Last Updated: Feb 22, 2023
Pursuant to this Services Agreement (“Agreement”) entered into by and between Lit Fiber, LLC (“Company,” “Lit Fiber,” or “we”), and the customer identified on Customer’s Order Confirmation (“Customer” or “you”), Company agrees to provide and Customer agrees to purchase the services (the “Service” or the “Services”) and license the equipment (the “Equipment”) described on Customer’s order confirmation at the prices stated therein, on the terms and conditions stated therein, and below as provided in all Applicable Tariffs. This Agreement shall be effective and binding at the time of Customer’s execution of this Agreement. Customer agrees and acknowledges that Company may refuse to accept this Agreement or provide Services to Customer if Company believes Customer is unable to perform, in whole or in part, its obligations hereunder.
TERM OF SERVICE AND ACCEPTANCE
The Services shall commence on the Service Commencement Date, which shall be the later of any estimated Service Commencement Date or the day immediately following the date on which Company notifies Customer that the Services are ready for use and shall continue on a month-to-month basis until canceled by either party by giving thirty (30) days prior written notice of cancellation. In the event you wish to cancel the Services, notice must be given to Lit Fiber of such cancellation by calling 330-366-2008 or through Lit Fiber’s customer portal. The Parties acknowledge and agree that any estimated Service Commencement Date is an estimate and that Company shall not be liable to Customer in any way for failure to commence the Services by such date.
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST COMPANY. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN SAID ARBITRATION CLAUSE, YOU AND LIT FIBER AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION. YOU AND LIT FIBER WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, PARTICULARLY THOSE PARAGRAPHS RELATING TO YOUR AGREEMENT TO RESOLVE DISPUTES RELATED TO THIS AGREEMENT THROUGH BINDING ARBITRATION, YOUR INDEMNIFICATION OF COMPANY, ITS AFFILIATES AND THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, AND PROVIDERS, AND THE LIMITATION OF LIABILITY PROVISIONS IN THIS AGREEMENT.
CHARGES AND PAYMENT
The monthly charge for each Service provided by Company during the Agreement shall be that charge based upon the then current monthly charges provided in any Applicable Tariff or Company’s standard charge for the same or similar services (“Monthly Charge”), which shall be stated on Customer’s order confirmation. Company shall invoice Customer for Services on a monthly basis for the Monthly Charge and/or all other charges incurred by Customer during the month resulting from Customer’s use of the Services. Customer’s payment of each invoice shall be received by Company within thirty (30) days of the invoice date (“Due Date”). All non-recurring activation, installation, and Equipment charges shall be due on the Due Date of the first invoice. If any invoice is not paid in full on the Due Date, Customer shall also pay a late charge equal to $10 or the maximum lawful rate under applicable state law. Any applicable surcharge, fee, franchise fee, federal, state, local, excise, sales tax, or similar levy, chargeable to or against Company because of the Services provided by Company to Customer, shall be charged to and paid by Customer in addition to the Monthly Charge. Payments made by a credit card will be subject to a separate transaction fee, which shall be charged to and paid by the Customer in addition to the Monthly Charge. If Customer subscribes to an unlimited nationwide long-distance plan and Customer has monthly usage exceeding ten (10) times the average usage of all other customers subscribing to the same plan, then Company may charge Customer an additional fee of $50 per month per line or terminate Customer’s subscription to said plan. This may result in an increase to Customer’s Monthly Charge. If the Services are disconnected, terminated, or suspended by Customer, Customer is responsible for the full Monthly Charge for the Services with no proration, credit, or refund for the remainder of the current period. Company shall provide the Service up to the end of Customer’s current billing cycle. If Customer cancels the Service, they understand their account will be closed at the end of the current billing cycle and Customer will be responsible for any and all charges as a result of reestablishing the Service including any changes and fees currently charged by the Company.
The Administrative Fee (“ADMIN”) is an enterprise-wide recurring fee. It is not a tax, surcharge or fee mandated by or remitted to any governmental or regulatory agency. The ADMIN is intended to help our businesses recover costs associated with the administrative processes related to account maintenance and it includes an amount designed to achieve an acceptable operating margin. The ADMIN is subject to change at any time at Company’s discretion.
The Transaction Fee is an enterprise-wide recurring fee applied to accounts paying via credit card. It is not a tax, surcharge or fee mandated by or remitted to any governmental or regulatory agency. The Transaction Fee is intended to help our businesses recover costs associated with the processes related to account invoicing and payment processing for all customers, and it includes an amount designed to achieve an acceptable operating margin. The Transaction Fee is currently $3.00 per invoice but is subject to change at any time at Company’s discretion.
Company, at its discretion, may require Customer to agree to a term for this Agreement. By agreeing to a term for this Agreement, Customer agrees to be bound by the terms and provisions of this Agreement for such term and, in the event of Customer default, Customer agrees to pay all Monthly Charges owed to Company for the entirety of the term.
If you intend to dispute a charge on your account, then you must notify Company in writing within one hundred and twenty (120) days of the date on your bill. Customer waives any disputes that are not reported within one hundred and twenty (120) days of the date on their bill.
AUTO PAYMENT SERVICE ENROLLMENT
By using the Services, you agree to enroll in the Company’s Auto Payment service using a valid credit card or bank account and authorize the Company to (i) automatically charge the credit card that you have specified, or (ii) initiate a charge, transfer, or electronic debit from your checking or savings account at the bank that you have identified, as applicable, on the due date reflected on your monthly statement. You agree that each time you use the Auto Payment service to pay the monthly balance on your account, you have provided the Company with an authorization to do so, as required by the rules of the National Automated Clearing House Association and, as applicable, the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et. seq., and Regulation E promulgated thereunder, 12 C.F.R § 205 et. seq., and applicable credit card rules. These transfers may use the Account Clearing House (ACH) or one or more other payment networks. Your bank or credit card may charge a fee for the Auto Payment service that we may pass on to you. The amount charged to your credit card or transferred from your checking or savings account every month will be the then current balance on your account. Your current balance is the amount due reflected on your billing statement. Once your enrollment is processed, all payments will be charged to the designated credit card or automatically transferred from your designated checking or savings account on the statement due date, unless you terminate your authorization. If payment is not received for any reason, including a declined credit card, stop payment, or insufficient funds, you will remain responsible for late fees, returned item charges, and any bank or other charges that may result if your bill is not paid by the due date. You are responsible for ensuring that the electronic method you elect to receive account updates and notices, your email address, and other Auto Payment service information is accurate and up-to-date. You must notify Company of any change in your credit card or bank account information on the account.
This Agreement is subject to and controlled by the provisions of Company’s lawfully filed and approved state and federal tariffs relating to the Services provided in this Agreement, and all changes and modifications to said tariffs as may be made from time to time, including all provisions limiting Company’s liability and disclaiming warranties (“Applicable Tariffs”), which are incorporated herein. All appropriate tariff rates and charges shall be included in the provision of some of the Services. The Applicable Tariffs shall supersede any conflicting provisions of this Agreement in the event any part of this Agreement conflicts with the terms and conditions of Company’s Applicable Tariffs.
Customer understands and acknowledges that, for Company to provide the Services, certain Equipment may be provided to Customer at the physical address where the Service will be provided (the “Premises”). In some cases, to use the provided Equipment, you will need to review and agree to separate terms and conditions governing use of the Equipment. Customer acknowledges that the Equipment requirements are subject to change depending upon the specific installation environment provided by Customer, and Company makes no representation or warranty that additional Equipment will not be needed. Customer agrees to maintain in good working condition and repair, at Customer’s sole cost and expense, the Equipment requirements for each Service provided by Company. Company will install or arrange for the installation of the Equipment at the Premises. Customer agrees to provide an installation environment, electrical, and telecommunications connections as provided for in any applicable supplier or manufacturer installation manual or as otherwise specified by the supplier or manufacturer of the Equipment. The Equipment may only be used on the Premises, and Customer acknowledges that Customer may not remove, relocate, or reinstall the Equipment at a location other than the Premises. Customer acknowledges that Customer is responsible for loss, repair, and replacement of the Equipment. Unless explicitly stated otherwise in this Agreement, Lit Fiber owns all Equipment provided by Lit Fiber in connection with the installation and the Service. Upon termination of this Agreement, Customer shall return and/or provide Company the ability to remove the Equipment from the Premises. Equipment must be returned within thirty (30) days following termination of the Services. For unreturned or unrecoverable Equipment, Customer will pay Company for the price of the Equipment at the time of termination of the Services.
Company recommends Customers use the WiFi router included with Lit Fiber’s Premium WiFi service. This allows Lit Fiber to monitor the subscriber’s network, proactively contact subscribers when network problems are detected, and provide remote technical support. In the event Customers choose to use a different WiFi router, Lit Fiber will not be able to provide any type of network or WiFi technical support, other than verifying that Customers’ service is working up to the Lit Fiber optical network terminal placed at their homes. All in-home support will be the responsibility of the Customer. No discount will be provided in connection with the use of Customer-owned routers. Furthermore, Lit Fiber will have no obligation to install, maintain, repair, or operate Customer-provided routers, and Lit Fiber shall not be liable for damages arising out of mistakes, omissions, interruptions, delays, errors, or defects in transmission or other injuries, including but not limited to injuries to persons or property, caused by Customer-provided routers. In the event that Company, in responding to a Customer-initiated service call, determines that the cause of such service call is a failure, malfunction, or inadequacy of Customer-provided routers or other equipment, the Customer must compensate the Company for such service call at the prevailing rate.
You agree not to use the Lit Fiber-owned Equipment for any purpose other than using the Service.
COMPLIANCE WITH LAWS; PAYMENT OF TAXES
Customer agrees to comply with all laws, regulations, and orders relating to this Agreement and its use of the Services. Customer agrees and acknowledges that it is solely responsible for the payment of all license fees, assessments and sales, rental, use, property, excise, and other taxes, surcharges, or fees now or hereafter imposed by any governmental body or agency upon the Services. Any fees, taxes, or other lawful charges paid by Company in connection with the Equipment, use thereof, or the provisioning of Services hereunder (exclusive of any taxes based on the net income of Company), shall become immediately due from Customer to Company. This provision shall survive the termination of this Agreement and the use of the Equipment or Services pursuant hereto.
Upon the occurrence of any default or breach of this Agreement by Customer, including but not limited to, nonpayment of any amounts owed under this Agreement for a period of thirty (30) days after such amounts become due and owing, and at any time thereafter, Company may, in its sole discretion, do any one or more of the following: (a) terminate this Agreement and cease providing the Services to Customer without any further notice being given, unless otherwise prohibited by applicable law; (b) declare all sums then due and all sums to become due hereunder (including any residual amount) for the remainder of the Applicable Term or Extended Term, as applicable, of this Agreement immediately due and payable; and (c) exercise any other right or remedy which may be available to it under applicable law. Customer shall be liable for all reasonable attorneys’ fees and other costs and expenses resulting from such default or the exercise of Company’s remedies. No remedy referred to in this paragraph is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Company at law or in equity. No express or implied waiver by Company of any default shall constitute a waiver of any other default by Customer or a waiver of any of Company’s rights. The parties agree and acknowledge that the remedies afforded by this paragraph are an agreed measure of damages and are not a forfeiture or penalty.
This Agreement and any contractual rights or remedies available to Company hereunder shall be freely assignable, in whole or in part, by Company. Additionally, Company may sell or assign its interest, in whole or in part, in any telecommunications facilities utilized to provide the Services. Customer shall not assign this Agreement or its rights hereunder without the written consent of Company to such assignment. Any such transfer without the consent of Company is void.
GOVERNING LAW, ARBITRATION
This Agreement shall be governed by the laws of the State in which without regard to its conflict of laws principles. THE PARTIES AGREE THAT ANY CONTROVERSIES, CLAIMS, OR DISPUTES ARISING BETWEEN CUSTOMER AND COMPANY, WHETHER IN TORT OR IN CONTRACT, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, OR THE SERVICES PROVIDED, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, EQUIPMENT, SERVICE, OR ADVERTISING PROVIDED BY THE COMPANY. ADDITIONALLY, THE PARTIES AGREE NOT TO PURSUE ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT ON A CLASSWIDE BASIS. THE PARTIES AGREE THAT ANY ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT WILL BE SOLELY BETWEEN YOU AND THE COMPANY (NOT BROUGHT ON BEHALF OF OR TOGETHER WITH ANOTHER INDIVIDUAL’S CLAIM). SUCH ARBITRATION SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES, INCLUDING WITH REGARD TO THE SELECTION OF THE ARBITRATORS, AT A LOCATION IN THE STATE CUSTOMER RECEIVES SERVICES. SUCH ARBITRATION SHALL BE BINDING UPON BOTH CUSTOMER AND COMPANY. THE AWARD RENDERED BY THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT MAY BE ENTERED UPON IT IN ACCORDANCE WITH APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. THE PARTIES FURTHER AGREE THAT THE PREVAILING PARTY IN SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER THE COSTS OF SUCH ARBITRATION FROM THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE UNDER APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF.
YOU EXPRESSLY ACKNOWLEDGE THAT BY AGREEING TO THIS AGREEMENT, LIT FIBER AND YOU ARE EACH WAIVING THE RIGHT TO LITIGATE IN COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, OR TO BE A PARTY TO A CLASS OR REPRESENTATIVE ACTION. YOU UNDERSTAND THAT ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING.
NOTWITHSTANDING THE FOREGOING ARBITRATION PROVISION, COMPANY SHALL HAVE THE RIGHT TO PURSUE COLLECTION MATTERS FOR SERVICES, PRODUCTS, INSTALLATION COSTS, AND TERMINATION FEES IN ANY COURT WITH JURISDICTION THEREOVER WITHOUT FIRST RESORTING TO ARBITRATION.
Further, neither you nor Lit Fiber is required to arbitrate: (1) any dispute in which either party seeks equitable relief for alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, or (2) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
If you are an individual, you may opt out of this arbitration agreement within thirty (30) days of the first date you access or use the Services by following the procedure described below.
You may opt out of the arbitration and class action waiver set forth above by sending a written notice of your decision to opt out in accordance with this section. If you do so, neither you nor Lit Fiber can force the other to arbitrate. To opt out, you must notify Lit Fiber in writing no later than thirty (30) days after first becoming subject to this Agreement. Your notice must include your name and address, the name and the email address you used to set up your account for the Service, and an unequivocal statement that you want to opt out of this arbitration. Send your notice via certified mail, return receipt requested, to:
Lit Fiber, LLC.
3500 Blue Lake Dr., Suite 225,
Birmingham, AL 35243
In the event of a dispute between you and Lit Fiber, to invoke your opt-out right, you must retain a copy of your opt-out notice, as well as proof of mailing your opt-out notice within the prescribed period.
If you elect to opt out, each of you and Lit Fiber irrevocably (i) consents to the exclusive jurisdiction and venue of the courts in the State Customer receives Services in connection with any matter arising out of this Agreement, (ii) waives any objection to such jurisdiction or venue, (iii) agrees not to commence any legal proceedings related hereto except in such courts, (iv) consents to and agrees to accept service of process to vest personal jurisdiction over it in any such courts and (v) waives any right to trial by jury in any action in connection with this Agreement.
This section may be amended from time to time in accordance with the “Entire Agreement; Modification” section of the Agreement. If you did not opt out of mandatory arbitration as provided above, you may reject any change we make to this section by sending us notice within thirty (30) days after first becoming subject to the amended Agreement. Send your notice rejecting changes to this section via certified mail, return receipt requested, to:
Lit Fiber, LLC.
3500 Blue Lake Dr., Suite 225,
Birmingham, AL 35243
In the event of a dispute between you and Lit Fiber, to invoke your right to apply an earlier version of this section, you must retain a copy of your rejection notice, as well as proof of mailing your rejection notice during the period of time in which you intend to pursue any claim. Lit Fiber reserves the right to make additional amendments to this section. If you wish to reject additional changes to this section, you must notify us in accordance with this section for each change in accordance with the terms hereof.
DEPOSIT; ADVANCE PAYMENT
Company may require Customer to make a deposit or advance payment for Services which Company may offset against any balance due on Customer’s account. Company does not pay interest on any advance payment or deposit unless required by applicable law. If Customer has more than one account with Company, Company reserves the right to require that all accounts remain in good standing or else Company may terminate Services to any or all accounts.
You warrant that you are either the owner of the Premises, or that you have the authority to provide access for installation of Equipment and the Services, the right of ways, easements, and other licenses or permissions granted in this Agreement. Customer agrees to indemnify and hold harmless Lit Fiber from any damages caused by Customer’s breach of this warranty.
RIGHT OF WAY EASEMENT
For and in consideration of Company providing the Services set forth herein, Customer hereby grants Company a perpetual right-of-way and easement to lay, construct, place, repair, operate, test, maintain, improve, replace, remove, in whole or in part, as the Company may from time to time require, one telecommunications system and/or broadband system and all appurtenances or appliances necessary or useful in carrying signals, voices, data, pictures, images and other information in any form of any kind or nature which can now or may hereafter be capable of being carried over a telecommunications system and/or broadband system (said systems consisting of underground fiber optics, digital systems, cables, splice boxes, conduits, wires, surface testing terminals, manholes, markers, wireless antennas, and other appurtenances and appliances) (hereinafter, collectively referred to as the “System”) under a strip of land five feet (5′) wide across Customer’s property, together with the right of reasonable ingress and egress to and from said easement by Company and its authorized representatives for the purposes set forth herein. The consideration herein paid includes all damage which may be caused on the easement from the construction of the System. Company is further granted the right to sell, assign, transfer, and/or convey to others the rights granted herein without notice or approval from Customer.
DAMAGES TO COMPANY SYSTEM
Customer is responsible for any damages to Company’s buried fiber optic cable and Equipment which is caused by Customer or Customer’s contractor’s excavation and/or digging on Customer’s property unless Customer or its contractor first calls the Utilities Protection Service at 811 or 800-362-2764 at least two (2) days in advance of any such excavation/digging in order to allow Company to mark and/or identify the location of its buried fiber optic cable and Equipment in compliance with “Call Before You Dig” laws. Failure to comply with “Call Before You Dig” laws by Customer will result in Company charging Customer for any damages to its System caused by Customer’s or its contractor’s excavation. Customer agrees to indemnify and hold harmless Company from any damages caused by Customer’s failure to comply with this provision.
DO NOT EXCAVATE OR DIG ON YOUR PROPERTY WITHOUT CALLING 811 AT LEAST TWO (2) DAYS IN ADVANCE OF ANY SUCH EXCAVATION.
INSTALLATION AND REMOVAL OF EQUIPMENT
We will install or arrange for the installation, and you agree to permit installation of the Equipment on the Premises within a reasonable time after this Agreement has been accepted by Company. We shall perform any re-installation, return of, change, or change in location of the Equipment at our rates in effect at the time of Service. Company shall not be responsible for any damage to the Premises arising from the installation or removal of the Equipment, except in cases of gross negligence, or improper workmanship, and then only to the extent of the actual damages thereof. Claims of negligence or improper workmanship must be made in writing to Company and sent to:
Lit Fiber, LLC.
3500 Blue Lake Dr., Suite 225,
Birmingham, AL 35243
within thirty (30) days after installation or removal of the Equipment.
NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT THERE ARE INHERENT RISKS ASSOCIATED WITH INSTALLATIONS AND YOU RELEASE AND HOLD HARMLESS INSTALLER, COMPANY, AND THEIR RESPECTIVE AGENTS FROM LIABILITY RELATED THERETO.
You hereby grant to Company an easement in gross covering the routing and access necessary for the installation, operation, and removal of the Equipment on, across, through, and inside the Premises at no cost or charge to the Company.
You agree that Lit Fiber may install Equipment on the exterior and interior of the Premises (including but not limited to laying underground conduit and/or affixing Equipment to the outside of the Premises) at any reasonable location. You agree that Lit Fiber may take photographs of the Equipment installed by or on behalf of Lit Fiber on the exterior or interior of the Premises for quality control purposes. You also agree that Lit Fiber, as may be reasonably necessary for the Installation (i) use existing facilities, including existing wiring in and around the Premises, and (ii) remove or clear overhead and/or underground appurtenances, brush, trees, structures, or other improvements in and around the Premises. During the Installation, you agree not to damage, remove, disconnect, or in any way interfere with the Installation or Equipment used to facilitate the same. You also agree that you have the necessary authority and permissions to approve the rights afforded Lit Fiber in these Terms.
If you rent or otherwise do not own the Premises, you represent and warrant that you are authorized by the property owner to order the Installation, and you acknowledge that you may be asked to provide written evidence that you have received all permissions necessary for Lit Fiber to perform the installation. If Lit Fiber incurs any costs or losses, including attorneys’ fees, because you did not get the necessary authorization(s) for Lit Fiber to perform the installation, you are responsible for reimbursing Lit Fiber for those costs or losses. Acceptance of these Terms does not guarantee that Lit Fiber will complete the installation. Lit Fiber may require a separate agreement before you can access or use the Services.
Sometimes we may need to charge a fee in connection with the installation (“Installation Fee”). You will be notified of an estimated Installation Fee by letter after completing your order confirmation. The final amount of the Installation Fee is subject to change at any time prior to the completion of the installation. Customers whose location require fiber drops within a 300ft-900ft range from the right of way will have their choice of a 24 month contract for their service or a $199 one-time installation fee added to their first bill. Customers who’s location require fiber drops greater than or equal to 901ft from the right of way will have their choice of a 24 month contract for their service or a $499 one-time installation fee added to their first bill. If, prior to the payment in full of any such Installation Fee, you cancel or make certain changes to your installation, or the installation is otherwise terminated due to failure to comply with this Agreement, you agree to pay the outstanding balance of the Installation Fee as of the date of such change, cancellation, or termination. If, during the term of any applicable service contract, you cancel or make certain changes to your service, or the installation is otherwise terminated due to failure to comply with this Agreement, you agree to pay the cost of the service tier, multiplied by the remaining months left of the term.
CHANGING OR TERMINATING INSTALLATION
You may change or cancel the installation at any time, but you may be required to pay for certain installation fees that may have been waived when you signed up for the installation and the Services. You may also be required to return some or all of the Equipment. If you do not return this Equipment, you may be required to pay a replacement fee. Lit Fiber reserves the right to terminate the installation at any time, in its sole discretion, without notice.
LAWFUL, NON-FRAUDULENT USE OF SERVICES
You agree to use the Services only for lawful purposes. You will not use the Services for any unlawful, abusive, or fraudulent purpose, including, for example, using the Services in a way that: (a) interferes with our ability to provide Services to you or other customers; or (b) avoids your obligation to pay for Services. If Company has reason to believe that you or someone else is abusing the Services or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Services without advance notice. You are liable for any and all such use of the Services and/or Equipment by yourself or any person making use of the Services or Equipment provided to you and agree to indemnify and hold harmless Company from any and all liability for any such use.
PROHIBITED USES OF THE SERVICES AND EQUIPMENT
You are prohibited from reselling or transferring the Services or Equipment to any other person for any purpose, without the express prior written consent of Company. In addition, you are prohibited from using the Services for commercial purposes, or for any uses that result in excessive usage inconsistent with normal usage patterns. Specifically, if Company determines, in its sole discretion, that you are reselling or transferring the Services or that your Services are being used for excessive auto dialing, call forwarding, telemarketing, fax broadcasting, or fax blasting, Company reserves the right to immediately terminate without advance notice or modify the Services and to assess additional charges for each month in which the excessive usage occurred.
You agree to use the Services and Equipment only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Company’s sole judgment the transmission, receipt, or possession of such communication or material (a) would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law, including, but not limited to, the Telephone Consumer Protection Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, and Section 5 of the Federal Trade Commission Act, or (b) encourages conduct that would constitute a criminal offense or give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. Company reserves the right to terminate your Services immediately and without advance notice if Company, in its sole discretion, believes you have violated the above restrictions, leaving you responsible for all unbilled charges plus a disconnect fee, all of which shall become immediately due and payable. You are liable for any and all use of the Services and Equipment by yourself and any other person making use of the Services and Equipment and you agree to hold Company harmless from and against any and all liability associated with such use.
COPYRIGHT; TRADEMARK; UNAUTHORIZED USAGE OF EQUIPMENT
TAMPERING WITH SERVICE OR EQUIPMENT
The Equipment will be configured for your exclusive use of the Services as designated by Company. Unless expressly authorized by Company you shall not tamper with the Equipment or modify its configuration. You agree not to change the electronic serial number or identifier of the Equipment, or perform a factory reset of the Equipment without prior written permission from Company. Company reserves the right to terminate your Services should you tamper with the Equipment, leaving you responsible for all applicable charges. You agree not to hack or disrupt the Services or to make any use of the Services which is inconsistent with its intended purpose.
CANCELLATION OF SERVICES
Company reserves the right to discontinue Services immediately and without advance notice if Customer breaches this Agreement, if Company deems such action is necessary to prevent or protect against fraud or to otherwise protect Company’s or its affiliates’ personnel, agents, facilities, or services unless otherwise prohibited by applicable law. Without limitation, Company may take such actions if: (a) you refuse to furnish information or furnish false information that is essential for billing, or pertains to your use of the Services; (b) you indicate that you will not comply with a request for the payment of Services; (c) your Service usage charges exceed established parameters based on your history of usage, which may indicate a likelihood of suspicious activity or fraud; (d) you have been given notice by Company of any past due amount and such amount remains unpaid, in whole or in part; (e) you refuse to pay when billed for Services; (f) you use, or attempt to use, the Services with the intent to avoid payment, in whole or in part, of the charges for the Services by using or attempting to use Services by rearranging, tampering with, or making connections to Services in an unauthorized manner, or using fraudulent means or devices; (g) you act in a manner that is threatening, obscene, or harassing to Company personnel; (h) you are in breach of the terms of this Agreement; (i) you are insolvent or have a petition in bankruptcy filed against you; or (j) you are adjudicated bankrupt. The discontinuance of Services by Company does not relieve you of any obligation to pay Company for charges due and owing for Services furnished up to the time of cancellation.
If any provision of this Agreement shall be deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality, or unenforceability.
PRIVACY AND SECURITY
Some of the Services may utilize the public internet and/or third-party networks to transmit voice or other communications. You acknowledge and understand that Company cannot guarantee that the Services are private and secure. Company is not liable for any lack of privacy or security that you may experience with regard to the Services. You are responsible for taking precautions and providing security that best suits your intended use of the Services. You hereby consent to the monitoring and/or recording of calls you make to Company and to the use of automatic equipment to contact you regarding your account. You also consent to Company’s disclosure of information about your account to: (a) any person claiming to be you and who is able to provide the following correct information: Customer’s name, address, and the assigned number for Service. Such person may make changes to your account; and (b) any person(s) or entity as required by any request made pursuant to subpoena or court order appearing proper on its face. Company will provide you with a copy of our customer privacy notice at the time we accept this Agreement from you or in your first invoice for Services and annually thereafter. To the extent the Company is required to do so by applicable law, Company will provide notice to you of a breach of security of certain personally identifiable information about you.
CUSTOMER PROPRIETARY NETWORK INFORMATION
Customer Proprietary Network Information (“CPNI”) is created by our relationship with you as your telecommunications service provider. CPNI includes the type and quantity of certain telecommunications services you subscribe to and includes details about your calling activities, including call detail information, such as the date and time of a call; duration of a call; call-originating and call-terminating phone numbers; and charges for a call.
You have the right, and we have a duty under federal law, to protect the confidentiality of CPNI and to provide you with information about how we use your CPNI and explain the choices you have.
We may use, disclose, or permit access to CPNI without your prior approval:
- to protect (a) our rights and property, (b) you and our other customers, and (c) other carriers from fraudulent, abusive, unlawful use of, or subscription to, our Services;
- to provide or market service offerings among the categories of Services to which you already subscribe;
- for the provision of customer premises equipment;
- for billing, collection, and rendering services to you; and
- as required by law or court order.
If we seek to market telecommunications services outside of the category of services to which you already subscribe, then we will notify you at that time of your right to choose not to be a part of any such marketing campaign and allow you to opt out of (or opt in to when required by law) such campaign.
Before sharing CPNI with unaffiliated third parties in any way, other than as immediately described above, we will first notify you of your rights under the law, identify the specific entities that will receive the CPNI, describe how we intend to use the CPNI, and give you an opportunity to opt-out of (or opt in to when required by law) such usage.
Consistent with applicable law, you have the right to restrict use of, disclosure of, and access to your CPNI. If you deny or restrict your approval for us to use your CPNI, you will experience no effect on how we provide any Services to which you subscribe. Any approval, or denial of approval for the use of CPNI outside of the Services to which you already subscribe from us, is valid until you affirmatively revoke or limit such approval or denial.
CONSENT TO ELECTRONIC CONTACT
It is important that Company be able to contact you from time to time. When you provide Company an email address (your “Primary Email Address”), then you are consenting to the receipt of emails from Company at Customer’s Primary Email Address for any purpose relating to this Agreement. Customer also agrees that Company may call Customer at the phone numbers Customer supplies Company and Customer agrees that calls may be made using any method including auto-dialing equipment, an artificial or recorded voice, or via text or email messages sent to a wireless device. If your wireless provider charges you for text or email messages you are responsible for any such charges. Customer agrees that if Customer provides Company with a wireless telephone number that Company is authorized to send Customer Service-related text messages during the Term of this Agreement. Customer must notify Company immediately if Customer’s Primary Email Address or wireless telephone number changes.
NO CREDIT ALLOWANCE FOR INTERRUPTION OF SERVICES.
You acknowledge and agree that the Services are provided “as is.” Credit allowances for interruption of the Services shall not be provided.
YOU AGREE TO DEFEND, PROTECT, INDEMNIFY, AND HOLD COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT, HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES) BY, OR ON BEHALF OF YOU OR ANY THIRD PARTY OR USER OF YOUR SERVICES, RELATING TO OR ARISING OUT OF THE SERVICES, THE EQUIPMENT OR ITS INSTALLATION, OR THIS AGREEMENT. THIS PROVISION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
YOU AGREE THAT COMPANY IS NOT RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS THAT ARISE FROM YOUR USE OF THE SERVICES OR THE EQUIPMENT AND YOU AGREE TO REIMBURSE COMPANY FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING REASONABLE ATTORNEYS’ FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY
COMPANY’S LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ACCESS AND/OR USE OF THE SERVICES, ANY CONTENT PROVIDED VIA THE SERVICES, OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY, WHETHER OR NOT COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT CAUSED BY COMPANY’S NEGLIGENCE, OR ON ACCOUNT OF ANY ACT OR OMISSION OF COMPANY, SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY COMPANY’S INTENTIONAL MISCONDUCT OR RECKLESSNESS. TO THE FULL EXTENT SAME MAY BE DISCLAIMED BY LAW, YOU WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION. COMPANY AND ITS AFFILIATES AND EACH OF THEIR EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY UNAUTHORIZED ACCESS, DAMAGES, OR MODIFICATIONS TO, LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA, OR PERIPHERALS OR FOR COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT.
Company will not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of Service that is caused by any of the following: (a) acts or omissions of an underlying carrier, service provider, vendor, or other third parties; (b) Equipment, network, or facility failure; (c) Equipment, network, or facility upgrade or modification; (d) force majeure events such as but not limited to, acts of god, hurricane, fire, war, acts of terrorism, and government actions; (e) Services, Equipment, network, or Facility failure caused by loss of power to you; (f) your acts or omissions or the acts or omissions of any person using the Services or Equipment provided to you; or (g) any other cause that is beyond Company’s control including, but not limited to, failure of or defect in any Equipment, the inability of communications connections to be completed, or the degradation of voice quality. Furthermore, Company will not be liable to you or others for any damages arising from the content of any data transmission, communication, or message transmitted or received by you, or losses resulting from any goods or service purchased or messages received or transactions entered into through the Service. Company’s aggregate liability for: (i) any failure or mistake, (ii) any claim with respect to Company’s performance or nonperformance hereunder, or (iii) any act or omission of Company hereunder, shall in no event exceed the charges for the Services for the affected time period.
NO WARRANTIES ON SERVICE
THE SERVICES ARE PROVIDED TO YOU “AS IS.” COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICES OR EQUIPMENT, IF ANY, BY COMPANY OR ITS AGENTS OR INSTALLERS ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. COMPANY DOES NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, COMPANY EMPLOYEES, AGENTS, OR REPRESENTATIVES TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
NO WARRANTIES OR LIMITED WARRANTIES ON EQUIPMENT
If you received Equipment from Company and the Equipment included a limited warranty from the manufacturer at the time of receipt, you must refer to the separate limited warranty document provided with the Equipment for information about such warranty. You acknowledge that Company is not the manufacturer of the Equipment and you agree to look solely to the manufacturer for any remedies associated with the malfunction of the Equipment. Company makes no warranties of any kind, express or implied, in connection with the Equipment.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Time is of the essence with respect to this Agreement. Customer shall promptly execute and deliver to Company such further documents and take such further action as Company may request in order to give effect to the intent and purpose of this Agreement. All indemnifications, releases, limitations of liability, disclaimers of warranties, limitations of remedies, the agreement to arbitrate, the restrictions upon use of the Services and/or the Equipment, and the rights of Company to take action necessary to remain in compliance with any Applicable Tariff or license, including its right to retake possession of or disable the Equipment, all as more particularly set forth herein, shall survive the termination of this Agreement and discontinuation of the Services.
ENTIRE AGREEMENT; MODIFICATION
FIRST COMMUNICATIONS, LLC VOIP SPECIFIC-TERMS
Lit Fiber has partnered with First Communications, LLC (“First Communications”) to provide voice over Internet protocol (“VoIP”) services. Where you have contracted with Lit Fiber to receive VoIP services, you acknowledge and agree to abide by the following terms imposed by First Communications regarding your use of the VoIP services:
- None of the VoIP services are designed for use, or to be used, in situations requiring fail-safe performance, mission-critical applications, or uninterrupted or error-free service where human life or injury to persons, property, business, or environment may be at stake, and any use of services in such cases could lead to death, personal injury or severe property, business or environmental damage for which First Communications is not responsible. These high-risk activities may include, without limitation, vital business, personal, and/or emergency communications or activities in which accurate and/or secure data or information is required.
- First Communications is a third-party beneficiary of the contractual terms and conditions of this Agreement with rights of enforcement at First Communications’ sole option.
- You will not sublicense, resell, rent, lease, distribute or otherwise transfer any rights or usage to the VoIP service.
- You will not use the VoIP service in any way for an unlawful, fraudulent, or abusive purpose, for purposes that infringe upon another party’s intellectual property rights, in any way that damages First Communications’ property or interferes with or disrupts First Communications’ system or other users’ property or systems, that violates trade or economic sanctions and prohibitions as promulgated by the departments of Commerce, Treasury or any other U.S. government agency, or that interferes with the network or systems (including hardware, software, equipment, and facilities) by which First Communications provides VoIP usage capacity ability to fairly allocate capacity among users or that otherwise degrades service quality for other users.
- You must comply with all laws, rules, and regulations in connection with your use of the VoIP services and must not transmit any communication that would violate any laws, court orders, rules, or regulations, or would likely be offensive or injurious to the recipient.
- You may not install any amplifiers, enhancers, repeaters, or other devices that, in First Communications’ sole discretion, modify, disrupt or interfere in any way with the facilities, wires, or radio frequencies utilized by First Communications to provide service.
- You will not employ methods or use devices to take advantage of any unlimited service by using the VoIP service in an abusive manner, in violation of the terms herein, or for means not intended by First Communications. Use of unlimited service beyond typical use shall be deemed abusive and is prohibited.
- You agree not to modify, adapt, decompile, disassemble, reverse assemble or engineer, or otherwise attempt to derive source code or any other aspect of First Communications’ software.
- You agree not to vary, delete, obscure or remove any notices of proprietary rights or any product, trademark, or copyright identification or restrictions on or in any First Communications software.
- You shall not modify the First Communications installed configuration without the previous written consent of First Communications.
- You shall not represent to First Communications multiple remote locations (i.e., locations remote to or residing behind Lit Fiber’s hub location) as a single site during any design, procurement, or provisioning process.
- YOU AGREE NOT TO SEND ANY E911, 911, OPERATOR SERVICES, OR ANY OTHER TRAFFIC DESTINED FOR ANY EMERGENCY 911 CENTER OR ANY OTHER LOCAL, STATE, OR FEDERAL EMERGENCY ORGANIZATION (COLLECTIVELY “EMERGENCY SERVICE TRAFFIC”) OVER DID/EXTENDED OR DID SERVICES PROVIDED UNDER THIS AGREEMENT.
First Communications is required by the Federal Communications Commission to route emergency 911 calls in conjunction with interconnected VoIP services where such 911 calling is available. In such cases, First Communications provides both Basic 911 Service and Enhanced 911 Service.
If you have Basic 911 Service and dial 9-1-1, the call is sent to the local emergency center serving that location. Operators answering the call will not have automatic access to your call-back telephone number or the associated registered address, even if that address has been properly registered, because, with Basic 911 Service, the emergency center is not equipped to receive, capture, or retain the telephone number with the registered address. Accordingly, callers must be prepared to provide both call-back and address information. If the call is dropped or disconnected, or if the caller is unable to speak, the emergency operator answering the call will not be able to call the caller back or dispatch help to the caller’s address if call-back and address information has not been provided by the caller.
If you have E911 Service and dial 9-1-1, the call is sent to the appropriate public safety answering point (“PSAP”) by dialing 911 with Automatic Number Identification (“ANI”) and Automatic Location Identification displayed at the PSAP. The ANI may be the calling party number or the billing telephone number depending on your configurations. Emergency operators will have access to this information regardless of whether the caller is able to verbally provide such information. Pursuant to FCC requirements, First Communications enables the routing of E911 calls only in locations where such E911 calling is available and only in the limited circumstances described below. Your ability to access an appropriate PSAP depends on the type, configuration, and location of the phone used. Furthermore, much like access to Basic 911 emergency service via traditional PSTN local service, access to a PSAP will be unavailable if your access circuit or local gateway fails.
YOU ACKNOWLEDGE AND AGREE TO ALL OF THE INFORMATION BELOW REGARDING THE LIMITATIONS OF FIRST COMMUNICATIONS 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL WIRELINE 911 OR E-911 CALLS. YOU ALSO HEREBY AGREE TO (i) PROVIDE FIRST COMMUNICATIONS AND/OR Lit Fiber WITH AN ACCURATE SERVICE ADDRESS, MEANING THE ACTUAL PHYSICAL LOCATION WHERE YOU WILL BE LOCATED, AND (ii) IMMEDIATELY UPDATE YOUR SERVICE ADDRESS IF YOU MOVE SERVICES OR IN THE EVENT LIT FIBER DOES NOT PROVIDE AND MAINTAIN AN ACCURATE END USER SERVICE ADDRESS.
YOU ACKNOWLEDGE THAT THE VOIP SERVICE DOES NOT SUPPORT TRADITIONAL WIRELINE 911. FIRST COMMUNICATIONS DOES NOT OFFER PRIMARY LINE OR LIFELINE SERVICES. THEREFORE, LIT FIBER STRONGLY ADVISES YOU TO ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES VIA A TRADITIONAL PHONE LINE OR A WIRELESS PHONE.
FIRST COMMUNICATIONS 911 SERVICE IS STATIC 911 AND THEREFORE IT IS LIMITED TO THE SPECIFIC TELEPHONE NUMBER AND OFFICE OR RESIDENTIAL LOCATION. WHEN YOU DIAL 911 ON YOUR PHONE, UTILIZING FIRST COMMUNICATIONS’ SERVICE, YOUR CALL MAY BE ROUTED TO A DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL WIRELINE 911 DIALING. THE DISPATCHER WILL BE LOCATED AT EITHER A PSAP, LOCAL, OR REGIONAL OFFICE EMERGENCY SERVICE PERSONNEL DESIGNATED FOR WIRELESS SERVICES FOR THE ADDRESS LIT FIBER LISTED AT THE TIME LIT FIBER REGISTERED YOU FOR THE SERVICE, OR OTHER BACKUP EMERGENCY ANSWERING SERVICES. IN ADDITION, FIRST COMMUNICATIONS’ 911 SERVICE HAS FEWER CAPABILITIES THAN TRADITIONAL WIRELINE 911 SERVICE AS FOLLOWS:
- THE PSAP OR LOCAL EMERGENCY SERVICE DISPATCHER RECEIVING FIRST COMMUNICATIONS 911 CALLS MAY NOT ANSWER THE CALLS OUTSIDE OF NORMAL BUSINESS HOURS AND MAY NOT BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE DISPATCHER MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE 911 CALL. THEREFORE, IF YOU DIAL 911 USING FIRST COMMUNICATIONS’ SERVICE, YOU MUST IMMEDIATELY TELL THE DISPATCHER YOUR LOCATION (OR THE LOCATION OF THE EMERGENCY, IF DIFFERENT). YOU MUST ALSO TAKE CARE NOT TO DISCONNECT THE LINE, AS THE DISPATCHER MAY NOT HAVE A PHONE NUMBER TO USE TO CALL YOU BACK. IF YOU ARE UNABLE TO SPEAK AND DESCRIBE YOUR LOCATION, THE EMERGENCY DISPATCHER MAY NOT BE ABLE TO LOCATE YOU.
- FIRST COMMUNICATIONS 911 SERVICE WILL NOT FUNCTION IF YOUR TELEPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF YOUR SERVICE, PROVIDED BY FIRST COMMUNICATIONS OR LIT FIBER, IS INTERRUPTED OR NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, IN THE EVENT OF A POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF LIT FIBER’S AND/OR YOUR SERVICE BECAUSE OF BILLING ISSUES. IF THERE IS A POWER OUTAGE, YOU MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT PRIOR TO BEING ABLE TO USE THE SERVICE, INCLUDING FOR 911 PURPOSES. FIRST COMMUNICATIONS CANNOT GUARANTEE THAT ALL PSAPS WILL MAINTAIN LINES TO ANSWER ALTERNATIVE 911 SERVICES. IN THE EVENT THAT ANY PSAP SHALL PROVIDE REASONABLE NOTICE TO FIRST COMMUNICATIONS OF ITS DECISION AS OF A DATE CERTAIN TO DISCONTINUE LINES TO ANSWER 911 CALLS, FIRST COMMUNICATIONS SHALL MAKE REASONABLE EFFORTS TO NOTIFY LIT FIBER WITH REGISTERED SERVICE ADDRESSES WITHIN THE AREA SERVICED BY THE PSAP. IN THIS EVENT, LIT FIBER MUST NOTIFY YOU OF ANY SUCH NOTICE. FOR TECHNICAL REASONS ASSOCIATED WITH THE POSSIBILITY OF NETWORK CONGESTION, WITH FIRST COMMUNICATIONS PROVIDED 911 SERVICE, THERE IS A GREATER POSSIBILITY THAT YOUR 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER, AS COMPARED TO TRADITIONAL WIRELINE 911 CALLS. IF YOU HAVE CALL FORWARDING, LOCATE ME, DO NOT DISTURB, OR OTHER FEATURES PROGRAMMED AND IN USE AT THE TIME YOU DIAL A 911 CALL, AND YOUR 911 CALL IS INTERRUPTED, THE EMERGENCY DISPATCHER MAY NOT BE ABLE TO CALL YOU BACK AT THE PHONE FROM WHICH YOU DIALED THE CALL.
IF YOU DO NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE YOUR EQUIPMENT WILL BE LOCATED AT THE TIME LIT FIBER REGISTERS YOU FOR THE SERVICE, 911 COMMUNICATIONS MAY BE MISDIRECTED TO AN INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. FIRST COMMUNICATIONS 911 WILL NOT FUNCTION CORRECTLY IF YOU MOVE YOUR EQUIPMENT TO A LOCATION OTHER THAN THAT PROVIDED WHEN LIT FIBER REGISTERED YOU FOR THE SERVICE. IN SUCH AN EVENT, IN ORDER TO HAVE 911 CALLING ROUTED CORRECTLY, LIT FIBER MUST UPDATE YOUR SERVICE ADDRESS BY CONTACTING FIRST COMMUNICATIONS’ BUSINESS CUSTOMER SERVICE DEPARTMENT TOLL-FREE AT (877) 274-6277. UNTIL LIT FIBER HAS UPDATED YOUR SERVICE ADDRESS AND ALLOTTED THE SUFFICIENT ADVISED TIME FOR THE SERVICE ADDRESS UPDATE PROVISIONING TO COMPLETE, FIRST COMMUNICATIONS RECOMMENDS THAT YOU USE ALTERNATIVE MEANS OF ACCESSING 911.
IN THE EVENT THAT YOU INTEND TO USE FIRST COMMUNICATIONS’ 911 SERVICE IN MULTIPLE END-USER LOCATIONS, AT LEAST ONE TELEPHONE NUMBER WILL BE REQUIRED FOR EACH END-USER LOCATION.
YOU ACKNOWLEDGE AND UNDERSTAND THAT FIRST COMMUNICATIONS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 USING LIT FIBER’S SERVICE OR TO ACCESS EMERGENCY SERVICE PERSONNEL OR BE LOCATED BY SUCH PERSONNEL DUE TO THE FIRST COMMUNICATIONS 911 CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS FIRST COMMUNICATIONS, ITS AFFILIATES AND THEIR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO LIT FIBER AND YOU IN CONNECTION WITH THE VOIP SERVICE, FROM ANY AND ALL CLAIMS, LOSSES (INCLUDING LOSS OF PROFITS OR REVENUE), DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) BY, OR ON BEHALF OF, LIT FIBER, YOU, OR ANY THIRD PARTY OR ANY OTHER USER OF THE VOIP SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE VOIP SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.