WebGuy Communications

Business Internet Services
Service Agreement

The WebGuy Communications Business Services Master Agreement (this “Agreement”) is made and entered into by and between the MummaGraphics, Inc. (dba WebGuy Communications), located at 11804 Silvermoon Drive, Oklahoma City, OK 73162-1092, and the individual, partnership or company (hereinafter, Customer). WebGuy Communications and Customer may hereinafter be referred to individually as a Party or collectively as the “Parties.” These terms and conditions (“Terms”) govern the provision by WebGuy Communications Inc. or WebGuy Communications MNS, Inc. (“WebGuy Communications”) and the use by the customer (“Customer”) of the WebGuy Communications Business Services family of Internet-related and managed services, including but not limited to, web hosting, managed equipment services, managed network services, managed security services, and Network VPN, including any WebGuy Communications-provided equipment or software (referred to separately herein as “Equipment” and “Software,” respectively) located on Customer’s premises or at Customer’s location(s) for use in connection with such services and including any network consulting, design, monitoring, management, maintenance, or other services that may be provided in connection with Customer-supplied networks or equipment as part of the WebGuy Communications Business Services (collectively referred to herein as the “Services”). References in these Terms to “Customer” include individuals authorized by Customer to use the Services, except where the context clearly requires otherwise. By ordering and using the Services or any portion thereof, Customer agrees as follows:

  1. The Services. WebGuy Communications will operate the Services in accordance with its standard policies and procedures and applicable Service Descriptions, incorporated herein by reference, and as described in further detail in the ordering document(s) (“Orders”) submitted by Customer and accepted by WebGuy Communications. WebGuy Communications shall have the right to access Customer's Services for the purpose of performing such repairs or reconfiguration or confirming Customer's compliance with its obligations with respect to the Services.

  2. Term.Customer’s agreement for the use of the Services will be in effect from the date Customer’s Order is accepted by WebGuy Communications and, unless terminated earlier as set forth herein, shall continue thereafter for the minimum term, if any, set forth in such Order. The term of each subsequent Order shall be co-terminous with the initial Order, unless otherwise provided for in such subsequent Order.

  3. Rates and Charges.The rates and charges payable by Customer for the Services shall be as set forth in the Customer’s Order(s) that have been accepted by WebGuy Communications. If Customer has elected a minimum term for the Services in its Order then the rates for the Services in effect at the time of the Order shall remain in effect for the duration of such minimum term (unless otherwise provided in such Order). If no minimum term is specified in such Order, or if the Services continue beyond such minimum term without execution by both Parties of an extension to such Order, the Services will be provided on a month-to-month basis at the then prevailing month-to-month rates for the Services until either Party gives the other at least thirty (30) days written notice of termination of the Services. Customer will be invoiced monthly for usage of the Services. WebGuy Communications must receive payment by the date stated on the invoice. Customer will pay or reimburse WebGuy Communications for any and all sales and use taxes, duties, or levies imposed by any authority, government, or government agency (other than taxes levied on WebGuy Communications's net income) in connection with Customer's usage of the Services. If any payment due hereunder is not made within the date stated on the invoice, any late payment/interest charges will be computed at one and one-half percent (1 1/2%) per month, or the highest amount permitted by applicable law, whichever is less, shall be due and payable with respect to such payment.

    IRS W9 forms are not needed from WebGuy Communications, however, if you absolutely are convinced that you must have one prior to paying for your services, please download the form here.

  4. Equipment.If provision of the Services requires the placement by WebGuy Communications of Equipment at Customer’s location, Customer shall provide (or make arrangements to provide) adequate space and a reasonable installation and operating environment for such Equipment, including electrical power, at no charge to WebGuy Communications. Customer shall provide access to such Equipment by WebGuy Communications and its representatives for the purpose of repairing, replacing, maintaining or otherwise using or servicing the Equipment and for removing the Equipment upon termination of the Services. All such Equipment shall remain the property of WebGuy Communications or its suppliers, and no right, title, or interest in the Equipment shall pass to Customer. Customer agrees that the Equipment is and shall remain personal property even though it may become attached to realty. Customer shall not sell, assign, sublet, or otherwise encumber or allow a lien or claim upon or against the Equipment by any action of Customer or any party claiming by, through, or under Customer. Customer shall not move the Equipment from its place of installation or make, or permit any other party to make, any repairs or alterations to any Equipment without WebGuy Communications’ prior written consent. Customer shall be responsible for the cost of repairing or replacing any Equipment lost, stolen or damaged while at Customer’s premises and for returning (i.e., permitting WebGuy Communications to recover possession of) all Equipment in the same condition as when installed at Customer’s premises (reasonable wear and tear excepted) upon termination of the Services for any reason.

  5. Other Services and Software.

    The Services may include dedicated or dial-up Internet Protocol connectivity to WebGuy Communications's local Internet networks and to the global Internet, as well as access or connectivity to any of the information sources or services that may be provided by WebGuy Communications or be available from other service providers participating in, connected to or accessible through WebGuy Communications’ Services or the global Internet but which are not part of the Services being purchased hereunder. Separate charges may be applicable to some of these additional services and may appear on Customer's bill from WebGuy Communications, or they may be billed to Customer separately by the providers of such services. A third party Global Service Provider (GSP) provides a roaming capability in conjunction with dial-up WebGuy Communications Business Internet Services that allows users (subject to any applicable roaming surcharge) to dial the local numbers of GSP-provided POPs to reach the WebGuy Communications Business Internet Service while outside of the WebGuy Communications Business Internet service areas. If Customer or its users elect to use such GSP local access (or Customer purchases a service plan which has such GSP local access included in the price), Customer will be charged by the GSP and may see a separate charge for such service on its bill. Such GSP local access service is provided by the GSP on the GSP's terms and conditions and at the prices or surcharges set forth in the applicable Customer's Order. Use by Customer and any individual authorized users of Customer of WebGuy Communications's other services and any browser or other Software provided by WebGuy Communications shall be subject to WebGuy Communications’ standard terms and conditions for such services as well as the applicable software license terms that are provided with such Software.

  6. Customer's Responsibilities.

    (a) As between Customer and WebGuy Communications, Customer is responsible for (i) assuring that its authorized users comply with the provisions of these Terms and that unauthorized persons do not gain access to or use the Services through user names, passwords, or other identifiers assigned to Customer pursuant to these Terms; (ii) providing any equipment and software that may be necessary for the use of the Services by Customer (in addition to any Equipment and Software that may be placed at Customer’s location(s) or otherwise provided or used by WebGuy Communications for its provision of the Services); (iii) timely payment of all charges for usage of the Services applicable to its account whether or not by authorized users or for authorized purposes; and (iv) performing its other obligations under these Terms. Customer shall not use the Services in any way that would be or would assist any third party to be in violation of any law, these Terms, or any Acceptable Use Policy applicable to the Services. Customer shall not transmit or publish on or over the Services any information, software, or other content that violates or infringes upon the rights of any others or use the facilities and capabilities of the Services to conduct any business or activity or solicit the performance of any activity that is prohibited by law. Customer shall comply with all applicable laws, rules, and regulations in connection with the Services.

    (b) Customer shall provide such information and assistance as are reasonably requested by WebGuy Communications for purposes of facilitating WebGuy Communications’ provision of Services to Customer.


  8. Limitation and Disclaimer of Liability.

    (a) WebGuy Communications shall not be responsible for any use of the Services by Customer, its authorized users, or any third party. Without limiting the generality of the foregoing, WebGuy Communications shall not be liable to Customer or any of Customer's users for any lost profits or other consequential damages, even if WebGuy Communications has been advised of the possibility of such damages; any claim or other action against Customer by any third party (except as set forth in the section below on infringement); any act or omission of any other entity furnishing products and services that are used by Customer in connection with the Services or for failure of any products or services provided by Customer; or any damages or losses caused by the fault or negligence of Customer or Customer's failure to perform Customer's responsibilities.


    (c) In the event that a court should hold that the limitations of liabilities or remedies available as set forth in these Terms, or any portions thereof, are unenforceable for any reason, or that any of Customer’s remedies under these Terms fail of their essential purpose, Customer expressly agrees that under no circumstances shall WebGuy Communications’ total liability to Customer or any party claiming by, through or under Customer for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, in the aggregate, exceed the amount of charges paid by Customer for use of the Services during the twelve-month period preceding the date such claim first arose.

  9. Remedies of Customer. Customer's sole remedy for any failure or non-performance of the Services (including any associated Equipment, Software or other materials supplied in connection with the Services) shall be

    (i) for WebGuy Communications to use commercially reasonable efforts to effectuate an adjustment or repair of the Services and, in the event such failure or non-performance results in Service downtime that exceeds the period of time specified in the applicable service level agreement portion (if any) of any applicable Order or Service Description, to receive a refund or credit of or against any charges otherwise payable for the Services for the period of service downtime as provided for in the applicable service level agreement portion (if any) of any applicable Order or Service Description, or

    (ii) if such failure or non-performance results in Service downtime or degradation so substantial as to render the Service essentially unavailable to or unusable by Customer for normal use, to terminate the Services for default by WebGuy Communications in the manner provided in these Terms. Unless specified to the contrary in any applicable service level agreement portion of any applicable Order or Service Description, the maximum credit for service downtime or other failure shall not exceed the total monthly bill to the Customer for the Services for the month in which such downtime or failure occurs.

  10. Indemnification.

    (a) If promptly notified in writing of any action brought against Customer to the extent based on a claim that the Services infringe a United States patent, copyright, trademark, or other intellectual property right, WebGuy Communications will defend that action at its expense and will pay any and all fees, costs or damages that may be finally awarded in that action or a settlement resulting from it provided that (i) Customer shall permit WebGuy Communications to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without WebGuy Communications’ prior written approval, (ii) Customer shall cooperate with WebGuy Communications in all reasonable ways to facilitate the settlement or defense of any claim or suit, and (iii) the claim or suit does not arise from Customer modifications, or from combinations of Services provided by MummaGraphics, Inc. with services and equipment provided by Customer or others, or from Customer's use of such Services other than in accordance with the applicable manufacturer's specifications.

    (b) If any Services becomes, or in WebGuy Communications’ opinion, is likely to become the subject of a claim of infringement, or a final injunction is obtained against Customer prohibiting usage of the Services by reason of such infringement, WebGuy Communications will, at its option, either: (1) at its expense procure the right for Customer to continue using the Services or (2) direct Customer to cease using the Services. In the latter event, the Services shall terminate immediately. If the options set forth in this subsection are not reasonably available to WebGuy Communications, then WebGuy Communications may elect instead to return any amounts prepaid by Customer for the affected Services for any period after WebGuy Communications directs Customer to cease such use.

    (c) If promptly notified in writing of any action brought against WebGuy Communications due to claims for infringement of patents, copyright, trademark, or other intellectual property rights, or due to any other claims or causes of action by third parties of any nature whatsoever, arising from the use in connection with the Services of equipment, software or information not provided by WebGuy Communications, or otherwise relating to or arising out of Customer's use of the Services, Customer will defend that action at its expense and will pay any and all fees, costs or damages that may be finally awarded in that action or a settlement resulting from it provided that

    (i) WebGuy Communications shall permit Customer to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without Customer’s prior written approval and

    (ii) WebGuy Communications shall cooperate with Customer in all reasonable ways to facilitate the settlement or defense of any claim or suit.

  11. Force Majeure. WebGuy Communications shall not be responsible for any delay or failure in delivery or performance of any of its duties hereunder due to acts of God, acts or omissions of any network or any other occurrence commonly known as force majeure, including war, riots, acts of terrorism, embargoes, strikes, or other concerted acts of workers, casualties or accidents, or any other causes or circumstances whether of a similar or dissimilar nature to the foregoing that prevent or hinder the delivery of the Services. WebGuy Communications may cancel or delay performance hereunder for so long as such performance is delayed by such occurrence or occurrences, and in such event WebGuy Communications shall have no liability to Customer.

  12. Termination and Default.

    (a) WebGuy Communications may, at its sole discretion, terminate any Customer Order and discontinue Customer's access to and use of the Services, if

    (i) Customer fails to pay any amount within ten (10) days after written notice that the same is delinquent; or

    (ii) Customer breaches any of the material terms, conditions, obligations, or representations contained in these Terms, except for applicable Acceptable Use Policies, and does not cure such breach within thirty (30) days of notice of such breach; or

    (iii) Customer becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, or liquidation proceeding, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due, or

    (iv) Customer's equipment or use of the Services interferes with the Services or any other user. Although WebGuy Communications reserves the right to immediately suspend or terminate Service in the event of repeated or flagrant violations of its Acceptable Use Policy, incorporated herein by reference, WebGuy Communications's preferred course of action under this Section 12(a)

    (v) is to allow Customer an opportunity to cease such interference before Service termination occurs. In addition, if WebGuy Communications reasonably determines that the continuation of the Services has become impractical or unfeasible for any technical, legal, regulatory, or other reason, WebGuy Communications may terminate the Services with at least thirty (30) days prior notice if reasonably practical.

    (b) Customer may cancel most services by providing a 30 day notice. Domain registrations require 90 days notice as they are renewed on an annual basis and require a 60 day waiting period once registered or renewed as determined by ICANN.org. If such notice is given in writing, it must be done through a support ticket on our support web site. Telephone cancellation is also acceptable. If Customer has elected a minimum term for the Services and then cancels its Services or any portion thereof, or has its Services or any portion thereof terminated as provided above, prior to the expiration of such minimum term, Customer shall be obligated to pay WebGuy Communications a termination charge equal to the amount (if any) specified in the applicable Order; otherwise the termination charge shall be equal to 100% of the total monthly charges (other than variable usage charges) that would have become due for the remainder of the scheduled minimum term if such cancellation had not occurred. Such termination charge shall be paid to WebGuy Communications within thirty (30) days after such cancellation by Customer.

    (c) If WebGuy Communications breaches any of these material Terms and fails to cure such breach within thirty (30) days after written notice of such breach, Customer may (as its sole remedy except for any credits that may be payable for downtime as provided elsewhere herein) terminate its Services by written notice to WebGuy Communications, without obligation for any early termination charges otherwise payable hereunder.

  13. Use of Materials, Marks and Information.

    (a) Customer may use, copy and distribute the materials found on the Services for internal, noncommercial, informational purposes only. Except as authorized in this paragraph, Customer is not being granted a license under any copyright, trademark, patent or other intellectual property right in the material or the products, services, processes or technology described therein. All such rights are retained by WebGuy Communications, its applicable affiliates or any third party owner of such rights. Customer shall have no ownership or property rights in the Services or in any documentation provided in connection with the Services. Customer may make copies of such documentation solely for use in connection with its authorized use of the Services, and all such copies shall include all copyright, trademark and other proprietary notices appearing in the original documentation. Upon the termination of the Services to Customer, Customer shall return all copies of the documentation to WebGuy Communications or certify destruction of such documentation.

    (b) The company names and logos and all related product and service names, design marks and slogans of each Party are the property of the respective Party or its affiliates. Neither Party is authorized to and shall not use any name or mark of the other Party in any advertising, publicity or in any other commercial manner without the prior written consent of the other Party.

    (c) All product and service marks contained on or associated with the Services that are not WebGuy Communications marks are the trademarks of their respective owners. References to any names, marks, products or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply WebGuy Communications's endorsement, sponsorship or recommendation of the third party, information, product or service.

  14. Confidential Information.

    (a) Except as set forth in this Section, or as otherwise expressly provided in this Agreement, each Party agrees that (i) all information communicated to it by the other and identified and marked as “confidential,” whether before or after the date hereof, (ii) all information identified as confidential to which it has access in connection with the Services and Equipment, and (iii) this Agreement and the Parties’ rights and obligations hereunder (collectively, “Confidential Information”), will be, and will be deemed to have been, received in confidence and will be used only for purposes of this Agreement. Each Party agrees to use the same means it uses to protect its own confidential information, but in no event less than reasonable means, to prevent the disclosure and protect the confidentiality of Confidential Information. No Confidential Information will be disclosed by the recipient Party without the prior written consent of the disclosing Party; provided, however, that each Party may disclose this Agreement and any disclosing Party's Confidential Information to those who are employed or engaged by the recipient Party, its agents or those of its affiliates who have a need to have access to such information in connection with their employment or engagement, provided the recipient Party notifies such persons of the obligations set forth in this Section and such persons agree to abide by such obligations.

    (b) The obligations set forth in subsection 14 (a) above will not prevent any Party from disclosing or using information that belongs to such Party or

    (i) is already known by the recipient Party without an obligation of confidentiality,

    (ii) is publicly known or becomes publicly known through no unauthorized act of the recipient Party,

    (iii) is rightfully received from a third party,

    (iv) is independently developed without use of the disclosing Party's Confidential Information or

    (v) is disclosed without similar restrictions to a third party by the Party owning the Confidential Information. If Confidential Information is required to be disclosed pursuant to law, regulation, tariff or a requirement of a governmental authority, or in connection with an arbitration or mediation, such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the disclosing Party with timely prior notice of such requirement and coordinates with the disclosing Party in an effort to limit the nature and scope of such required disclosure. Upon written request at the expiration or termination of an Attachment or Order, all Confidential Information (and all copies thereof) (if previously received by each Party) will be returned to the disclosing Party or will be destroyed, with written certification thereof being given to the disclosing Party. The provisions of this Section will survive the expiration or termination of any Order, Attachment and this Agreement for any reason.

    (c) Confidential Information will not include any feedback, data, answers, questions, comments, suggestions, ideas or the like, that Customer sends to any MummaGraphics, Inc. relating to the Services or Equipment, unless Customer identifies it as Confidential Information. WebGuy Communications assumes no obligation to protect such information from disclosure and will be free to reproduce, use, and distribute the information to others without restriction. WebGuy Communications will also be free to use any ideas, concepts, know-how or techniques contained in such information or developed by them, for any purpose whatsoever including but not limited to developing, manufacturing and marketing Services and Equipment incorporating such information. Nothing contained in this Section restricts the right and ability of WebGuy Communications to use information concerning the execution of this Agreement and the provision of the Services and Equipment to Customer in internal publications.

  15. Dispute Resolution ' Independent Arbitration.

    (a) Except as provided in this Section 15, all disputes arising out of or related to this Agreement, (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory), including any dispute based on any service or advertising related to this Agreement, shall be resolved by final and binding arbitration governed by the Federal Arbitration Act), 9 U.S.C. 1-16. Disputes that mees the small claims court requirements in the state in which the Services are providedmay be resolved in small claims court.

    (b) The arbitration will be conducted by one arbitrator using the procedures described herein in accordance with the commercial arbitration rules and fee schedule of the American Arbitration Association in effect on the date a dispute is submitted, as modified by this Agreement. The arbitration rules are available from the AAA at www.adr.org.

    (c) The Parties have the right to be represented by counsel. The arbitrator shall be bound by and strictly enforce the terms of this Agreement, and may not limit, expand or otherwise modify the terms of this Agreement in conducting the arbitration and making any award. Unless either Party requests that the arbitration be conducted using the telephonic, on-line, or in-person procedures, for which additional charges may apply, the arbitration will be based solely on the written submissions of the Parties and the documents submitted relating to the dispute. Any in-person arbitration will be conducted at a location that the AAA selects in the state in which the Services are provided, or as the Parties may otherwise mutually agree. Arbitrations under this Agreement shall be kept confidential.

    (d) Disputes under this Agreement may not be (a) resolved on a class-wide basis, (b) joined with another lawsuit, or (c) joined in an arbitration with a dispute of any other entity. The arbitrator may not award, and the Parties waive any claims for awards for, punitive damages or attorney fees or any damages that are barred by this Agreement, unless such damages are expressly authorized by a relevant statute.

    (e) Before taking a dispute to arbitration, the Parties agree to first attempt to resolve the dispute between them. If the Parties are not able to satisfactorily resolve the dispute within sixty (60) calendar days from the date of the initial notification of the dispute, either Party may contact the AAA in writing at AAA Service Center, 2200 Century Parkway, Suite 300, Atlanta, GA 30345-3203, and request arbitration of the dispute.

    (f) Subject to applicable substantive law that may provide otherwise, each Party will pay its own expenses to participate in the arbitration, including attorney fees and expenses related to the presentation of evidence, witnesses, and document production.

    (g) In the event that the arbitration results in an arbitral award which imposes an injunction on either Party OR CONTAINS A MONEY DAMAGES AWARD IN EXCESS OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000), the award shall not be binding on a Party if that Party sends written notice to the other Party postmarked within 30 days from the date of the award, that that Party does not accept the award of the arbitrator. Such written notice should be provided in accordance with Section 17.

  16. General.

    (a) Except as set forth herein, Customer may not assign or transfer any of its rights, duties, or obligations with respect to the Services without WebGuy Communications's written consent, which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer without the written consent of WebGuy Communications shall be void. Notwithstanding the foregoing, WebGuy Communications may assign, delegate or otherwise transfer its rights or obligations hereunder, in whole or in part, at any time or subcontract the performance of any of its obligations under this Agreement.

    (b) No action, regardless of form, arising out of the Services or these Terms may be brought by either party more than two years after the cause of action has arisen.

    (c) This Contract, together with all Attachments and any Orders placed hereunder, constitutes the entire agreement between WebGuy Communications and Customer relating to this Contract and the Services performed hereunder, supersedes any prior written or verbal proposals, agreements, understandings or other discussions respecting the same, and may not be modified or amended other than by a written instrument executed by both Parties.

    (d) These Terms and the Services shall be governed by the laws of the State of Oklahoma, without regard to its conflicts of laws provisions. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby.

    (e) No failure on the part of either Party to exercise any right or remedy arising directly or indirectly under this Agreement will operate as a waiver of any right or remedy it may have, nor will an exercise of any right or remedy by either Party preclude any right or remedy otherwise available to such Party.

    (f) The headings used in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement.

    (g) Except as otherwise specifically stated in this Agreement, the provisions of this Agreement are for the benefit of the Parties hereto and not for any other person.

  17. Notices.

    All notices under this Contract will be in writing and will be deemed to have been duly given if delivered personally or by courier service, faxed or mailed by registered or certified mail, return receipt requested, postage prepaid, to the Parties at the addresses set forth above. All notices under this Contract that are addressed as provided herein will be deemed given (a) upon delivery, if delivered personally or by courier service, (b) when confirmed, if delivered by facsimile, and (c) on the fifth (5th) business day after the day it is deposited in a regular depository of the United States mail, if delivered by mail in the manner described above. Either Party may change its address or respective contact for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.

    IN WITNESS WHEREOF, WebGuy Communications and Customer have caused this Contract to be executed and delivered by their duly authorized representatives, effective upon execution by Customer and acceptance by WebGuy Communications. The undersigned warrant and represent that they have the authority to bind Customer and WebGuy Communications to this Agreement.

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