GoFIBER SERVICE AGREEMENT
THIS COMMUNICATIONS PROVIDER SERVICE AGREEMENT ('Agreement') is made on the date of the installation (the 'Effective Date'), by and between Customer and GoFIBER LLC, with a principal place of business at 3700 Santa Fe Avenuereet Suite 200 Long Beach, CA 90810 (each a 'Party' and, collectively, the 'Parties').
WHEREAS, GoFIBER operates and maintains network communication systems and associated equipment; and
WHEREAS, Customer wishes to purchase from GoFIBER certain communications and related services for use in connection with Customer's business, and GoFIBER desires to provide said communications and related services toCustomer;
NOW, THEREFORE, for and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
For all purposes of this Agreement, the following terms shall have the definitions set forth below:
a. Affiliate means an entity that (directly or indirectly) controls, is controlled by, or is under common control with a Party, where 'control' means the direct or indirect ownership of more than fifty percent (50%) of the voting equity.
b. Customer Premises means the location or locations occupied by Customer or Customer's End Users to which Services are delivered (i.e. 'Service Location' or 'Site').
c. Customer's End Users means, individually and collectively, any and all third parties who gain access to or utilize Service(s) provided to Customer hereunder.
d. Effective Date means the date first set forth above.
e. Facilities means real or personal property owned or leased by GoFIBER and used to deliver Services, including without limitation terminal and other equipment, wires, lines, ports, routers, switches, fiber termination equipment, channel service units, data service units, cabinets, racks, and private rooms.
f. Initial Term means the Agreement's initial three (3) year time period, commencing upon the Effective Date.
g. On-Net shall mean a specific address (i.e. site) to which GoFIBER's network presently exists to deliver same or materially similar Services.
h. Off-Net shall mean a specific address to which GoFIBERÕs network does not presently exist.
i. Service(s) means, individually and collectively, GoFIBERÕs fiber-optic based communications-related services and facilities described in a Service Order submitted by Customer and accepted by GoFIBER.
j. Service Order means a document in the form set forth at Exhibit 'A' hereto, which identifies, at a minimum, (i) the Service(s) which are the subject of such Service Order, (ii) rates and charges applicable to such Service(s) and (iii) the Service Period (or Service Term). The term "Service Order" expressly includes any Upgrade Service Orders (defined below in Section 7).
k. Service Period means, with respect to each Service Order, the period of time during which such Service Order shall be in effect, which shall commence upon the Turn-Up Date (as further described in Section 10 hereto) unless expressly stated otherwise.
2. PROVISION OF SERVICES. Subject to all terms and conditions of the Agreement:
a. With respect to each Service Order executed by both Parties as set forth in accordance with this Agreement, GoFIBER shall make those Services described in such Service Order and ensure such are available for CustomerÕs use and thereafter, throughout the applicable Service Period (except as expressly provided for otherwise herein); and
b.Customer shall pay for such Services at the recurring and non-recurring rates and charges provided in such Service Order as more fully described in Sections 10 and 11 herein below.
c. GoFIBER may elect to provide any additional services related to installation or use of the Services as may be necessary to deliver the Services or ordered by Customer at rates and charges agreed upon by the Parties.
3. SERVICE PERFORMANCE. GoFIBER will use customer's login and contact details for customer trouble reporting.
4. TERM. The term of this Agreement shall commence as of the Effective Date, and shall expire, unless terminated earlier in accordance herewith, upon the later of the expiration of the Initial Term (defined in Section 1) and any renewals thereof (as described below). If any Service Period extends beyond the expiration of the Initial Term of the Agreement, such Service shall continue to be governed by the terms and conditions of the Agreement through the expiration of the respective Service Period for such Service Order. 'Term' shall mean the Initial Term and any renewals thereof.
Upon the expiration of the Initial Term or any renewal term, this Agreement shall automatically renew for additional one (1) year periods, unless a Party has delivered to the other Party written notice to the contrary at least ninety (90) days prior to the end of the then-current Initial Term or renewal term, as the case may be. Each executed Service Order shall set forth the initial Service Period and any renewal Service Periods, as so stated on said Service Order. Any and all automatic Service Period renewals shall be at then current Service pricing except as may otherwise be agreed to in a written amendment to either the Agreement or the applicable Service Order.
5. SERVICE ORDERING. 'GoFIBER lit buildings' will take approximately 21 days from the date of execution to receive service. The time required to provide service to 'Non GoFIBER lit buildings' is to be determined.
6. UPGRADES TO SERVICE ORDERS.
a. From time to time during the Term of this Agreement, Customer may elect to purchase additional quantities of or functionally enhanced versions of Services. In such event, at Customer's election and subject to GoFIBER's approval and acceptance thereof, Customer may amend the Service Order to include such additional quantities of or functionally enhanced versions of Services upon execution of an "Upgrade Service Order." The Upgrade Service Order shall reference, in addition to any other information required to be set forth in a Service Order, the functionally enhanced versions of Services to be provided thereunder (or, where Customer seeks additional quantities of Services currently provided to Customer pursuant to a Service Order, the total amount of such Services to be provided to Customer).
b.Upon GoFIBER's execution of an Upgrade Service Order, such Upgrade Service Order shall be deemed to terminate the prior Service Order(s) referenced in such Upgrade Service Order without liability to Customer for any early termination charges otherwise applicable for such terminated Service Order(s). Customer acknowledges that Customer shall remain liable for all charges associated with Services actually provided during the applicable Service Period of such terminated Service Order through the date of termination in accordance with this Section 7(b) (including any charges for additional services required for installation or use of such Services).
7. CUSTOMER PREMISES, CHARTER FACILITIES.
a. If, requested by the GoFIBER, Customer, at no cost to GoFIBER, shall secure on an initial and ongoing basis during the Term, all necessary rights of access from the public rights of way to and from the Service location(s) to enable GoFIBER to install and provide the Services.
b.Customer shall allow GoFIBER access to the Customer Premises to the extent reasonably necessary for the installation, inspection and scheduled or emergency maintenance of Services or GoFIBER Facilities relating to the Services. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises, and shall ensure that Customer Premises are secure and safe from hazards to the Facilities or to GoFIBER's employees, agents and contractors. GoFIBER shall be responsible for any damage to the Customer Premises to the extent arising from the improper use of the Customer Premises by GoFIBER or third party agents or contractors acting on GoFIBERÕs behalf during such installation, inspection or maintenance activities.
c. Title to all Facilities shall remain with GoFIBER. GoFIBER will provide and maintain the Facilities in good working order provided, however, that such maintenance shall be at GoFIBER's expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Facilities.
d.Customer shall not, and shall not permit others, without the prior written consent of GoFIBER, to (i) rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Facilities, (ii) use any Facilities for any purpose other than that for which GoFIBER provides them, or (iii) take any action that causes the imposition of any lien or encumbrance on the Facilities. Anything in the Agreement to the contrary notwithstanding, in no event shall GoFIBER be liable to Customer or any other person for interruption of Services or for any other loss, cost or damage caused by or related to improper use or maintenance of the Facilities by Customer or third parties provided access to the Facilities by Customer in violation of this Section 8. Customer shall be responsible for any damage to the Facilities to the extent arising from the improper use or maintenance of the Facilities by Customer or third parties provided access to Facilities by Customer. Customer agrees (which agreement shall survive the expiration, termination or cancellation of any Service Order or this Agreement) to allow GoFIBER to remove the Facilities from the Customer Premises (A) after termination, expiration or cancellation of the Services in connection with which the Facilities were used, and (B) for maintenance, repair, replacement or otherwise as GoFIBER may determine is necessary or desirable from time to time.
8. CUSTOMER-PROVIDED EQUIPMENT. GoFIBER may, but shall have no obligation to install certain Customer-provided communications equipment at the request of Customer. GoFIBER shall not be responsible for the operation or maintenance of any Customer-provided communications equipment, nor shall GoFIBER have any liability whatsoever for the configuration, management, or performance of Customer-provided communications equipment. All Customer-provided equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by GoFIBER's employees or authorized contractors when the Service problem or trouble report results from Customer's negligence, misconduct or Customer-provided equipment. GoFIBER may use third-party wiring from a building or premises demarcation point (e.g. telephone closet, risers) to reach CustomerÕs Premises or Service Location and GoFIBER shall have no responsibility for such third-party owned wiring.
9. RATES AND CHARGES; ACCEPTANCE TESTING.
a. Rates and charges for Service(s) shall be set forth in the respective Service Order(s). Charges for additional services required for installation or use of such Services shall also be set forth on the applicable Service Order as agreed by the Parties. Billing to Customer for recurring charges with respect to Service(s) will commence on the date on which Customer accepts or is deemed to have accepted such Services in accordance with Section 10(b), below, or as otherwise stated in the Service Order. Non-recurring charges may be billed at the times designated by GoFIBER.
b. Upon completion of installation, testing and activation of each Service, GoFIBER shall notify Customer that such Service is installed and functioning properly for CustomerÕs use. Customer may, in its discretion, conduct any reasonable tests of the Service within five (5) business days after receipt of such notice (except as another timeframe is agreed to by the Parties under the applicable Service Order) to confirm that the Service has been installed and is functioning properly. Unless Customer transmits written notice to GoFIBER within such five (5) business day period (or such other time period in the applicable Service Order) that the Service is not installed and functioning properly, Customer shall be deemed to have accepted the Services as of the end of such five (5) business day period.
c. In the event Customer notifies GoFIBER within the time period stated above that the Service is not installed and functioning properly, then GoFIBER shall, within five (5) business days after receipt of such notice, (i) commence efforts to correct any deficiencies to ensure that the Service is installed and functioning properly and deliver a new Service activation notice to Customer, or (ii) confirm that the Services are correctly installed and functioning properly (along with supporting documentation).
d. The procedure described above in Section 10(b) shall be repeated until the Customer expressly accepts such Services or is deemed to have accepted such Services as described herein; provided, however, that Customer shall have the right to terminate any Service Order pertaining to such Services, without any liability whatsoever, upon notice to GoFIBER, in the event that (i) GoFIBER fails, within five (5) business days after receipt of notice from Customer, to take action to ensure that the Service is installed and functioning properly, or (ii) the procedure described in this Section 10(b) is repeated more than two (2) times without successful installation of such Services that function in accordance with the applicable Service Order or Service Exhibit. Upon any such termination and as long as such failure to deliver the Services was not caused by the actions or inactions of Customer, GoFIBER shall refund toCustomer any charges previously paid by Customer pursuant to the respective Service Order.
e. In the event GoFIBER confirms proper installation and functionality of the Services in accordance with Section 10(b) above, then the Services will be deemed accepted as of the fifth day following GoFIBER's original installation notice and any further failure or refusal on the part of Customer to be ready to receive the Services shall neither relieve Customer of its obligation to pay the applicable Charges and fees, nor constitute a breach or default under this Agreement by GoFIBER.
f. The 'Turn-Up' date (or 'Turn-Up Date') shall be the date of the earlier event of acceptance of Service in accordance with this Section 10, whether by affirmation or default.
g. Acceptance of the Services by Customer pursuant to this Section 10(b) shall not be deemed a waiver of any rights Customer may have with respect to the availability, serviceability, performance, operation or other attributes of the Service(s) that are described elsewhere within this Agreement or the associated Service Order(s).
10. PAYMENT. GoFIBER shall invoice Customer, not more than ninety (90) days from the delivery of a respective Service, the Monthly Service Fees ('MSFs') in advance (unless otherwise set forth in the applicable Service Order) and any One-Time Charges as set forth in the applicable Service Order for the Services. Billing for partial months will be prorated based on a calendar month. Subject to Section 12, Customer shall pay all amounts set forth on an invoice within forty-five (45) days after the date of invoice. Past due amounts bear interest at a rate of 1 1/2% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full.
11. DISPUTED INVOICES. In the event Customer disputes any portion of a GoFIBER invoice, Customer shall pay the undisputed portion of the invoice by the date the same is due, and shall submit to GoFIBER a written claim for the disputed amount, which claim shall set forth with specificity Customer's grounds for such dispute. All disputes must be raised and claims submitted to GoFIBER within ninety (90) days of receipt of the invoice for those Services or such claims shall be deemed waived and invoices shall be deemed correct. In the event that the dispute is resolved against Customer, Customer shall pay such amounts plus interest at the rate referenced in, and calculated in accordance with, Section 11. If the Parties are unable to resolve any dispute timely brought by Customer hereunder, either Party may pursue any legal or equitable remedy available to it.
12. TAXES. All charges for Service are net of Applicable Taxes (as defined below). Except for taxes based on a GoFIBER's net income and taxes assessed on GoFIBER's tangible or intangible property, Customer will be responsible for all applicable taxes, fees, duties, charges, or regulatory surcharges that arise in any jurisdiction on the provision, sale or use of the Service and permitted by applicable law to be passed through to such other Party, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes or federal or state universal services charges, but excluding any assessments or penalties imposed based on GoFIBER's misconduct (collectively, 'Applicable Taxes'). If Customer is entitled to an exemption from any Applicable Taxes, Customer shall be responsible for presenting the GoFIBER with a valid exemption certificate. GoFIBER will give effect to any such valid exemption certificate to the extent it applies to any Service billed by GoFIBER to Customer.
13. USE OF MARKS. Neither Party shall use any trademarks, service marks, logos, or trade names of the other Party (individually and collectively the "Marks") in any manner whatsoever, including without limitation in any advertising, signage, marketing materials, website content, brochures or any other materials in any medium, without such other Party's express advance written consent. Neither Party shall issue any press release, announcement or public statement with respect to the Agreement or the other Party without such other Party's express advance written consent, and any such press release, announcement or public statement shall be subject to such other PartyÕs review and written approval. Each Party agrees that it shall only use the Marks in strict compliance with the other Party's instructions. In no event whatsoever shall a Party use the Marks: (a) except in connection with such Party's exercise of rights and performance of obligations under the Agreement, (b) in any manner which is derogatory to or critical of the other Party or otherwise in breach of the Agreement, or (c) without the other Party's express prior written permission, in connection with trademarks, service marks, logos, or trade names of third parties or in any manner that expresses or implies any affiliation, connection, or association of such other Party with, or such other Party's sponsorship or approval of, the activities of any third party.
14. COMPLIANCE WITH LAWS. Customer shall not use or permit third parties to use the Services in any manner that violates applicable law or causes GoFIBER to violate applicable law. Both Parties shall comply with all applicable laws and regulations when carrying out their respective duties hereunder.
15. NONDISCLOSURE.
a. Each Party acknowledges that, in the course of performance under the Agreement, it may receive Confidential Information (as hereinafter defined) of the other Party. Neither Party shall disclose to any third party or use for any purpose whatsoever, except to the extent required for such Party's performance under the Agreement or to the extent expressly permitted hereunder, any Confidential Information of the other Party. Anything in this Section 16 to the contrary notwithstanding, the obligation of the Receiving Party to protect the confidentiality of any information or materials shall terminate as to any information or materials which: (i) are, or become, public knowledge through no act or failure to act of the Receiving Party; (ii) are publicly disclosed by the proprietor thereof; (iii) are lawfully obtained without obligations of confidentiality by the Receiving Party from a third party after reasonable inquiry regarding the authority of such third party to possess and divulge the same; (iv) are independently developed by the Receiving Party from sources, or through persons, that the Receiving Party can demonstrate had no access to Confidential Information of the Disclosing Party; or (v) are lawfully known by the Receiving Party at the time of disclosure other than by reason of discussions with or disclosures by the Disclosing Party. For purposes of this Agreement, "Disclosing Party" means the Party who has disclosed Confidential Information of such Party to the other Party, and "Receiving Party" means the Party to whom Confidential Information of the other Party is disclosed.
b.If a Receiving Party is required or becomes legally compelled (by deposition, interrogatories, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the other Party, such Receiving Party shall provide the Disclosing Party with prompt notice of such request(s), requirements or compulsions so that such Disclosing Party may seek an appropriate protective order or other limitation on such disclosure from an appropriate court or regulatory authority of competent jurisdiction. The Parties hereto further agree that, anything in the Agreement to the contrary notwithstanding, in the event such a protective order or limitation on such disclosure issued by an appropriate court or regulatory authority of competent jurisdiction is not obtained by the latest date such disclosure is legally required, or in the event that the Disclosing Party elects to not seek such protective order or limitation on disclosure, such Receiving Party's compliance with such requirement or legal compulsion shall not be deemed a breach of the Agreement. Each Receiving Party agrees, when complying with such requirement or legal compulsion, to disclose only that limited portion of the Disclosing Party's Confidential Information that it is advised by counsel is legally required for such compliance and further agrees to exercise its best efforts to obtain assurance that the recipient will accord confidential treatment to such Confidential Information.
c. For the purposes of the Agreement, "Confidential Information" shall mean all technical, economic, business, engineering or other information (including "trade secrets", as defined under applicable law) which is proprietary to the Disclosing Party (or with respect to which the Disclosing Party owes a third party a duty of confidence) and which the Disclosing Party discloses to the Receiving Party either (i) in tangible form marked as confidential, or (ii) orally, provided that the Disclosing Party identifies such information disclosed orally as being confidential at the time of disclosure and then promptly confirms the confidential nature of such information in writing to the Receiving Party.
d.The Receiving Party acknowledges that, upon the breach or threatened breach by the Receiving Party of any provision contained in this Section 16, the Disclosing Party will be without an adequate remedy at law, and would suffer or be threatened with irreparable injury, and that the Receiving Party shall have the right to obtain immediate injunctive relief against the Receiving Party, in addition to all other rights and remedies available to the Disclosing Party, in equity and at law. This Section 16 shall survive expiration or termination of the Agreement for any reason whatsoever, and the Receiving Party's obligations under this Section 16 shall continue (i) with respect to Confidential information of the Disclosing Party which also constitutes "trade secrets", as defined under applicable law, until such time as such information no longer constitutes a trade secret due to no fault of the Receiving Party, and (ii) with respect to all other Confidential Information, for a period of two (2) years after the expiration or termination of the Agreement or such longer period as may be required by applicable law.
16. FORCE MAJEURE EVENT. A 'Force Majeure Event' means an unforeseen event beyond the reasonable control of a Party. In this regard, Customer agrees that GoFIBER shall not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of Services, directly or indirectly caused by circumstances beyond GoFIBERÕs reasonable control, including but not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war or terrorism, criminal, illegal or unlawful acts, natural causes, mechanical or power failures, fiber cuts (not caused by GoFIBER or its contractors or agents), or any order, law or ordinance in any way restricting the operation of the Services.
If either Party's performance hereunder is delayed or prevented by reason a Force Majeure Event, then the Party whose performance is delayed or prevented shall promptly notify the other Party of the Force Majeure Event and shall be excused from performance to the extent delayed or prevented (and the other Party shall be excused from any corresponding performance for the same period); provided, however, that the Party whose performance is delayed or prevented shall take all reasonable steps to avoid or remove such cause of nonperformance and shall continue to perform whenever and to the extent reasonably possible, and provided further that any time for performance set forth in this Agreement shall be extended for a period equal to the period of any such delay. Notwithstanding the foregoing, in the event a Force Majeure event adversely affects a Party's ability to perform its material obligations under this Agreement for more than thirty (30) days, either Party shall have the right to terminate the affected Service Order(s).
17. SUSPENSION OF SERVICE(S). (a) GoFIBER may suspend Service(s) without liability if Customer fails to pay a past due balance for charges (other than amounts which are the subject of a then-current dispute initiated in accordance with Section 12) within twenty (20) business days after Customer's receipt of written notice from GoFIBER that GoFIBER will suspend Services for non-payment, and may continue such suspension until all amounts due are paid in full or GoFIBER terminates the applicable Service(s), Service Order(s) or the Agreement. (b) Customer agrees that it shall not use the Service for any illegal purpose, to violate the rights of any third party or otherwise to achieve unauthorized access to any third party systems, software or data. Customer agrees (i) not to interfere with GoFIBER's other customersÕ use of GoFIBER provided services or (ii) disrupt GoFIBER's network, backbone, nodes or other Services. Customer shall prohibit its end-users from using the Service for any illegal purpose or otherwise obtaining unauthorized access to any third party systems, software or data. Notwithstanding the foregoing, in the event Customer has failed to comply with Section 18, GoFIBER shall have the right, at its option, and in addition to any other remedies it may have, to immediately suspend Services to Customer until such time as the underlying noncompliance has been corrected without affecting Customer' on-going obligation to pay GoFIBER any amounts due under this Agreement, as if such suspension of Services had not taken place.
18. CUSTOMER USE. Customer agrees not to re-sell or re-distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of GoFIBER. However, Customer's use of Data Transport Service (e.g. point to point, WAN) to append its network is not prohibited and is not considered a violation of the foregoing restriction but in any case, shall not offer to any third party any Service delivered under this Agreement as a standalone Service. Customer agrees not to use or permit third parties to use the Service(s), including but not limited to the Equipment and software provided by GoFIBER, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material. Customer agrees not to interfere with other customers' use of the Equipment or Services or disrupt the GoFIBER Network, backbone, nodes or other Services. Violation of any part of this section is grounds for immediate termination of this Service Agreement and/or all Service Orders in addition to any other rights or remedies GoFIBER may have hereunder.
19. TERMINATION BY CHARTER. GoFIBER may, by sending written notice of termination to Customer with termination effective as of the date such notice is received, terminate a Service Order (in whole or in part) and/or discontinue Service(s) (in whole or in part) or terminate the Agreement, all without liability, in the event that:
a. any amounts due and owing by Customer (other than amounts which are the subject of a then-current dispute initiated in accordance with Section 12) remain unpaid thirty (30) days after the date such amounts were first due;
b.Customer (i) suspends its business operations; (ii) is adjudicated to be insolvent, (iii) makes a general assignment for the benefit of creditors, or (iv) files (or has filed against it) a petition in bankruptcy which petition is not dismissed within sixty (60) days thereafter;
c. GoFIBER is ordered, by a federal, state or local governmental entity, regulatory body or court of competent jurisdiction, to cease providing Service(s); or
d.there is a change in applicable law or regulation, including without limitation any change pursuant to applicable decisions, rules and orders, that materially increases GoFIBER's costs or materially affects other terms of GoFIBER's delivery of Service(s), and GoFIBER and Customer are unable to reach agreement with respect to new rates, terms and/or conditions regarding such Service(s) within ninety (90) days after GoFIBER's delivery of written notice requesting renegotiation thereof; or
e. GoFIBER determines in good faith that CustomerÕs End-User and/or Customer's use of the Services is interfering unreasonably with the operation of the Facilities.
20. TERMINATION OR SUSPENSION BY EITHER PARTY. In the event that a Party breaches any material term of this Agreement and fails to cure such breach in accordance with this Agreement, the other Party may terminate this Agreement for cause and without penalty. Prior to such termination, the Party intending to terminate shall first give the other Party written notice of its intent to terminate, which shall clearly set forth the material term of this Agreement alleged to have been breached along with a description of the specific circumstances alleged to constitute such breach. The other Party shall have thirty (30) days from the date of receipt of such notice to cure the breach. If the breach is not cured within such period, the Party intending to terminate may terminate this Agreement on such thirtieth (30th) day without liability.
21. EFFECT OF TERMINATION.
a. Upon termination or expiration of any Service(s) or Service Order for any reason whatsoever: (i) all obligations of the Parties hereto under such Service Order and under the Agreement with respect to such terminated Service(s) shall immediately terminate; provided, however, that the provisions of the Agreement and/or Service Order which state that they survive or which, by their nature, reasonably would be expected to survive termination or expiration (including any provisions related to payment obligations, disclaimers, limitations or exclusions of warranties and liability, confidentiality or indemnification) shall survive the termination or expiration of such Service(s) or Service Order; and (ii) all payment obligations of Customer under the Agreement with respect to such terminated Service(s) (including any obligations to pay termination charges in connection therewith), shall accrue through the date of such termination and shall become immediately due and payable.
b. Upon termination or expiration of the Agreement for any cause whatsoever: (i) all obligations of each Party under all Service Orders and under the Agreement shall immediately terminate; provided, however, that the provisions of the Agreement and/or Service Order which state that they survive or which, by their nature, reasonably would be expected to survive termination or expiration (including any provisions related to payment obligations, disclaimers, limitations or exclusions of warranties and liability, confidentiality or indemnification) shall survive the termination or expiration of the Agreement; and (ii) all payment obligations of Customer under the Agreement with respect to such terminated Service(s) (including any obligations to pay termination charges in connection therewith), shall accrue through the date of such termination and shall become immediately due and payable.
22. TERMINATION CHARGES. Upon termination of any Service(s), Service Order or the Agreement by GoFIBER pursuant to Section 19, 20.(a) or 20(b) or by Customer for any reason other than pursuant to Section 17 or 21, GoFIBER may, in addition to all other remedies that may be available to GoFIBER at law or in equity, assess and collect from Customer, and Customer shall pay, unless otherwise specified in an affected Service Order, a termination charge equal to the sum of (a) the total amount of any all credits or waivers of nonrecurring charges applied to Customer's account for the terminated Service(s) from the Effective Date through to the effective date of such termination; and (b) an amount equal to fifty percent (50%) of the total recurring monthly charges for such terminated Service(s) for each month remaining in each then-current Service Order Term in the absence of such termination.
23. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR THE OTHER PARTYÕS END-USERS 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 HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND/OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION AND CLAIMS SUFFERED BY THE OTHER, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, BUT SHALL NOT APPLY WITH RESPECT TO: (a) breach of confidentiality, (b) indemnification obligations set forth in this Agreement, (c) injury or death to an individual; (d) damage to tangible personal or real property (to the extent of the damage to that property); OR (e) willful misconduct.
24. UNAUTHORIZED ACCESS. If Customer chooses to run or offer access to applications from its equipment that permit others to gain access to the Service(s), Customer must take appropriate security measures. Failing to do so may cause immediate termination of Customer's Service by GoFIBER with no liability for GoFIBER. GoFIBER is not responsible for and assumes no liability for any damages resulting from the use of such applications, and Customer shall hold GoFIBER harmless from and indemnify GoFIBER against any claims, losses, or damages arising from such use. GoFIBER is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs resulting from others accessing the Customer's computers, its internal network and/or the Facilities through Customer's equipment and applications, and Customer shall hold GoFIBER harmless from and indemnify GoFIBER against any such claims, losses, or damages to the full extent arising from such access.
25. DISCLAIMER OF WARRANTIES. CHARTER MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER CONCERNING ANY SERVICES OR FACILITIES, AND CHARTER HEREBY EXCLUDES AND DISCLAIMS, WITHOUT LIMITATION, ANY AND ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY EXPRESS OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF THE TRADE. CUSTOMER ACKNOWLEDGES CHARTER HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BY UNINTERRUPTED OR ERROR-FREE.
26. INDEMNIFICATION.
a. Customer agrees, at its own expense, to indemnify, defend and hold harmless GoFIBER and its directors, employees, representatives, officers and agents, (the 'GoFIBER Indemnified Parties') against any and all third-party claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses, including but not limited to, reasonable attorneys' fees and court costs, (collectively, 'Claims') incurred by and/or brought against GoFIBER Indemnified Parties, to the full extent that such Claims arise directly from: (i) Customer's noncompliance with the terms of this Service Agreement and any or all Service Orders; (ii) Customer's or their End-Users failure to comply with applicable laws; (iii) Customer's use or misuse of the Services, including claims resulting from use/misuse of the Services by Customer's End Users and/or the content of any communications transmitted via the Service(s); (iv) Customer's willful misconduct; and/or (v) physical damage to personal or real property or bodily injury, including death, caused by the negligent or willful misconduct of Customer or Customer's End Users, its employees or contractors. Customer shall have full authority to settle any such Claims; provided, however, that it may not enter into any settlement without GoFIBER's advance written consent in which (A) a full and final release of such Claim in favor of GoFIBER Indemnified Parties is not obtained as a result of the settlement, or (B) any admission or affirmative obligation is required or placed upon GoFIBER Indemnified Parties.
b.GoFIBER agrees to indemnify and hold harmless Customer, its directors, officers, employees, agents and/or representatives ('Customer Indemnified Parties') from and against any and all third-party Claims incurred by and/or brought against Customer Indemnified Parties to the full extent that such Claims arise directly from: (i) physical damage to personal or real property or bodily injury, including death, caused by the negligent or willful misconduct of GoFIBER, its employees or contractors, at the site(s) as a direct result from GoFIBERÕs installation, removal or maintenance at CustomerÕs Premises of the Equipment; and/or (ii) GoFIBER's failure to comply with applicable laws. GoFIBER shall have full authority to settle any such Claims; provided, however, that it may not enter into any settlement without Customer's advance written consent in which (A) a full and final release of such Claim in favor of Customer Indemnified Parties is not obtained as a result of the settlement, or (B) any admission or affirmative obligation is required or placed upon Customer Indemnified Parties.
27. DAMAGES/LIABILITY RESPONSIBILITY. Customer shall remain responsible and shall reimburse GoFIBER for any cost, expense, damage or other liability GoFIBER incurs or suffers arising from Customer's breach of any representation or warranty hereunder, or noncompliance with the terms of this Agreement and any or all Service Orders, Customer's failure to comply with applicable law, and/or Customer's negligence or willful misconduct.
GoFIBER shall remain responsible and shall reimburse Customer for any cost, expense, damage or other liability Customer incurs or suffers arising directly from physical damage to personal or real property caused by the negligent or willful misconduct of GoFIBER, its employees or contractors, at the site(s) during the installation, maintenance, or removal of equipment necessary to deliver the Services to Customer or from GoFIBER's noncompliance with applicable law.
28. ASSIGNMENT. The Parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) this Agreement and the associated Service Order(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other Party, which consent shall not be unreasonably withheld, provided, however, that GoFIBER may assign this Agreement and the associated executed Service Order(s) to affiliates controlling, controlled by or under common control with GoFIBER, or to its successor-in-interest in the event GoFIBER sells the underlying communications system, without Customer's consent.
29. NO THIRD PARTY BENEFICIARIES. The Parties agree that the terms of this Agreement and the Parties' respective performance of obligations as described are not intended to benefit any person or entity, including but not limited to Customer's End User, not a Party to this Agreement, that the consideration provided by each Party under this Service Agreement runs solely to the respective Parties hereto, and that no person or entity, including but not limited to Customer's End User, not a Party to this Agreement shall have any rights under this Agreement nor the right to require the performance of obligations by either of the Parties under this Agreement.
30. NOTICE. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective upon the earlier of receipt or five (5) days after deposit with the respective courier or United States Postal Service, and (c) delivered by one of the following means: (i) by prepaid, nationally recognized, overnight package delivery or courier service; or (ii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid. In addition to actual receipt by a Party, the following shall constitute receipt: (A) a Party's rejection or other refusal to accept notice, and (B) the inability to deliver notice to a Party because of a changed address of which no notice has been provided in accordance with this Section and received by the other Party. All notices given under the Agreement shall be addressed to the addresses of the Parties set forth below or to such other addresses of which the Parties hereto have been advised in writing by any of the above-described means.
If to GoFIBER:
GoFIBER LLC
3700 Santa Fe Avenue
Suite 200
Long Beach, CA 90810
Each Party may change its respective address(es) for legal notice by providing notice to the other Party.
31. GOVERNING LAW. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Missouri, without regard to its conflicts of law provisions. Customer agrees that the federal and state courts of Missouri alone have jurisdiction over all disputes arising under this Agreement, and Customer consents to personal jurisdiction of those courts with respect to any disputes arising under this Agreement. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND CHARTER EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY.
32. NO WAIVER. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding on either Party unless evidenced by a written notice or amendment signed by an authorized representative of the Party to be bound.
33. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements, and, except as provided herein, may not be amended, modified or altered except by a written instrument duly executed by the Parties hereto.
34. SEVERABILITY. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective only to the extent of such holding or determination without (a) invalidating the remaining provisions of the Agreement in that jurisdiction or (b) affecting the legality, validity or enforceability of such provision in any other jurisdiction.
35. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be construed as creating a joint venture or partnership between the Parties hereto. Neither Party has or shall have any authority to bind, assume any obligation for or incur any debt on behalf of the other Party in any respect whatsoever.
36. ORDER OF PRECEDENCE. In the event of a conflict or inconsistency between any Service Order and the remaining terms and conditions of this Agreement, the terms of the applicable Service Order shall control.