PLEASE READ THIS AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE AGREEING TO JOIN THE PARTNER PROGRAM OFFERED BY COMMON NETWORKS, INC. (“COMMON NETWORKS”). BY CLICKING THE “ACCEPT” BUTTON TO COMPLETE REGISTRATION, (I) YOU OR THE ENTITY YOU REPRESENT (“PARTNER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND PARTNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Use. In consideration for Common Networks providing Partner with Referral Fees and Internet Service (as set forth below), Common Networks may use an area or areas of the roof (“ Roof”) of the building(s) located at the address(es) provided in the application (“ Building(s)”) for the purpose of installing, operating, and removing certain communication equipment to provide internet/data service to its customers in the Building(s), together with the right to use electricity from the Building(s) on a twenty-four (24) hours a day, seven (7) days a week basis to power the communication equipment, and install necessary additional equipment and cabling to provide power to the communication equipment (collectively the “ Equipment”). Specifically, Partner will allow Common Networks to (a) install one (1) mount for the Equipment on the Roof of each Building, provided such mount shall not exceed five (5) square feet per Building; and (b) place one (1) box of Equipment in an indoor common space in each Building, located near a power outlet. Prior to installing the Equipment, Common Networks shall identify a location or locations on the Roof for its Equipment, which shall be approved by Partner in its reasonable discretion. By accepting the terms of this Agreement, the Partner agrees to:
Free Internet Service. Common Networks agrees to provide Partner with Common Networks’ standard internet services (the “ Internet Service”) without charge, subject to all the terms and conditions of Common Networks’ then-current Terms of Service, as may be amended from time to time (the current Terms of Service is available at: https://www.common.net/legal#termsofservice) only in the event that the Partner has an administrative office in the building. Partner agrees to only use the Internet Service itself in its administrative offices, located in the building, and Partner will not make the Internet Service available to the tenants of the Building(s) or to any third party.
Installation Fee; Referral Fees.
Provided that Partner does not already have Common Networks equipment installed on its Building(s) as of the date of this Agreement, upon the date Common Networks completes the installation of its Equipment on the Roof of the Building(s) the “ Installation Date”, Common Networks shall pay Partner a one-time installation fee of two hundred dollars ($200).
During the term and subject to the terms and conditions of this Agreement, Common Networks will pay Partner a one-time Referral Fee for each Qualified Tenant (as each term is defined below). “ Qualified Tenant” means a tenant residing at Partner’s Building(s) who first signs up for a paid subscription to Common Networks’ Internet Service after the Installation Date and completes the installation of required equipment in such tenant’s unit. The “ Referral Fee” means a one-time payment equal to (i) fifty dollars ($50) for each of the first ten (10) Qualified Tenants in Partner’s Building(s), and (ii) seventy dollars ($70) for each additional Qualified Tenant. Notwithstanding anything to the contrary, Common Networks shall not be obligated to pay a Referral Fee for a Qualified Tenant if Common Networks already paid a Referral Fee for a different Qualified Tenant residing in the same unit within the previous three (3) months. At the end of each month, Common Networks will determine the number of Qualified Tenants who signed up for the Internet Service in the previous month and will pay Partner the applicable Referral Fees.
Marketing Activities. Partner agrees to cooperate with Common Networks and perform the following marketing activities:
Common Networks will be referenced as Partner’s “ Preferred Provider”, the Partner’s primary choice for provider of internet services in communications to tenants and prospective tenants of the Building(s);
Common Networks’ marketing material will be included in any new tenant move-in package or communication (print or email);
Common Networks’ door hangers and/or flyers will be distributed to all tenants in Building(s); and
Common Networks’ sign-up events to be held in the building in coordination with the Partner.
Non-Exclusivity. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the parties to this Agreement. This Agreement shall not restrict either party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so; and provided that Partner does not refer to any other internet service provider as its “Preferred Provider” of internet services or any similar designation.
Term. The term of this Agreement commences on Installation Date and shall continue for a period of one (1) year (the Initial Term”) and shall automatically renew for successive one (1) year terms (each, a “ Renewal Term”) unless and until either party terminates this Agreement pursuant to this Section 6.
Common Networks may terminate this Agreement at any time for any reason by providing thirty (30) days’ prior written notice to the Partner.
Partner may elect not to renew this Agreement by providing Common Networks with written notice at least ninety (90) days before the end of the Initial Term or then-current Renewal Term.
Effect of Termination. Upon termination of this Agreement, Partner will no longer have the right to receive Referral Fees for tenants of its Building(s) or free access the Internet Service. If Partner continues to use Internet Service after the termination of this Agreement, Partner will be subject to Common Networks’ then-current standard pricing for such Internet Service. Common Networks shall, within ninety (90) days after any termination of this Agreement, remove its Equipment, conduits, fixtures and all personal property and restore the Roof to its original condition, reasonable wear and tear and casualty damage excepted.
Building Access. Common Networks will have access to the Roof and common areas in the Building(s) in which the Equipment is located between 8AM-6PM every day; provided that, except in the case of an emergency or power failure, Common Networks will provide Partner with twenty-four (24) hours’ prior notice before accessing the Building(s).
Equipment. All of Common Network’s installation work shall be performed at Common Networks’ sole cost and expense and in a good and workmanlike manner. Title to the Equipment and any other equipment placed in, on, or about the Building(s) by Common Networks shall be held by Common Networks and Partner shall have no ownership of the Equipment. The Equipment shall not be considered fixtures (whether or not said items are considered fixtures and attachments to real property under applicable laws) and may be removed by Common Networks at any time. Partner shall not relocate, disconnect, modify, or disturb the Equipment in any way. If Partner reasonably requires the temporary removal and/or disconnection of the Equipment to perform maintenance and repairs to the Building(s), Partner shall notify Common Networks in writing and Common Networks shall temporarily remove and/or disconnect the Equipment until such maintenance and repairs to the Building(s) are completed by Partner.
Electricity. Partner acknowledges that the amount of electricity used by the Equipment will be minimal; however, if electricity usage at the Partner’s Building(s) materially increases more than 5% and Partner reasonably believes the increase is solely the result of the Equipment, Partner should notify Common Networks and cooperate with Common Networks to determine the cause of the increase. If Common Networks reasonably concludes that such increase is the result of the Equipment, Common Networks shall reimburse Partner for the increased costs of electricity provided to the Equipment.
Maintenance and Repair. Common Networks shall maintain the Equipment such that the Equipment operates in compliance with applicable laws and is not a hazard, safety or otherwise, to the Building(s), Partner, or any tenants or occupants of the Building(s). Common Networks shall remove all trash and debris and repair any damage to the Building(s) or Roof caused by Common Networks’ installation, operation, or removal of the Equipment (subject to Section 13 below).
Indemnity. Common Networks shall indemnify and hold Partner harmless from any third party claims, losses, costs, or liabilities (including reasonable attorneys’ fees) as a result of Common Networks’ installation, operation, and removal of the Equipment, except to the extent caused by the negligence or willful misconduct of Partner. Partner shall indemnify and hold Common Networks harmless from any third party claims, losses, costs, or liability (including reasonable attorneys’ fees) as a result of Partner’s negligence or willful misconduct. The foregoing indemnities shall survive the expiration or earlier termination of this Agreement. The indemnification obligations of each party are conditioned upon the indemnified party giving the indemnifying party (a) prompt notice of the potentially indemnifiable claim, (b) the option to assume sole control of the defense and settlement thereof, and (c) reasonable assistance with such defense and settlement (at the indemnifying party’s expense).
Interference. Partner acknowledges that both physical and radio frequency interference will cause disruption in the internet/data services provided to its tenants and occupants by Common Networks. Partner agrees not to permit any equipment or facilities to be placed on the Roof which would cause such interference with the Equipment. In the event of such interference by any equipment or facilities on the Roof, Common Networks shall notify Partner and the parties shall reasonably cooperate to resolve the interference including, without limitation, locating a suitable alternative location on the Roof for the Equipment; provided however, if the parties are not able to resolve the interference within ten (10) business days following such notice from Common Networks, Partner shall cause such interfering equipment or facilities to be removed from the Roof. Common Networks shall not cause any interference with any equipment or facilities existing on the Roof as of the date of this Agreement.
Insurance. Common Networks shall maintain the following insurance: (a) Commercial General Liability with limits of $1,000,000.00 per occurrence, covering Common Networks installation, operation and removal of the Equipment; (b) Workers Compensation as required by law; and (c) Employer’s Liability with limits of $1,000,000.00 per occurrence. Each party waives any rights of recovery against the other for damages or loss due to hazards covered by their property insurance and each party shall require its Special Form insurance policies to contain a waiver of recovery against the other.
Disclaimer. COMMON NETWORKS MAKES NO WARRANTIES TO PARTNER, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.
Liability Limitation. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY’S LIABILITY SHALL EXCEED THE FEES PAYABLE BY COMMON NETWORKS TO PARTNER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
Notices shall be in writing and shall be delivered to Common Networks at: email@example.com and to Partner at email provided in this application. or to the address specified in the most recent written notice of any change in address. Delivery of notices shall be made by hand, U.S. mail return receipt requested, reliable overnight courier, or by email.
If any provision of the Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part; provided, however, that this Agreement may be assigned by Partner or Common Networks without the consent of the other to any successor corporation or entity whether by purchase of all or substantially all of the assets relating to this Agreement, a sale of a controlling interest of the capital stock of the assigning party, by merger, consolidation or otherwise.
This Agreement shall be governed under California law, and be binding on and inure to the benefit of the successors and permitted assignees of the respective parties.
This Agreement constitutes the entire Agreement between the parties, and supersedes all understandings, offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments, modifications or waivers of any of the terms and conditions of this Agreement must be in writing and executed by both parties.
If the Partner is an individual, the Partner must be 18 years or older.
If you sign up as a Partner on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.