NETWORK SERVICES TERMS & CONDITIONS NORTH AMERICA
1. SERVICES AND TERM. 1.1. Pursuant to the CSA, FIBERFEDwill provide the Services to Customer for the Service charges. Customer’s signature on the Order Form constitutes its acknowledgement and agreement to be bound by the CSA. Capitalized terms are defined at the end of these Terms.
1.2. Each Service’s Initial Term is indicated on the applicable Order Form and the Initial Term will begin as of the Service Date. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, each Service ordered hereunder will renew for successive Renewal Terms equal in length to the Initial Term unless and until terminated as provided herein.
1.3. Each Service will be provided to the Service Location specified on the Order Form only. Any relocation of a Service shall be an amendment of such Service requiring the consent of both Parties. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this CSA. Customer’s account must be current in order to make changes to Services or order additional Services.
2. SERVICE CHARGES AND BILLING. 2.1. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services, upgrades of existing Services or relocations of an existing Service will result in additional fees and/or charges. If a prior Service location remains installed after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service.
2.2. Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service within thirty (30) days of the invoice date without counterclaim, set-off or deduction. A late charge shall be added to Customer’s past due balance of the lesser of 1.5% per month or the maximum legal rate. FIBERFED may change the specifications, Terms or charges for the Service for any upcoming Renewal Term by providing Customer at least sixty (60) days advance written notice. Customer agrees that its obligation to pay service charges and Taxes under this CSA shall survive the termination of the CSA.
2.3. Customers claiming tax exemption must provide FIBERFED with a properly executed exemption form.
3. SERVICE USE AND INTERRUPTION. 3.1. Customer’s use of FIBERFED’s Services or Network may only be for lawful purposes and must comply with FIBERFED’s AUP. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Access to other networks connected to FIBERFED’s Network must comply with such other networks’ rules. Customers whose service location (as set forth on the Order Form) is a FIBERFED-owned or carrier neutral data center may resell FIBERFED’s Dedicated Internet Access Service ordered in that location but not any other Service offered in such location. Customers located in any other service location may not resell their Service, in whole or in part.
3.2. FIBERFED’s obligations and Customer’s exclusive remedies for a delayed or failed installation of a Service or the failure of FIBERFED’s Network or any Service are stated in theFIBERFED SLA.
4. TERMINATION, RESTRICTION OR SUSPENSION. 4.1. Prior to the Service Date, FIBERFED may terminate the CSA if not approved by FIBERFED corporate management (including credit check). FIBERFED also may restrict, suspend or terminate the CSA, Customer’s use of or access to any Service, or both, at any time if (a) Customer is in material breach of the CSA (including but not limited to the AUP) and, in FIBERFED’s sole judgment, an immediate restriction or suspension is necessary to protect the FIBERFED Network or FIBERFED’s ability to provide services to other customers; or (b) Customer’s account is unpaid sixty (60) days after date of invoice; or (c) FIBERFED facilities at Customer’s location are unavailable, (i.e., no connectivity and building access).
4.2. Either Party may terminate the CSA: (a) at the end of an Initial Term or at the end of a Renewal Term by providing the other Party with at least thirty (30) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June 1st); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the
other Party breaches any material term or condition of this CSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to email@example.com.
4.3. If a Service is terminated prior to the Service Date, Customer shall pay FIBERFED for all Initial Costs for such Service. If the Service is terminated after the Service Date, Customer shall pay FIBERFED (a) for the Service up through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by FIBERFED due to loss of connectivity or building access at Customer’s building(s) under Section 4.1(c) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to FIBERFED caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at FIBERFED’s then-prevailing rates.
4.4. If Customer defaults in any of its payment obligations under the CSA, Customer agrees to pay FIBERFED’s reasonable expenses, including but not limited to legal and collection agency fees, incurred by FIBERFED in enforcing its rights.
5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. 5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN THE SLA, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHERFIBERFED NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS CSA OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. FIBERFED EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. COGENT DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
5.2. WITHOUT PREJUDICE TO OR LIMIING OF FIBERFED’S RIGHT TO RECEIVE PAYMENT FOR SERVICES, FIBERFED’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDUNG CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND FIBERFED, AND THE PROVISION BY FIBERFED OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSON
5.3. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO FIBERFED’S CONTROL. CUSTOMER AGREES THAT FIBERFED SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY
Customer:__________ FIBERFED 400 South Akard Street, Dallas, TX, 75202 855-342-3737 www.fiberfed.com
claim OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR
or right against the other Party for any failure of performance due to Force CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET
Majeure. SERVICE PROVIDERS NOT SUBJECT TO FIBERFED’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. FIBERFED SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER
7.2. Neither Party is the agent or legal representative of the other Party, and this CSA does not create a partnership, joint venture or fiduciary relationship between FIBERFED and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This CSA confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, Customer’s subscribers or end-users.
VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). FIBERFED IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS CSA FAILS OF ITS ESSENTIAL PURPOSE, WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD FIBERFED RESPONSIBLE FOR (A) THIRD PARTY CLAIMSAGAINST CUSTOMER
7.3. This CSA for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the District of Columbia without regard to its choice of law principles. Any action arising out of or related to this CSA shall be brought in the District or Federal courts located in the District of Columbia, and Customer consents to the jurisdiction and venue of such courts.
FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE FIBERFED NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST FIBERFED, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD
7.4. Notices, if required, must be sent in writing by e-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to FIBERFED must be sent in accordance with Section 4.2 above. In the event of an emergency, FIBERFED may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information on the Order Form, including points of contact.
PARTY TO THIS CSA.
7.5. Customer may not assign this CSA without FIBERFED’s prior written 5.4. NEITHER FIBERFED NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING consent, which consent shall not unreasonably be withheld. Any such
assignment without FIBERFED’s prior written consent shall be void. DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT
7.6. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the CSA, the expiration or prior termination of the term of the CSA shall relieve both Parties of any further obligations hereunder, except with respect to the Sections 2, 3, 4.3, 4.4 and 5 LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF
through 7, which shall survive any expiration or termination of these Terms. TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
7.7. If (but only if) required by FIBERFED’s or Customer’s agreement with Customer’s Landlord: (a) any cessation or interruption in FIBERFED’s Service does not constitute a default or constructive eviction by Customer’s 5.5. NO ACTION OR PROCEEDING AGAINST FIBERFED MAY BE
Landlord, and (b) Customer agrees to waive and release Landlord and its COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER
related parties from any liability in connection with any damages whatsoever THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the FIBERFED Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR DEFECT IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF A RELEASED PARTY .
6. INDEMNITY 6.1. Customer will indemnify, defend and hold harmless FIBERFED and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of violation of the AUP or any applicable law or regulation; (b) from any
7.8. The FIBERFED Network is owned by FIBERFED, or it’s licensors, and it is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by FIBERFED. Customers shall be entitled to only such rights with respect to the Services as are specifically granted herein. and all claims by any of Customer’s customers or other third party end users in connection with a Service (including, without limitation, any claims regarding
7.9. The CSA and such other written agreements, documents and instruments as content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that Customer will have no obligation to indemnify and defend FIBERFED against claims for damages for bodily injury or death caused by FIBERFED’s gross negligence or willful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims,
may be executed in connection herewith are the final, entire and complete agreement between Customer and FIBERFED are supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this CSA. No purchase order or similar document provided by Customer to FIBERFED shall be of any force and effect. defamation claims, claims of publication of obscene, indecent, offensive, racist,
Amendments to the CSA or any Service shall be in writing and signed by both unreasonably violent, threatening, intimidating or harassing material, and claims
Parties. of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer’s customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer’s customers or authorized end users, or (iii) the
7.10. This CSA and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the same instruments. use of Service(s) by Customer in any manner inconsistent with the terms of this CSA, including without limitation the AUP.
7. ADDITIONAL PROVISIONS 7.1. Except as to payment obligations of Customer, neither Party shall have any
Customer:__________ FIBERFED 400 South Akard Street, Dallas, TX, 75202 855-342-3737 www.fiberfed.com
Network Services Terms & Conditions North America (Ver.4– 01/20) ©FIBERFED 2017 Confidential
NETWORK SERVICES TERMS & CONDITIONS NORTH AMERICA
AUP FIBERFED’s Acceptable Use Policy as posted by
FIBERFED at www. fiberfed .com . FIBERFED reserves the right to amend its AUP at any time, effective upon posting on the FIBERFED website.
Customer Customer identified in the attached Order Form.
CSA The entire Customer Subscriber Agreement between
FIBERFED and Customer for provision of the Service, consisting of, in order of priority, the Order Form, any addendum between the Parties, the Terms, the applicable product rider and the SLA.
Equipment Customer’s equipment, if any.
FIBERFED FIBERFED or it’s subsidiaries or affiliates.
FIBERFED Network The telecommunications network and network components owned, operated or controlled by FIBERFED, including FIBERFED’S fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by FIBERFED to provide the Services. Where FIBERFED services a building through its own facilities, the FIBERFED Network includes those facilities. The FIBERFED Network does not include customer premises equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by FIBERFED.
Force Majeure Causes beyond a Party’s control, including but not limited to: acts of God; ire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures,shortages, breaches or delays.
Initial Costs Greater of (a) installation fees (if not paid); or (b) all third-
party costs and harges incurred by or charged to FIBERFED on behalf of Customer for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees.
Initial Term Initial length of term for the Services as indicated on the
Landlord Customer’s landlord, building owner or property/telecom
Losses Costs, fees, liabilities, losses, damages or penalties,
including reasonable legal fees.
Order Form Cover form to which these Terms are attached, identifying
the specific Service(s) to be delivered.
Party or Parties FIBERFED and/or Customer.
Renewal Term Subsequent length of term for the Services after completion
of the Initial Term.
Service(s) Bandwidth services provided by FIBERFED under the
Customer Subscriber Agreement.
that the Service is available for Customer’s use at either the FIBERFED-defined demarcation point or last-available test point; or (b) Customer first uses the Service or the FIBERFED Network. The Requested Service Date on the Order Form is the earliest date on which Customer is willing to accept FIBERFED Service. FIBERFED does not guarantee that the Service will be installed on the Requested Service Date.
SLA The Service Level Agreement as posted by FIBERFED at www.fiberfed.com for Customer’s Service(s). FIBERFED reserves the right to amend the SLA at any time, effective upon posting on the FIBERFED website.
Space Rented rack space from FIBERFED, if any.
Tax or Taxes All taxes arising in any jurisdiction, including without
limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on FIBERFED or for which FIBERFED is permitted to invoice Customer in connection with FIBERFED’s performance under the CSA. Taxes do not include FIBERFED’s income taxes.
Termination Charge Single payment equal to the total remaining dollar value of
the applicable Service order through the Initial Term or Renewal Term, as applicable.
Terms Terms and conditions that apply to the Services FIBERFED
provides to Customer.
Service Date Earlier of date on which (a) FIBERFED notifies Customer
400 South Akard Street
Dallas, Texas 75202
Direct Cloud Connect
Managed Fiber Builds
Metro Ethernet ( MEF CE 2.0 )
Dedicated Internet Access
Broadband Internet Access
Wave / Dark Fiber