Service Location Access and Installation(a) Access. Customer hereby authorizes and provides VB with all desired physical and legal access to the Customer’s premises for VB to construct, operate, review, install, inspect, maintain, or repair any equipment necessary to provide services and/or operate VB’s network. Customer hereby grants to VB permission to enter all premises, building(s), and/or site(s) for the maximum exercise of such right. If such is not owned and/or controlled by Customer, the Customer will obtain, to VB’s satisfaction, such right of access. If Customer is not able to gain right of access, VB’s obligations under this Agreement and the appropriate Service Agreement for such site are terminated, null and void at VB’s sole discretion.(b) Installation Review; Subsequent Interference. VB may perform a review prior to installation of the services. Customer may be required to provide VB with accurate site and/or physical network diagrams or maps for proposed services prior to the installation review. VB may inspect the premises before beginning installation and shall satisfy itself that safe installation and proper operation of equipment, network, and services are possible in the location(s) proposed by Customer. If VB, in its sole discretion, determines that safe installation and/or activation of the services will have negative consequences to VB’s personnel, service, network, and/or equipment, and/or cause technical difficulties to VB or its other customers, VB may terminate the Service Agreement effective upon prior written notice to Customer or may require the Customer to correct the situation before proceeding with installation or activation of the services. In the event during the initial or any renewal of services, (i) proper operation of VB’s network or equipment and/or unhindered delivery of services is no longer possible as a result of interference or obstruction caused by the acts or omissions of Customer, a third party, or any force majeure event, or (ii) such interference/obstruction or the cause thereof will have negative consequences to VB’s personnel, equipment, and/or network, and/or cause technical difficulties to VB or its customers, as VB may determine in its sole discretion, VB may terminate the affected Service Agreement(s) without liability upon written notice to Customer.(c) Site Preparation. Unless agreed upon otherwise in the Service Agreement, Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery, use, and/or installation of any equipment and the installation and ongoing provision of services, including, but not limited to, the relocation of Customer’s personal property and/or property fixtures as necessary to install and operate the equipment and/or services. To ensure proper installation, initiation and continued delivery of services, Customer may be required to provide electrical or other utilities and/or accurate physical network diagrams and/or maps prior to installation.
(d) Installation. VB may schedule one or more installation visits with Customer. Customer’s authorized representative should be present during installation. In the event that during the course of installation VB determines additional work is necessary to enable VB to deliver services, VB will notify Customer of any new or additional charges that may be necessary at time of installation. Customer shall be responsible for necessary preparation changes and activities necessary for VB to install and operate the services. With respect to any excavation, VB shall be not held responsible for any restoration efforts necessary to address any displacement resulting from such excavation.
Equipment and Materials (a) The Customer shall:(i) safeguard VB’s equipment against others;(ii) not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the equipment;(iii) not hire nor permit anyone other than personnel authorized by VB acting in their official capacity to perform any work on equipment; and(iv) not move nor relocate equipment to any other location without the prior written consent of VB.(b) Unauthorized connection. Any unauthorized connection or other tampering with equipment, network, or services, including any part or portion thereof, shall be cause for immediate disconnection of services and termination of services. VB shall be entitled to recover damages, including, but not limited to, the value of any service and/or equipment obtained in violation of these Terms of Service in addition to reasonable collection costs including, but not limited to, reasonable attorneys’ fees. Should any third party equipment interfere with VB’s equipment, network and/or services, VB shall not be obligated to distribute a quality signal better than the highest quality which can be furnished as a result of such interference until such time as the interference is eliminated or corrected.(c) Customer Security Responsibilities. Customer shall be responsible for the implementation of reasonable security procedures and standards with respect to use of and access to the equipment, network, and/or service. VB may temporarily discontinue or disconnect services upon learning of a breach of security and will attempt to contact Customer in advance, if possible. The temporary discontinuation or disconnection of the services shall not constitute a breach of this Agreement.(d) Ownership. Customer understands and agrees that, except as provided in the Service Agreement, all equipment installed or provided by VB is and shall always remain under the ownership of VB, shall not become a fixture to the Customer’s premises, and must be returned to VB upon its demand in the condition in which it was received subject to ordinary wear and tear. Customer will not sell, lease, pledge, assign nor encumber any asset, equipment, or property of VB. Customer shall keep all equipment located on Customer’s premises free and clear of all liens, encumbrances and security interests. Failure to do so shall be deemed a breach of these Terms of Service.
(e) Equipment Return, Retrieval, Repair and Replacement. Immediately upon termination of services, Customer shall surrender and hereby authorizes VB to retrieve any and all equipment supplied by VB. If Customer causes VB not to be able to retrieve demanded equipment within thirty (30) days after services are terminated, Customer shall be liable an amount equal to the full retail cost of replacement of the unreturned equipment. In addition, Customer agrees to pay for the repair or replacement of any damaged equipment (whether or not caused by Customer’s negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects), together with any costs incurred by VB in obtaining or attempting to regain possession of such equipment, including, but not limited to, reasonable attorneys’ fees.
Internet ServicesContinued use of the Internet Service is subject to these Terms and Conditions.(a) Equipment and Software Requirements. Customer shall obtain and maintain all necessary computer hardware and/or software to utilize services. Please email Vergennes Broadband at [email protected] to request the current specifications.(b) Internet Service Speeds. VB shall use commercially reasonable efforts to achieve the Internet connectivity speed selected by the Customer. However, Customer understands and agrees that such speeds may vary and such variability is not a breach of this Agreement.(c) Access and Use. Any person who uses or has access to services, equipment, and/or network shall comply with the terms of this Agreement. Customer shall be responsible for all charges incurred and all conduct, whether authorized or unauthorized, caused by use of or access to services, equipment, and/or network.(d) Electronic Addresses. Any e-mail addresses, e-mail account names, and IP addresses (“Electronic Addresses”) provided by VB are and shall remain the property of VB. Customer may not alter, modify, sell, lease, assign, encumber or otherwise tamper with the Electronic Addresses.(e) No Liability for Changes of Address. Due to growth, acquisitions and changes in technology, VB reserves the right to change technical addressing schemes, including e-mail and IP addresses.(f) No Liability for Risks of Internet Use. The Internet is a shared network and VB does not warrant services will be error free. Unless other specified in the Service Agreement, equipment, service, and network are not guaranteed to be secure, and others may access or monitor the Customer’s technical traffic. VB does not warrant that data or files sent or received by the Customer will not be subject to unauthorized access by others, that other users will not gain access to the Customer’s data, nor that the data or files will be free from computer viruses or other harmful components. VB has no responsibility and assumes no liability for such acts or occurrences.(g) No Liability for Purchases. Customer may have access certain information, products and services of third-parties, for which there is or may be a charge not charged by VB. Customer shall be solely liable and responsible for all fees or charges for these online services, products or information. VB shall have no responsibility to resolve disputes with such third-parties or any other content vendors.(h) Blocking and Filtering. While the industry may provide blocking and filtering software that empowers Customer to monitor and restrict access to Customer’s computer and its data, VB is not the publisher of this software. VB strongly recommends that the Customer employ a firewall and/or other security software. Customer assumes all responsibility for providing and configuring any security measures for use with equipment, network, and/or services. VB shall not be responsible in any manner for the effectiveness of these blocking and filtering technologies. VB does not warrant that other users will be unable to gain access to Customer’s computer(s) and/or data even if the Customer utilizes blocking and filtering technologies.
(i) Acceptable Use Policy. Acceptable Use Policy. Customer agrees to comply with the terms of VB’s Acceptable Use Policy (“AUP”), found at www.vbfiber.com (or the applicable successor URL) and that policy is incorporated by reference into this Agreement. Customer represents and warrants that Customer has read the AUP and agrees to be bound by its terms as they may from time to time be amended, revised, replaced, supplemented or otherwise changed. Customer expressly understands and agrees that the AUP may be updated or modified from time to time by VB, with or without notice to Customer. VB may discontinue or disconnect Services immediately for any violation of the VB AUP with or without notice to Customer.
No Third-Party Hardware or Software Support
Customer is responsible for the installation, maintenance, repair and/or use of Customer-supplied third-party hardware and/or software. VB does not technically support or guarantee third-party hardware or software supplied by Customer. Any questions concerning third-party hardware or software should be directed to the provider of that product. VB assumes no liability or responsibility for the installation, maintenance, compatibility or performance of third-party software, or any Customer-supplied hardware or software. If, at Customer’s request, VB should be requested attempt to resolve any technical difficulties caused by such third-party hardware or software, such efforts may be performed at VB’s discretion and a charge imposed.
Customer Use
Customer agrees not to re-sell or re-distribute access to any equipment, services, or network, including any part thereof, in any manner without the express prior written consent of VB. Customer agrees not to use or permit third-parties to use services, network, and/or equipment provided by VB for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material.
Performance
VB will use commercially reasonable efforts in keeping with normal industry standards to ensure that service is available to Customer twenty-four (24) hours per day, seven (7) days per week. It is possible, however, that there will be interruptions. Specifically, Customer understands and agrees that service may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond VB’s reasonable control. Unless expressly provided in the Service Agreement, temporary service interruptions/outages for such reasons, as well as service interruptions/outages caused by the Customer, or by a force majeure event, shall not constitute a breach by VB to perform its obligations.
Default; Suspension of Service; TerminationNo express or implied waiver by VB of any event of default shall in any way be a waiver of any further subsequent event of default. Nothing herein shall relieve Customer of its obligation to pay VB all amounts due.(a) Default by Customer. Customer shall be in default in the event that the Customer does one (1) or more of the following (each individually to be considered a separate event of default) and the Customer fails to correct each such noncompliance:(i) VB has not received payment from Customer for any outstanding statement or invoice by close of business on the due date listed on the statement or invoice;(ii) Customer otherwise has failed to comply with the terms of the Service Agreement, these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy, together with any authorized modifications thereof.(b) VB’s Right to Terminate and Termination Fee. In the event Customer is in default, VB shall have the right, at its option, and in addition to any other rights of VB expressly provided or existing under applicable law, to: (i) Immediately suspend services until such time as the underlying noncompliance has been corrected without affecting Customer’s ongoing obligation to pay VB any amounts due under this Agreement; (ii) Terminate the services; or
(iii) Terminate the Service Agreement. If Termination is due to noncompliance by the Customer, Customer must pay VB a termination fee as liquidated damages. This fee shall be equal to one hundred percent (100%) of the unpaid balance of the Monthly Service Fees that would have been due under the Service Agreement plus one hundred percent (100%) of all past and future charges under the Service Agreement.
Agreement and these Terms of Service.
(c) Default by VB. VB shall only be in default under the Service Agreement and/or these Terms of Service in the event that Customer first provides written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance and VB thereafter fails to remedy each such noncompliance or occurrence within thirty (30) days of receipt of written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance.
Limitation of LiabilityPLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY.
(a) Limited Warranty. For the period of providing services, VB will use commercially reasonable efforts in keeping with industry standards to cause services to be available to the Customer. VB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED OR PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, VB SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THE SERVICE AGREEMENT OR THESE TERMS OF SERVICE (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 LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. Any claim by Customer, by law or equity, must be made within thirty (30) days after services have either been terminated or concluded. The parties agree with respect to any breach by VB, as a predetermined liquidated damages remedy, shall be a prorated refund of the amounts paid by Customer based on the period of time when services were out of compliance.
(b) Content. Customer understands that any content that Customer may access or transmit through service is provided by independent content providers, over which VB does not exercise and disclaims any control. VB neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any service; and assumes no responsibility for content. VB specifically disclaims any responsibility for the accuracy or quality of the information obtained using services. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. Customer and their authorized users accessing content do so at Customer’s own risk, and VB assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content.(c) Damage, Loss or Destruction of Software Files and/or Data. Customer agrees that Customer uses the services, network, and equipment at its sole risk. VB does not manufacture the hardware or software and are provided on an “as is” basis without warranties of any kind. VB assumes no responsibility whatsoever for any damage to or loss or destruction of any of Customer’s hardware, software, files, data or peripherals which may result from use of services, network, and/or equipment. VB does not guarantee that data or files sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time.(d) Unauthorized Access. If Customer chooses to run or offer access to computer/device applications that permits others to gain access, Customer must take appropriate security measures. VB is not responsible for and assumes no liability for any damages resulting from the use of such computer/device applications, and Customer shall hold VB harmless from and indemnify VB against any claims, losses, or damages arising from such use. VB is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs resulting therefrom and Customer shall hold VB harmless from and indemnify VB against any such claims, losses, or damages to the fullest extent arising from such access.
(e) Force Majeure Event. Customer agrees that VB 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 VB’s control, including but not limited to acts of war or terrorism, criminal, illegal or unlawful acts, natural causes, mechanical or power failures, or any order, law or ordinance in any way restricting the operation of the services.
Indemnification
In addition to its specific indemnification responsibilities set forth elsewhere herein, Customer agrees, at its own expense, to indemnify, defend and hold harmless VB and its directors, employees, representatives, attorneys, officers and agents, (the “Indemnified Parties”) against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Indemnified Parties, including but not limited to, reasonable attorneys’ fees and court costs incurred by Indemnified Parties. Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customer’s cost and Customer agrees to cooperate with Indemnified Parties in such case.
Compliance with Laws / Sexually Explicit Images
Parties shall comply with all applicable laws and regulations when carrying out their respective duties hereunder. Furthermore, VB expressly prohibits using equipment, network, or service for the posting or transferring of sexually explicit images, material inappropriate for minors, or other offensive materials. By signing, Customer expressly acknowledges that Customer will not post or transfer or permit others to post or transfer such materials using service(s).
Privacy
VB treats private communications via its services as confidential and does not access, use or disclose the contents of private communications, except as permitted or required by law. VB also maintains a Privacy Policy with respect to the services in order to reasonably protect privacy. The Privacy Policy can be found on VB’s website at www.VBMI.com (or the applicable successor URL). Customer has read the Privacy Policy and is bound by its terms. Customer expressly understands and agrees that the Privacy Policy may be updated or modified from time to time by VB, with or without notice to Customer.
General Customer Representations and Obligations
Customer represents to VB that Customer (and any signing individual on its behalf) has the authority to execute, deliver and carry out the terms of the Service Agreement(s), these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy. Customer also represents that any person who uses equipment, network, and/or services will be an authorized user and be subject to these Terms of Service and of the Service Agreement. Customer shall be responsible for ensuring that all such users will understand and comply with all terms.
Notices
Any notices to be given shall be validly given or served only if in writing and sent by nationally recognized overnight delivery service or certified mail, return receipt requested, to the following addresses:
If to VB:
Vergennes Broadband LLC 9769 Vergennes St. Lowell, MI 49331
If to Customer:
See Billing Address listed in Customer’s User Account.
Each party may change its respective address(es) for legal notice by providing notice to the other party.
Miscellaneous(a) Entire Agreement. The Service Agreement(s), these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy constitute the entire understanding with respect to services, network and equipment. These provisions supersede all prior understandings, promises and undertakings, if any made orally or in writing by or on behalf of the parties with respect to the subject matter of the Service Agreement.(b) No Amendments, Supplements or Changes. Any Service Agreement may not be amended, supplemented or changed without both parties’ prior written consent.(c) No Assignment or Transfer. Customer may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) their rights or obligations under the Service Agreement(s), these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy to any other entity without first obtaining written consent from VB. Notwithstanding, VB may assign its rights or obligations to affiliates controlling, controlled by or under common control with VB, or to its successor-in-interest in the event VB sells the underlying communications system, without Customer’s consent.(d) Severability. If any term, covenant, condition or provision shall be deemed invalid or unenforceable, the remainder shall not be affected and shall be valid and enforceable to the fullest extent permitted by law.(e) Section Headings. The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation.(f) Governing Law. all matters arising out of or related to the Service Agreement(s), these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy shall be governed by the laws of the State of Michigan, without regard to conflicts of law provisions. Customer agrees that the federal and state courts of Michigan 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.(g) Jointly Drafted. Both parties hereby acknowledge that they participated equally in the negotiation and drafting these provisions and that, accordingly, shall not be construed more stringently against one party than against the other.
(h) No Third-Party Beneficiaries. The benefits of the Service Agreement(s), these Terms of Service, the Acceptable Use Policy, and/or the Privacy Policy only runs to the respective parties hereto, and that no person or entity not a party shall have any rights as third-party beneficiaries. (i) Waiver. Except as otherwise provided herein, the failure of VB to enforce any provision shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.