TERMS and CONDITIONS
This agreement (Agreement) is made and entered into on the date shown on the Master Service Agreement, by and between Parker FiberNet LLC ("Network or Company"), a Georgia Corporation, at Post Office Box 688, 10005 Commerce Street, Summerville, Georgia 30747 and the Customer (Customer) shown on the Master Service Agreement.
IN CONSIDERATION of the mutual covenants and conditions set forth below, it is agreed as follows:
1. Obligations of Company: Throughout the term of this Agreement, Company shall provide certain services to Customer at the location(s) listed on the Attachments the Master Service Agreement. Network shall provide such services and shall have the responsibility to arrange, move, disconnect remove, and repair facilities to allow for the services provided under this Agreement
2. Obligations of Customer: Customer shall provide all information, access, and support required for timely installation and proper use of Company's services. Additionally, Customer shall make full and timely payments as provided under Paragraph 9 of Agreement and the billing invoices. Customer shall assure that Customer's use of the services Company provides hereunder is at all times consistent with the use intended, is not utilized in any unlawful manner, and is used in such a manner as to prevent damage to Company's network or equipment.
3. Customer Satisfaction Guarantee: Parker FiberNet LLC stands behind its promises. If within thirty days of service Customer is not completely satisfied for any reason, Parker FiberNet LLC will, upon Customer's written request (Attn. Customer Care Manager, PO Box 688, 10005 Commerce Street, Summerville, GA 30747), terminate this Agreement without liability for the local service termination fee or the minimum monthly commitment and make reimbursement to Customer of any change-over charges (to a maximum of $50.00 per access line) incurred by Customer in switching to Parker FiberNet LLC and in returning to Customer's previous carrier(s). Any cancellation shall not relieve Customer of its obligation to pay any charges incurred prior to cancellation of this Agreement.
4. Quality Service Guarantee: Parker FiberNet LLC is committed to providing the highest level of customer service available. If at any time during the term of this Agreement, subject to the conditions below, Parker FiberNet is in material breach of its obligations regarding network quality, or sales and service support, Parker FiberNet LLC will, upon Customer's written request, terminate this Agreement without liability for the local service termination fee or the minimum monthly commitment. The conditions associated with this guarantee are as follows: 1. Parker FiberNet LLC must receive written notice of the alleged material breach. (Attn: Customer Care Manager, PO Box 688, 10005 Commerce Street, Summerville, GA 30747). 2. The concern must be attributable to facilities or causes within Parker FiberNet LLC's reasonable control. 3. Parker FiberNet LLC must be unable to cure the material breach to customer's reasonable satisfaction within 30 days after receipt of the written notice. 4. Customer's account must be current (i.e., no balance older than 30 days). Any cancellation shall not relieve Customer of its obligation to pay any charges incurred prior to cancellation of this Agreement.
5. Term of Service: The term of this Agreement shall commence on the date shown on side 1 (one) of this Agreement and shall continue thereafter for the term shown on side 1 (one) of this Agreement, unless the service is terminated in accordance with the provisions of paragraph 14 herein. This Contract automatically renews for a term identical to the term listed on side one unless either party provides written cancellation at least ninety (90) days prior to the expiration of the original or previously renewed term.
6. Fees and charges: There may be fees for Company's service. These charges are categorized as (1) "Recurring Charges" and (2) "Non-Recurring Charges." Recurring charges are billed monthly to the Customer. Non-recurring charges shall be billed as they occur. Charges will begin to accrue at the time such services have been activated.
7. Additional Charges: Any applicable federal, state or local use, excise, sales or privilege taxes, duties or similar liabilities including Federal or State mandated regulatory assessments, charged to or against Company or Customer because of the service and equipment furnished by Company, shall be paid by the Customer.
8. Service Additions: Customer may request additional quantities or types of service then currently provided under this Agreement, at the then-prevailing rates under the terms of this Agreement by executing a written order for such additional service ("Order"). Each Order must be accepted by the Company and shall specify the agreed date on which the activation of the services covered by that Order shall be completed and the additional costs of the addition. The additional charges relating to these service additions will then be included in the monthly bill as described in Paragraph 6 of this Agreement.
9. Payment: Customer shall make payment on each bill to Company within the time periods indicted on the billing invoice. If any amount due under this Agreement is received by the Company after the payment due date or if any amounts due are received by Company in funds not immediately available to Company on or before the payment due date, a late payment charge of one and one-half (1 1/2%) per month shall be assessed. The Company will also charge a fee of Twenty-Five Dollars ($25.00) for the return of any dishonored check.
10. Credit Allowance for Interruption of Service: The liability, if any, of Company arising out of or in any way connected with any defect, error, omission, delay, mistake, interruption, suspension, or other failure in connection with furnishing services, facilities, or maintenance, shall in no event exceed an amount equivalent to the proportionate charge to Customer for the affected service for the time period during which the interruption occurred. The credit allowance for service interruption shall be calculated in accordance with the following formula. The Company shall not be liable, nor shall any credit be given to a Customer, for any interruption of less than Twenty-four (24) hours or which is: 1) caused by the willfulness or negligence of the underlying interexchange or local exchange carrier, Customer, or any entity other than the Company; 2) due to the failure of equipment, systems or services provided by the Customer or any other entity other than the Company; 3) during periods when the Customer elects to use the service on an impaired basis; or 4)a group of interruptions, resulting from a common use, for amounts less than One Dollar ($1.00).
11. Service Warranties: Company warrants that its facilities, and the facilities for which Company contracts with other providers, are engineered and installed and that operations procedures are designed and implemented to provide communications services in accordance with prevailing standards for similar services, and that Company will undertake reasonable efforts to provide services hereunder in conformance with such standards. SUCH WARRANTIES AS EXPRESSLY SET FORTH IN THIS AGREEMENT ARE GIVEN AND ACCEPTED IN LIEU OF, AND COMPANY DISCLAIMS TO THE EXTENT PERMITTED BY LAW, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability: The liability of the Company under this Agreement, if any, shall be limited to the extent provided in Paragraph 10 of this Agreement and this Paragraph. Company accepts liability for defacement or damage to the Customers premises resulting from furnishing of a service only when such defacement or damage is caused solely by the gross negligence of the Company. IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE IN SITUATIONS WHERE THERE MAY BE A FAILURE OF THE SERVICE OR EQUIPMENT PROVIDED BY COMPANY. DUE TOT HE UNCERTAIN NATURE OF THE VOLUME, NATURE, CONTENT AND VALUE OF MESSAGES, SIGNALS OR COMMUNICATIONS TRANSMITTED AND RECEIVED BY CUSTOMER. THEREFORE, IF ANY LIABILITY IS IMPOSED ON COMPANY, SUCH LIABILITY SHALL BE LIMITED AS PROVIDED HEREIN, WHICH SHALL BE COMPANY'S SOLE AND EXCLUSIVE LIABILITY REGARDLESS OF WHETHER LOSS OR DAMAGE IS CAUSED BY THE PERFORMANCE OR NONPERFORMANCE OF COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT OR BY NEGLIGENCE, ACTIVE OR OTHERWISE, OR COMPANY, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES. NEITHER COMPANY NOR CUSTOMER SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE OR FOR THE LOSS OF REVENUE, PROFIT, DATA OR ECONOMIC LOSS OF ANY KIND FOR ANY REASON WHATSOEVER. The liability of Company for damages arising out of mistakes, omission, interruptions, delays, errors or defects in the service or equipment provided by Company or for breach of the warranties set forth in Paragraph 11, or otherwise, shall in no event exceed an amount equivalent to the proportionate charge to Customer for the affected service or equipment for the period during which mistake, omission, interruption, delay, error or defect occurs, calculated in accordance with Paragraph 10.
13. Liability of Customer: In the event any claim, demand, lawsuit or liability is made or asserted against Company by any third party and the same arises out of, or is directly or indirectly related to, or is caused by any act or omission of the Customer or others, then, and in such event, Customer shall indemnify, defend and hold harmless Company and its agents and representatives from and against all such claims, demands, causes of action and liability, including the payment of Company's reasonable attorneys' fees to defend such action. Additionally, the Customer shall reimburse Company for damages to Company's facilities caused by the negligence or willful act of the Customer, or resulting from the Customer's improper use of the Company's facilities or due to any malfunction of any facilities or equipment provided by any entity other than Company. Company will, upon reimbursement of damages, cooperate with Customer in prosecuting any claim against the person causing such damages and the Customer shall be subrogated to the right of recovery by Company for the damages to the extent of such payment.
a. Termination by Company: Company may terminate this Agreement without notice to Customer if Customer is in arrears in the payment of any undisputed amount which is due hereunder for more than forty-five (45) days from the date of the initial bill therefore or in less than forty-five (45) days when in the judgment of Company, Customer lacks the financial ability to perform under this Agreement or if the account is of a financially hazardous nature. Company may also terminate this Agreement without further notice to Customer if Company reasonably determines that Customer is misusing or abusing the system or is using such service for an unlawful purpose or if Customer is otherwise in default of this Agreement. b. Termination by Customer: If Customer cancels this Agreement or terminates any service prior to the expiration of the initial term of this Agreement, or any extension thereof, Customer agrees to pay any disconnection, early cancellation, or termination charges reasonably incurred and paid to third parties by Parker FiberNet LLC on behalf of Customer. Customer also agrees to pay either the local service termination fee, for local only customers, which equals the customer's average of their last three month's local service invoice charges and usage amount multiplied by the number of months remaining for the then current term or the minimum monthly commitment amount multiplied by the number of months remaining for the then current term, reimburse Parker FiberNet LLC for any waived installation, monthly access charges and special promotional credits given, and any contract termination penalty for a previous carrier for which Parker FiberNet LLC either reimbursed Customer or paid on behalf of Customer. Any applicable cancellation charge will be payable to Parker FiberNet LLC within 30 days of Customer's termination. c. Termination by Either Party: Either party shall have the right to terminate this Agreement, without liability, if Company is prohibited from furnishing the service or if any material rate or term contained herein is substantially changed by order of the highest court of competent jurisdiction to which the matter is appealed, the Federal Communications Commission, or other local, State or Federal government authority.
15. Dispute Resolution: Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, which the parties are unable to resolve through direct negotiations, shall promptly be submitted to mediation under the Commercial Mediation Rules of the American Arbitration Association. If the parties are unable to resolve the dispute, controversy or claim through mediation, then the matter shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrators may, upon application of either party, provide for discovery pursuant to the Georgia Rules of Civil Procedure. The arbitration shall be conducted in Atlanta, Georgia. The prevailing party, as part of the mediation or arbitration award, shall be awarded its fees and costs, including attorneys' fees.
16. Assignment: Customer shall not have the right to assign its rights in this Agreement without the prior written approval of the Company. The Company may assign this Agreement so long as it does not affect the service provided hereunder.
17. Binding Effect: Subject to the provision of Paragraph 18, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
18. Waiver: The waiver in writing by either party of any rights granted to it shall not operate as a waiver of any of the rights or future breach of any such provision or any other provision hereof. The failure to enforce any provision of this Agreement shall not constitute a waiver of either parties right hereunder unless such waiver shall be in writing signed by both parties to this Agreement.
19. Entire Agreement: This Agreement and Parker FiberNet LLC's FCC and respective local and long distance state tariffs comprise the entire Agreement between the parties on the subject matter contained in this Agreement and supercedes all prior representations, agreements, and understandings of the parties, including, without limitation, any letter of intent, letter or memorandum of understanding, or similar documents.
20. Addition Modification: No addition to or modification of this Agreement shall be binding unless executed in writing by all parties.
21. Notices: All notices or other communications given in connection with this Agreement shall be made in writing and either delivered in person, or by a recognized overnight courier service, or deposited with the United States Postal Service as first-class certified mail, postage prepaid, and return receipt requested, to the Company at the following address: Parker FiberNet LLC, PO Box 688, 10005 Commerce Street, Summerville, GA 30747 Such communication shall be effective upon receipt or four (4) days after mailing. The notice address as provided herein may be changed by written notice given as provided above.
22. Severability: In the event that any of the terms of this Agreement or the application of any such term shall be held to be invalid by any court of any competent jurisdiction, the remaining terms of this Agreement, or their application, shall not be affected thereby and shall remain in full force and effect.
23. Force Majeure: Company shall be excused for any failure, delay, or interruption in performing its obligations hereunder that is due to causes or conditions beyond its control, including, without limitation, acts of God, elements, weather conditions, earthquakes, settlements, fire, accidents, sabotage, power failures, cable cuts, acts or omissions of governmental authorities (including regulatory authorities and courts), shortages of labor and materials, acts of third parties for which Company is not responsible, injunctions, labor disputes of every kind (including those which affect Company or its contractors, suppliers or subcontractors), or any other conditions or circumstance, whether similar to or different from the foregoing, which is beyond the control of Company or which cannot be prevented or remedied by reasonable effort and at reasonable expense.
24. Governing Law: This Agreement shall be governed by the laws of the State of Georgia.
25. Legal Compliance: The parties agree that this Agreement will be carried out to compliance with all local, state and federal laws, regulations and decisions. To the extent there is a conflict between this Agreement and the terms and conditions outlined in Parker FiberNet LLC's FCC and State tariffs, the terms and conditions of Parker FiberNet LLC's FCC and state tariff will govern.
26. Effective Date: This Agreement shall become effective on the date made and entered into.
27. Binding Terms and Conditions: CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
Other Legal Notices
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