FiberFirst (hereafter “FiberFirst”, “Company”, “we” or “us”) and the customer whose name and address appear on the Service Order (hereafter “Customer”, “you” or “your”) enter into this agreement whereby we will provide you those services listed on the Service Order or any other services purchased by you from us (“Services”) and you agree to pay our current fees and rates for those Services. We may change our fees and rates for the Services, from time to time, with notice to you as required by law. By acknowledging the Service Order, you agree to abide by these Terms and Conditions and those contained in the Additional Terms of Service Addendum, which is hereby incorporated by reference, and collectively with the Service Order, forms the agreement between us (“Agreement”).
Terms and Conditions
1. Electronic Signatures, Notices and Disclosures.
You consent to the use of electronic signatures for all agreements with us and consent to receive any or all notices and disclosures we send to you online or through other electronic means (e.g. email or text over the wireless number you provided to FiberFirst, charges may apply). Your consent may be given by: clicking a box indicating your acceptance, consent or acknowledgment; activating any of our services; or, using any of our services. If you want a paper copy of any document provided to you online, by email or other electronic means, please contact us at 833-FIBRGIG and a paper copy will be sent to you at no charge (except for paper invoices for which we may charge a fee). If you no longer wish to sign documents using electronic signatures or receive notices or disclosures electronically, you may email contactus@FiberFirst.com or send a letter withdrawing your consent at no charge to you to FiberFirst, Attn: Customer Care, 550 Reserve Street, Suite 600, Southlake, TX 76092. Your withdrawal will not affect the legal validity or enforceability of the electronic documents, signatures and deliveries prior to the time the withdrawal of your consent is processed. If your email, mobile phone number, or other address for electronic communications changes, please let us know promptly by emailing contactus@FiberFirst.com or contacting 833-FIBRGIG. The following hardware and software are required to access and retain the electronic documents: Adobe Acrobat Reader software, version 6.0 or higher, computer running the latest version of Microsoft Internet Explorer or another compatible browser capable of viewing the site in 128-bit encryption.
2. Term, Billing, and Payment
(a) Effective Date. This Agreement is effective when it has been signed by you and accepted by FiberFirst either by execution on behalf of FiberFirst or by FiberFirst commencing the Services delivery process. Upon approval, we will begin as soon as practicable the installation, connection and testing of the circuits and/or equipment necessary to provide the Services.
(b) Term. The initial term of this Agreement (“Initial Term”) will begin the date we provide notice to you that the Services are available for your use. Unless otherwise specified on the Service Order, the term of the Agreement is month-to-month. You may order additional services at your existing Service Location(s) under this Agreement for which Service(s) shall have an Initial Term coterminous with the Initial or Renewal Term of the existing Service(s) at said Service Location, subject to our acceptance. Services for additional Service Locations may also be ordered, subject to our acceptance, under this Agreement.
(c) Billing. We will begin invoicing you for the Services and other charges after giving you notice that the Services are installed and available for your use and will continue invoicing you on a monthly basis until the Agreement is terminated. We will bill monthly recurring charges in advance and usage charges after the usage occurs. You are responsible for all Other Charges and Government Fees and Taxes which will be separately listed on each invoice. We may require, in our sole discretion, that you provide a deposit or other assurance of payment before the Services are provided and/or thereafter. Any required deposit shall not bear interest unless required by law. If you delay acceptance of the Services after receiving notice that Services are available, we may, in our sole discretion, begin invoicing you for the ordered Services. If you continue to delay acceptance of the Services for more than 60 days after the date the Services are available, you will have materially breached this Agreement, and we will be entitled to terminate this Agreement without further notice.
(d) Back-billing. We will endeavor to bill you for charges on a timely basis. However, unless proscribed by state regulation, you shall nevertheless be liable for all charges irrespective of any delay in billing, whether due to error, lack of necessary data, negligence or any other reason. No such delay shall constitute a basis for a claim of waiver, estoppel or other excuse of your obligation to pay our charges, irrespective of the length of the delay. Nothing herein shall toll the running of any statute of limitations applicable to such obligations.
(e) Payment. Invoices are due and payable upon presentation, and become past due after the Pay By Date printed on the invoice. If you have a bona fide dispute with any of the amounts on the invoice (“Disputed Amount”), you shall pay all amounts not in dispute by the Pay By Date and provide us with a written request for a billing adjustment, together with all supporting documentation, within 45 days after the Pay By Date or your right to any billing adjustment shall be waived. If we agree to adjust all or a portion of the Disputed Amount, you will not be obligated to pay a late payment charge on the adjusted amount. If you fail to pay all non-Disputed charges on our invoice by the Pay By Date, we may impose a late payment charge of 4% per month or the maximum rate allowed by law, whichever is less, on the unpaid balance until the amount is paid. We may also suspend your services until all delinquent amounts, including late payment charges, are paid in full. An additional charge will apply to each returned payment.
(f) Refund Policy. There are no refunds for rendered Services. Subject to the provisions regarding Early Termination Charges, if you voluntarily terminate your Agreement with us and you have paid us in advance for Services not yet rendered by us, then, after receiving a final invoice from us, you may request a refund equal to the credits listed on your final invoice. All such refunds are subject to the following conditions: (i) all requests for a refund must be made within sixty (60) days of the date you receive a final invoice from us; and (ii) all requests for a refund must be made to our customer service department at 833-FIBRGIG or Billing@FiberFirst.com.
3. Your Obligations
(a) Our Property. Any equipment installed at your premises by us or shipped to you by FiberFirst or our authorized third-party vendor remains our personal property, and nothing contained in this Agreement shall give or convey to you any right, title, or interest in such equipment. You agree not to interfere with or damage the equipment and you agree to reimburse us for any loss or damage that is caused by your intentional or negligent acts or by the intentional or negligent acts of your agents, employees, authorized users, or representatives. You will allow us to remove the equipment from your premises or you will promptly return the equipment to us upon termination of the Services for which the equipment was used.
(b) Building Access. You shall obtain all necessary approvals, applicable permits and/or use fees to be attained, if any, for full access by us prior to installation of Service and while Service is provided.
(c) Responsibility for Message Content. You are solely responsible for all content that you make available on or through our Services. You guarantee that all such content will not infringe on, or contain any content that infringes on, or otherwise violates any copyright, patent or any other right held by a third-party and that all such content will not violate any applicable law, rule, regulation, or industry standard.
(d) Use of Services. You will not use the Services for any illegal, unlawful, abusive, or fraudulent purpose and will use the Services in such a manner as to prevent damage to our network. Your proper use of the Services includes conforming to all Acceptable Use Policies (“AUP”) that are available on request and are displayed at our web site at www.FiberFirst.com. The AUP may be amended from time to time.
(e) Third-Party Obligations. You are responsible to pay any third-party vendor charges. Also, you are responsible to arrange for disconnection and payment of charges related to the disconnection of any related services with your current carrier(s). Disconnection of such services may not be delegated to us.
(f) Network Security. You acknowledge that it is your responsibility to take whatever actions you deem necessary to make your computer, voice and data network and circuits adequately secure from unauthorized access. You further acknowledge that we only provide broadband internet access, voice over internet protocol (“VoIP”) services and certain equipment to you and that we are not responsible for the security of your network and circuits from third parties, or for any damages that may result from any unauthorized access to your network. Also, we urge you to seek independent advice with respect to products, equipment (including configurations), and services available to make your computer network and infrastructure more secure from third parties.
YOU FURTHER ACKNOWLEDGE THAT NONE OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS HAS MADE, AND THEY DO NOT HAVE THE AUTHORITY TO MAKE, ANY REPRESENTATIONS CONCERNING THE SECURITY OF YOUR NETWORK OR THE SERVICES WE PROVIDE THAT ARE INCONSISTENT WITH THE STATEMENTS CONTAINED IN THIS SECTION 3(f).
4. EMERGENCY CALLS AND 9-1-1 DIALING
911 CALLING USING FIBERFIRST PRODUCTS DIFFERS IN IMPORTANT WAYS THEN FROM PLACING 911 CALLS FROM TRADITIONAL WIRELINE TELEPHONE. THIS SECTION PROVIDES IMPORTANT INFORMATION ABOUT SUCH LIMITATIONS:
(a) GENERAL LIMITATIONS APPLICABLE TO ALL FIBERFIRST PRODUCTS. PLACING A 911 CALL USING A FIBERFIRST PRODUCT IS SUBJECT TO THE FOLLOWING LIMITATIONS (A) WE CANNOT GUARANTEE THAT A CONNECTION WILL BE ESTABLISHED ENABLING THE PLACING OF EMERGENCY CALLS; (B) 911 CALLING WILL NOT BE FUNCTIONAL IF YOUR BROADBAND CONNECTION IS NOT FUNCTIONAL FOR ANY REASON OR ANY OF YOUR TELEPHONES CANNOT ACCESS A BROADBAND INTERNET CONNECTION AT THE TIME THE CALL IS ATTEMPTED; (C) 911 CALLING MAY NOT BE AVAILABLE IF THERE IS A POWER OUTAGE ASSOCIATED WITH YOUR BROADBAND CONNECTION OR YOUR TELEPHONE; (D) 911 CALLING WILL NOT BE AVAILABLE IF YOUR SERVICES ARE CANCELLED, TERMINATED OR SUSPENDED BY FIBERFIRST FOR ANY REASON; (E) YOUR 911 CALL MAY BE DELAYED OR NOT TRANSMITTED AS RAPIDLY AS THOSE TRANSMITTED USING A TRADITIONAL WIRELINE PHONE SERVICE; (F) IF A CONNECTION IS ESTABLISHED, SUCH CONNECTION MAY NOT BE TO THE GEOGRAPHICALLY APPROPRIATE EMERGENCY RESPONSE CENTER (G) IF A CONNECTION IS ESTABLISHED, YOUR ACTUAL LOCATION INFORMATION MAY NOT BE AVAILABLE TO THE EMERGENCY CALL TAKER; (H) IF A CONNECTION IS ESTABLISHED, THE INCORRECT ADDRESS MAY BE AUTOMATICALLY PROVIDED TO THE EMERGENCY CALL TAKER; (I) THE EMERGENCY CALL TAKER MAY NOT HAVE THE CAPABILITY TO RECEIVE EITHER REGISTERED 911 LOCATION INFORMATION ASSOCIATED WITH YOUR ACCOUNT OR AUTOMATIC LOCATION INFORMATION WHEN USING THE FIBERFIRST PRODUCTS; (J) IF YOUR PHONE USED TO PLACE 911 CALLS MALFUNCTIONS FOR ANY REASON, YOU MAY NOT BE ABLE TO PLACE 911 CALLS, YOUR REGISTERED 911 LOCATION OR AUTOMATIC LOCATION INFORMATION MAY NOT TRANSMIT OR YOU MAY NOT BE ABLE TO RECEIVE A CALL BACK FROM AN EMERGENCY CALL TAKER.
(b) User-Provided Registered 911 Location. To ensure your 911 call is routed to the proper Emergency Response Center and to ensure that the emergency response personnel can send help to your physical location in any of the 50 U.S. states and the District of Columbia, FiberFirst needs to obtain the address from which you are placing the emergency call (“Registered 911 Location”). You are responsible for providing FiberFirst an up-to-date Registered 911 Location. If you fail to do so, we may not be able to obtain your location information and route your call to the appropriate Emergency Response Center or provide your physical location. If you change your Registered 911 Location, you must update FiberFirst with your new Registered 911 Location. If FiberFirst is not able to validate the new Registered 911 Location, you will not be able to submit the provided address and it could take as long as up to several business days to activate 911 service at the provided address. If a 911 emergency call is made prior to activation, then your call and the Registered 911 Location information may not be automatically routed to the appropriate Emergency Response Center. You can inform FiberFirst of your initial or new Registered 911 Location by calling 833-342-7444.
(c) 911 Available Only in the U.S. 911/E911 calling functionality for all FiberFirst Products is available only for calls placed from a location in any of the 50 U.S. states and the District of Columbia.
(d) 911 Calling on a Mobile Platform. By using the FiberFirst Mobile Application on a mobile platform, or any part thereof in any way, you grant us permission to share your location with emergency response personnel. Your location may be automatically detected when your phone is running the FiberFirst Mobile Application and we may transmit that information to Emergency Response Center or we may transmit your Registered 911 Location information. We cannot know with certainty which location will be transmitted with such calls. We will attempt to route your call to the geographically appropriate Emergency Response Center based on your location information but if we rely on your Registered 911 Location and that is different than your actual location, your 911 call may be routed to the incorrect Emergency Response Center. It is also possible that your call may be routed to an Emergency Call Center. Such center will only have access to your Registered 911 Location which may not be your actual location and may not have access to your call-back telephone number. Additionally, such Emergency Call Centers will not be the geographically appropriate Emergency Response Center and that will likely result in the delay of dispatching emergency first responders.
(e) Emergency Call Center. FiberFirst reserves the right to route a 911 call to an Emergency Call Center when it cannot validate location information. An Emergency Call Center may require you to provide your current location orally to determine the geographically appropriate Emergency Response Center.
(f) You acknowledge and agree that FiberFirst, when providing access to emergency communications services through any of FiberFirst Products or Services, intends to limit its liability and immunize FiberFirst from all liability of the same scope and extent that is equivalent to the scope and extent of immunity or other protection from liability afforded any local exchange carriers under federal and applicable state law (whether through statute, judicial decision, tariffs filed or posted by local exchange carriers, or otherwise).
5. IPTV Services and Programming Disclaimer
(a) All programming, programming services, programming packages, number of channels, channel allocations and selection of broadcast channels provided through the IPTV Services are subject to change by FiberFirst in its sole discretion, in accordance with applicable law. Customer acknowledges and agrees that FiberFirst has the right at any time to preempt, without prior notice, specific programs or services advertised as available to Customer and to determine what substitute programming, if any, shall be made available. FiberFirst may, at its discretion, make additions, deletions or modifications to its current program line-up without accountability or liability to Customer. FiberFirst shall not be liable for failure to deliver any programming. FiberFirst assumes no liability for any programming or information distributed over or through the IPTV Service or Internet unless produced exclusively by FiberFirst. FiberFirst shall not be responsible for any products, merchandise or prizes promoted on or purchased through the use of the IPTV Services, unless such products, merchandise or prizes are provided exclusively by FiberFirst.
(b) Customer acknowledges the IPTV Service is only for private non- commercial use and personal viewing enjoyment. The programming distributed via the IPTV Service may not be viewed or otherwise displayed in areas open to the public, including, without limitation, commercial establishments, with the exception of On Demand usage or as otherwise specifically authorized by FiberFirst in writing. The Customer may not rebroadcast or transmit the programming or charge admission for its viewing. You may not take any actions to alter or avoid any security or access controls or restrictions associated with the IPTV Service or equipment. The Customer is responsible for all use of the IPTV Service, whether by you or someone using the IPTV Service with or without permission. The Customer agrees not to use the IPTV Service, directly or indirectly, for any unlawful purpose, including without limitation, violation of the copyright laws through the use, production, copying, rebroadcast or redistribution of any programming distributed as part of the IPTV Service or recorded utilizing equipment containing digital video recording devices. The Customer further agrees that use of the IPTV Service is your sole responsibility, at your own risk, and subject to all applicable local, state, and federal laws and regulations. The Customer understands and agrees that not all programming may be suitable for all viewers, and users of the IPTV Service may have access to programming that may be sexually explicit, obscene, offensive, or otherwise unsuitable or objectionable, especially for children under the age of eighteen (18). The Customer further understands and agrees that it is your responsibility to impose any viewing restrictions you determine are appropriate to limit viewing and access to potentially objectionable material, and you agree to supervise usage of the IPTV Service.
(c) IPTV Service privacy: The Customer has the right to know how FiberFirst collects and discloses their personally identifiable information, the types of personally identifiable information collected, how the information is used, under what conditions it is disclosed, the period during which it is maintained, and the right of Customer concerning such information and its disclosure. This information is provided in the FiberFirst Privacy Policy, a copy of which is available at https://fiberfirst.com/privacy-notice/
6. Warranty Disclaimer, Limitation of Liability and Indemnity
(a) WARRANTY DISCLAIMER. WITHOUT LIMITING ANY EXPRESS FINANCIAL OR LIABILITY PROVISIONS PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES UNDER THIS AGREEMENT (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS/FAILURES), UNDER ANY THEORY INCLUDING WITHOUT LIMITATION TORT, CONTRACT, WARRANTY, STATUTE, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED. WE SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
(b) Credit Allowances for Interruption of Service. If an interruption or failure of Service is caused solely by us and not by you or any third party or other causes beyond our reasonable control, you may be entitled to a credit allowance not to exceed an amount equivalent to the proportionate charge to you for the affected Service for the time period from the time of your report to us of the Service interruption to the time Service is restored, not to exceed in any month, the total monthly recurring charge owed by you for the affected Service in that month. The specific service levels, related credits, and steps you must take to apply for credits are available on our website at www.FiberFirst.com. We shall not be liable for any act or omission of any other entity furnishing you with facilities or equipment used with the Services, nor shall we be liable for any damages or losses due in whole or in part to your fault or negligence or due in whole or in part to the failure of equipment or facilities that you provide.
(c) LIMITATION OF LIABILITY. NOTWITHSTANDING THE PROVISIONS OF SUB-SECTION (a) OF THIS SECTION 6, OUR TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE LESSER OF (1) YOUR PROVEN DIRECT DAMAGES, (2) THE AMOUNTS YOU PAID TO US FOR THE SERVICES DURING THE PERIOD IN WHICH ANY SERVICE-RELATED PROBLEMS WERE EXPERIENCED, OR (3) THE CREDITS AVAILABLE TO YOU UNDER OUR TARIFFED LIMITATION OF LIABILITY. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO YOUR (OR ANY OF YOUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSEES OR CONTRACTORS, OR THIRD PERSONS OR THIRD-PARTY USERS OF OUR SERVICE) USE OF OR INABILITY TO USE OUR SERVICES.
(d) Indemnification. You will defend, indemnify, and hold us harmless (including our officers, directors, employees, agents, and contractors) from any claims, liabilities, losses, damages and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to your use of or inability to make use of the Services. This indemnity will not be available if the damage or loss is due to our willful or reckless acts or omissions. Subject to the limitation of liability set forth in sub-section (c) of this Section, we will defend, indemnify, and hold you harmless (including your officers, directors, employees, agents, licensees or contractors) from any claims, liabilities, losses, damages and expenses (including reasonable attorneys’ fees and court costs), arising out of or relating to our delivery of the Services to you. This indemnity will not be available if the damage or loss is due to your willful or reckless acts or omissions.
7. Miscellaneous Provisions
(a) Assignment and Succession. FiberFirst shall have the right to assign this Agreement without Customer consent. You may not assign or transfer this Agreement without our prior written consent. Any unauthorized assignment or transfer shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successor, and authorized assigns.
(b) Governing Law. This Agreement shall be construed pursuant to the laws of the state where the services are provided without regard to the conflicts of law provisions thereof.
(c) Force Majeure. We shall not be liable for any failure of performance of the Services due to causes beyond our control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorists, riots, strikes, lockouts, work stoppages, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over us or the Services provided hereunder.
(d) Arbitration. If you and we cannot resolve between ourselves any dispute arising under this Agreement, you and we shall promptly submit the dispute to binding arbitration at the office of the American Arbitration Association (“AAA”) located in the City or County of the state where the services are provided, or, if there is no AAA office at that location, then at the AAA office closest to where the services are provided (“Arbitration Site”). The arbitration will be held in accordance with the commercial arbitration rules of the AAA. Either party may initiate arbitration by providing written demand for arbitration (with a copy to the other party), a copy of this Agreement and the administrative fee required by the AAA rules to the AAA office serving the Arbitration Site. The remaining cost of the arbitration shall be shared equally by the parties unless the arbitration award provides otherwise. Each party shall bear the cost of preparing and presenting its case in an arbitration unless the arbitration award provides otherwise. You and we agree to undertake all reasonable steps to expedite the arbitration process. One arbitrator will be appointed in accordance with the AAA rules within 30 calendar days of the submission of the demand for arbitration. The arbitrator will designate the time and place for the Arbitration within 30 days of appointment. The parties agree that the arbitrator’s authority to grant relief shall be subject to the provisions of this Agreement, our applicable tariffs, if any, and any other applicable law. The arbitrator shall not be entitled to award, nor shall either party be entitled to receive, punitive, incidental, exemplary, consequential, reliance or special damages, including damages for lost profits. The arbitrator’s decision shall follow the plain meaning of this Agreement and shall be final, binding, and enforceable in a court of competent jurisdiction. The parties waive any right to trial by jury and to participate in or initiate class actions; if the parties cannot waive these rights, this entire section is null and void.
(e) Entire Agreement and Modifications. This Agreement and all other documents specifically referred to in this Agreement constitute the entire and final agreement and understanding between you and us with respect to the subject matter of this Agreement and supersede all prior agreements relating to such subject matter, which are of no further force or effect. Any and all exhibits referred to in this Agreement are integral parts of this Agreement and are made a part of this Agreement. This Agreement may only be modified or supplemented by an instrument in writing executed by both your and our duly authorized representatives.
(f) Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court or administrative agency with jurisdiction over the Services, such provision shall be deemed amended to the minimum extent necessary to render it enforceable.
(g) Headings. The headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any of the terms.
(h) Waiver. Under no circumstances shall either party’s failure to enforce any provision of this Agreement in any particular instance be construed as a waiver of that provision.
(i) Notices. All notices from you to us must be in writing and delivered by certified mail, return receipt requested or by Federal Express or other similar expedited delivery service to: FiberFirst, Attn. General Counsel, 550 Reserve Street, Suite 600, Southlake, TX 76092. If you are notifying us that you do not wish to renew Services, your written notice may be by a letter delivered in that manner or by an email to: contactus@fiberfirst.com
(j) Limitation on Actions. Any legal action arising in connection with this Agreement must begin within one (1) year after the cause of action arises.