: The Services are provided on an “as-is” and “as available” basis. To the extent that you use third-party services through Red Bison, Red Bison does not bear any responsibilities or make representations with respect to the third-party services.
In no event shall Red Bison be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special, or punitive damages arising from your use of the Services, even if Red Bison has been advised of the possibility of such damages.
Notwithstanding anything to the contrary contained herein, Red Bison’s liability (including, but not limited to its partners and affiliates) to you for any damages arising from or related to your use of the Services (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of Two Hundred and Fifty Dollars (US $250) and the amounts you paid to Red Bison in the six (6) months prior to the accrual of the claim, if any.
To the extent that any applicable law does not permit the exclusion or limitation of your rights or remedies or any liability of Red Bison to you, nothing in this Agreement will take effect such as to exclude or limit any such rights, remedy or liability.
TLDR: You use our Services at your own risk.
It is Red Bison’s goal to ensure that the Services meet your expectations. However, there may be instances when you have a problem or dispute that needs special attention. In those instances, Red Bison is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Red Bison, you acknowledge and agree that you will first give Red Bison an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute using the following email address: [email protected] or mailing address: 10200 NE 10th Street, Bellevue, WA 98004.
You then agree to negotiate with Red Bison in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within ninety (90) days after Red Bison’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
You agree that the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the Services or this Agreement, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate Red Bison’s or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by Red Bison and/or the applicable third-party(ies). You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite any other choice of law provision).
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”). For claims of less than $75,000 USD, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000 USD, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org. Upon your filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000 USD. For claims that total more than $75,000 USD, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. You and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 USD as to which you provided notice and negotiated in good faith with Red Bison as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, Red Bison agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if your claims qualify for hearing by such court.
To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OR CUSTOMER OF RED BISON OR ANY OTHER PARTY WITH A CLAIM AGAINST RED BISON FROM OR RELATING TO THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND RED BISON BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.
In no event shall any claim, action or proceeding by you related in any way to the Services or this Agreement, be instituted more than one (1) year after the cause of action arose.
TLDR: Red Bison would like to amicably resolve any disputes that may arise. In the event that we are unable to do so, the sole and exclusive forum and remedy will be binding arbitration.
You agree to defend, hold harmless, and indemnify Red Bison, its parent, subsidiaries, affiliates, directors, officers, employees, agents, licensees, and other partners and employees, from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third-party due to or arising out of your use of the Services in violation of this Agreement and/or arising from your breach of any provision of this Agreement.
TLDR: We take measures to protect ourselves in the event any action arises from no fault of Red Bison.
Customer Care. Red Bison provides live customer service twenty-four (24) hours per day, seven (7) days per week. If a customer service representative is unable to address your concerns during your first call with Red Bison, a Red Bison representative with expertise with your particular concern will follow up by phone or email.
Survival. The provisions under the following Sections and any agreements, documents, or policies referenced therein will survive termination of this Agreement for any reason: Fees and Charges; Proprietary Rights; Acceptable Use and Conduct; Privacy and Security; Disclaimers; Limitation on Liability; Dispute Resolution/Arbitration; Indemnity; General.
Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
Jurisdictional Issues/Governing Law and Venue. The Agreement and the Services are provided within the United States of America. Red Bison makes no representation that this Agreement complies with the laws of any other country. Those who access the Services from locations outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. This Agreement shall be governed by the laws of the United States and the State of Washington, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The parties agree that any claim or dispute one party has against the other party arising under or relating to this Agreement (including claims in contract, tort, strict liability, statutory liability, or other claims) that is not resolved under the Dispute Resolution / Arbitration section of this Agreement must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Seattle, Washington, and no other court. Each party agrees to submit to the personal jurisdiction of such courts and to accept service of process from them. Some jurisdictions do not allow some of the provisions contained in this Agreement, in which case one or more of such provisions may not apply to you.
TLDR: We are based out of Washington, so this Agreement is governed by the laws of the State of Washington.
Assignment. All or any of Red Bison’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Services in a merger, acquisition, or sale of a portion, all or substantially all of Red Bison’s assets. You may not assign or transfer this Agreement or any or all of your rights hereunder, without the prior written consent of Red Bison, and any attempt to do so is void.
TLDR: Red Bison may assign this agreement.
TLDR: This Agreement constitutes the entire agreement between the parties and no waiver is made unless it is explicitly made.
Force Majeure. Neither you nor Red Bison shall be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; and (g) national or regional emergency. The party suffering a Force Majeure Event will give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
TLDR: Neither party is in breach of this Agreement for events that occur due to circumstances beyond our control.
Disclosures. Under California Civil Code Section 1789.3, users who are residents of California are entitled to the following specific consumer rights information: the Complaint Assistance Unit of the Division of Consumer Service of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA, 95814, or by telephone at 916.445.1254. Parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting access to material that is harmful to minors are commercially available – see http://www.google.com/goodtoknow/familysafety/.
TLDR: If you are a resident of California, California’s consumer rights may apply to you.
Changes to the Services or this Agreement. We reserve the right to change the Service and/or this Agreement at any time. Red Bison may notify you of any such changes by posting notice of such changes on Red Bison’s website at https://redbison.us and/or using one of the methods listed in “Notices” below. By continuing to use the Services following notice of such changes, you agree to and accept those changes.
TLDR: Please ensure that you agree with our terms when you use our Services.
Notices. Red Bison may give legal notice to you by means of a general notice on the Service, electronic mail to your email address on our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All legal notices given by you shall be mailed to:
Red Bison Technology Group, LLC
10200 NE 10th Street
Bellevue WA 98004
VOIP E911 Disclosure and Notice. If you chose any Additional Services that include VOIP service, the following notice applies to you.
Last modified: June 9, 2020
The following constitutes Red Bison Technology Group (RBTG) Service Level Agreement and standards for Contracted Carrier (Operator) provisioning of the Services to Tenants.
Service Level Agreement at the Property. Service Level Agreement Ratio (“SLAR”) is calculated by dividing the average number of seconds that the Services are available at the Property by the total number of seconds in each calendar quarter. The following outlines the SLA objectives by service type provided at Property:
Internet Services, if provided, will be available at the Property 99.999% of the time each calendar quarter.
Wi-Fi Services, if provided, will be available at the Property 99.5% of the time each calendar quarter
Video Services, if provided will be available at the Property 97.0% of the time each calendar quarter.
SLAR Exclusions. Specifically excluded from the SLAR calculation are (a) regularly scheduled maintenance windows or ad hoc maintenance windows scheduled and announced by RBTG or the Operator at least 24 hours in advance, not to exceed 10 hours per month without Owner’s / tenant’s prior approval, not to be unreasonably withheld or delayed, and (b) outages caused by Force Majeure that are identified pursuant to Operator’s Services Agreement. All maintenance work must be performed during off-peak hours. Off-peak hours will be determined and documented by the Operator based upon Tenants’ usage, i.e., when it is determined that the least number of Tenants will be affected with respect to both Internet, Video and Wi-Fi access.
Service Reports Cured Timely. The term “Service Report” means any service-related report made by Owner or a Tenant relating to the Services, Distribution System, or circuit, but excludes operator error and problems with tenant-owned equipment. The term Minor Service Problem means a service problem (other than an outage or building outage) that is causing a degradation in performance, but the service is still operational. An Outage means a loss of Services that affects one or more tenants at the Property, but not the entire Property. A Major Outage is defined as the loss of Services at the Main Distribution Frame for the entire Property.
The percentage of Service Reports resolved in a timely fashion is related to the number of Service Reports resolved within the following windows:
Service Reports involving a Minor Service Problem received by the Operator will be responded to by the next business day. The Operator will resolve any Minor Service Problem within 48 hours after responding to the Service Report except for conditions beyond the reasonable control of the Operator.
The Operator must respond to Service Reports involving a Major Outage within 2 hours of receiving a Service Report and any Outage within 4 hours of receiving a Service Report, regardless of the day of week or Holiday. The Operator will cure an Outage or Major Outage within 24 hours after responding to any Service Report of an Outage or Major Outage except for conditions beyond the reasonable control of the Operator, including, but not limited to, force majeure events and facilities-based issues, such as power failures or network equipment damage caused by a third party.
Operator shall not exceed a 10% non-compliance ratio (“NCR”) of Service Reports in any given month that are not completed in compliance with the SLAs as defined above in this Exhibit. The NCR is calculated by summing the total square feet involved in a unique Serve Reports through the calendar month divided by the total RSF in Property.
By way of example, if there were four Service Reports during a given month that were not resolved in compliance with SLA, the NCR is calculated by taking the sum of the square feet impacted by the four out-of-compliance Service Reports and dividing them by the total RSF in the property. If the four out-of-compliance suites were of the following size: 1) 2,500 sq. ft, 2) 5,000 sq. ft., 3) 10,000 sq. ft., and 4) 7,500 sq. ft., the total out-of- compliance square footage is 25,000 sq. ft. Therefore, the NCR is calculated as 25,000 sq. ft. divided by 325,000 rentable sq. ft., which equals 7.7%. Under this scenario, RBTG / Operator would be in compliance for that month. If there were two out-of-compliance Service Reports in the following month on a total of 40,000 sq. ft. the NCR will be 40,000 divided by 325,000, which equals 12.3%. Under this scenario, RBTG / Operator would not be in compliance for that month.
The response time requirements in this section (i) will not apply when the Service outage is caused by Force Majeure; and (ii) will be tolled to the extent the applicable Tenant requests an appointment outside the cure period or Operator cannot or is denied access to the Property or Suite by Owner or Tenant.
Reports. RBTG or Operator shall utilize measurement and monitoring tools and procedures reasonably required to measure and report on compliance with the applicable performance standards. Such measurement and monitoring tools shall permit reporting at a level of detail sufficient to verify compliance with the performance standards
Service Interruptions. Distribution System shall be designed, served and operated in a fashion reasonably intended to provide continuous availability of Services (excluding scheduled maintenance outages and outages caused by Force Majeure Conditions). RBTG or Operator shall restore the Services after receiving notification of the disruption from Owner or Tenant, without any adjustment to Service Fees. If the Service is not restored within 24 hours, the RBTG sole obligation and Owner’s / Tenant sole remedy will be a credit for Service Fee for the period of the disruption, prorated on the basis of a 30-day month. RBTG / Operator will provide Owner with a credit against the next monthly billing equal to the proportional amount of Owner’s monthly Services Fee for the affected time and service(s) only.
If an outage exceeding the specified duration results from physical damage to Distribution System or the trunk or distribution lines feeding the Distribution System, which damage is caused by a third party (e.g., a city, county or utility crew severs), RBTG / Operator will not be required to provide a credit to Owner for such service interruption.
The outages will be measured from the time that RBTG / Operator is made aware (whether via reports from multiple Tenants of the same interruption, or from notice if by the Owner / Tenant or its representative) that there is a materially complete interruption of service attributable to Distribution System or signal.
Waivers of Service Level Objectives. RBTG or Operator may seek a waiver of the Service Level Objectives, as follows:
RBTG / Operator may seek a waiver of the Service Level Objectives due to anomalies related to the small number of tenants. To request a waiver, RBTG / Operator shall file adjusted data and unadjusted data along with its waiver request related to the incident.
RBTG / Operator may seek a waiver of the Service Level Objectives due to force majeure. To request a waiver, RBTG / Operator shall file adjusted data and unadjusted data along with its waiver request. In order to secure Owner / Tenant approval, the waiver request should clearly demonstrate that (1) the force majeure event was sufficiently serious and unusual to warrant adjustment of the monthly service quality statistics, including a detailed description of the adverse consequences of the event on Distribution System, (2) to the extent reasonably foreseeable, RBTG / Operator prudently planned and prepared in advance for such emergencies; (3) despite these plans and preparations, and the best efforts of RBTG / Operator’s personnel before, during, and after the event, failures to satisfy the service objectives could not reasonably have been avoided; and (4) the extent and nature of the adjustments requested are appropriate for the circumstances. The Owner / Tenant shall grant waiver requests if all four criteria have been met.
Failure to Meet Service Level Objectives. If RBTG / Operator fails to meet any of the Service Level Objectives in any given month or quarter as applicable, it shall submit a plan to Owner within ten (10) business days detailing the steps it plans to take to bring the results into compliance with the Service Level Objectives. The first thirty-day period following the period during which the failure occurred shall be considered a grace period during which RBTG / Operator will implement its corrective plan and cure its non-compliance with the Service Level Objectives.
RBTG / Operator’s failure to meet any of the Service Level Objectives in any given defined period shall not be deemed a default under the Parties’ Agreement as long as such failure is cured within the time period provided in this paragraph.
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