Internet Services Subscriber Agreement

Residential and Small Business

 

Customer desires to obtain Internet Services as described below (“Services”) from FiberLync, and FiberLync is willing to provide the Service pursuant to the terms and conditions set forth herein.

 

NOW, THEREFORE, FiberLync and Customer (the Parties) hereby mutually agree as follows:

 

1. Scope of Services. The Services provided by FiberLync will provide the Customer with access to the Internet for downloading and uploading data that can be used for work, study, communications, entertainment, or any other use that is based on the transfer of data. FiberLync will provide a full range of Customer Service and Technical Support as part of this agreement.

2. Terms of Service. The term of the Agreement (the “Term”) shall commence on the date the Services sign-up is completed and shall continue for so long as Services are provided to Customer.

3. Service Speeds. FiberLync’s subscriber Services packages offer a range of download and upload speeds designed to match the bandwidth needs for most families. The subscriber packages are generally denoted by a name, and by two numbers that identifies the speed range available with that package as measured at the ONT (the device inside the premise where the fiber signal terminates). The subscriber package speed range represents the nominal speed available with that package, but is not a guarantee of the minimum speed you will receive. The Service package you choose should be based on the use, needs, and number of devices in the household or business. Some uses that involve high bandwidth, such as streaming video or video conferencing in a high device count environment, need to be accounted for in the Services package selection. Speed measured at the Router at a point in time will depend on a multitude of factors, including: the capacity or performance of your computer or other device as well the aggregate demand on the network at that time. If dissatisfied with the speeds, contact FiberLync customer service at the telephone number provided on your invoice. Please provide FiberLync with the opportunity to investigate and attempt to address any issues with the Service.

4. Access to Premise. Customer hereby grants FiberLync, and/or our contractors’, the permission and access required for installation of the Service to their premises. If the Service includes providing equipment, maintenance, and technical support, the Customer also grants the access required to install, remove, and maintain such equipment.

5. Installation Services. Standard Installation will include the placement of up to 1,000 feet of buried fiber optic cable by trench method to the premise, the installation of an Optical Network Terminal (ONT), wiring from the ONT to a designated location on the same floor level as the ONT for the installation of a Wireless Gigabit (Wi-Fi) Router. Additional installation requirements beyond the Standard, such as installing underground fiber optic cable by boring, fishing of wires through walls, vertical wire runs from one floor to another, or wire wrap around a house that involves removal/pulling of housing siding, will be billed at the then current time and material rates. Underground fiber installations over 1,000 feet will be charged a per foot fee for the distance over 1,000 feet. Any additional work requested by the Customer beyond the Standard Installation will be billed at the then current hourly technician rate. Billing of the hourly non-standard installation rates will be based on 1/4-hour increments. FiberLync is not responsible for installing electrical outlets, and if an electrical outlet change is needed it is the Customer’s responsibility to arrange a licensed electrician to complete this work.

6. Installation Fee. A one-time installation fee will be charged by FiberLync to install the Service at Customer premises. Any installation charges in excess of the Standard Installation will be invoiced and must be paid before the Service sign-up is completed. Customers have the option to pay the Standard Installation fee at $20/month over a 24-month period at no interest, so long as the Service remains active.

7. Billing and Payment. FiberLync will bill monthly for all charges associated with the Service. Payment in full is due no later than the due date indicated on Customer bill. The Customer will take the necessary steps to authorize payment by autopay either by debiting a bank account, or a debit, or credit card. With proper notice and the required public hearings, FiberLync reserves the right to change the rates and connection fees and institute new charges or fees.

8. Non-Payment. Any autopay that does not deduct on the Due Date will be subject to a late fee of 10% of the outstanding balance. If Customer does not satisfy any delinquency of an account, the account will be disconnected on the 10th day after invoicing or the next business day after the 10th day. A reconnection fee will be applied to the Customer account to reactivate the Service. The Customer further agrees to be responsible for all attorney’s fees and collection fees arising from efforts to collect any/all unpaid balance to customer’s account.

9. Billing Dispute. Customer shall have the affirmative obligation to provide written notice of any good faith dispute of an invoice within 30 days after receipt (which notice shall include enough detail for FiberLync to investigate the dispute). Customer may withhold payment only on amounts disputed in good faith. If written notice of a dispute is not provided with respect to an autopayment within the 30 day-period, Customer shall be deemed to have waived its right to dispute such autopayment and to have agreed to pay such invoice. If Customer has provided sufficient detail for investigation of the dispute, FiberLync will use reasonable efforts to resolve and communicate its resolution of the dispute within 30 days of its receipt of the dispute notice. Notwithstanding anything in the Agreement to the contrary, Customer shall not withhold any disputed amounts while its FiberLync account is delinquent. Claims of fraudulent usage shall not constitute a valid basis for a dispute.

10. Termination. Customer agrees that if the Service is terminated, outstanding balances will be charged to a credit card, debit card, or other payment method previously authorized for autopay by the Customer.

11. Equipment. FiberLync will provide Customer an Optical Network Terminal (ONT) and Wireless Gigabit (Wi-Fi) router with the Service. Upon termination of service, the Customer shall contact FiberLync for instructions as to whether the equipment is to be left in place for the next occupant, or to be returned to the FiberLync office. If the equipment is not returned to FiberLync in good working condition upon request, the Customer agrees to pay FiberLync an equipment replacement fee. If the equipment is lost, stolen, damaged, or altered, Customer agrees to pay FiberLync an equipment replacement fee.

12. Electrical Power. The ONT and router require electrical power to operate. It is recommended that the Customer provide a battery power backup to these components, because while the fiber service will continue to be available, the loss of utility power will make this equipment inside the home inoperable. FiberLync is not liable for the loss of Service in the event of a power outage, with or without battery backup.

13. Network Maintenance and Repair. Scheduled network maintenance will only be performed Monday through Friday between the hours of 11:30PM and 6:30AM. Customers are given at least 24 hours’ notice of any interruption of service for the purposes of maintenance or repair. In an emergency, you will be given such notice as is reasonable for the circumstances. All notices for scheduled network maintenance are delivered via e-mail and posted on FiberLync’s website. Excluding conditions beyond the control of FiberLync, work will begin on any network interruption or service problem promptly and, in no event, later than the next business day after interruption becomes known. FiberLync is committed to meeting the following: 70% of service calls cleared on same day; 90% within 3 business days; all within 5 days. The mean time for service call resolution is 2 days except when conditions are beyond our control.

14. Service Conditions. FiberLync will provide service subject to: (a) current Acceptable Use Policy (“AUP”); (b) the terms and conditions of this Agreement; and (c) and any additional policies issued by FiberLync to Customer. The current version of the AUP is available on our website at www.fiberlync.net and available in our office.

15. Use of Service. All use of the Service must be lawful. Customer agrees not to use or to allow others to use the Service for illegal or inappropriate activities, including but not limited to transmitting or disseminating obscene, profane, or pornographic material; posting, transmitting, distributing, or disseminating content that is copyright protected, unlawful, threatening, abusive, harassing, libelous, slanderous, cyberbullying, lascivious, excessively violent, or defamatory. Customers may not retransmit the Service or make the Service available to anyone outside the premises (e.g., Wi-Fi or other methods of networking). Customers may not use the Service to host any type of commercial server.

16. Notice of Parental Control Protections. Certain material available on the Internet is not appropriate for minors. To prevent or limit a minor’s access to such materials, a number of parental control protections (such as computer hardware, software, or filtering services) are commercially available. Current providers of such protections include, but are not limited to, internet filtering software such as NetNanny, Qustodio, SecureTeen, Covenant Eyes, and Safe Eyes (hereinafter “Filters”). Customer may find one or more of these Filters useful; but these Filters are not provided by FiberLync; they are not included with this Agreement; they are not associated with FiberLync; FiberLync does not recommend one filter over another; and FiberLync has no responsibility for the services of any of these Filters.

17. Management of Customer Computer, Data and Security. Customer is responsible for the security of their computer, hardware, software applications, data, and files. FiberLync shall not be liable for any damage or loss to customer computer, hardware, software applications, data, or files. FiberLync makes no representation or warranty that any software or content installed on Customer’s computer(s) or that Customer downloads using the Service does not contain a virus or other harmful feature, and it is Customer’s sole responsibility to take appropriate precautions to protect Customer’s computer and all other personal equipment, software, and hardware from damage to Customer’s software, files, or data as a result of any such virus or other harmful feature. Customer is solely responsible for obtaining, maintaining, and updating all equipment and software necessary to use the Service, and for management of Customer’s information, including but not limited to back-up and restoration of Customer’s data. CUSTOMER AGREES THAT FIBERLYNC IS NOT RESPONSIBLE FOR THE LOSS OF CUSTOMER DATA OR FOR THE BACK-UP OR RESTORATION OF CUSTOMER DATA, REGARDLESS OF WHETHER THIS DATA IS MAINTAINED ON FIBERLYNC’S SERVERS OR CUSTOMER’S DEVICE(S). CUSTOMERS SHOULD ALWAYS BACK-UP ANY IMPORTANT INFORMATION SEPARATELY FROM DATA STORED ON ANY THIRD PARTY’S SERVERS. 
    Access to Service using a Wi-Fi connection occurs over wireless radio waves, which means that unauthorized persons could intercept Customer’s transmissions. The Customer assumes all risk and releases FiberLync in the event of any damage Customer may suffer during use of Wi-Fi Service or using a wireless router or equipment, including the introduction of any viruses that may occur or breaches from unauthorized third parties.

18. Obligations Regarding Taxes. Customer agrees to pay FiberLync any and all local exchange carrier assessed charges and any other federal, state, or local domestic or international governmental and regulatory taxes, permit fees, charges, impositions, or assessments including, but not limited to: (i) all sales, use, excise, gross receipts, privilege, or other similar taxes; (ii) charges mandated or permitted by regulatory agencies, and Universal Service Fund charges, plus any reasonable administrative charge FiberLync may establish for its customers for administering these fees.

19. Compliance with Laws. During the Term, the Parties shall comply with all local, state, and federal laws and regulations applicable to the Agreement, the Services provided hereunder and their respective businesses. Further, each Party shall obtain, file, and maintain any permits, certifications, authorizations, licenses, or similar documentation as may be required by the Federal Communications Commission (FCC), the State Corporation Commission, or any other governmental body or agency having jurisdiction over its business.

20. Warranties. Except as may be provided for in the applicable Service Attachments, SERVICES PROVIDED UNDER THE AGREEMENT ARE PROVIDED WITHOUT ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, COMPLETENESS, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. ORANGE COUNTY BROADBAND AUTHORITY HEREBY SPECIFICALLY DISCLAIMS ANY LIABILITY TO CUSTOMER FOR INTERRUPTIONS AFFECTING THE SERVICES FURNISHED UNDER THE AGREEMENT THAT ARE ATTRIBUTABLE TO CUSTOMER’S INTERCONNECTION FACILITIES OR TO CUSTOMER’S EQUIPMENT FAILURES, OR TO CUSTOMER’S BREACH OF THE AGREEMENT. 

21. Limitation of Liability. IN NO EVENT WILL ORANGE COUNTY BROADBAND AUTHORITY (d.b.a. FiberLync) OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR: A) ANY LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT OF THE UNAVAILABILITY OF FACILITIES, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, OR FOR ANY OTHER REASON, EVEN IF CUSTOMER ADVISES ORANGE COUNTY BROADBAND AUTHORITY OF THE POSSIBILITY OF THIS LOSS OR DAMAGE; OR                                   B) FOR ANY OUTAGE OR INCORRECT OR DEFECTIVE TRANSMISSIONS, OR ANY DIRECT OR INDIRECT CONSEQUENCES THEREOF. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BREACH OF THE WARRANTIES DESCRIBED IN THIS SECTION SHALL BE LIMITED TO THE SERVICE CREDITS DESCRIBED IN THE APPLICABLE SERVICE ATTACHMENTS OR TERMINATION OF THE RELEVANT SERVICE.

22. Force Majeure. Other than with respect to failure to make payments due under the Agreement, neither Party shall be liable under the Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to, fire, earthquake, flood, water, the elements, acts of God, third Party labor disputes, utility curtailments, cable cuts, power failures, explosions, civil disturbances, vandalism, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts, or omissions of third Parties.

23. Indemnification. Customer shall defend, indemnify, and hold harmless ORANGE COUNTY BROADBAND AUTHORITY and its Affiliates, directors, officers, shareholders, employees, representatives, and agents from any and all claims, taxes, penalties, interest, expenses, damages, lawsuits, actions, demands, or other liabilities (including without limitation, reasonable attorneys’ fees and court costs) relating to or arising out of or in connection with Customer’s use.

24. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed given: (i) when delivered in person, (ii) the next business day after deposit with a commercial overnight delivery service for next day delivery; or (iii) upon receipt if sent by United States mail, postage prepaid, or registered or certified mail, return receipt requested. All notices shall be addressed to the recipient party at the address set forth in the cover sheet or other address a party may designate in writing from time to time.

25. Assignment. Neither Party may assign this Agreement or any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that without such consent, either Party may assign this Agreement to an Affiliate (but the assigning party shall remain jointly and severally liable for all of its obligations hereunder) or to a person with which such Party merges or consolidates or to which it sells all or substantially all of its business and assets.

26. Waiver and Amendment. No waiver of any term or condition of the Agreement will be enforceable unless it is in writing and signed by both Parties. No failure or delay by either Party in exercising any right, power, or remedy will operate as a waiver of this right, power, or remedy, unless otherwise provided in the Agreement. The waiver by either Party of any of the covenants, conditions, or agreements to be performed by the other or any breach thereof shall not operate or be construed as a waiver of any subsequent breach of this covenant, condition, or agreement. No modifications or amendment of the Agreement will be effective or enforceable, unless in writing and signed by both Parties.

27. Governing Law. The Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to any choice of law principles that could result in the application of the laws of any other jurisdiction. The Parties agree that all legal action or proceeding with respect to or arising out of the Agreement shall be brought in a court of Orange County, Virginia or in the United States District Court for the Western District of Virginia (Charlottesville Division) exclusively. Each Party accepts for itself and in respect of its own property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Parties hereby waive any right to stay or dismiss any action or proceeding under or in connection with the Agreement brought before the foregoing courts based on forum non-convenience.