Ezee Fiber (“EZ” or “we” or “us”) is at all times committed to complying with the laws and regulations governing use of the Internet, e-mail transmission and text messaging and preserving for all of its customers the ability to use Ezee Fiber’s network and the Internet without interference or harassment from other users. This Ezee Fiber AUP (“AUP”) is designed to help achieve these goals and is our official Acceptable Use Policy (AUP). It explains what behaviors and uses are acceptable or unacceptable in order to help protect our services, our customers, and the Internet community from irresponsible or illegal activities.
Customers who abuse or violate this AUP are subject to suspension or termination of the use of our networks and services at our discretion. Additionally, appropriate authorities may also pursue criminal action if illegal activity is involved.
By using IP Service(s), as defined below, Customer(s) agrees to comply with this Acceptable Use Policy and to remain responsible for all users of the IP Services and the uses of the IP Services. Ezee Fiber reserves the right to change or modify the terms of the AUP at any time, effective when posted on Ezee Fiber’s ’s website at www.ezeefiber.com/aup. Customer’s use of the IP Service(s) after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.
Scope of the AUP
The AUP applies to any Ezee Fiber services that provide (or include) access to the Internet, including hosting services (software applications and hardware), or services that are provided over the Internet or wireless data networks (collectively “IP Services”).
Your use of IP Services is solely at your own risk and is subject to all applicable local, state, national, and international laws and regulations. Access to the Internet may be dependent upon numerous factors, technologies, and systems, many of which are beyond our authority and control.
We make no warranties, express or implied, including but not limited to, those of merchantability or fitness for a particular purpose. This includes but is not limited to the loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions regardless of cause. Use of any information obtained through our network is at your own risk. We specifically disclaim any responsibility for the accuracy or quality of information obtained through our services. We will not be financially liable to you for any harm that may occur through your use of our services, regardless of whose fault it may be.
When using our services, you may be permitted to purchase goods, services, or otherwise receive charges from third parties. You are responsible for all activities and charges incurred.
Routine maintenance, periodic repairs, upgrades, and reconfigurations are required and typical of any network system. Such maintenance of our systems may occasionally result in temporary impairment or interruption of our services. As a result, we do not guarantee continuous or uninterrupted service. Prior to planned maintenance we may make reasonable attempts to publish warnings for potential service interruption, but we reserve the right from time to time to temporarily reduce or suspend service without notice.
If you authorize a minor to use your account, you are fully responsible for the online conduct of the minor, for controlling the minor’s access to and use of the Service, and for the consequences of any misuse. It is your responsibility to safeguard any personal identification number and password required to access the system. Your right to authorize others to use your account is not assignable or transferable.
General Prohibitions: Ezee Fiber prohibits any use of IP Services that is in any way unlawful, harmful to or interferes with use of Ezee Fiber’s network or systems, or the network of any other provider, interferes with the use or enjoyment of services received by others, infringes any intellectual property rights, results in the publication of threatening or offensive material, or constitutes Spam/E-mail/Usenet abuse, a security risk or a violation of privacy.
Failure to adhere to the rules, guidelines or agreements applicable to search engines, subscription Web services, chat areas, bulletin boards, Web pages, USENET, applications, or other services that are accessed via a link from or through the Ezee Fiber branded website or from a website that contains, depicts or supplies Ezee Fiber -branded content is a violation of this AUP.
Unlawful Activities: IP Services shall not be used in connection with any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule.
Violation of Intellectual Property Rights: IP Service(s) shall not be used to publish, submit/receive upload/download, post, use, copy or otherwise reproduce, transmit, re-transmit, distribute or store any proprietary content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of Ezee Fiber or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation.
Inappropriate Interaction with Minors: Ezee Fiber complies with all applicable laws pertaining to the protection of minors, including when known to Ezee Fiber, reporting cases of child exploitation to the National Center for Missing and Exploited Children and/or law enforcement. For more information about online safety, visit www.ncmec.org.
Child Pornography: IP Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography. Suspected violations of this prohibition may be reported to Ezee Fiber at the following e-mail address: firstname.lastname@example.org. Ezee Fiber Texas, LLC will report any discovered violation of this prohibition to the National Center for Missing and Exploited Children and/or law enforcement and take steps to remove child pornography (or otherwise block access to the content determined to contain child pornography) from its servers.
Spam/E-mail/Usenet Abuse: Violation of the CAN-SPAM Act of 2003, or any other applicable law regulating e-mail services, constitutes a violation of this AUP.
Spam/E-mail or Usenet abuse is a prohibited use of IP Services. Examples of Spam/E-mail or Usenet abuse include but are not limited to the following activities:
- sending multiple unsolicited electronic mail messages or “mail-bombing” – to one or more recipient;
- sending unsolicited commercial e-mail, or unsolicited electronic messages directed primarily at the advertising or promotion of products or services;
- sending unsolicited electronic messages with petitions for signatures or requests for charitable donations, or sending any chain mail related materials;
- sending bulk electronic messages without identifying, within the message, a reasonable means of opting out from receiving additional messages from the sender;
- sending electronic messages, files or other transmissions that exceed contracted for capacity or that create the potential for disruption of the Ezee Fiber network or of the networks with which Ezee Fiber interconnects, by virtue of quantity, size or otherwise;
- using another site’s mail server to relay mail without the express permission of that site;
- using another computer, without authorization, to send multiple e-mail messages or to retransmit e-mail messages for the purpose of misleading recipients as to the origin or to conduct any of the activities prohibited by this AUP;
- using IP addresses that the Customer does not have a right to use;
- collecting the responses from unsolicited electronic messages;
- maintaining a site that is advertised via unsolicited electronic messages, regardless of the origin of the unsolicited electronic messages;
- sending messages that are harassing or malicious, or otherwise could reasonably be predicted to interfere with another party’s quiet enjoyment of the IP Services or the Internet (e.g., through language, frequency, size or otherwise);
- using distribution lists containing addresses that include those who have opted out;
- sending electronic messages that do not accurately identify the sender, the sender’s return address, the e-mail address of origin, or other information contained in the subject line or header;
- falsifying packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin;
- using redirect links in unsolicited commercial e-mail to advertise a website or service;
- posting a message to more than ten (10) online forums or newsgroups, that could reasonably be expected to generate complaints;
- intercepting, redirecting or otherwise interfering or attempting to interfere with e-mail intended for third parties;
- knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the user mails or sends;
- using, distributing, advertising, transmitting, or otherwise making available any software program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, including, but not limited to, the facilitation of the means to spam.
Customers are responsible for ensuring and maintaining security of their systems and the machines that connect to and use IP Service(s), including implementation of necessary patches and operating system updates.
IP Services may not be used to interfere with, gain unauthorized access to, or otherwise violate the security of Ezee Fiber’s (or another party’s) server, network, network access, personal computer or control devices, software or data, or other system, or to attempt to do any of the foregoing. Examples of system or network security violations include but are not limited to:
- unauthorized monitoring, scanning or probing of network or system or any other action aimed at the unauthorized interception of data or harvesting of e-mail addresses;
- hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network;
- impersonating others or secretly or deceptively obtaining personal information of third parties (phishing, etc.);
- using any program, file, script, command or transmission of any message or content of any kind, designed to interfere with a terminal session, the access to or use of the Internet or any other means of communication;
- distributing or using tools designed to compromise security (including but not limited to SNMP tools), including cracking tools, password guessing programs, packet sniffers or network probing tools (except in the case of authorized legitimate network security operations);
- knowingly uploading or distributing files that contain viruses, spyware, Trojan horses, worms, time bombs, cancel bots, corrupted files, root kits or any other similar software or programs that may damage the operation of another’s computer, network system or other property, or be used to engage in modem or system hi-jacking;
- engaging in the transmission of pirated software;
- with respect to dial-up accounts, using any software or device designed to defeat system time-out limits or to allow Customer’s account to stay logged on while Customer is not actively using the IP Services or using such account for the purpose of operating a server of any type;
- using manual or automated means to avoid any use limitations placed on the IP Services;
- providing guidance, information or assistance with respect to causing damage or security breach to Ezee Fiber’s network or systems, or to the network of any other IP Service provider;
- failure to take reasonable security precautions to help prevent violation(s) of this AUP.
It is your responsibility to ensure that no unauthorized access is made through your equipment to our network. We want to avoid theft-of-service situations where our services are being used by parties whom we have not explicitly authorized. We may help you resolve a theft-of-service issue that occurs without your knowledge; however, we reserve the right to suspend or terminate your service and pursue criminal action if we find you have purposely shared your connection without our authorization.
You may not give out your account names or passwords to our servers for use by friends or others. This is also considered a violation of the terms of this policy.
Resale, lease, rental, and/or reassignment of our connection and hosting services is strictly prohibited.
Customers remain solely and fully responsible for the content of any material posted, hosted, downloaded/uploaded, created, accessed or transmitted using the IP Services. Ezee Fiber has no responsibility for any material created on Ezee Fiber’s network or accessible using IP Services, including content provided on third-party websites linked to the Ezee Fiber network. Such third-party website links are provided as Internet navigation tools for informational purposes only, and do not constitute in any way an endorsement by Ezee Fiber of the content(s) of such sites.
Customers are responsible for taking prompt corrective action(s) to remedy a violation of AUP and to help prevent similar future violations.
AUP Enforcement and Notice
Customer’s failure to observe the guidelines set forth in this AUP may result in Ezee Fiber taking actions which may vary from a warning to a suspension or termination of Customer’s IP Services. When feasible, Ezee Fiber may, but is not obligated to, provide Customer with a notice of an AUP violation via e-mail and may allow the Customer to promptly correct such violation.
Ezee Fiber reserves the right, however, to act immediately and without notice to suspend or terminate affected IP Services in response to a court order or government notice that certain conduct must be stopped or when Ezee Fiber reasonably determines, that the conduct may: (1) expose Ezee Fiber to sanctions, prosecution, civil action or any other liability, (2) cause harm to or interfere with the integrity or normal operations of Ezee Fiber’s network or networks with which Ezee Fiber is interconnected, (3) interfere with another Ezee Fiber Customer’s use of IP Services or the Internet, (4) violate any applicable law, rule or regulation, or (5) otherwise present an imminent risk of harm to Ezee Fiber or Ezee Fiber’s Customers.
Ezee Fiber has no obligation to monitor content of any materials distributed or accessed using the IP Services. However, Ezee Fiber may monitor content of any such materials as necessary to comply with applicable laws, regulations or other governmental or judicial requests; or to protect the Ezee Fiber network and its customers.
To the fullest extent allowed by law, Customer agrees to defend and indemnity Ezee Fiber from and against any and all claims that are made or brought against Ezee Fiber by any person or entity arising from or related to any violation or alleged violation of this AUP by Customer or those for whom Customer is responsible.
This AUP and any IP Services are subject to and will be interpreted under the laws of the State of Texas.
- PAYMENT & BILLING TERMS. Customer shall pay the fees and other charges for each Order.1.1. Billing. Billing shall begin on the date Ezee Fiber notifies Customer that services are fully available for Customer’s use regardless of whether Customer has procured services from third‐party vendors (i.e., equipment suppliers, software developers, telecommunication Customers, etc.) required to operate the services, and regardless of whether Customer is otherwise prepared to accept delivery of ordered services (the Commencement Date).1.2. Invoicing. Ezee Fiber bills for one (1) full month of Monthly Recurring Charges (“MRC”) in advance. Each MRC covers services delivered from the first of the month through the end of the month. Ezee Fiber will bill services in arrears or as otherwise provided by the Order.1.3. First Invoice. If Customer elects to receive an invoice, the first invoice will be sent to the Customer following the Commencement Date. The invoice will include prorated MRC from the Commencement Date to the end of the month. When multiple services are included in a single Order, Customer agrees to pay Ezee Fiber the MRC and any additional charges associated with those services that are installed or activated even though the Commencement Date for the entire Order has not commenced. Invoices shall be delivered via email (regular mail only if Customer request at a charge of $7.50 per month).1.4. Payment of Invoices. All invoices are due upon receipt and become past due thirty (30) days from the invoice date (the “Delinquency Date”). If Ezee Fiber is not in receipt of any payment on or before the Delinquency Date, such payment becomes a Late Payment. At Ezee Fiber’s discretion, in addition to the Customer’s obligation to pay such Late Payment, Customer will pay a Late Charge of $30.00 on the Late Payment and interest on the Late Payment (“Late Payment Interest”) at a rate equal to 1.5% (or the highest amount permitted by law) per month or portion thereof, on the outstanding balance unpaid for more than thirty (30) days; however a minimum interest charge of $1.00 will be assessed for each billing period subject to a finance charge. In no event, however, shall the charges permitted under this Section, to the extent the same are interest under applicable law, exceed the maximum lawful interest rate. Ezee Fiber shall not be prevented from exercising any of the other rights and remedies available to Ezee Fiber hereunder or under any applicable laws. Ezee Fiber shall have the right to suspend or terminate servic.es if an account is past due for more than thirty (30) days from the Delinquency Date and Customer will be subject to a reconnect fee of $125.00 to reestablish service. If Ezee Fiber has to take action of any kind to collect any balance due, then Customer agrees to pay Ezee Fiber’s reasonable expenses, including but not limited to all reasonable and necessary attorney and collection agency fees.
1.5. Taxes and Fees. Except for taxes based on Ezee Fiber’s net income and ad valorem, personal and real property taxes imposed on Ezee Fiber’s and not Customer’s owned or leased property, Customer is responsible for payment of all property, sales, use, gross receipts, excise, building access, bypass, franchise, or other local, state, and federal taxes and/or fees, however designated, imposed on, or based upon the provision of the services.
1.6. Disputed Invoices. If Customer reasonably disputes any portion of a Ezee Fiber invoice, Customer must pay the undisputed portion of the invoice in accordance with the terms and conditions of these Terms and Condition or associated Order and submit a written claim to Ezee Fiber for the disputed amount. All claims must be submitted to Ezee Fiber within sixty (60) days from the invoice date for those services. Customer waives the right to dispute any charges not disputed within the time frame set forth above. In the event the dispute is resolved against Customer in accordance with the procedures hereunder, Customer shall pay such amounts plus interest within ten (10) business days of receipt of notice of the determination from Ezee Fiber.
1.7. Credit Review and Other Assurances. In order to support Customer’s payment obligation, Ezee Fiber may perform a credit review of Customer from time to time. Based on Customer’s credit review and/or other information available to Ezee Fiber (including any history of delinquent payments), Ezee Fiber may require at any time Customer provide adequate assurances that Customer will pay all obligations as they become due. To avoid confusion, Customer understands that Ezee Fiber may require Customer to provide a deposit either as a condition precedent to the beginning new Services and/or any time during existing Services.
1.8. The service Term for each order will commence on the date the service is made available to the Customer.
- INSTALLATION, CANCELLATION AND SERVICE PORTABILITY.2.1. Customer may cancel an existing Service (a “Cancelled Service”) without incurring any cancellation or early termination fees or penalties, so long as:2.1.1. The Cancelled Service has not been installed and in use; and2.1.2. The Cancelled Service is replaced with another On‐Net Service having equal or greater On‐Net Service MRCs and equal or greater term commitment (the “Replacement Service”); and
2.1.3. The Replacement Service is ordered within thirty (30) calendar days of the effective date of the cancellation of the Cancelled Service (the effective date of cancellation being the “Cancellation Date”); and
2.1.4. Ezee Fiber determines, in its sole discretion, that adequate capacity is available on the Ezee Fiber Network for the Replacement Service; and
2.1.5. Customer is not otherwise in breach of the Agreement.
2.2. If Customer fails to meet any of the above criteria for any Cancelled Service, Customer shall pay all applicable early termination fees for such Cancelled Service. Customer shall also be liable for any third‐party expenses which are charged to Ezee Fiber by a third party because of any Cancelled Service. Specifically, the Early Termination fee is 100% of the remaining Term, plus any outstanding amounts due.
2.3. If the Customer sells, transfers or substantially transitions 51 percent or more of its ownership by way of investors, mergers or reorganization of the Company and the new ownership or controlling party has a financial standing and creditworthiness equal to or better than the original Company and that controlling party accepts the terms of the original order(s) by means of a written notice by the customer to the company within 30 days of the transition, the new controlling party will become the Customer of record to the order(s). If the controlling party decides not to accept these terms, the party will be subject to and immediately become due all early termination fees, any discounts, waved fees, and any waved or discounted installation charges.
- Special Construction, Non-Recurring or Acquisition Costs. Notwithstanding anything to the contrary in this Agreement, If Customer cancels this Agreement or any Service Order involving construction or acquisition after the acceptance of a Service Order but prior to the Commencement Date, Customer shall reimburse Ezee Fiber for all unpaid costs and expenses incurred by Ezee Fiber in connection with the construction or acquisition up to the time of cancellation. This payment obligation is in addition to any other rights and remedies Ezee Fiber may have at law, in equity, or as provided in this Agreement.
- Prior to Installation, Ezee Fiber may notify Customer in writing (including by email) of any price increase due to an off-net vendor increasing the cost or increased construction costs to deliver the service. Customer will have 5 business days following the notice to terminate the order effected without liability; or otherwise, Customer is deemed to accept the increase.
- The Customer will be responsible to pay any Building access charge, fees or other costs that your Building ownership or Management may levy in the course of Ezee Fiber delivering service to you. Any charges received by Ezee fiber from your landlord will be passed through on your monthly invoice. This charge is a pass-through charge based on the Buildings ownership or Management decision to do so.
- INDEMNITY & LIMITATIONS OF LIABILITY.6.1. Subject to any other provision, Customer shall defend, indemnify and hold harmless Ezee Fiber from and against any loss, debt, liability, damage, obligation, claim, demand, judgement or settlement of any nature or kind, known or unknown, liquidated or unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and attorneys’ fees (“Claim”), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out of the negligence or willful misconduct of the Customer or Ezee Fiber, its employees, agents or contractors in connection with these Terms and Conditions or the provision of Services hereunder. THE PARTIES INTEND THAT THE INDEMNITY OBLIGATIONS IN THIS SECTION SHALL APPLY PROPORTIONALY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF EZEE FIBER, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.6.2. Customer Indemnity. Customer agrees to release, defend, indemnify and hold harmless Ezee Fiber, its officers, directors, employees, contractors and agents from and against any Claim to the extent such Claim is brought by Customer and arises out of an alleged defect in or failure of Service; or (ii) arises out of or relates to the content transmitted over Ezee Fiber’s network, whether sent by Customer, including without limitation, claims relating to any violation of copyright law, export control laws, or that such transmissions are libelous, slanderous or an invasion of privacy or illegal. THE PARTIES INTEND THAT THE INDEMNITY OBLIGATIONS IN THIS SECTION SHALL APPLY PROPORTIONALY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF EZEE FIBER, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.6.3. Damages / Causes of Action.6.3.1. For purposes of this Section, the term “Ezee Fiber” shall be deemed to include Ezee Fiber, its Affiliates, owners, directors, officers, employees, and any person or entity assisting Ezee Fiber in its performance pursuant to this Agreement.
6.3.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIABILITY OF EZEE FIBER TO CUSTOMER, (A) FOR BODILY INJURY OR DEATH TO ANY PERSON OR FOR DAMAGE TO ANY REAL OR TANGIBLE PROPERTY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EZEE FIBER SHALL BE LIMITED TO CUSTOMER’S RIGHT TO PROVEN DIRECT DAMAGES, AND (B) FOR ALL OTHER DAMAGES OTHER THAN THOSE SET FORTH IN SUBSECTION (A) AND NOT OTHERWISE EXCLUDED OR LIMITED BY THIS AGREEMENT, SHALL, IF EZEE FIBER IS JUDICIALLY DETERMINED TO HAVE SOME LIABILITY TO CUSTOMER, FOR WHATEVER REASON, ARISING UNDER OR RELATED TO ACTS OR OMISSIONS RELATED TO THIS AGREEMENT, IN THE AGGREGATE FOR ALL SUCH ACTS OR OMISSIONS, BE LIMITED TO AN AMOUNT EQUAL TO THE RECURRING CHARGES UNDER THIS AGREEMENTFOR THE FIRST TWO (2) MONTHS OF THE TERM HEREOF.
6.3.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EZEE FIBER SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY CUSTOMER OR ANY END USER ARISING FROM OR RELATED TO ANY FORCE MAJEURE EVENT.
6.3.4. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS TO THE CONTRARY, IN NO EVENT SHALL CUSTOMER OR EZEE FIBER OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO EACH OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE (OTHER THAN SUCH DAMAGES AS MAY BE INCLUDED AS A COMPONENT OF LIQUIDATED DAMAGES OR TERMINATION CHARGES UNDER THESE TERMS AND CONDITIONS) SUFFERED BY SUCH OTHER PARTY AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, OR ITS ACTS OR OMISSIONS RELATED TO THESE TERMS AND CONDITIONS WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW, BREACH OF CONTRACT, BREACH OF INDEMNITY PROVISIONS, BREACH OF WARRANTY OR ANY OTHER THEORY OR SOURCE, WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, AND EACH PARTY HEREBY RELEASES THE OTHER PARTY THEREFROM. IN ADDITION, EZEE FIBER SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION PROBLEMS WITH APPLICATIONS, AUTHORIZED EQUIPMENT, SERVICES, CONTENT OR NETWORKS NOT PROVIDED BY EZEE FIBER; SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS (EXCEPT TO THE EXTENT OF SERVICE CREDIT ALLOWANCES SPECIFIED IN THE RELEVANT PRODUCT SUPPLEMENT) OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER’S OR ANY THIRD PARTY’S APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS.
6.3.5. THE INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY THE INDEMNIFYING PARTY IN WRITING OF ANY CLAIMS WHICH ARE SUBJECT TO THE TERMS OF THIS SECTION. THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT AT ITS OWN EXPENSE TO APPOINT ITS OWN COUNSEL WHO SHALL BE ENTITLED TO PARTICIPATE IN ANY SETTLEMENT NEGOTIATIONS OR LITIGATION REGARDING ANY MATTER FOR WHICH IT IS ENTITLED TO BE INDEMNIFIED HEREUNDER. THE INDEMNIFYINIG PARTY SHALL NOT AGREE TO ANY SETTLEMENT OR CONSENT TO ANY DECREE, ORDER OR JUDGMENT WITHOUT OBTAIINING THE CONSENT OF THE INDEMNIFIED PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
6.4. Limitation of Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, EZEE FIBER MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, INFRINGEMENT, TITLE, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SERVICES PROVIDED OR NOT PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY EZEE FIBER ARE HEREBY EXCLUDED AND DISCLAIMED. CUSTOMER AGREES THAT EZEE FIBER DOES NOT MONITOR, EXERCISE CONTROL OVER, NOR ACCEPT RESPONSIBILITY FOR THE CONTENT OF THE INFORMATION PASSING THROUGH OR CONTAINED WITHIN EZEE FIBER’S FACILITIES, HOST COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE (THE “EZEE FIBER NETWORK”) OR THE INTERNET, OR THE CONTENT OF THE INFORMATION RESIDING ON THE CUSTOMER’S EQUIPMENT OR TRANSMITTED OVER ITS NETWORK, AND IS NOT LIABLE FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM THE CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CLIENTS VIA THE SERVICES PROVIDED BY EZEE FIBER. CUSTOMERS SHALL INDEMNIFY AND HOLD EZEE FIBER HARMLESS FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO CUSTOMER’S CONTENT OR USE OF ANY INFORMATION RESIDING ON CUSTOMER’S EQUIPMENT OR TRANSMITTED OVER ITS NETWORK. USE OF ANY INFORMATION OBTAINED VIA EZEE FIBER’S SERVICES IS AT CUSTOMER’S OWN RISK. EZEE FIBER SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. IN THE EVENT THAT EZEE FIBER PROVIDES CUSTOMER WITH PRODUCTS IN CONJUNCTION WITH THE SERVICES (I.E., THIRD PARTY SOFTWARE PRODUCTS OR EQUIPMENT), EZEE FIBER ALSO PROVIDES SUCH PRODUCTS AS IS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, OR IMPLIED. No Service Level Agreement or service credits shall apply to the services provisioned under a Business Class Internet Service Order.
6.5. Survival and Duration. These indemnification provisions and obligations shall survive these Terms and Conditions and as set forth, represent the entire
liability of Ezee Fiber and Customer’s sole and exclusive remedies, with respect to any claim subject to indemnification under these Terms and
- NETWORK DISRUPTIONS & SECURITY7.1. Ezee Fiber shall have no liability whatsoever for any damage to, loss or destruction of any of Customer’s hardware, software, files, data or peripherals caused by network disruptions. The installation, use, inspection, maintenance, repair and removal of the Authorized Equipment may result in network disruptions, service outages or potential damage to Customer’s network operations. Customer therefore agrees to take reasonable precautions during use of the Services. In the event of an emergency, Ezee Fiber has the right to perform maintenance and/or restoration of its facilities, including but not limited to actions required to restore continuity to a severed or partially severed fiber optic cable, restore dysfunctional power and ancillary support Authorized Equipment, or correction of any potential jeopardy conditions. Ezee Fiber shall notify Customer as soon as is reasonably practicable of any further disruptions to Services related to the emergency event.7.2. Ezee Fiber shall not be liable for any third‐party network breaches on Customer’s premises, equipment, software or hardware. Customer assumes the risk of any unauthorized third‐party access to Customer’s network. Ezee Fiber makes an effort to keep its network secure but no network is perfect. Customer should take whatever steps it deems necessary to ensure its data is not accessed by unauthorized third parties.
- GENERAL TERMS8.1. Severability. If any provision of these Terms and Conditions shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of these Terms and Conditions shall remain in full force and effect.8.2. Force Majeure. Neither party shall be liable to the other or in default of these Terms and Conditions, nor shall any credit allowance or other remedy be extended, for any failure of performance or Authorized Equipment due to causes beyond such party’s reasonable control including but not limited to any catastrophic event, earthquakes or other Acts of God, wars, civil disturbances, revolts, sabotage, theft, vandalism, transportation disasters, explosions, fire, acts or omissions of suppliers, fiber/cable cut, equipment or power failure, rodent damage, flood, any law, order or regulations or requests of any governmental entity, national emergency, terrorist activities, insurrections, riots, any acts or restraints of government or any regulatory authority, work stoppages or disruptive labor activities, global or natural disasters or like events, lack or delay in transportation, or failure of a third party to grant or recognize a right beyond the reasonable control of the party delayed. Both parties shall be excused from such performance to the extent, but only to the extent, that it is prevented, hindered or delayed by such causes. Upon the occurrence of any of such events, the party whose performance is prevented, interrupted, hindered or delayed shall give prompt notice to the other party, updating such notice at regular intervals regarding such event and the effect thereof and use reasonable efforts to continue performance notwithstanding such cause. Financial inability to perform shall never be deemed a force majeure event unless it is caused by a moratorium on banking operations.8.3. Notices. Notices hereunder shall be deemed properly given when delivered. If delivered in person, or when sent via facsimile, overnight courier, electronic mail or when deposited with the U.S. Postal Service. Customer shall notify Ezee Fiber of any changes to its address listed on any Service Order. For Service Discontinuation, Customer must send a request to email@example.com or to Ezee Fiber at 14850 Woodham Drive, Houston, TX 77073, or such other address as Ezee Fiber may specify from time‐to‐time.
8.4. Governing Law. The validity, interpretation, enforceability and performance of these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Texas.
8.5. Jurisdiction & Venue. ALL PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURSIDICTION OF THE STATE DISTRICT COURT OF HARRIS COUNTY, TEXAS AND HEREBY AGREE THAT ANY SUCH COURT AND ONLY SUCH COURT SHALL BE THE PROPER FORUM AND VENUE FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. EACH PARTY WAIVES ALL DEFENSES OF EACH OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS. PROCESS MAY BE SERVED ON EITHER PARTY IN THE MANNER AUTHORIZED BY APPLICABLE LAW OR COURT RULE.
- CONTRACT INTREPRETATION. Ambiguities, inconsistencies, or conflicts in this Agreement shall not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into.
- WAIVER OF JURY TRIAL & ATTORNEYS’ FEES.10.1. Waiver of Jury Trial. Each Party hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of these Terms and Conditions or the transactions relating to its subject matter.10.2. Attorney’s Fees. The Parties agree that if either Party to these Terms and Conditions brings any civil action related in any manner to these Terms and Conditions, the prevailing party in such civil action shall recover all of its reasonable attorneys’ fees and litigation expenses incurred from the non‐prevailing Party.
- DISPUTE RESOLUTION. Except under circumstances requiring immediate injunctive relief, any dispute, controversy or claim arising out of or relating to these Terms and Conditions, the Parties’ performance under it, or its breach (“Dispute”) shall, upon the written request of either Party, be dealt with in accordance with the dispute resolution process before resorting to litigation.11.1. Executive‐Level Negotiations. If any Dispute is not resolved promptly in the ordinary course of business, either Party may request to resolve such Dispute through face‐to‐face executive level negotiations, as provided herein, before resorting to litigation. Any such executive level negotiations shall be initiated within five (5) business days (or such other period as the Parties shall otherwise agree) of the date of written notice from the requesting Party to the other Party of the Dispute (“Negotiation Notice”), which Negotiation Notice shall be delivered to the other Party in accordance with the notice section of the applicable, disputed Service Order, and shall: (i) outline the allegations that form the basis of any anticipated compliant; (ii) invite a written response within a reasonable period of time; and (iii) request to initiate to executive level negotiations within the aforementioned five (5) day time period. All executive Level negotiations shall be conducted by a management representative of each Party with authority to settle the Dispute. Either Party may elect, upon two (2) business days written notice to the other Party, to bring its legal counsel to such executive level negotiations. The location, form, frequency, duration and conclusion of the executive level negotiations will be at the discretion of the Parties’ representatives; provided, however, that either Party shall be entitled to terminate executive level negotiations at any time.11.2. Non‐Binding Mediation. If the Parties do not resolve the Dispute in accordance with the negotiation process set forth above, the Dispute must be submitted to non‐binding mediation before an independent mediator, who shall be mutually designated and agreed upon by the Parties. All costs associated with non‐binding mediation shall be borne equally by the Parties.11.3. Settlement. Completion of Dispute Resolution Process. All matters resolved pursuant to this Section shall be documented through the Parties’ execution of a written settlement agreement. The Parties agree that the refusal or failure of either Party to participate in executive levels discussions, as described herein, or to otherwise engage in good faith informal dispute resolution efforts, including but not limited to non‐binding mediation above, shall constitute an unjust and unreasonable practice. In the event any Dispute is not resolved through the dispute resolution process set forth herein, either Party may seek any legal remedies to which it may be entitled before any Harris County State District Court.
11.4. Effect of Dispute Resolution. All conferences, discussions and correspondence that occur in connection with the dispute resolution procedures conducted shall be deemed settlement discussions, and nothing said or disclosed, nor any document produced, which is not otherwise independently discoverable, shall be offered or received as evidence, or used for impeachment or for any other purpose, in any current or future litigation. Unless otherwise agreed, each Party shall bear its own costs and expenses, including attorneys’ fees, incurred in connection with the dispute resolution process, except that the expenses and fees for independent mediation services, and for any independent facilities used for mediation, if any, shall be shared equally between the Parties.