Terms of Service
Optic Loop Communications, LLC Service Terms and Conditions Agreement
This Service Terms and Conditions Agreement (“Service Agreement”), consisting of these terms and conditions, the Confirmation of Sale (“COS”) and all other documents referenced herein, is entered into as of the date set forth on the COS (“Installation Date”) by and between each of Optic Loop Communications, LLC d/b/a Optic Loop Internet, and Optic Loop Broadband (collectively referred to as “Optic Loop”) and the individual or entity named on the COS to which this Service Agreement is attached (“Customer”), and sets forth the terms and conditions under which Optic Loop will make available the services listed in the COS (the “Service”). This Service Agreement governs both home and commercial Customers. “Affiliate” means an entity that controls, is controlled by or is under common control with Optic Loop. For questions regarding our refund policy please call us at 801-737-1900 or email us at email@example.com
1. GENERAL OVERVIEW This Service Agreement governs the following components in Optic Loop’s Service, and Customer may customize Customer’s residential or commercial Service based on Customer’s needs: * Internet Access Service – Internet broadband service, as described on the Optic Loop website, including but not limited to Optic Loop Residential Internet and Optic Loop Commercial Internet; * Email; and * Web Site Hosting.
2. EQUIPMENT AND REQUIREMENTS FOR PROVISION OF THE SERVICE (a) Customer Equipment: To use the Service, Customer must have a personal computer or other device and other equipment meeting Optic Loop’s most recent “Minimum Customer Equipment Specifications,” established by Optic Loop and which may be modified from time to time by Optic Loop. The Minimum Customer Equipment Specifications may change, and Optic Loop may make reasonable efforts to support previously acceptable configurations; however, Optic Loop is not obligated to continue to provide such support. Although Optic Loop is under no obligation to do so, Optic Loop may, and Customer authorizes Optic Loop to, perform any updates and/or changes to Customer’s equipment, on-site or remotely, from time to time as Optic Loop deems necessary, in Optic Loop’s sole discretion. Customer will direct any questions concerning third-party hardware or software to the manufacturer. Optic Loop has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Customer elects to use in connection with the Services. As set forth below, Customer is not permitted to connect any harmful equipment to the Optic Loop Equipment (as defined below). Customer understands that failure to comply with this restriction may cause damage to Optic Loop’s network and subject Customer to liability for damages and/or other liability. Customer agrees to not alter, modify or tamper with the Optic Loop Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Optic Loop. (b) Optic Loop Equipment: Customer acknowledges that on the Installation Date, the “Optic Loop Equipment” was installed. Customer further acknowledges that the Optic Loop Equipment may, in Optic Loop’s sole discretion, be refurbished or otherwise used equipment. Customer agrees that the Optic Loop Equipment was installed at a location and in a manner authorized by Customer. The Optic Loop Equipment is and shall remain the property of Optic Loop, and Customer will be subject to a “One-Time Equipment Rental Fee” under the terms set forth in the COS. At such time as Customer or Optic Loop terminate the Service, Customer will return the Optic Loop Equipment to a Optic Loop office, or schedule a pick-up by Optic Loop for a fee, on or before the termination date, and in accordance with Optic Loop’s then-current return procedures. In the event that Customer has not returned the Optic Loop Equipment on or before the termination date, the Service will remain active and Customer will continue to be charged the Monthly Fees, as defined below, until it the Optic Loop Equipment is returned. In the event that the Optic Loop Equipment is damaged or otherwise inoperable, Customer will pay the fair market value of each piece of equipment (to be determined by Optic Loop) not covered under Customer’s elected Equipment Assurance Plan as defined below. (c) Access to Customer’s Premises: Customer hereby grants Optic Loop and its Affiliates, and their respective employees, contractors and agents the right to enter Customer’s property and premises at any time for the purpose of operating or maintaining the Optic Loop Equipment or Optic Loop’s network, retrieving Optic Loop Equipment or fulfilling its obligations or exercising its rights under this Service Agreement. Optic Loop shall provide Customer with reasonable advance notice of any such planned access, except when, in the reasonable opinion of Optic Loop, an emergency or other exigent circumstance exists that would require Optic Loop to immediately enter Customer’s property and premises. (d) Customer’s Obligation to Maintain Power to Optic Loop Equipment: Customer understands and agrees that: (i) Customer must provide electrical power and a continuous connection to the power grid to Optic Loop Equipment at all times (including, without limitation, when Customer is not using the Service), and (ii) Customer’s failure to provide such power and continuous connection may result in damage to the Optic Loop Equipment or to Customer’s computer, equipment, property or premises, for which damage Customer will be solely responsible. (e) Replacement and Upgrade of Optic Loop Equipment: (i) Customer is required to elect an “Equipment Assurance Plan” on the Installation Date. All Equipment Assurance Plans involve a monthly fee and deductible for antenna replacement. Depending upon the Equipment Assurance Plan elected, labor costs may or may not be covered. Notwithstanding the foregoing, Customer will be solely liable for, and Optic Loop shall have no obligation to repair, replace or otherwise upgrade, any Optic Loop Equipment that has been, in Optic Loop’s sole discretion, damaged or otherwise requires repair, replacement or upgrade as a result of damage or disruption caused by misuse or neglect or otherwise caused by Customer, including, without limitation, damage or disruption caused by Customer’s failure to comply with Section 2(d) herein or by Customer’s failure to comply with the last sentence of Section 2(a) herein. (ii) Customer understands and agrees that Optic Loop’s ability to provide an appropriate quality of Service to Customer and the other customers on Optic Loop’s network may from time to time require upgrades or replacement of the Optic Loop Equipment, and Customer will be obligated to pay the then-applicable “Equipment Upgrade Fee” as established by Optic Loop from time to time, at such time as Optic Loop determines, in its sole discretion, that the Optic Loop Equipment needs to be upgraded or replaced. (f) Customer understands, acknowledges and agrees that prior to Optic Loop servicing any Customer equipment or Optic Loop Equipment under contract with Customer, it is Customer’s responsibility to (i) back-up the data, software, information or other files stored on Customer’s computer or other device including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (ii) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, USB Drives, DVDs, film or other media from Customer’s equipment. Customer agrees that whether or not Customer requests back-up services from Optic Loop and/or its Operational Service Provider, neither Optic Loop nor its Operational Service Provider shall be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, USB Drives, DVDs, film or other media. (g) Customer understands that the Service may not be compatible with, nor does it support, VoIP applications and Customer assumes all risk associated with the same. Optic Loop does not recommend Customer rely on wireless Internet or VoIP for emergency contacts (such as 911 calls) and Optic Loop cannot guarantee, and hereby expressly renounces, the reliability of such wireless Internet services.
5. PASSWORDS (a) Home accounts are for individual use only. Commercial accounts are for authorized personnel only. (b) Home Customers shall not share passwords or accounts with others. Commercial Customers shall only provide passwords to authorized personnel. (c) Optic Loop shall provide or obtain passwords to protect Customer’s account and Services. In the event that the security of a Customer’s account or Service is compromised, Optic Loop shall provide Customer with a new password. (d) Optic Loop may monitor the security of Customer’s passwords at any time. A Customer with an insecure password may be directed to change the password to one which complies with the above rules. Customers who repeatedly choose insecure passwords may be assigned a password by Optic Loop; continued failure to maintain password security may be grounds for account termination.
7. ACCEPTABLE USAGE AND PROHIBITED INTERNET SERVICE ACTIVITIES (a) “Acceptable Usage of Internet Service” is hereby defined as the normal activities associated with the use of the Internet, including but not limited to usage of Optic Loop’s systems and network facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. Depending on the account type, this may include file storage on Optic Loop’s servers for Customer’s own personal web page and file access area (FTP), etc. (b) “Prohibited Internet Service Activities” specifically prohibited by Optic Loop include but are not limited to the following: (i) Background and/or server-type applications – Including but not limited to IRC bots, HTTP servers, MUDs, and any other process which were initiated by the Customer that continues execution on the system upon Customer logout. (ii) Long-term storage of data – Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes, but is not limited to, programs such as shareware programs which the Customer may download to their account for purposes of transferring to their home computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the Customer’s personal system. (iii) Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly by Optic Loop. Flooding takes place in numerous ways, including, but not limited to, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), phishing, mass mailings to multiple addresses via bulk email, MSG/CTCP flooding on IRC, as well as other, less common methods. “Bulk Email” is defined as the same or similar email messages sent to more than 25 recipients. (iv) Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Customer’s account are prohibited. This also includes attempts to hack into non-Optic Loop systems. (v) Sharing of accounts – Sharing Customer’s Internet Service with another party for purposes of avoiding payment for a second Service is strictly prohibited. Customer may connect multiple computers/devices within a single location to Customer’s modem, router, and/or radio to access the Internet Service, but only through a single Optic Loop-issued IP address. (vi) PPP/SLIP emulation software – Since PPP/SLIP is a product offered by Optic Loop, Customers desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from Customer’s account by Optic Loop immediately when found. (vii) Bulk broadcast data – This includes flood pinging, broadcast pinging, multicast, or IGMP use outside of the private network. (viii) Port scanning (ix) Conducting business through a personal home account – The home single-Customer Internet accounts provided by Optic Loop are designed for the home/casual Customer and may not provide the level of service, capacity or speed required for conducting business. Therefore, conducting business with a home account is not advisable. Please contact Optic Loop’s sales department to upgrade to a commercial account. (x) Excessive use of system resources – This includes, but is not limited to, the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. Customer may not resell Service. (xi) Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals, the sending of harassing and/or threatening messages to other users, and the forging of email addresses so as to make the email appear to be from another user. (xii) USENET news abuse – Similar to email abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted. (xiii) Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited. (xiv) Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on Optic Loop. Such prohibition also includes the unauthorized copying of copyrighted material including, but not limited to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited. (xv) High-traffic websites – Home internet service is intended to provide access to individuals only. As most individuals s primarily download content, rather than upload it, the performance for everybody on the systems is optimal. However, some individuals occasionally choose to host content on their account, that could degrade performance for other users. Due to this, Optic Loop has had to implement certain limitations on the amount of web hosting traffic an individual customer’s account can receive. Typically an account can safely upload 250 MB per day without causing excessive load. Sites generating more than this amount must be moved to Optic Loop’s Web Hosting service, where Optic Loop is better able to address extra traffic. Optic Loop’s Web Hosting packages and the amount of Internet traffic each package supports are outlined on the Web Hosting portion of Optic Loop’s website.
8. PENALTIES FOR VIOLATIONS OF SERVICE AGREEMENT (a) All Prohibited Internet Service Activities as defined in Section 7 herein are subject to immediate termination of Customer’s account and any and all criminal and civil penalties available under the law. The penalties imposed on Customer for such violations will vary based on the level of the offense. Typically Customer will receive a warning on the first offense. However, if the offense is severe enough, Optic Loop reserves the right to disable the account immediately. Accounts which have been disabled for abuse will not be re-opened. It is vital for Optic Loop to provide a quality service for all Customers, and Optic Loop will not tolerate Customers who through their actions hinder Optic Loop in that endeavor. It is also important for Optic Loop to have a non-intrusive presence to the rest of the Internet, and thus prohibit activities that adversely affect Customers on other service providers and their associated networks. To this end, Optic Loop reserves the right to modify and/or disable Service at any such time the Customer violates this Service Agreement. (b) Optic Loop will not reimburse Customer when Service has been suspended or disabled due to violations of this Service Agreement. (c) If Service is disconnected for non-payment, Optic Loop is not obligated to reconnect Customer’s Service. However, if Customer desires reconnection, and Optic Loop agrees to do so, Customer agrees to pay a “Reconnection Fee” plus any amount past due under Customer’s COS. The amount of the Reconnection Fee is set forth on the Customer’s COS.
9. SOFTWARE LICENSES AND THIRD PARTY SERVICES (a) Optic Loop may provide Customer software for use in connection with the Service which is owned by Optic Loop or its third party licensors, third party suppliers, and Operational Service Providers (“Software”). Such Software will be subject to an additional fee. Optic Loop reserves the right periodically to update, upgrade, or change the Software remotely or otherwise and to make related changes to the settings and software on Customer’s computer(s)/device(s) or Equipment, and Customer agrees to permit such changes and access to Customer’s computer(s)/device(s) and Equipment. Customer may use the Software only in connection with the Service and for no other purpose. (b) Certain Software may be accompanied by an end user license agreement (“EULA”) from Optic Loop or a third party. Optic Loop’s use of the Software is governed by the terms of that EULA and by this Service Agreement, where applicable. Customer may not install or use any Software that is accompanied by or includes a EULA unless Customer first agrees to the terms of the EULA. (c) For Software not accompanied by a EULA, Customer is hereby granted a revocable, non-exclusive, non-transferable license by Optic Loop or its applicable third party licensor(s) or Operational Service Provider to use the Software (and any corrections, updates and upgrades thereto). Customer may not make any copies of the Software. Customer agrees that the Software is confidential information of Optic Loop or its third party licensors/Operational Service Providers and that Customer will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Optic Loop or its third party licensors/Operational Service Providers. Customer may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. Customer may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Customer is not granted any title or rights of ownership in the Software. Customer acknowledges that this license is not a sale of intellectual property and that Optic Loop or its third party licensors/Operational Service Providers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
10. CUSTOMER’S PAYMENT OBLIGATIONS Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of this Service Agreement and Customer’s COS. (a) Deposit: Prior to the Installation Date, Customer may be required to pay an “Initial Deposit.” On the Installation Date, Customer is required to pay the “Installation Fee” and “First Month Payment.” The First Month Payment amount may be prorated depending upon where the Installation Date falls in the month; any credit will be applied to Customer’s final payment. Together, any Initial Deposit, Installation Fee, First Month Payment, and One-Time Equipment Rental Fee constitute the “Total Deposit.” Customer agrees that the Total Deposit is to be paid in consideration of Optic Loop’s making the Service available on the terms and conditions set forth in this Service Agreement, that Optic Loop has earned the Total Deposit in full and that the Total Deposit minus the Installation Fee is refundable only if the Service is not working within thirty (30) days of the Installation Date. (b) Customer agrees to pay the applicable “Monthly Service Fee” and “Monthly Equipment Assurance Fee” set forth in the COS (collectively the “Monthly Fees”), in advance, prior to the month billed, on or before the eleventh (11th) day of each calendar month. Customer’s “Monthly Billing Cycle” begins on the first day of each month. Notwithstanding the foregoing, Optic Loop may modify Customer’s Monthly Billing Cycle upon at least 15 calendar days’ advance notice to Customer. (c) Customer may, on ten (10) calendar days’ advance notice to Optic Loop, select a different Equipment Assurance Plan or Internet Access Service plan, within the limitations of the installed Optic Loop Equipment, effective on the first day of Customer’s next Monthly Billing Cycle, in which case this Service Agreement and the COS shall be deemed to be amended. (d) Customer bears the sole responsibility to timely pay Monthly Fees when due. Bills will be sent via email to the Customer’s Account Email Address. It is Customer’s sole responsibility to have a valid Account Email Address on file with Optic Loop. On-line billing is available if set up in advance with Customer and Optic Loop. Customers may pay their bill with cash, check, credit card or debit card (Master Card, Discover or Visa), or ACH (Automated Clearing House; direct withdrawal from checking or savings account) only. Optic Loop may require a deposit or other guaranteed form of payment (such as payment card or bank account debit authorization) from Customer. If Customer owes money on any account, Optic Loop may deduct the amounts owed from any existing credit Customer has or any security deposit provided or, if applicable, charge them to the bank or payment card account Customer has authorized Optic Loop to use. (e) For each Monthly Billing Cycle with respect to which Customer does not pay on time (including without limitation if Customer’s Monthly Fees are not received by Optic Loop on or before the first day of the Monthly Billing Cycle), Customer agrees to pay the “Reconnection Fee” set forth in the COS. There is also a “Returned Check Fee” established on the COS for the administrative costs related to returned checks. (f) Optic Loop shall not be obligated to provide the Service during Monthly Billing Cycles for which Customer has not paid the applicable Monthly Fees in advance. If at any time Customer’s account has past due amounts or upon Customer’s violation of this Service Agreement (including any documents incorporated by reference herein), Optic Loop may, in Optic Loop’s sole and absolute discretion, suspend provision of the Service to Customer and/or terminate this Service Agreement. Amounts are past due if not paid before the first calendar day of Customer’s Monthly Billing Cycle. Customer understands, acknowledges and agrees that Optic Loop is not required to provide notice before suspending the Service and/or terminating this Service Agreement, and Optic Loop will not be liable to Customer or any Authorized User for any such suspension or termination or any damages that may result therefrom. In order to restore service after a disconnection, Customer agrees to pay the applicable Reconnection Fee set forth in the COS. (g) At the expiration of the “Service Term,” unless Customer signs a new COS, the terms of this Service Agreement and the COS will automatically renew for an additional one (1) year term. Optic Loop shall provide written notice to Customer of such automatic renewal at least thirty (30) days but no more than sixty (60) days prior to the scheduled effective date of the automatic renewal, and such automatic renewal notice shall be sent by Optic Loop via email to the Customer’s Account Email Address. In order for Customer to terminate the contract, Customer shall follow the termination procedures described in Section 16. (h) Customer agrees to pay the Monthly Service Fee,” set forth in the COS, which may change from time to time subject to advance notice by Optic Loop. (i) All accounts sixty (60) days or more past due will be turned over to collections and Service discontinued permanently. (j) Customer also agrees to pay all applicable federal, state, and local taxes and fees, including, but not limited to, those imposed after the date of execution of the COS.
11. SERVICE LEVEL AGREEMENT AND REFUNDS (a) Service Level Agreement: In the event Customer experiences a Service outage for more than two (2) consecutive hours and is unable to transmit and receive information through Optic Loop’s network to other portions of the Internet and Customer notifies Optic Loop immediately of such event and Optic Loop determines that such inability was caused by Optic Loop’s failure to provide said services for reasons within Optic Loop’s reasonable control and not as a result of any actions or inactions of Customer or any third parties (including failure of third party equipment), and such inability is not a result of scheduled maintenance of Optic Loop’s equipment or services, Optic Loop will, upon Customer’s request, credit Customer’s account the connectivity charges for the length of the outage according to Optic Loop’s current outage policy (b) Refunds: If Service cannot be supplied by Optic Loop for any reason, a refund of the Total Deposit minus the Installation Fee will be given for any prepaid service fees and equipment returned in new resalable condition. Service may be cancelled without penalty within 30 days of service installation for quality of service issues. The Total Deposit minus the Installation Fee will be given for equipment returned in new resalable condition and for any remaining portion of prepaid monthly service charges pro-rated daily. All other payments are non-refundable.
12. DISCLAIMER OF WARRANTIES (a) CUSTOMER EXPRESSLY AGREES THAT CUSTOMER USES THE SERVICE AND THE OPTIC LOOP EQUIPMENT AT CUSTOMER’S SOLE RISK. THE SERVICE AND OPTIC LOOP EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN SECTION 2 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER OPTIC LOOP NOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANTS: (i) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (ii) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (iii) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (iv) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES CUSTOMER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO CUSTOMER’S COMPUTER OR DEVICE. THIS INCLUDES, BUT IS NOT LIMITED TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO CUSTOMER’S COMPUTER, DEVICE, OR NETWORK OR OPTIC LOOP EQUIPMENT, OR TO MONITOR CUSTOMER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM OPTIC LOOP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. (b) In addition, OPTIC LOOP may, in its sole discretion, make available to Customer security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, anti-spyware or anti-adware software for Customer’s use on Customer’s computer system(s) in conjunction with the Service. Any such security software provided by Optic Loop to Customer is intended to provide only a minimal level of protection to Customer’s computer system(s). CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT OPTIC LOOP AND ITS AFFILIATES, AGENTS, THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. CUSTOMER UNDERSTANDS AND AGREES THAT OPTIC LOOP AND ITS AFFILIATES, AGENTS, THIRD PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NON-PERFORMANCE. (c) EXCEPT AS SPECIFICALLY SET FORTH IN THE COS, CUSTOMER UNDERSTANDS AND AGREES THAT NEITHER OPTIC LOOP NOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS OR THIRD PARTY SUPPLIERS GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON OPTIC LOOP’S NETWORK OR THAT ANY SPEED OR THROUGHPUT OF CUSTOMER’S CONNECTION TO OPTIC LOOP’S NETWORK WILL BE AVAILABLE TO CUSTOMER. Customer understands, acknowledges and agrees that the availability and speed of the Service provided at Customer’s premises may vary depending upon a number of factors, including Customer’s computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Customer’s premises, foliage between Optic Loop Equipment and other components of Optic Loop ’s network, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Optic Loop’s control and system failures, modifications, upgrades and repairs. (d) Customer understands, acknowledges and agrees that Optic Loop is NOT responsible for: (i) obstructions that might be erected or grow between Customer’s antenna and Optic Loop’s network antenna causing a degradation or loss of service; equipment upgrades necessary over time to address changes in foliage or other reasons; debris or ice on antenna; re-aiming the antenna; reconfiguration of network settings due to, but not limited to, tampering or re-installation of operating systems; physical or electronic damage to Customer’s or third party’s person or equipment, including but not limited to damage caused by lightning or by the equipment itself; (ii) damage caused by hackers or viruses; or loss of data, whether such data resides on Optic Loop servers or not. (e) Customer understands, acknowledges and agrees that Optic Loop may in the future offer other Customers on Optic Loop’s network Service with specific minimum service standards (including, without limitation, minimum standards for speed, bandwidth, latency or availability) (such minimum service standards that may be offered in the future, “Future Enhanced Service”). Customer further understands, acknowledges and agrees that Optic Loop shall be under no obligation to provide any Future Enhanced Service to Customer unless and until Optic Loop and Customer have executed a new agreement with respect to such Future Enhanced Service, which agreement may include, without limitation, such increased or modified Monthly Fees and additional terms and conditions as Optic Loop and Customer may agree. (f) Customer understands, acknowledges and agrees that Optic Loop may use various tools and techniques in order to efficiently and reasonably manage its networks and to ensure compliance with Optic Loop’s Disclosure Statement and Section 7 above (such tools and techniques, “Network Management Tools”). These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code or managing network resources through techniques such as limiting the number of simultaneous peer-to-peer sessions that Customer may conduct and such other Network Management Tools as Optic Loop may from time to time determine appropriate in a manner consistent with the Disclosure Statement. (g) Customer understands, acknowledges and agrees that, to allocate bandwidth across all of its Customers, Optic Loop may employ traffic-management technology, including but not limited to packet-reset technology, which technology may materially slow the uploading of certain files. (h) Customer understands, acknowledges and agrees that, in order to provide redundancy or increased efficiency or otherwise to enhance Optic Loop’s network, Optic Loop may install additional equipment at Customer’s premises, which shall be deemed to be Optic Loop Equipment for the purposes of this Service Agreement. Customer further understands, acknowledges and agrees that Optic Loop may use the Optic Loop Equipment to provide Service to others in a manner that secures and separates Customer’s traffic and local area network from Service provided to others. (i) Customer understands, acknowledges and agrees that Optic Loop does not warrant that Service descriptions, information, graphic depictions, fees, product and or other components of the Service are accurate, reliable, updated, current, complete or error-free. Despite Optic Loop’s efforts, it is possible that a price for the Service (or a component of the Service) offered on Optic Loop’s website, or the Service description may be inaccurate in some part. In the event Optic Loop determines that a Service contains an inaccurate price or description, Optic Loop reserves the right to take any action Optic Loop deems reasonable and necessary, in Optic Loop’s sole discretion, to rectify the error, including without limitation, canceling Customer’s order, unless prohibited by law. Optic Loop may make improvements or changes to any of Optic Loop’s information, or Services described on Optic Loop’s websites at any time without notice. Customer agrees to notify Optic Loop immediately if Customer becomes aware of any pricing or descriptive errors or inconsistencies with any Services Customer orders and to comply with any corrective action that Optic Loop may take. (j) THIS SERVICE AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
13. LIMITATION OF LIABILITY (a) STATUTE OF LIMITATIONS: CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES. (b) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL OPTIC LOOP OR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY LICENSORS OR THIRD PARTY SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS SERVICE AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF OPTIC LOOP UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US). (c) ADDITIONALLY, OPTIC LOOP WILL HAVE NO LIABILITY FOR THE FOLLOWING: (i) FOR ANY AMOUNT IN EXCESS OF ONE HUNDRED DOLLARS ($100.00 US); (ii) FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES; (iii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iv) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (v) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER’S FAILURE TO BACK UP ANY EQUIPMENT AS REQUIRED IN SECTION 2(f) HEREIN; (vi) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE; (vii) FOR ANY MATTER BEYOND OPTIC LOOP’S REASONABLE CONTROL; (viii) FOR ANY INTERFERENCE OR INCOMPATIBILITY WITH OR DISRUPTION OF ANY NON-VOICE SYSTEMS, WHETHER CAUSED BY THE TELEPHONY SERVICE, INTERNET SERVICE, EQUIPMENT, OR OTHERWISE; OR (ix) CUSTOMER’S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS SERVICE AGREEMENT. (d) Customer understands, acknowledges and agrees that Optic Loop may block traffic to or from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network or eliminate spam. Customer agrees that Optic Loop shall be entitled to damages if Customer transmits or is otherwise connected with the transmission of spam. Customer agrees that Optic Loop is entitled to actual damages, however, if actual damages cannot be reasonably calculated, Customer agrees to pay Optic Loop liquidated damages of five dollars for each piece of spam transmitted from or otherwise connected with Customer’s account. (e) Customer understands, acknowledges and agrees that when using the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of Customer’s computer(s) or other equipment. Customers are responsible for putting in place and should put in place all appropriate security measures when using the Service. Customers are responsible for any misuse of the Service that occurs through Customer’s account, whether by a member of Customer’s household or an authorized or unauthorized third party. (f) This Section 13, Limitation of Liability, will survive termination or expiration of this Service Agreement, whether terminated by the Customer or the Optic Loop, for any reason.
14. AGREEMENT TO ARBITRATE (a) CUSTOMER AND OPTIC LOOP AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN CUSTOMER AND OPTIC LOOP THAT THEY ARE NOT ABLE TO RESOLVE THROUGH GOOD FAITH DISCUSSION. The agreement between Customer and Optic Loop to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between Customer and Optic Loop, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class and claims that may arise after the termination of this Service Agreement. For the purposes of this Section 14, references to Customer include Customer’s subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service. CUSTOMER AGREES THAT, BY ENTERING INTO THIS SERVICE AGREEMENT, CUSTOMER AND OPTIC LOOP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THIS SERVICE AGREEMENT. This Service Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Service Agreement. (b) A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to Optic Loop must be addressed to Optic Loop at the address set forth in this Service Agreement for notices. An Arbitration Notice to Customer must be addressed to Customer at Customer’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and Optic Loop do not reach an agreement to resolve the claim within sixty (60) calendar days after the Arbitration Notice is received, Customer or Optic Loop may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Optic Loop or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Optic Loop is entitled. (c) The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Service Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to the Optic Loop. The arbitrator shall be bound by the terms of this Service Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless Customer and Optic Loop agree otherwise, any arbitration hearings shall take place in Weber County, Utah. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses. (d) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. CUSTOMER AND OPTIC LOOP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Optic Loop agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. (e) Notwithstanding any provision in this Service Agreement to the contrary, Customer and Optic Loop agree that if Optic Loop makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending Optic Loop written notice within thirty (30) days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and Optic Loop in accordance with the language of this provision.
15. INDEMNIFICATION Customer agrees to indemnify, defend and hold harmless Optic Loop, its Affiliates, Operational Service Providers, agents, third party licensors and suppliers and their respective members, officers, directors, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “Optic Loop Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims brought against any Optic Loop Indemnitee(s) related to Customer’s use of the Service or any violation of this Service Agreement and all other documents incorporated herein by reference) including, but not limited to, claims that Customer’s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party, Customer’s violation of any law or the rights of another and claims resulting from Customer’s negligence. Customer agrees to pay any attorneys’ fees incurred by Optic Loop and/or any other Optic Loop Indemnitee in connection with the defense of any such third-party claims. Optic Loop reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with Optic Loop in asserting any available defenses.
16. TERMINATION OF THE SERVICE (a) IF CUSTOMER CANCELS THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON, OPTIC LOOP SHALL NOT BE REQUIRED TO REFUND CUSTOMER ANY PORTION OF THE MONTHLY FEES PAID BY CUSTOMER FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW. (b) Customer may terminate the Service no less than thirty (30) days prior to the end of the Service Term. Termination notices must be sent by Customer via email, fax, or U.S. mail to Optic Loop’s current address as set forth in Section 17(h) of this Service Agreement. Optic Loop may take reasonable steps to verify Customer’s identity and authority before effecting such termination. Upon termination, Customer agrees to pay any account balance and to return any Optic Loop Equipment on or before the termination date. Any “Early Termination Fee” is set forth in the COS. (c) The Service and all Service features are subject to availability on an ongoing basis. Customer understands that Optic Loop may cease to offer the Service or any Service feature at any time, for any reason or no reason, and without notice to Customer. Without limiting the generality of the foregoing, Optic Loop may suspend, disconnect or terminate the Service immediately or at any time without prior notice if Optic Loop believes in its sole discretion that Customer have (i) failed to pay Customer’s bill when due, (ii) threatened or harassed any Optic Loop employee, agent or contractor or (iii) violated any other provision of this Service Agreement. (d) If the Service to Customer is disconnected for any reason or Service is suspended in accordance with this Service Agreement, Optic Loop may charge Customer (i) for Service during the period of disconnection or suspension in accordance with applicable federal and state law, and (ii) reasonable disconnection and reconnection fees. (e) In the event that Customer’s account is suspended, disconnected or terminated, no refund, including of fees paid by Customer to Optic Loop, shall be granted. Moreover, Optic Loop shall not be responsible for the return of data stored on Optic Loop’s servers, including web and email servers. Customer agrees that Optic Loop has no obligation to visit Customer’s home upon termination to reconfigure Customer’s computer(s) or for any other reason. (f) Sections 3 through 7, and 10 through 17 herein shall survive any termination or expiration of this Service Agreement.
17. GENERAL PROVISIONS (a) This Service Agreement, the COS and all other documents incorporated herein by reference constitutes the entire agreement with respect to the Service. This Service Agreement supersedes and nullifies all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Agreement. (b) The Parties agree that any Affiliates, Operational Service Providers, agents, third party suppliers and licensors of Optic Loop are intended beneficiaries of this Service Agreement. Except as set forth in the previous sentence, this Service Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and Optic Loop. (c) No agency, partnership, joint venture, or employment relationship is created as a result of the Service Agreement and neither party has any authority of any kind to bind the other in any respect. (d) Optic Loop shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Optic Loop’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). (e) This Service Agreement and all matters arising out of or related to this Service Agreement shall be governed by the laws of the State of Utah without regard to conflicts of law provisions. Subject to the agreement between Customer and Optic Loop with respect to arbitration of any disputes, Customer agrees that the federal and state courts of Utah alone shall have jurisdiction over all disputes arising under this Service Agreement and Customer consents to the personal jurisdiction of those courts. (f) Optic Loop’s failure to exercise or enforce any right or provision of this Service Agreement shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of this Service Agreement shall, to any extent, be held invalid, illegal or unenforceable, the remainder of this Service Agreement shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties. (g) Optic Loop may change, amend, alter, or modify this Service Agreement at any time. Optic Loop may notify Customer of any change either by posting that change on Optic Loop’s website (www.OpticLoop.com), and by sending Customer an email or by U.S. mail. If Customer continues to use the Service after such notice has been made, Customer agrees that such continued use shall be deemed to be Customer’s acceptance of those changes. The current version of this Service Agreement, as the same may be modified by Optic Loop from time to time, shall supersede any prior version of this Service Agreement that may have been provided to Customer at any time. (h) Except as specifically set forth in this Service Agreement, any notices under this Agreement shall be effective as follows: If to Customer: notice shall be made by (i) email to Customer’s Account Email Address; (ii) by first-class mail to Customer at Customer’s billing address then on file with Optic Loop; or (iii) when posted to the Announcements page of Optic Loop’s website. If by email, such notice shall be deemed effective when transmitted by Optic Loop. If by first-class mail, such notice shall be deemed effective upon the earlier of (a) three business days after dispatch or (b) at such time as actually received by Customer. (If to Optic Loop: notice shall be made exclusively by first-class mail to Optic Loop at 2637 N Washington Blvd. #291, North Ogden, Utah, 84414, or such other address as Optic Loop may from time to time publish to Customer, and such notice shall be deemed effective upon receipt. (i) Customer may not assign this Service Agreement, or Customer’s rights or obligations under this Service Agreement, without Optic Loop’s prior written consent, and any purported assignment by Customer without such consent shall be void. Optic Loop may transfer or assign any portion or all of this Service Agreement at any time without notice to Customer, and Customer waives any notice that may be required by law Customer and Optic Loop have executed this Service Agreement by their signatures (or, in the case of Optic Loop, the signature of Optic Loop’s authorized person) on the COS.
Optic Loop Communications, LLC Service Terms and Conditions (Version Date: July, 2020)
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