ITS FIBER, LLC BUSINESS SERVICES TERMS AND CONDITIONS (“BST&C”)
ITS Fiber, directly and through its affiliates (collectively, “ITS Fiber”), offers business customers a range of services (each a “Service” and collectively the “Services”) pursuant to these BST&C including:
- Voice Services
- Broadband Services
- Ethernet Services
- IT Consulting Services
- Data Center Services
1. GENERAL PROVISIONS
2. RATES AND CHARGES
whichever event occurs first. Disconnection of any portion of the Services ordered by the Customer during the term will constitute a cancellation of Services, for which a Cancellation Fee will apply (see section 6 below).
2.3 All non-recurring charges resulting from this Agreement are due and payable prior to the Effective Date unless otherwise noted in the SO&MSA.
3. TERM, FEES AND TAXES
3.1.1 The Initial Term of the SO&MSA is specified in the SO&MSA. The Initial Term begins on the day Customer starts to be billed for recurring services or products as noted in the D&A, which shall be considered an addendum to the Agreement. After the expiration of the Initial Term, (the “Term”) the SO&MSA shall automatically be renewed for successive one-year periods unless terminated by either party, as provided herein, or unless a new contract is signed. Termination by either party shall require ninety (90) days written notice prior to the expiration of any term.
3.1.3 If either party wishes to modify the terms of the SO&MSA for any reason, it must provide a minimum of thirty (30) days advance written notice of the intended modification(s) to the other party. The terms of the SO&MSA may only be modified upon mutual agreement between ITS Fiber and Customer.
3.2.4 Disagreements with invoices must be registered in writing within thirty (30) days of the invoice date and the undisputed portion must be paid in full. Disputes registered after thirty (30) days must pay in full the entire invoiced amount. Customer waives the right to dispute an invoice amount after sixty (60) days past the invoice date. Disputed amounts resolved in favor of the Customer will be credited to their account. Disputed amounts resolved in favor of ITS Fiber are due and payable within ten (10) days of dispute resolution.
3.3.2 Customer shall provide notice to ITS Fiber of its own tax-exempt status, if applicable. It is Customer’s sole responsibility to ascertain, and to demonstrate to ITS Fiber, whether any tax deduction is applicable for taxes incurred under this agreement. Customer is responsible to notify ITS Fiber of any changes in its tax-exempt status.
3.4 AUTHORIZED CONTACT PERSONS (ACP). Customer shall designate in writing a primary point of contact and one or more other individuals as Authorized Contact Person(s) (ACP), for this Agreement to execute, without signature, such things as orders for interconnections, billing andaccount changes or requests for technical assistance services. The initial ACP(s) will be noted in the SO&MSA. Updates to the ACP list should be sent to the ITS Fiber Account Executive.
4. WARRANTIES AND LIMITATIONS OF LIABILITY
4.5 CLAIMS. No action or proceeding against ITS Fiber or its affiliates may be commenced more than twenty-four months after the claim arises. A claim shall be considered ripe under this provision when the Customer upon consideration of all facts can reasonably anticipate the need for dispute resolution proceedings.
- Damage to tangible personal property or personal injury; and
- Infringement of patent, trademark, design, copyright or any other intellectual property rights in relation to the SO&MSA and use or inclusion of any information, photographs, art work or other content (including without limitation claims based on invasion of privacy, right of publicity, the Communications Decency Act of 1996, obscenity or pornography, and the violation of any statutes or ordinances or other laws).
5. FORCE MAJEUREITS Fiber shall not be liable for any failed, diminished or delayed performance where such is the result of force majeure, interference by or inaction on behalf of third parties. If any tribunal or individual is called upon to interpret this provision it is the Parties intention that the exculpatory language be given the broadest possible scope – with the intended purpose of reducing liability or litigation and continuing the enforceability of the Agreement.
Either party may terminate its obligations under this Agreement if ordered to do so by the final order or ruling of a court or other governmental agency, or if such order or ruling would make it impossible for either party to carry out its obligations under this Agreement, or if the action of a governmental agency requires modification of the Services provided hereunder so as to impair such Services.
6. CANCELLATION OR REDUCTION OF SERVICES AND CANCELLATION FEE6.1 If Customer chooses to elect a term commitment to receive discounts and terminates their service(s) prior to the end of the term for any reason other than pursuant to section 8.1, then Customer will be billed an early termination penalty (“Cancellation Fee”). The Cancellation Fee shall be equal to the number of months remaining in the term multiplied by the monthly recurring charge, plus a $200 handling fee. This Cancellation Fee shall be billed following the termination of services with ITS Fiber. In the event Customer relocates their place of business and ITS Fiber is able to provide services at Customer’s new location, the Cancellation Fee will not apply if Customer utilizes ITS Fiber’s services at the new location; however, appropriate Installation and Service charges will apply.
7. CASUALTY OR EMINENT DOMAINIn the event of taking by eminent domain or damage by fire or other casualty to the facility, Customer shall acquiesce and be bound by any action taken by ITS Fiber, Customer shall have no rights to intervene or otherwise engage in the process of determining values or compensation.
8. TERMINATION OF AGREEMENT8.1 In addition to termination pursuant to section 1.2, this Agreement shall terminate as provided in this section 8. If either party (the "Offending Party") shall (i) apply for, consent to or suffer the appointment of a receiver, trustee, custodian or liquidator of all or any substantial part of its assets, or (ii) make a general assignment for the benefit of creditors, or (iii) file a petition or answer seeking, or admitting or shall otherwise take advantage of bankruptcy, reorganization or other relief under applicable bankruptcy law, then this shall be considered to be an "Event of Default" by such Offending Party; or (iv) breach one or more of its obligations hereunder without correcting the same within thirty (30) days of written notice from the other party specifying the nature thereof, however, that where such failure cannot reasonably be cured within such 30-day period, if the defaulting party shall proceed promptly to cure the same and prosecute such cure with due diligence, the time for curing such breach shall be extended for such a period of time as may be necessary to complete such curing up to a maximum cure period of sixty (60) days. There is no cure period for breach of license, ownership rights, confidentiality or unauthorized use.
8.2 Upon an Event of Default, the other party (the "Offended Party") may thereupon terminate this Agreement by giving the Offending Party thirty (30) days written notice of termination. Upon an Event of Default, each party shall have all remedies available to it under this Agreement, at law or in equity, and all such remedies shall be cumulative. Notwithstanding any other provision of this Agreement, ITS Fiber may terminate this Agreement upon ten (10) days prior written notice if the Customer fails or refuses to pay ITS Fiber in accordance with the provisions of this Agreement, violates any law, rule, regulation or policy of any governmental authority, or makes a material misrepresentation in any information provided to ITS Fiber. Upon termination of this Agreement for any reason, ITS Fiber shall be entitled to all payments due from Customer under this Agreement and the return of any equipment, hardware and software owned by ITS Fiber, including Customer Premises Equipment (CPE) that is in the possession or control of Customer at the time of termination. If Customer fails to return such equipment, hardware and software, Customer shall incur the obligation to pay the replacement value of all unreturned equipment, hardware and software. Termination of this Agreement shall not relieve Customer of any unfulfilled obligations created hereunder, unless agreed to in writing by ITS Fiber. Upon Termination ITS may suspend Customers access to its equipment and data until all balances are paid in full.
9. SEVERABILITYIn the event any provision contained in this Agreement is for any reason held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be then construed as if such an unenforceable provision or provisions had never been included in this Agreement.
10. WAIVERThe failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.
11. ASSIGNMENTNeither party may assign the SO&MSA in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, ITS Fiber may assign the SO&MSA to an affiliate or division so long as ITS Fiber exercises management control over or owns a controlling interest in or is under common control with such affiliate or division. In addition, both ITS Fiber and Customer have the unrestricted right to assign its rights and obligations under the SO&MSA to any individual, corporation or other business entity which acquires all or substantially all of its shares or assets, and upon such assignment, the assigning party shall be released of all its obligations under the SO&MSA arising from and after the date of such assignment, provided that any such assignee entity delivers to the other party a signed writing evidencing its agreement to be bound by the terms and conditions of the SO&MSA. The SO&MSA will bind and inure to the benefit of the parties and their respective permitted successors and assigns only. Customers assignment shall be conditioned upon: account is in good standing; all non-monetary obligations have been fulfilled; payment of the administrative costs, and completion of new corporate documentation re: contacts, solvency affidavit, employee security and venue for any cause of action.
12. APPLICABLE LAW & COMPLIANCE12.1 This Agreement shall be governed and interpreted according to the laws of the State of Florida without application of its conflict of laws provisions.
12.2 Each party agrees to comply with all laws, rules and regulations applicable to the performance of its obligations hereunder. Without limiting the generality of the foregoing, the Customer will have responsibility for ensuring that, except in respect to work performed hereunder by ITS Fiber, or ITS Fiber subcontractors or agents, the premises meet all applicable codes or other laws. Customer agrees to promptly correct any noncompliance with applicable codes and other laws if such noncompliance in any way prevents ITS Fiber from performing under this Agreement. This Agreement is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Rules and Regulations of the FCC, ITS Fiber's applicable tariffs and price lists, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body.
13. SERVICE CHANGES AND FAILURE13.1 In the event that Customer makes changes so as to require ITS Fiber to make modifications to the services or equipment that it is providing to the Customer, then Customer shall pay all costs and expenses charged by ITS Fiber for such additions, moves, changes or redesigns. In the event that Customer desires to change the in-service date on a service request after acceptance by ITS Fiber, Customer may change the in-service date, at no charge, no less than five (5) business days prior to the in-service date unless otherwise noted in the SO&MSA. In the event Customer desires to change the in-service date on less than five (5) business days’ notice, or in the event that Customer changes the in-service date more than once, Customer shall pay a charge of $100.00 plus any costs incurred by ITS Fiber as a result of the Customer’s change of the in-service date.
14. CUSTOMER'S RESPONSIBILITIES14.1 Customer, at Customer's own expense, shall be responsible for all charges relating in any way to the provision of ITS Fiber products or Services, including, without limitation, charges arising from misuse, abuse or fraudulent access to the ITS Fiber products or Services. Customer shall not use or permit any use of the ITS Fiber products or Services which is illegal, unlawful, or harassing. Customer must maintain reasonable security procedures and standards with respect to Customer's equipment that interfaces with the ITS Fiber products or Services. Equipment provided by ITS Fiber that is the property of ITS Fiber must be returned promptly in the event of termination of ITS Fiber Services. Termination is not final until all ITS equipment is returned and Customer has removed all Customer’s equipment from the ITS facility. Charges shall continue to accrue until such time as this is complete. Customer must provide ITS Fiber with thirty (30) days written notification of any moves requiring ITS Fiber equipment relocation. Customer hereby agrees to indemnify ITS Fiber and its affiliates against any liabilities incurred by them to any third party as a result of the Customer's use of the ITS Fiber products or Services. In the event Customer notifies ITS Fiber of suspected product or service failure, which constitutes ITS Fiber providing a service call to Customer's premises, with the ensuing results being determined as not related to ITS Fiber's products or Services, ITS Fiber shall at its discretion render invoiced charges to Customer pursuant to applicable standard rates.
14.2 Customer will provide ITS Fiber with reasonable access to its premises in order to install, maintain, and repair the ITS Fiber products or Services, and Customer shall authorize any other employee or its designated agent to grant access to Customer’s premises for these purposes. Customer understands and agrees that ITS may drill, cut, and otherwise alter improvements on the premises. If Customer does not own its premises, Customer warrants that Customer has obtained permission from any necessary party, including but not limited to the owner, landlord, or building manager, to make the alterations that ITS deems appropriate. Customer acknowledges that ITS may, following notice, use existing wiring, including altering the wiring and removing accessories, located within Customer’s premises.
15. INDEPENDENT CONTRACTOR STATUS15.1 ITS Fiber is engaged in an independent business and will perform all other obligations under this Agreement as an independent contractor and not as the agent or employee of the Customer. ITS Fiber’s personnel shall be considered solely the employees of ITS Fiber and not employees or agents of the Customer. ITS Fiber has and retains the right to exercise full control of and supervision over the performance of the services it provides and full control over the employment, direction, assignment, compensation, and discharge of all of its personnel performing services and full control of and supervision of its contractors. ITS Fiber is solely responsible for all matters relating to the compensation and benefits for all of ITS Fiber’s personnel. ITS Fiber and Customer agree to the following rights consistent with an independent contractor relationship:
- ITS Fiber has the right to perform services for others during the term of this contract.
- ITS Fiber has the sole right to control and direct the means, manner and method by which the services required by this contract will be performed.
- ITS Fiber has the right to hire assistants as sub- contractors, or to use employees to provide the services required by this Agreement.
- ITS Fiber or its employees or sub-contractors shall perform the services required by this contract.
- ITS Fiber shall allocate and shall have full control of the personnel and schedule required to fulfill the Services provided to Customer under this Agreement.
16. RESOLVING DISPUTES16.1 In the event of any dispute arising in connection with this Agreement, the parties shall use good faith efforts to arrive at an agreeable resolution through discussions. Discussions shall be conducted by individuals who have the absolute authority to resolve the dispute within their respective organizations. The party initiating the dispute shall provide written notice to the other party of such dispute. The Notice shall set forth in detail each element of the dispute, shall specifically reference documents or agreements relied upon in asserting the dispute and the remedy requested. Any matter not specified in the Notice shall be deemed waived for purposes of the negotiated discussions contemplated by this provision.
16.3 If after such period the parties are unable to agree upon a resolution, then either party may initiate mediation in accordance with the procedures set forth in section 16.4.
16.4 MEDIATION16.4.1 In the event the dispute between the parties cannot be resolved by good faith negotiations, the parties agree to participate in non-binding mediation.
16.4.2 A mediator Certified by the Florida Supreme Court will be selected by having counsel for each party agree on a single person to act as mediator. If counsel are unable to agree on a mediator the mediator shall be selected by ITS Fiber. The parties’ counsel, as well as officers of each party, and not more than two other participants from each party will appear before the mediator at a time and place determined by the mediator, but not more than sixty (60) days after the end of the good faith negotiating period.
16.4.3 The fees of the mediator and other costs of mediation will be shared equally by the parties 16.5 BINDING ARBITRATION. In the event that a dispute is not resolved through negotiation or non-binding mediation, the parties may opt to pursue binding arbitration pursuant to the provisions of FL. STAT §§ 44.1011 – 44.406. In addition to the Standards for Arbitrators set forth in Chapter 44, the arbitrator must have adequate technical expertise in the disciplines covered by this agreement to qualify in those disciplines as an expert in judicial proceedings. If the Parties are unable to agree upon an arbitrator, the arbitrator shall be selected by ITS Fiber. In the event either party fails or refuses to submit to arbitration, this provision may be enforced and compelled in a judicial proceeding. The arbitrator is specifically agreed to have the authority to award fees and costs.
16.6 LITIGATION16.6.1 If, within two (2) years following notice of a dispute, the dispute is not resolved via non-binding mediation and the parties have opted not to pursue binding arbitration, the parties may resort to litigation in a court of competent jurisdiction located in Martin County, Florida, or in the Federal Court for the Southern District of Florida venued in St. Lucie County, Florida.
16.6.2 The non-prevailing party in any binding dispute resolution proceeding or court proceeding will pay for costs and for the other party’s reasonable attorney fees. In Mediation, the Mediator may consider and award fees and allocate costs. If the case is brought in Federal Court the recoverable costs shall be those permitted under Florida’s state guidelines.
17. CONFIDENTIALITYEach party shall safeguard confidential information of the other party to the same reasonable degree of care it protects its own confidential information. Each party shall maintain in confidence all information marked, or reasonably appearing to be, confidential or proprietary including but not limited to pricing, financials, technical capabilities, this contract and its terms; marketing information, unless the information is not confidential because the information was received from a third party, is in the public domain, or is independently developed by the receiving party. In the event that the Customer fails to comply with this Section 17, ITS Fiber reserves the right to terminate the Agreement by notice in writing with immediate effect.
18. ENTIRE AGREEMENTThis Agreement, together with any SO&MSA, Addenda, Exhibits or Schedules attached hereto, or to be attached in the future, or the ITS Fiber Broadband Terms and Conditions and Acceptable Use Policy or any Amendments attached hereto, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services described herein and therein, and no representation, promise, inducement or statement of intention has been made by either party and relied upon which is not embodied herein. ITS Fiber shall not be bound by any agents' or employees' representations, promises or inducements not set forth herein.
19. EQUIPMENTCustomer agrees to abide by these BST&C. ITS Fiber will install any equipment that is owned by ITS Fiber and that is necessary to receive Services from ITS Fiber. The Customer understands that they have not purchased this equipment and it must be used and returned to ITS Fiber upon termination of services. Customer is responsible for the loss or damage to the equipment that has been installed from ITS Fiber. Customer has no right to sell, give away, transfer, pledge, mortgage, remove, relocate, alter, or tamper with the equipment at any time. Equipment is to be solely used for the provision of ITS Fiber Services to Customer and may not be used for any other purpose. ITS Fiber is not responsible for any special, incidental, or consequential damages relating to the equipment provided to Customer. In the event that the equipment becomes inoperative, Customer shall call ITS Fiber technical support immediately. Customer is responsible for any damage to equipment due to Customer negligence, failed security or willful misconduct. Upon termination of ITS Fiber Services, arrangements will be made for ITS Fiber technicians to uninstall the equipment and remove it from Customer's premises. The equipment must be returned in good working order. In the event that the equipment is not returned in good working order, Customer will be charged the replacement value for each item of the equipment not returned in good working order.
20. NOTICESNotices, including those required by the SO&MSA, shall be sent by hand delivery or via email. If via email, notices shall be transmitted through a system that validates delivery and the full path of transmission. Notices hereunder shall be deemed properly given when delivered. Notices sent via Email shall be delivered to the address indicated below until such time as either party informs the other in writing of a change:
21. NOT A LEASEThe provisions of the SO&MSA, as well as these BST&C, are a service agreement and are not intended to and will not constitute a lease of real property.
22. PROPRIETARY RIGHTSThis Agreement shall not be construed to grant to Customer any ownership right, title or interest in any intellectual property rights embodied in or associated with the products and services provided by ITS Fiber hereunder. All intellectual property rights, title and interest in the methodology, technology and know-how that ITS Fiber uses to provide the products and Services shall remain exclusively with ITS Fiber and its licensors, as applicable.
23. MISCELLANEOUS23.1 The SO&MSA may be executed in two or more counterparts, each of which shall be deemed an original. This Agreement may be executed in accord with Florida’s Electronic Signatures Act, Florida Statute, sections 668.001 – 668.006. This SO&MSA may be amended, and ITS Fiber may take any action herein prohibited, or omit to perform any act herein required to be performed by it, if ITS Fiber shall obtain the prior written consent of the Customer to such amendment, action or omission to act.
Additional Terms for Voice Services
- GENERAL VOICE TERMS
- ITS Fiber provides voice communication services, which include direct-dialed calling and certain advanced features. ITS Fiber reserves the right to offer, modify or discontinue features or advanced features, and may, at its discretion, require additional charges for features.
- When Customer accepts the voice service, Customer becomes the main account holder for each telephone number assigned to the service and all plans, features, and functionalities associated with each telephone number, whether those telephone numbers, plans, features, and functionalities are purchased initially or are added subsequently.
- For voice service, non-recurring and usage-based charges are generally billed in the billing cycle following the transaction and include, but are not limited to, international calling (including surcharges for international termination to a wireless phone number), operator services, directory assistance, call trace, and overage minutes associated with defined minutes-of-use plans. Partial minutes are rounded up for per-minute usage charges. Customer shall not resell or redistribute (whether for a fee or otherwise) the voice service, or any portion thereof, or otherwise charge others to use the service, or any portion thereof, unless there is a specific agreement between ITS Fiber and the Customer which allows such resale.
- Voice service requires Customer Premises Equipment (CPE) that may be provided by the Customer or by ITS Fiber. The CPE must be compatible with the particular voice service ordered by Customer. Customer must comply with all of ITS Fiber’s guidelines and procedures for 911 if the CPE is moved from the originally installed location or Customer uses a voice application on a mobile device.
- Customer also acknowledges that ITS Fiber may establish general practices and limits concerning use of the voice service and may restrict calls to certain area codes (e.g., 900/976 calls) as determined by ITS Fiber. Customer acknowledges that ITS Fiber also reserves the right to log off accounts or disconnect sessions that are inactive for an extended period of time. Customer further acknowledges that ITS Fiber reserves the right to change its general practices and limits at any time without advance notice.
- Local Number Portability. In the event Customer is transferring an existing non-ITS Fiber phone number to ITS Fiber for its voice service (i.e., porting a number to telephone and long distance service), Customer authorizes ITS Fiber to process its order for telephone and long distance service and to notify the existing voice provider of the Customer’s decision to switch it’s local, local toll, and long distance services to ITS Fiber’s voice service, and Customer represents that Customer is authorized to take this action. Not all telephone numbers are eligible for porting to voice service.
- Alarm and Other Device Compatibility. Monitored fire alarm and burglar alarm systems and medical monitoring devices may not be compatible with voice services and ITS Fiber is not responsible for the proper functioning of such devices.
- If Customer has or purchases a monitored fire alarm or burglar alarm system or a medical monitoring device that Customer intends to use with voice as the communications pathway, Customer agrees to contact its provider for those systems/devices to determine compatibility with voice service and to arrange for the alarm or medical monitoring provider to test such systems/devices after installation of voice service. Customer also acknowledges and understands that even if such systems and devices are compatible with voice service, they will not be able to communicate with monitoring stations during a power outage unless Customer maintains backup power for voice. If Customer purchases a monitored burglar alarm or monitored fire alarm system after the service has been installed, Customer also agrees to call ITS Fiber prior to installation of any such system.
- Inside Wiring. ITS Fiber is not responsible for the operability or maintenance of any wiring beyond the ITS Fiber point of demarcation, which shall be the ITS Fiber network interface device (NID) or the ITS Fiber Optical Network Terminal (ONT), as applicable, except where Customer has purchased an inside wiring maintenance plan from ITS Fiber. Customer will be charged for a service call and all applicable repair charges if ITS Fiber responds to a request for service and determines that the problem is caused by the inside wiring.
- HOSTED PRIVATE BRANCH EXCHANGE (HPBX) ADDITIONAL TERMS
- Hosted Internet Protocol (IP) PBX, also known as ‘Cloud Voice’, requires bandwidth on a broadband connection to operate. The quality of the voice service is contingent on the quality of the Customer’s bandwidth connection. The following conditions must be met if ITS Fiber does not supply the bandwidth:
- The bandwidth delivered by the third party must be sufficient to handle both voice and data needs. ITS Fiber cannot be held responsible for inadequate bandwidth provided by a third party provider.
- The bandwidth must meet certain delay, jitter and packet loss parameters to operate properly.
- The router/firewall and related network equipment must be in good repair and kept up to date and must be programmable and programmed to give priority to voice traffic over data traffic.
- The inside wire must be capable of supporting enough bandwidth to each workstation to support both the voice and data needs of each station. ITS Fiber can design and provide upgrades to network components or additional inside wiring for an additional fee.
- ALARM AND FAX MACHINES
- It may be necessary for Customer to provide a separate analog phone line or an equivalent line from another provider for each alarm system or fax machine that requires an analog line.
- ITS Fiber does not accept, under any circumstance, responsibility or liability for the functionality of alarm or fax machine devices or devices designed to convert broadband service for use on analog devices or any other devices associated with alarm and fax machines. ITS Fiber is not responsible for the performance or quality of analog or broadband lines provided to its Customers from other providers.
- NOMADIC VOICE SERVICE & 911 SERVICE
- Because nomadic voice service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, ITS Fiber does not guarantee that nomadic voice service will be continuous or error-free. Customer acknowledges and understands that ITS Fiber cannot guarantee that nomadic voice services are secure.
- Customer acknowledges and understands that nomadic voice service requires electrical power to function. ITS is not responsible for backup power.
- Nomadic Voice 911 limitations. Customer hereby acknowledges and agrees to all of the information below regarding the limitations of 911 nomadic voice service over IP voice service and the distinctions between 911 nomadic voice service versus 911 service over traditional telephone service. Customer agrees to advise all individuals who may place calls utilizing nomadic voice service of the 911 limitations described below.
911 Services: 911 services are not guaranteed with a basic (VoIP to VoIP) setup. However, it is available with many of the interconnected services that extend VoIP connectivity to traditional landlines. You should not assume that 911 services are present and working (even with interconnected VoIP services), but should consult with the terms of your service agreement. The FCC has described some of the challenges of VoIP services and has provided tips for VoIP subscribers. For more information, visit:http://www.fcc.gov/cgb/consumerfacts/voip911.html.
- ITS Fiber makes no warranty that nomadic voice service for access to 911 will be uninterrupted, timely, secure, or error-free or that battery backup power will be sufficient to maintain the service throughout any and/or all power outages.
- 911 service with nomadic voice service is only available at Customer’s service address, while connected to properly powered equipment and after telephone and long distance has been activated.
- 911 service on nomadic voice service will not function if Customer’s equipment fails or is not configured correctly or if the nomadic voice is interrupted or not functioning for any reason, including, but not limited to, in the event of a power outage (unless Customer has working back-up battery power), network outage, or disconnection of voice service because of non-payment. If there is a power outage, Customer may be required to reset or reconfigure the equipment prior to being able to use voice services, including use for 911 calling.
- Customer acknowledges that ITS Fiber strongly recommends Customer maintain at all times an alternative means of accessing 911 services.
- Customer acknowledges and understands that ITS Fiber will not be liable for any losses incurred directly or indirectly as a result of service outage and/or inability to dial 911 using nomadic voice service or inability to access emergency service personnel for any reason, including but not limited to the 911 characteristics and limitations set forth in this document and/or the characteristics, limitations, and/or failure of the 911 network itself.
- Without limiting any provisions of this Agreement, Customer agrees to defend, indemnify, and hold harmless ITS Fiber, its subsidiaries, affiliates, officers, agents, directors, employees, who furnish services to Customer in connection with the nomadic voice service, from any and all claims, losses (including loss of profits or revenue), liabilities, damages, fines, penalties, demands, actions, costs, and expenses (including, without limitation, reasonable attorneys’ fees) by, or on behalf of, Customer or any third party or user of the its telephone and long distance service, regardless of the nature of the claim, including without limitation claims related to 911 dialing, arising from or in connection with any failure or outage of telephone and long distance service or any failure or outage of the 911 network itself.
- OTHER CONSIDERATIONS
- Customer will ensure that their Information Technology (IT) consultant or employee is present to assist with any data equipment issues discovered during installation of the hosted PBX.
- In the event that the Customer requires any additional IT network equipment or IT services to support or install the hosted PBX or any other data-related need, ITS Fiber will provide a separate proposal.
Additional Terms for Broadband Service
Services. The term "Service" shall include ITS Fiber Broadband ("Broadband"), ITS Fiber E-Mail Service ("E-Mail Service"), including all software (as defined below), and such other products or services as Customer may subscribe to with ITS Fiber. The Service shall also include any software or hardware that ITS Fiber provides Customer in connection with the Service to which Customer has subscribed.
- The Services shall not be used for any illegal or unlawful purpose, sending unsolicited bulk email, or maintaining an open mail relay. Violation may result in suspension of the Services or access by Customer.
- All provisions of ITS Fiber's applicable tariffs, if any, are incorporated herein by this reference.
- ITS Fiber reserves the right to make modifications and improvements in the Services or to change general rates, terms and conditions of the Services. No modifications shall override terms of a SO&MSA.
- Broadband internet usage is limited to the primary Customer only, and may not be resold or shared, except within Customer's organization. Any other use is considered a breach of contract subject to termination terms as specified in section 8 of the BST&C.
- ITS Fiber reserves the right to impose and enforce bandwidth usage thresholds based on individual broadband service plans limiting the amount of data you are able to upload and download within specific time periods. In order to enforce a bandwidth usage threshold policy, ITS Fiber reserves the right to do any of the following:
- temporarily reduce the speed at which Customer may send or receive data over the access network;
- impose charges for exceeding bandwidth limitations; or
- suspend or terminate Broadband Service accounts where data consumption is not characteristic of a typical user of a similar Broadband Services account as determined by ITS Fiber in its sole discretion.
- Compliance with Laws State, Federal and International Laws and Regulations govern the creation, transmission and storage of data. SOLE RESPONSIBILITY FOR COMPLIANCE WITH THESE LAWS AND REGULATIONS IS THE CUSTOMER’S. IN THE EVENT OF A LEGAL OR REGULATORY INVESTIGATION OF CUSTOMERS CREATION, TRANSMISSION OR STORAGE OF DATA – ITS FIBER WILL FULLY COOPERATE WITH THE INVESTIGATIVE AGENCY AND COMPLY WITH ANY FACIALLY LEGAL ORDER OR PROCESS. THE COST OF COMPLIANCE WILL BE PAID BY THE CUSTOMER AS IT IS INCURRED OR ALL SERVICES MAY BE SUSPENDED.
- Customers. ITS Fiber reserves the right to suspend or terminate the Service (or any portion thereof) without notice in the event that Customer’s use of the Service, is found to violate any applicable law, regulation or ordinance, or the terms of this Agreement or our AUP, or otherwise adversely affects or threatens any ITS Fiber network or service, Customer or employee, or, if Customer is determined to be a repeat infringer pursuant to our copyright infringement policy under our AUP.
- Software Provided. If Customer chooses to utilize software which is proprietary to ITS Fiber, such use constitutes an absolute acceptance of the Limited License granted by ITS Fiber and the Terms specified in the Agreement appended to that software. All Intellectual Property Rights of any kind, created by any jurisdiction are reserved to the party possessing them prior to the grant by ITS Fiber of the Limited License. If the Customer chooses to use software which is proprietary to third parties, Customer acknowledges and agrees ITS Fiber has neither control or liability for Customer’s use.
- Return of Equipment and Software. Upon termination or expiration of this Agreement, Customer agrees to return to ITS Fiber all hardware (other than hardware that has been purchased from ITS Fiber), which ITS Fiber has provided to it in connection with the Service, and to cease use of all the provided Software and immediately delete such Software from its computer. In the event such hardware and software is not returned to ITS Fiber within thirty (30) calendar days following such termination or expiration, in accordance with paragraph 8 of the BST&C, Customer agrees to pay the replacement value of all unreturned hardware and software.
- Customer Equipment and Broadband Performance. Customer is solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software updates, patches or other fixes, which are or may become necessary to access the Broadband Service, and to operate its computer and/or network. The preceding obligations apply regardless of whether ITS Fiber or a third party provided the software or hardware to Customer. Customer understand that Broadband bandwidth is provided on a per line basis, and that the speed and bandwidth available to each computer or device connected to the network will vary depending upon the number and types of computers or devices using the Service and the type of use (e.g., streaming media or downloading larger files). Only the manufacturer's warranties included with any hardware or software provided by ITS Fiber shall apply.
Additional Terms for Data Center Services
- Scope of Services. ITS Fiber owns, operates, maintains and provides monitoring and service personnel for an APC Hot Aisle Containment System (HACS) Data Center in which its Customers servers are co-located.
1.1 ITS Fiber will provide Customer the Data Center Services as set forth in the SO&MSA as well as these BST&C and any referenced documents.
1.2 Customer shall use the products and services provided by ITS Fiber solely for Customer's internal business purposes. Customer shall not resell the ITS Fiber services without the express written authorization of ITS Fiber
- Use of Equipment Space. ITS Fiber's facility housing the HACS (the "Equipment Space") shall be accessible to Customer in accord with the terms of the SO&MSA and shall be utilized by Customer only for placement and maintenance of equipment, telecommunications or Internet access equipment necessary for the provision of co-location and hosting services.
2.1 ITS Fiber shall have the right to access the Equipment Space for any business purpose at all times. EXCEPT AS EXPRESSLY STATED HEREIN THE EQUIPMENT SPACE SHALL BE DELIVERED BY ITS FIBER AND ACCEPTED BY CUSTOMER "AS IS", AND ITS FIBER HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR WARRANTY AS TO THE FITNESS OF THE EQUIPMENT FOR THE CUSTOMERS INTENDED USE.
2.2 SPACE FOR CUSTOMER'S INTENDED PURPOSE. CUSTOMER OR CUSTOMER’S TECHNICAL REPRESENTATIVE HAS INSPECTED THE EQUIPMENT SPACE AND MADE ITS OWN DETERMINATION OF SUITABILITY.
2.3 ITS Fiber will provide equipment ("ITS Fiber Equipment") necessary to the operation of the HACS. ITS Fiber shall use reasonable efforts to provide and maintain the ITS Fiber Equipment in good working order. ITS Fiber shall be entitled to remove all ITS Fiber Equipment for repair, replacement, or otherwise as ITS Fiber may determine is necessary, but ITS Fiber shall use reasonable efforts to minimize disruptions to the service provided to Customer and shall provide Customer with advanced notice where circumstances permit. Customer shall not, and shall not permit others, to rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the ITS Fiber Equipment.
2.4 Customer Cabinet. ITS Fiber shall provide and maintain the HACS cabinet space and racking for the equipment within the Data Center (the “Customer Cabinet”). The Customer Cabinet shall be suitable, as reasonably determined by ITS Fiber in accord with Telecommunications Industries Association and Electrical Industries Alliance Standards – as may be applicable, for the proper storage and operation of the equipment. Other than for access required by authorized ITS Fiber employees or contractors in order to perform ITS Fiber’s obligations under this Agreement, or as may be required by applicable law or legal process, ITS Fiber shall not permit any Person other than a Customer Representative to have access to any of the Customer Systems or any portion of the Customer Cabinet.
2.5 Notwithstanding the foregoing, ITS Fiber may inspect and, following a reasonable effort to give notice to Customer, may remove or disable any equipment in the Customer Cabinet that it reasonably believes is unsafe or harmful to the Data Center, ITS Fiber’s equipment, networks or systems or third party equipment, networks or systems. Customer will use the Customer Cabinet only for the purposes of installing, operating, monitoring, maintaining, repairing, replacing and/or removing the Customer Systems.
2.6 ITS Fiber shall not be responsible for the operation or maintenance of any Customer-provided equipment unless specified in the SO&MSA or an approved amendment.
2.7 Following termination of the SO&MSA, ITS Fiber shall be entitled to remove all ITS Fiber Equipment and Customer- provided equipment from the Customer Cabinet and to repair any damage to the Customer Cabinet. The Customer Cabinet shall be in the same condition as when the Customer first occupied it, normal wear and tear excepted. Customer shall reimburse ITS Fiber promptly for the reasonable cost of any repairs required to restore the Equipment Space to its original condition.
2.8 Customer is solely responsible for the content of any transmissions utilizing Customer's facilities or ITS Fiber's facilities. The use of another organization's network or computing resources is subject to its respective permission and usage policies. Customer agrees to comply with all applicable laws with regard to the transmission and use of information and content. Customer further agrees not to use the services provided hereunder for illegal purposes, to interfere with or disrupt other network users, network services or network equipment.
2.9 Upon notice from ITS Fiber, Customer shall promptly eliminate any hazard, interference or service obstruction that any hardware or software used by Customer (whether or not provided by ITS Fiber), is causing, or is likely to cause. If Customer requests ITS Fiber's assistance in removing any such hazard, interference or service, ITS Fiber may, but is not required to assist in such removal.
2.10 ITS Fiber agrees to allow Customer to place the Customer's equipment in the Customer Cabinet subject to the terms as specified by ITS Fiber. Such placement shall be subject to the SO&MSA and ITS Fiber's installation and maintenance specifications, which ITS Fiber shall provide to Customer from time to time.
- Maintenance. ITS Fiber shall perform such janitorial services, environmental systems maintenance, power plant maintenance and other actions as are reasonably required to maintain the facility in which the Equipment Space is located in a condition which is suitable for the operation of the HACS equipment.
3.1 Customer shall maintain their area of the Equipment Space in an orderly and safe condition. Failure to do so may result in ITS Fiber cleaning the Customer area and passing the cost on to the Customer.
- Security. ITS Fiber provides multi-layered physical security for the hosting facility. The Customer has had the opportunity to inspect the facility, speak with security personnel and fully investigate the security provided by ITS Fiber. Customer’s acceptance of this Agreement also constitutes and acceptance of the existing physical security. ITS Fiber will notify the Customer of any changes to the facility’s security.
4.1 Notwithstanding the preceding paragraph ITS FIBER ASSUMES NO LIABILITY FOR ANY DAMAGE OR LOSS TO CUSTOMER'S EQUIPMENT RESULTING FROM ANY OTHER CUSTOMER'S ACCESS TO ITS FIBER’S FACILITY. ANY SUCH DAMAGE OR LOSS WILL BE THE EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER WHO CAUSED SUCH LOSS OR DAMAGE. ITS Fiber will provide reasonable assistance to resolve any disputes regarding such loss or damage.
- Access. Customer is exclusively responsible for the management of all security devices, codes or other information provided to it under this Agreement. Any damage, costs or personnel time accruing to ITS Fiber as a result of Customers failure to properly secure devices or information shall be an additional charge to Customer, with the same remedies available for any monetary default. In addition to the rights set forth elsewhere in the SO&MSA, ITS Fiber shall have the right to terminate Customer’s use of the Equipment Space or the services in the event that: ITS Fiber’s rights to use the facility within which the Equipment Space is located terminates or expires for any reason; Customer makes any material alterations to the Equipment Space without first obtaining the written consent of ITS Fiber; or Customer violates any posted or otherwise communicated rules relating to use of or access to the Equipment Space.
- Rights to Equipment and Software. Customer represents, warrants and covenants that it owns or has the legal right and authority, and will continue to own or secure the legal right and authority, during the term of the SO&MSA, to use the Customer's equipment and software located in the Equipment Space.
- Acceptable Use of Internet. Customer is responsible for abiding by ITS Fiber's Acceptable Use Policy, Terms and Conditions and all other policies associated with the use of ITS Fiber’s Broadband services which are included on ITS Fiber's website (www.itsfiber.com) and considered part of the SO&MSA. Customer represents that it has reviewed and is familiar with these policies. If applicable, Customer shall execute an Intellectual Property and ESI Custody and Control Agreement at the time of executing the SO&MSA 8. Service Level Agreements. ITS Fiber guarantees that our Services will be provided in accordance with ITS Fiber’s current SLA, incorporated in the SO&MSA.
- Service Level Agreements. ITS Fiber guarantees that our Services will be provided in accordance with ITS Fiber’s current SLA, incorporated in the SO&MSA.
8.1 If ITS Fiber fails to meet the objective during a calendar month due to outages as described in the SO&MSA – Service Level Agreement, the Customer may request a credit from us. The amount of the credit is 1/30th of the monthlyIf ITS Fiber fails to meet the objective during a calendar month due to outages as described in the SO&MSA – Service Level Agreement, the Customer may request a credit from us. The amount of the credit is 1/30th of the monthly recurring charge for the service being provided to Customer for every twenty-four (24) hour period that the service was unavailable during the month due to an outage. Outages will be counted only if Customer opens a trouble ticket requesting a SLA investigation with ITS Fiber’s technical support within five (5) days of the outage.
- Insurance. Prior to use of the Equipment Space and during the term of the SO&MSA, Customer shall procure and maintain the following minimum insurance coverage: Workers' Compensation in an amount not less than that prescribed by statutory limits; Employer's Liability with limits of $500,000 each accident; Commercial General Liability with combined single limits of $1,000,000 each occurrence; and "All Risk" Property insurance covering all of Customer's personal property located in the Equipment Space. THE CUSTOMERS FAILURE TO OBTAIN THE REQUIRED INSURANCE SHALL BE AN AFFIRMATIVE WAIVER OF ANY CLAIM AGAINST ITS FIBER OR ITS FIBER’S AFFILIATES. Customer's Commercial General Liability policy shall be endorsed to show ITS Fiber (and any underlying property owner, as requested by ITS Fiber) as an additional insured. Customer shall require any contractor entering the Equipment Space on its behalf to procure and maintain the same types, amounts and coverage extensions as required of Customer.
- Ability to Change Equipment Space. ITS Fiber reserves the right to change the location or configuration of the Equipment Space; provided, however, that ITS Fiber shall not arbitrarily or discriminatorily require such changes. ITS Fiber and Customer shall work in good faith to minimize any disruption in Customer's services that may be caused by such changes in location or configuration of the Equipment Space and the cost will be borne by ITS Fiber.
- Scope of Services. ITS Fiber owns, operates, maintains and provides monitoring and service personnel for an APC Hot Aisle Containment System (HACS) Data Center in which its Customers servers are co-located.