I. General Terms and Definitions
Any individual or entity receiving any product or service from FIBERNET shall hereafter be referred to as “Client”. By accepting products and/or services provided by FIBERNET, Client agrees to observe and abide by all of the provisions, terms, and requirements specified in this agreement. Client’s use of the services constitutes acceptance of this agreement. The term “FIBERNET” includes all agents, employees, officers, directors, subcontractors, parent companies and assignees of FIBERNET.
The Client shall be liable to FIBERNET for monthly charges. Charges will be billed and are due to be paid by the first day of the month of service. Where applicable, the service charges for the initial partial month of service will be prorated and billed on the first recurring monthly bill. For each month thereafter, a full monthly service amount will be charged for any part of a month in which service is provided. The monthly service charges and fees are nonrefundable. SERVICE CHARGES ARE DUE UPON RECEIPT AND ARE CONSIDERED LATE AFTER THE 15TH DAY OF EACH MONTH. INVOICES NOT PAID BY THE 15TH DAY OF THE MONTH WILL BE CHARGED A 15% LATE FEE. Delinquent accounts are subject to immediate termination or suspension of services at the sole discretion of FIBERNET. In applying to establish an account with us, you authorize us to inquire into your creditworthiness by checking with credit reporting agencies. If you are delinquent in any payment to us, you also authorize us to report any late payment or non-payment to credit reporting agencies.
III. Disclaimer of Liability
Except as provided in paragraph VIII, Client acknowledges that all products and services are provided on an “As Is” basis and that FIBERNET makes no warranty of any kind, expressed or implied, including, but not limited to, any warranty regarding the reliability or suitability of any product or service for a particular purpose. FIBERNET disclaims any warranty of merchantability or fitness for a particular purpose. No oral advice or written information provided by FIBERNET shall create or expand any representation or warranty nor shall Client be entitled to rely on any such information or advice. Client acknowledges and understands that FIBERNET exercises no control over the nature, content, or reliability of the information delivered to Client from the Internet or vice versa. Under no circumstances shall FIBERNET be held responsible for damages or loss suffered by Client, including but not limited to special, incidental, consequential, or punitive damages, as a result of Client’s direct or indirect use of the circuit or FIBERNET products or services including, but not limited to, errors, delays, loss of information, or interruptions in service caused by Client’s or FIBERNET’s or a third party’s acts or failure to act. Client acknowledges that the Internet and mail access service may be temporarily unavailable for scheduled or unscheduled maintenance, and for other reasons within and without the control of FIBERNET. Under no circumstances do any such errors, delays, loss of information, or interruptions in service nullify or modify this agreement or any other agreement or contract entered into by FIBERNET and Client.
IV. Client Responsibility
Client is responsible for protecting all account passwords and for any authorized or unauthorized use made of Client’s account. Client agrees to comply with the rules appropriate to any network to which Client may gain access via the products and services of FIBERNET. Client acknowledges that any proprietary, confidential, or otherwise valuable information that Client desires to keep confidential should not be transmitted over any part of the Internet, nor reside on computers connected to the Internet. Client will not transmit or make available to the Internet any material that is illegal, libelous, tortuous, or likely to result in action against FIBERNET or its clients. Client agrees that under no circumstances will the Client use FIBERNET’s products or services, including, but not limited to electronic mail, in connection with the sending of unsolicited electronic mail messages, commercial or otherwise, including, but not limited to, the sending of unsolicited mass mailings from another service which in any way implicates the use of FIBERNET’s products or services, or any FIBERNET electronic mail address. Client assumes the risk of all damages and injury associated with the use of FIBERNET’s services and products. Client agrees not to use the products or services purchased from FIBERNET in a manner prohibited by any federal, state, county, or local law.
V. Term Commitment and Delivery
This agreement is for a term of twelve (12) months or twenty-four (24) months as selected at time of ordering service. Early Termination of this agreement is not available. After the initial 12-month or 24-month term, the agreement becomes month-to-month until cancelled by the customer or Fibernet. This agreement becomes effective at date of customer signing. FIBERNET will notify the customer in the event service delivery will exceed 30-days. In the event FIBERNET is unable to deliver service within 30-days from the acceptance date of this agreement, customer may cancel this agreement without penalty.
VI. Service Level Agreement (SLA)
In the event Client experiences a service outage on a Fiber-Optic Circuit and Client notifies FIBERNET immediately of such event and FIBERNET determines that such inability was caused by FIBERNET’s failure to provide said services for reasons within FIBERNET’s reasonable control and not as a result of any actions or inaction’s of Client or any third parties (including failure of third party products), and such inability is not a result of standard scheduled maintenance of FIBERNET’s products or services, FIBERNET will, upon Client’s request, credit Client’s account the prorated amount of the Line Charge; the credit will be calculated by dividing the number of hours that there was an outage during the month by 720 hours, and then multiplying that number by the amount of the Line Charge. Notwithstanding anything to the contrary, the credit shall not exceed that month’s Line Charge.
VII. Transmission Speed Warranty
Fiber-Optic Circuit Transmission Speed is guaranteed 24/7 and specified in bits per second. Client understands Ethernet and the underlying protocols such as TCP/IP add overhead to the guaranteed Transmission Speed and this will result in a throughput less than the Circuit Speed.
VIII. Equipment and Wiring
The Router is owned by FIBERNET and warranted for the duration of service and will be repaired or replaced at no charge to the customer. At the termination of service, the customer must return the Managed Router to FIBERNET or elect to pay for the Router. In the event the customer is within 100 Meters of the building’s telephone room, the FIBERNET circuit will be installed using copper Ethernet cabling with a RJ-45 Demark for connection to the FIBERNET Router. In the event the customer is greater than 100Meters from the building’s telephone room, the FIBERNET circuit will be installed using Fiber-Optic Cabling.
X. Internet Protocol (IP) Addresses
Internet Protocol (IP) Addresses will be provided to client per the Service Agreement. Internet Protocol (IP) Addresses may be owned by Fibernet or our providers. Static Internet Protocol (IP) Addresses provided by Fibernet or our providers are for use by the client during the duration the service only and may not be used or transferred after Fibernet service is terminated.
XI. Dispute Resolution; Choice of Law; Venue; Jury Trial
The parties shall attempt to resolve any disputes between them without resort to litigation in court. Client’s remedies are limited as set forth herein. This agreement shall be construed in accordance with and governed by the internal laws of the State of Florida without given effect to choice of law. Any legal action or other legal proceeding relating to this agreement or the enforcement of any provision of this agreement shall be brought or otherwise commenced in a state or federal court located in the County of Broward, Florida. Each of the parties hereto irrevocably waives the right to a jury trial in connection with any legal proceeding relating to this agreement or the enforcement of any provision of this agreement.
XII. Attorney Fees
In any litigation or other proceeding by which one party seeks to enforce its rights under this agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations to the agreement, the prevailing party shall be awarded reasonable attorneys fees, together with any costs and expenses, to resolve this dispute and to enforce the final judgment.
XIII. Force Majeure
FIBERNET shall not be responsible for any failure to perform any obligation or provide service hereunder because of any act of God, strikes, work stoppage, equipment or facilities shortages, governmental acts or directives, war, riot or civil commotion, or any other force beyond FIBERNET’s reasonable control.
Client shall not assign or transfer its rights or obligations under this agreement without the prior written consent of FIBERNET, and any attempted assignment without such consent shall be null and void.
If any provision of this agreement is held to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this agreement shall remain valid and enforceable according to its terms.