This BULK SERVICES AGREEMENT (including any exhibits and attachments incorporated herein by reference, “Agreement”) is made as of the Effective Date by and between Fastwyre Broadband and Customer (as defined by the Service Order to which this Agreement is referenced). This Agreement is intended to set forth the general terms and conditions pursuant to which Fastwyre Broadband will provide Services to Customer, as specified and agreed upon in the referenced Service Order. In consideration of the mutual covenants and agreements contained herein the parties agree as follows:
“Fastwyre Broadband” means with respect to the Services provided hereunder, the particular Fastwyre Broadband entity providing Service in the state and locality in which such Service is being provided, which may include the following, without limitation: (i) in the State of Alaska – Mukluk Telephone Company, Inc., Interior Telephone Company, TelAlaska Long Distance, Inc. or TelAlaska Cellular, Inc.; (ii) in the State of Louisiana or Texas – Cameron Telephone Company, L.L.C., Elizabeth Telephone Company, L.L.C. or LBH, L.L.C.; (iii) in the State of Nebraska – The Blair Telephone Company, Rock County Telephone Company, Arlington Telephone Company, Eastern Nebraska Telephone Company or HunTel Cablevision Inc.; (iv) in the State of Missouri – Holway Telephone Company, Holway Long Distance Company, K.L.M. Telephone Company, KLM Long Distance Company or N.W. Communications Co; and (v) in the State of Alabama – Moundville Telephone Company, Inc. The foregoing listing is set forth as a matter of convenience, and expressly does not create any joint liability with respect to the Services.
“Force Majeure Event” means an unforeseeable event beyond the reasonable control of a party, including without limitation: act of God; fire; flood; labor strike or unrest; sabotage; cable cuts; acts of terror; power shortage or power failure (e.g., rolling blackouts); material shortages or unavailability or other delay in delivery not resulting from Fastwyre Broadband’s failure to timely place orders therefore; lack of or delay in transportation; government codes, laws, regulations, ordinances, rules, or restrictions; war or civil disorder; pandemic or epidemic; or failures of suppliers of goods and services.
“Service” means each of the services described in the Service Order.
“Service Location” means the location designated in each Service Order where the Services are to be provided.
“Service Order” means the order for Services on Fastwyre Broadband’s standard Service Order form to which this Agreement is attached. The Service Order will contain specific provisions with respect to prices, features, Service Location, descriptions of Service, Service Term and other specifics as appropriate.
“Service Term” means the duration of the term in which the Services will be provided, consisting of: (i) the initial term commitment set forth in the Service Order (the “Initial Term”), commencing upon installation of the Services (the “Effective Date”); and (ii) following the Initial Term, the Services will automatically renew for successive 12-month periods (each, a “Renewal Term”), unless either party provides written notice of nonrenewal (in which case Services will continue on a month-to-month basis at undiscounted rates without additional notice) or termination (in which case Services will terminate at the end of the Initial Term or applicable Renewal Term) at least 30 days but no more than 90 days prior to the expiration of the Initial Term or applicable Renewal Term. Notwithstanding the foregoing, if Customer delays installation or is not ready to receive Services on the agreed-upon installation date, Fastwyre Broadband may begin billing for Services on the date Services would have been installed. Fastwyre Broadband will use reasonable efforts to make the Services available by the requested service date. Fastwyre Broadband will not be liable for damages for delays in meeting service dates due to a Force Majeure Event. If Customer delays installation for more than 90 days after Customer’s execution of a Service Order, Fastwyre Broadband reserves the right to terminate this Agreement by providing written notice to Customer and Customer will be liable for Fastwyre Broadband’s reasonable costs incurred.
2. SCOPE AND ORDER OF PRECEDENCE. The Service Order is subject to all of the terms and conditions contained in this Agreement, including the additional terms and conditions attached hereto as Exhibit A. If any of the terms or conditions in a Service Order are inconsistent or in conflict with the terms and conditions of this Agreement, then the terms and conditions of this Agreement will control.
3. TERM. This Agreement will be for the duration of the Service Term, unless earlier terminated pursuant to this Agreement.
(a) Charges. Installation and all other non-recurring charges, if any, and monthly recurring charges for the Services will be at the rates set forth in the Service Order. Except for usage-based Services, which are billed in arrears, the Services are billed one month in advance and the first billing cycle may include a partial month Service and a full month Service charge if the Service is installed and activated during a partial month of Service. All fees and charges are payable for the duration of the Service Term, regardless of whether Customer actually uses the Services.
(b) Taxes and Other Fees. Prices established in this Agreement and the Service Order are exclusive of taxes, surcharges and other fees which may be imposed on Fastwyre Broadband or Customer for the provision or use of the Services. Customer is responsible for all such taxes, surcharges and other fees that apply to the Services at issue. Tax exempt status will be granted to Customer upon presentation of a satisfactory certificate of exemption.
(c) Assurance of Payment. If Customer has failed to timely pay for any Services on two occasions during any six month period, then Fastwyre Broadband may require Customer to provide an advance deposit or other form of security in an amount and form reasonably satisfactory to Fastwyre Broadband. Upon expiration or termination of this Agreement and Customer’s compliance with its financial obligations hereunder or under any Service Order, all amounts on deposit will be returned to Customer.
(d) Invoicing and Payment. Customer will pay all amounts owed under each Service Order within 20 days after the invoice date (the “Due Date”). Fastwyre Broadband reserves the right to charge interest on delinquent amounts at the lower of one and one-half percent (1.5%) per month or such other rate or rates as may be permitted under applicable law.
(e) Disputed Payments. In the event Customer in good faith disputes any charges invoiced by Fastwyre Broadband, Customer will promptly pay all undisputed charges, and notify Fastwyre Broadband in writing of any such disputed amounts on or before the Due Date, identifying in reasonable detail its reasons for the dispute and the nature and amount of the dispute. All amounts not timely (by the Due Date) and appropriately disputed will be deemed final and not subject to further dispute. Fastwyre Broadband will review the amounts in dispute within 30 days after its receipt of such notice. If Fastwyre Broadband determines that Customer was billed in error, a credit for the amount billed incorrectly will be made to the next invoice. If Fastwyre Broadband and Customer determine that the amount was billed correctly, Customer will pay the amount by the Due Date of the next invoice.
6. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold harmless Fastwyre Broadband, its affiliates, and their respective contractors, officers, directors, employees, or agents from any and all third-party claims, liabilities, costs, and expenses, including reasonable attorney fees and punitive damages arising from: (a) violation of any provision of this Agreement by Customer or others who use the Services; (b) installation, modification, or use of the Services by Customer and/or any parties who use such Services through Customer, with or without Customer’s permission; (c) claims for libel, slander, invasion of privacy, or infringement of any intellectual property rights arising from the use of the Services or the Internet; (d) patent infringement arising from Customer’s acts combining or using the Service in connection with facilities or equipment (circuit, apparatus, system or method) furnished by Customer; (e) negligent acts, errors, or omissions by Customer; or (f) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the gross negligence or willful misconduct of Fastwyre Broadband.
7. TERMINATION. Either party in accordance with the following may terminate this Agreement and the Service Order:
(a) Default by Customer. If (i) Customer makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary petition in bankruptcy, other insolvency protection against Customer is filed and not dismissed within 60 days; (iii) Customer fails to make any payment required hereunder when due, and such failure continues for a period of five business days after written notice from Fastwyre Broadband; or (iv) Customer fails to observe and perform any material term of this Agreement (other than payment terms) and such failure continues for a period of 30 days after written notice from Fastwyre Broadband; then Fastwyre Broadband may: (A) terminate this Agreement and the Service Order, in whole or in part, in which event Fastwyre Broadband will have no further duties or obligations thereunder, and/or (B) subject to Section 13, pursue any remedies Fastwyre Broadband may have under this Agreement, at law or in equity.
(b) Default by Fastwyre Broadband. If (i) Fastwyre Broadband makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary petition in bankruptcy, other insolvency protection against Fastwyre Broadband is filed and not dismissed within 60 days; or (iii) Fastwyre Broadband fails to observe and perform any material term of this Agreement and/or Service Order and such failure continues for a period of 30 days after written notice from Customer; then Customer may: (A) terminate this Agreement and the Service Order, in whole or in part, in which event Customer will have no further duties or obligations thereunder, and/or (B) subject to Section 13, pursue any remedies Customer may have under this Agreement, at law or in equity.
(c) Early Termination. If Customer terminates or cancels Service under any Service Order prior to its agreed expiration date, Customer will pay Fastwyre Broadband a termination charge (as liquidated damages and not as a penalty) including all nonrecurring, disconnection or termination charges reasonably incurred by Fastwyre Broadband on Customer’s behalf, and the remaining monthly recurring charges for the remainder of the Service Term of the Service Order.
8. NON-DISCLOSURE. Each of the parties agrees to maintain the confidentiality of, and not to use for any purpose whatsoever, any confidential or proprietary information disclosed during the course of the parties’ relationship pursuant to this Agreement or the Service Order, except for the performance of their respective obligations pursuant to this Agreement and the Service Order.
9. INTELLECTUAL PROPERTY RIGHTS. Unless otherwise expressly provided in this Agreement, all aspects of the Service are the property of Fastwyre Broadband and are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Fastwyre Broadband grants Customer a revocable, limited, nonexclusive, nontransferable, non-assignable right and license to use the Service in accordance with the terms and conditions of this Agreement and the Service Order. No other license or rights are granted by Fastwyre Broadband or will be implied or arise by estoppel, with respect to any Service.
10. FORCE MAJEURE. Fastwyre Broadband is not liable, nor will any credit allowance or other remedy be extended, for any failure of performance or equipment due to a Force Majeure Event. In the event Fastwyre Broadband is unable to deliver Service as a result of a Force Majeure Event, Customer will not be obligated to pay Fastwyre Broadband for the affected Service for so long as Fastwyre Broadband is unable to deliver the affected Service.
11. LEGAL NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Service Order (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if: (a) the receiving party has received the Notice; and (b) the party giving the Notice has complied with the requirements of this Section.
12. DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FASTWYRE BROADBAND PROVIDES THE SERVICES WITHOUT WARRANTIES OF ANY KIND, WRITEN OR ORAL, STATUTORY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING OR COURSE OF TRADE AND DISCLAIMS ANY SUCH WARRANTIES. FASTWYRE BROADBAND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION GIVEN BY FASTWYRE BROADBAND, ITS AFFILIATES, OR THEIR RESPECTIVE AGENTS, CONTRACTORS OR EMPLOYEES WILL VARY THE TERMS OF THIS AGREEMENT OR CREATE ANY WARRANTY. FASTWYRE BROADBAND IS NOT RESPONSIBLE FOR DEFACEMENT, MISUSE, ABUSE, NEGLECT, IMPROPER USE, IMPROPER ELECTRICAL VOLTAGES OR CURRENT, REPAIRS BY OTHERS, ALTERATIONS, MODIFICATIONS, ACCIDENTS, FIRE, FLOOD, VANDALISM, ACTS OF GOD, OR THE ELEMENTS. FASTWYRE BROADBAND TECHNICAL SUPPORT IS NOT WARRANTED AND IS USED AT CUSOMTER’S OWN RISK. FASTWYRE BROADBAND MAKES NO WARRANTY REGARDING TRANSACTIONS EXECUTED AND CONTENT AND INFORMATION ACCESSED BY USING THE SERVICES. TO THE EXTENT THAT ANY LIMITATION IN THIS SECTION IS NOT PERMITTED BY APPLICABLE LAW, SUCH LIMITATION WILL NOT APPLY TO CUSTOMER TO THE EXTENT IT IS BARRED BYAPPLICABLE LAW.
13. LIMITATION OF LIABILITY. IN NO EVENT WILL FASTWYRE BROADBAND OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING FROM OR RELATED TO THE SERVICES OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. FASTWYRE BROADBAND’S LIABILITY HEREUNDER TO CUSTOMER WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE, OR SERVICE ORDER TO WHICH THE CLAIM PERTAINS.
14. ASSIGNMENT. Customer may not assign any rights or obligations under this Agreement or the Service Order without Fastwyre Broadband’s prior written consent. Any assignment in violation of the foregoing will be deemed null and void. Fastwyre Broadband may freely assign its rights and obligations under this Agreement or the Service Order at any time. Subject to the limits on assignment stated above, this Agreement and the Service Order will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and permitted assigns.
15. GOVERNING LAW. This Agreement will be governed by and be construed in accordance with the laws of the state in which the Services are performed (as designated in the Service Order) without reference to its laws governing conflicts of law. Each party hereby irrevocably agrees that any legal action or proceeding with respect to this Agreement will be brought in the courts of the foregoing state or in any United States District Court located within such state, and by execution and delivery of this Agreement, each party irrevocably submits to each such jurisdiction and hereby irrevocably waives any and all objections which it may have as to venue in any of the above courts.
16. GENERAL PROVISIONS.
(a) If any provision or part thereof of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party under this Agreement will not be materially and adversely affected thereby, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.
(b) This Agreement, the Service Order, together with any Exhibits, attachments and schedules (referenced herein or thereby), all of which are incorporated herein as part of this Agreement by this reference, contains the entire agreement between the parties with respect to the subject matter set forth in this Agreement and the Service Order and supersedes all other previous agreements, whether written or oral.
(c) No amendment to this Agreement or to the Service Order will be binding upon either party hereto unless it is in writing and executed on behalf of each party hereto by a duly authorized representative and expressly specified as such.
(d) This Agreement may be executed in multiple counterparts, each of which will be deemed an original but all of which together will constitute but one and the same instrument.
Exhibit A to Bulk Services Agreement
BULK SERVICE TERMS AND CONDITIONS
“Authorized Representative” means any affiliate, employee, agent, contractor, or other authorized representative of the subject party.
“CPE” means customer premises equipment, such as converters, receivers, set-top boxes, modems, routers, gateways, wireless access points, and other such devices placed within a Unit.
“Demarcation Point” means (a) for Service Locations with buildings containing multiple dwelling Units (such as apartment complexes, condominiums, etc.), the minimum point of entry (MPOE) (generally, a single, centrally-located communications room containing the main distribution frame) and then extending through designated building pathways (conduit, risers, raceways, etc.) to the intermediate distribution frames (generally located in closets or similar enclosures or rooms, but not within Units) on each floor, to which Fastwyre Broadband will extend its Equipment as necessary to provide Services to such Units; (b) for Service Locations with stand-alone Units (such as single family homes, garden-style apartments, townhomes, mobile homes, etc.), the distribution panel located on the exterior of each such Unit to which Fastwyre Broadband will extend its Equipment as necessary to Services to such Units; and (c) for Service Locations where there are transient Units or no Units (such as RV Parks, marinas, etc.), to an agreed upon or existing termination point to which Fastwyre Broadband will extend its Equipment as necessary to provide Services to such Units or outlets. The location of Demarcation Points may be further specified in the Plans.
“Equipment” means all conduit, wiring (such as fiber, coaxial cable, category of performance wiring, copper, etc.), hardware (such as wireless access points, gateways, switches, routers, amplifiers, etc.), software, facilities (such as building entrance facilities, vaults, above-ground enclosures, pedestals, lockboxes, etc.), equipment and all other network infrastructure installed, upgraded and/or used by Fastwyre Broadband at the Service Location to provide the Services, but excluding the Internal Wiring and CPE.
“Internal Wiring” means the wiring on the User side of the Demarcation Point that is or may be used by Fastwyre Broadband to deliver Services, regardless of whether in use at any given time.
“IOT” means the Internet of Things, as such term is commonly understood in the telecommunications industry.
“Laws” means all applicable federal, state, and local statutes, rules, regulations, and ordinances, including the rules and regulations of the Federal Communications Commission, and any necessary federal, state and local permits, licenses and approvals.
“Pathways” means all conduits, poles, moldings, risers, raceways, shafts and similar pathways and areas at the Service Location where the System is or will be installed.
“Plans” means the construction plan (which may be a design application, scope of work, construction responsibility matrix, etc.) for installation of the System, or, where there are no such plans or the plans do not adequately address a specific requirement, Fastwyre Broadband’s then-current installation methods. Fastwyre Broadband owns all right, title and interest in and to the Plans, and the Plans are the confidential information of Fastwyre Broadband.
“Subscriber Terms” means any subscription agreement, terms and conditions of use, acceptable use policies, privacy policies, and other similar policies, in each case as established and modified by Fastwyre Broadband in its sole discretion from time-to-time, without notice to Customer or Users, regarding the purchase and use of Services and made available to Users. Subscriber Terms applicable to Services may be found at https://fastwyre.com/legal-information/.
“System” means the Equipment and Internal Wiring.
“Unit” means a single dwelling unit, billing unit or outlet, common area (such as a clubhouse), lot, or boat berth, in each case to which Services are to be provided, as the case may be and as the context reasonably requires.
“User” means a Unit Customer or occupant, Customer, Customer Authorized Representative, or other person at the Service Location, including temporary guests, who subscribe to or are permitted under the Agreement to receive Services.
2. Right of Access. Customer hereby grants to Fastwyre Broadband and its Authorized Representatives a non-exclusive right of access across, under, over, within and through the Service Location (including within buildings and other improvements and the right to use all Pathways) to permit Fastwyre Broadband to exercise its rights and fulfill its obligations under the Agreement (“Right of Access”), including the right, to (a) install, operate, use, maintain, repair, upgrade, replace and/or remove the System; and (b) offer, provide and market Services. This Right of Access commences on the Effective Date and automatically terminates concurrently with the Agreement, except that Fastwyre Broadband will have an additional 60-day period after the Service Term to access the Service Location to remove or dispose of the System as permitted by the Agreement. The Right of Access includes adequate space for Fastwyre Broadband to install the System components that it is obligated to install under the Agreement, in locations mutually acceptable to Customer and Fastwyre Broadband. Any Pathways where the System is to be located that are owned by Customer or a third party will, as between Customer and Fastwyre Broadband, be owned by Customer, and Customer hereby grants to Fastwyre Broadband the nonexclusive right to access, use, and maintain such Pathways. If Customer is an association (such as a homeowners’ association, condominium owners’ association, etc.) or cooperative and only has the authority to provide Fastwyre Broadband with access to the common areas of the Service Location, then this Right of Access automatically will be limited to such common areas. If any Unit Customer or occupant does not provide Fastwyre Broadband with access to their unit to install, maintain and operate the System, Fastwyre Broadband will have no obligation to perform any of its obligations under the Agreement with respect to such Unit (including providing Services).
3. Other Access. Customer may grant other rights of access to the Service Location, but will not allow such other grants to interfere with the Right of Access or Fastwyre Broadband’s use of the System. Fastwyre Broadband will have 24 hour, 7 days a week access to the System to address emergency conditions (such as to correct a hazardous condition or general Service outage). Fastwyre Broadband will conduct all routine work at the Service Location (such as installations, disconnections, routine maintenance, testing, etc.) during normal and reasonable working hours established by Customer for the Service Location. At either party’s request, a Customer Authorized Representative will accompany Fastwyre Broadband’s Authorized Representatives while accessing the Service Location. Notwithstanding any contrary provision in the Agreement, if Laws require Customer to provide Fastwyre Broadband with access to the Service Location for the provision of any Service, then (a) Fastwyre Broadband will continue to own and be permitted to access and use any System components as provided in the Agreement to provide Services to the Service Location; and (b) any System ownership and removal rights apply at such time as Laws no longer provide for Fastwyre Broadband’s access to the Service Location. Nothing in this Section will operate as, or be construed to be, a waiver of any rights that Fastwyre Broadband may have under any Laws, and all such rights are hereby reserved by Fastwyre Broadband.
4. System Installation, Ownership, Use and Removal.
(a) Fastwyre Broadband may perform a site survey at the Service Location prior to System installation and/or activation of Services. Upon Fastwyre Broadband’s request, Customer will provide Fastwyre Broadband with all available maps, plats, as-builts and similar drawings of the Service Location showing improvements (including risers, raceways and similar pathways therein), utility locations, easements, rights of way and similar items affecting System installation. If Fastwyre Broadband determines, in its sole discretion, that it would not be commercially sensible to install the System (due to technical issues, costs, Laws, etc.), then Fastwyre Broadband will discuss such situation with Customer and, if the parties are unable to resolve such situation, then Fastwyre Broadband may either terminate the Agreement upon notice to Customer or move forward with such installation notwithstanding such situation.
(b) Fastwyre Broadband will, at its sole cost, install the Equipment in a good and workmanlike manner and in accordance with accepted industry standards, Laws and the Plans. Fastwyre Broadband will perform its work at the Service Location in such a way as to reasonably minimize interference with the operation of the Service Location and the peaceful enjoyment of the Service Location by Users. Customer is responsible, at is sole cost, for opening and closing all trenches where the System will be located, and Customer will ensure that such trenches are sufficiently wide and deep to accommodate the Equipment and comply with Laws. Fastwyre Broadband may connect to and use standard electric power sufficient to operate the System from the existing electrical sources located at the Service Location, and the cost of such power is included within the consideration provided to Customer under the Agreement.
(c) If Customer desires Fastwyre Broadband to relocate any portion of the System, or do additional installation work not required by the Plans, then Customer will reimburse Fastwyre Broadband for all costs actually incurred by Fastwyre Broadband (on a time and materials basis at Fastwyre Broadband’s then-current standard rates) in developing the requested plans and performing such additional work.
(d) Upon termination of the Agreement and subject to the Right of Access, Fastwyre Broadband may either remove the Equipment or leave the Equipment in place, in each case in whole or in part. If Fastwyre Broadband fails to remove the Equipment within the time frame permitted by the Right of Access, then such Equipment will be deemed abandoned in place and title thereto automatically will vest in Customer without further action, cost or liability to either party. Any disposal of the Equipment by Customer will be in compliance with Laws.
(e) Fastwyre Broadband owns and has the exclusive right to access, operate, maintain, upgrade, replace and remove the Equipment. Except as specifically set forth otherwise in the Agreement, the Equipment will at all times remain the personal property of Fastwyre Broadband, and is not, and will not be deemed to be, affixed to or a fixture of the Service Location. Fastwyre Broadband retains the risk of damage to and loss of the Equipment, unless such damage or loss is caused by Customer or its Authorized Representatives, in which case Customer promptly will reimburse Fastwyre Broadband for its actual costs to repair or replace such damaged or lost Equipment. Customer will not, and Customer will not permit any third party to, access, move, use or interfere with the Equipment. Fastwyre Broadband will at all times keep the Equipment in good order, repair and condition, in compliance with Laws; provided that repeated damage to the Equipment may result in a suspension or termination of Services instead of repair or replacement. Customer will cooperate with Fastwyre Broadband to safeguard any Equipment located within Units or other private or secured areas and assist Fastwyre Broadband in removing and recovering such in-Unit Equipment.
(f) Unless provided otherwise in the Agreement, Fastwyre Broadband owns all CPE provided to Users and/or Customer and/or supplied to the Service Location. The type of CPE provided to Users will be in Fastwyre Broadband’s sole discretion and subject to availability and change at any time without notice. If a User (which may include Customer) desires different or additional CPE, then, subject to Fastwyre Broadband’s policies, availability, and compatibility with any other Services being provided at the Service Location, such User must obtain such different or additional CPE directly from Fastwyre Broadband under Fastwyre Broadband’s then-current terms and conditions. Users are responsible for any lost, stolen, damaged or unreturned CPE at Fastwyre Broadband’s then-current replacement charges, and are responsible for returning all CPE to Fastwyre Broadband after termination of Services, unless Customer specifically is responsible for such CPE as set forth in the Agreement, in which case Customer is responsible for the foregoing. CPE replacement may take up to 30 days. All CPE is provided on an “as-is basis” without warranty of any kind. Unless specified otherwise in the Agreement, each User is responsible to order, pick up and self-install CPE or may, at such User’s option, arrange directly with Fastwyre Broadband to have Fastwyre Broadband perform such installation at its then-current rates. Customer will use reasonable efforts to safeguard and return to Fastwyre Broadband any CPE left by Users in vacated Units, the Service Location management office, or other areas of the Service Location.
(g) Fastwyre Broadband will, at its sole cost, repair and restore all portions of the Service Location damaged by Fastwyre Broadband to its condition existing immediately prior to such damage, regardless of whether such damage occurred during installation, operation, maintenance, or removal activities.
5. System Protection and Interference.
(a) Once the System is installed, it may not be accessed, relocated, removed, disturbed, used or interfered with by Customer or any third party. Customer will use commercially reasonable efforts to safeguard the System against damage and unauthorized use. If Customer becomes aware of any unauthorized use of the System or receipt of the Services, then Customer promptly will notify Fastwyre Broadband and cooperate with Fastwyre Broadband to end the unauthorized use of the System or receipt of Services.
(b) If there is any condition at the Service Location that interferes with Fastwyre Broadband’s use of the System or provision of Services, and Fastwyre Broadband notifies Customer of such condition, then Customer promptly (and in all cases within any time frame required by Laws) will alter or cease its use of or at (or cause such third party to alter or cease its activities at) the Service Location to eliminate such interference completely and permanently. If Fastwyre Broadband determines, in its sole discretion, that as a result of interference or unauthorized use caused by the acts or omissions of Customer, a User, a third party, or a Force Majeure Event, (a) Fastwyre Broadband is hindered in the proper operation of the System and/or provision of Services; (b) there is a risk to the safety of any person or damage to the System or Service Location; or (c) provision of Services is in violation of Laws; then Fastwyre Broadband may, without liability to Customer or Users, (i) terminate the Agreement upon notice to Customer; (ii) disconnect or suspend Services or power down or remove Equipment (in each case in whole or in part); and/or (iii) take any legal or other actions as Fastwyre Broadband’s deems necessary. During any such interference where Fastwyre Broadband elects to continue providing Services, Fastwyre Broadband’s Services may be degraded due to the effects of such interference and such degraded Services will not be a breach of the Agreement. If there is any signal leakage caused by the System in violation of Laws (regardless of cause), Fastwyre Broadband will have the same remedies set forth in this paragraph.
(a) Customer grants to Fastwyre Broadband the right to offer and provide Services at the Service Location. The terms and conditions under which Users purchase and Fastwyre Broadband provides Services (including installations and billing) will be pursuant to agreements entered into between Fastwyre Broadband and such Users (which may include Customer under a separate Attachment). Fastwyre Broadband will use commercially reasonable efforts to ensure that the Services are available to Users 24 hours per day, 7 days per week, excluding during scheduled maintenance, required repairs, and Force Majeure Events. Fastwyre Broadband may, with or without notice and without breaching the Agreement, suspend, disconnect or refuse to provide Services or CPE to any person who (a) fails to execute or abide by the Subscriber Terms; (b) uses the Services, System or CPE in violation of Laws; or (c) fails to provide Fastwyre Broadband with the information required to establish and maintain a Service account or to receive CPE. If Fastwyre Broadband reconnects such Users, then Fastwyre Broadband may charge its then-current standard disconnection and reconnection fees to such User. Subject to Laws, Fastwyre Broadband has the right to select and make changes to the programming comprising the video Services offered to persons located in the area in which the Service Location is located (including Users), or add to, discontinue or change the rates and Services or any features, technology or components available to the Service Location as Fastwyre Broadband deems necessary or desirable in its sole discretion. Customer acknowledges that Fastwyre Broadband uses certain programming and content owned or provided by third parties. Customer will not make any claims against Fastwyre Broadband or its affiliates if certain programming or content is interrupted, discontinued or substituted. The rates Fastwyre Broadband charges Users will be consistent with the residential rates Fastwyre Broadband generally charges in the area in which the Service Location is located, as the same may change from time-to-time. The signal quality of the video Services will meet or exceed any applicable standards prescribed by the Federal Communications Commission. Customer will not except as specifically provided by the Agreement (which may allow Customer to charge Users), sell, resell, or redistribute the Services or CPE to any third party (including a User), or permit any third party to do so.
(b) If Customer is specifically permitted to suspend/reactivate any User’s access to Service Set Identifier(s) (SSIDs) used at a Service Location, then Customer will be responsible for (a) educating itself about, and strictly complying with, all Laws related to suspending and reactivating such access; (b) providing prior written disclosure to all potentially affected Users, specifying the conditions and process for suspending and reactivating the access; and (c) providing prior notices to affected Users as required by Laws. Because any access suspension and reactivation is solely Customer’s decision and action, Customer will be liable to Fastwyre Broadband for any claims or issues resulting from such actions, including loss of use of IOT devices or functionality. Notwithstanding any contrary provision in the Agreement, Customer may not be able to suspend access for any User that purchases additional Internet Services directly from Fastwyre Broadband. Fastwyre Broadband is entitled to, at any time and without notice or liability to Customer, reestablish access and/or Services and/or disable any features providing Customer the ability to suspend/reactivate User access.
(c) Fastwyre Broadband treats private communications on or through its network or using any Internet service it provides as confidential and does not access, use or disclose the contents of private communications, except in limited circumstances and as permitted or required by Laws. Users are not authorized to use any Service without prior review and acceptance of the Subscriber Terms. Customer represents and warrants that it has read the Subscriber Terms and agrees to be bound by them. If Users are unable to review and/or accept the Subscriber Terms via electronic means, then Customer will use reasonable efforts to provide the Subscriber Terms in hard copy for Users to review and obtain each User’s written acceptance of the Subscriber Terms. Customer should routinely review the Subscriber Terms for updates and notify Users of such updates.
7. Customer’s Representations and Warranties. Customer represents, warrants and covenants to Fastwyre Broadband that (a) Customer is either (i) the sole legal and equitable owner in fee simple of the Service Location; or (ii) Customer holds a controlling interest in the Service Location, provided, however, that if Customer is an owner’s association, this clause (a) does not apply; or (iii) Customer is the sole lessee of the Service Location for the duration of the Service Term; (b) Customer has the full power and authority to negotiate, execute, deliver and perform the Agreement and the legal authority to bind the legal Customer(s) of and the holder of fee title to the Service Location and/or the Units to (or make the foregoing parties subject to) the Agreement; (c) any legal description provided by Customer is the complete, accurate, and current legal description for the Service Location; (d) neither Customer nor the Service Location is subject to or has been threatened with any bankruptcy proceeding, foreclosure action, deed-in-lieu-of-foreclosure transaction, litigation or claims that could adversely affect Fastwyre Broadband’s rights under the Agreement; (e) Customer owns or has the right to grant to Fastwyre Broadband the right to use all Pathways and System components not owned by Fastwyre Broadband as contemplated by the Agreement; (f) Customer will not rebroadcast or display the Services in a public place or use any part of the Services in connection with a “public performance” unless it has obtained the requisite licenses, consents, and authorizations (such as for music rights, rebroadcast rights, etc.) and paid the appropriate fees (such as license fees, music royalties, etc.); (g) Customer is not subject to, and during the Service Term will not become subject to, any agreement or understanding with any third party that conflicts with the Agreement; and (h) as of the Effective Date, Customer is not required to obtain any additional consent or approval, to make any filing, or to provide any notices (including approval of Unit owners) in connection with entering into or performing the Agreement.
8. Internal Wiring.
(a) To the extent not already existing and operational, Customer will, at its sole cost, furnish and install, or upgrade, the Internal Wiring and any Pathways to house the Internal Wiring in compliance with Laws (including Laws that apply to Fastwyre Broadband’s use of the Internal Wiring to deliver Services, such as signal leakage requirements) and the Plans, in consultation with Fastwyre Broadband, and in compliance with any specifications provided by Fastwyre Broadband to Customer in writing.
(b) If the Internal Wiring already is installed and operational, then Customer will provide Fastwyre Broadband with a reasonable opportunity to inspect and test the Internal Wiring prior to performing any of its obligations under the Agreement. If Customer is installing or upgrading the Internal Wiring, then Customer will notify Fastwyre Broadband when such installation or upgrading is complete and provide Fastwyre Broadband with a reasonable opportunity to inspect and test the Internal Wiring. If Fastwyre Broadband identifies any deficiencies in the Internal Wiring, then Fastwyre Broadband will notify Customer and Customer promptly will correct such deficiencies to Fastwyre Broadband’s reasonable satisfaction and provide Fastwyre Broadband the opportunity to again inspect and test the Internal Wiring, after which the process stated in this Section will be repeated until Customer has corrected all deficiencies in the Internal Wiring. Fastwyre Broadband is not obligated to provide any Services unless and until Fastwyre Broadband (a) has inspected, tested and approved the Internal Wiring as meeting the installation or upgrade requirements of this Agreement; and (b) has been granted access to and use of the Internal Wiring to provide Services.
(c) The Internal Wiring is a fixture of the Service Location and will at all times remain the personal property of Customer. Customer hereby grants to Fastwyre Broadband the exclusive right to access, use, maintain, repair, replace and upgrade the Internal Wiring during the Service Term; provided, Fastwyre Broadband is not obligated to maintain, repair, replace or upgrade the Internal Wiring. Customer will not, and Customer will not permit any third party to, access, move, use or interfere with the Internal Wiring. If Customer is an association and is prohibited from granting Fastwyre Broadband the exclusive right to use all of any part of the Internal Wiring, then such use right will be non-exclusive and/or pursuant to use rights granted to Fastwyre Broadband directly by Users. If the exclusive use rights granted to Fastwyre Broadband in this Section become unenforceable under Laws, then such use rights automatically will become non-exclusive for so long as and to the extent required by Laws, in which case Customer will not authorize or permit any other provider, entity or person to concurrently use any portion of the Internal Wiring during any period that Fastwyre Broadband is using such Internal Wiring to provide Services to a User.
9. Bulk Internet Service. Fastwyre Broadband will activate and provide the Bulk Internet Service specified on a bulk-billed basis. Notwithstanding the foregoing, Fastwyre Broadband is not required to provide the Bulk Internet Service to any Unit until Customer has provided a complete and accurate list of addresses for each Unit that will receive the Bulk Internet Service. Customer will not take any action that would alter, modify or otherwise change the underlying signals comprising the Bulk Internet Service. Users may order additional Services directly from Fastwyre Broadband to the extent available and compatible with the Bulk Internet Service and other Services being provided. Customer hereby authorizes Unit occupants to order (at their sole expense) and Fastwyre Broadband to install, additional outlets in the individual dwelling Units of the Service Location. If Customer prohibits the installation of additional outlets, then Customer will notify Unit occupants of such policy as part of their lease and property rules and regulations.
10. Bulk Internet Service CPE. The Service Fee includes only the CPE specifically provided to Customer and Users under the Agreement, and Customer and/or Users are responsible for all such specified CPE as provided in the Agreement.
11. Bulk Internet Service Fee. The monthly Service Fee is set forth in the Agreement and applies regardless of whether Units are occupied or the Bulk Internet Service is used. Customer may charge Users an amenity fee for the Bulk Internet Service. The Service Fee excludes, and Customer is responsible to pay, all applicable sales taxes, franchise fees, FCC regulatory fees, government license fees, copyright fees, surcharges, rate increases imposed by programmers, any taxes, fees or assessments of general applicability imposed or assessed by any governmental authority, or other fees that Fastwyre Broadband may lawfully pass through to Users and/or Customer. Fastwyre Broadband has the right to increase the Service Fee by the amount set forth in the Agreement each year beginning in January of the calendar year immediately after the Start Date, unless otherwise provided herein. Service Fee increases may be cumulative if not taken in the previous year(s).
12. Bulk Video Service. Fastwyre Broadband will activate and provide the Bulk Video Service specified in the Agreement on a bulk-billed basis. Notwithstanding the foregoing, Fastwyre Broadband is not required to provide the Bulk Video Service to any Unit until Customer has provided a complete and accurate list of addresses for each Unit that will receive the Bulk Video Service. Customer will not take any action that would alter, modify or otherwise change the underlying signals comprising the Bulk Video Service. Users may order additional Services directly from Fastwyre Broadband to the extent available and compatible with the Bulk Video Service and other Services being provided. Customer hereby authorizes Unit occupants to order (at their sole expense) and Fastwyre Broadband to install, additional outlets in the individual dwelling Units of the Service Location. If Customer prohibits the installation of additional outlets, then Customer will notify Unit occupants of such policy as part of their lease and property rules and regulations.
13. Bulk Video Service CPE. The Service Fee includes only the CPE specifically provided to Customer and Users under the Agreement, and Customer and/or Users are responsible for all such specified CPE as provided in the Agreement.
14. Bulk Video Service Fee. The monthly Service Fee is set forth in the Agreement and applies regardless of whether Units are occupied or the Bulk Video Service is used. Customer may charge Users an amenity fee for the Bulk Video Service. The Service Fee excludes, and Customer is responsible to pay, all applicable sales taxes, franchise fees, FCC regulatory fees, government license fees, copyright fees, any public educational and government (PEG) access fees, retransmission consent fees or costs, surcharges, rate increases imposed by programmers, any taxes, fees or assessments of general applicability imposed or assessed by any governmental authority, or other fees that Fastwyre Broadband may lawfully pass through to Users and/or Customer. Fastwyre Broadband has the right to increase the Service Fee by the amount set forth in the Agreement each year beginning in January of the calendar year immediately after the Start Date. Service Fee increases may be cumulative if not taken in the previous year(s). If Fastwyre Broadband’s video programming costs materially increase (a) during any 12-month period starting on the Start Date, or (b) during any 36-month period starting on the Start Date, then upon notice to Customer, which notice may not be given by Fastwyre Broadband before three years from the Start Date, Customer and Fastwyre Broadband will have 90 days to renegotiate a new Service Fee and rate increases for the remainder of the Service Term. If Fastwyre Broadband and Customer are unable to reach such agreement, and Fastwyre Broadband is unwilling to continue providing the Bulk Video Service at the then-current contract rate, then Fastwyre Broadband may elect to (but is not required to) provide six months prior notice of termination of this Agreement.