MEDINA FIBER, LLC TERMS AND CONDITIONS
These Terms and Conditions (these “Terms”) are the only terms that govern the construction and installation (collectively, the “Installation”) by Medina Fiber, LLC and its agents, contractors, representatives, and assigns (collectively, “Medina Fiber”) of an open application fiber-optic network (the “Network”) on your property and residence. By agreeing to the Terms, you represent that you are at least eighteen years old and capable of entering into a legally binding agreement on behalf of yourself and others on the Premises (as defined below). By agreeing to the Installation, you agree to these Terms. Note that these Terms require the use of binding arbitration to resolve disputes rather than jury trials or class actions.
You agree to provide Medina Fiber with all necessary access to your property and the residence located at the address specified in your application to have the Network installed (such application, the “Application,” and your property and residence identified therein, collectively, the “Premises”) so that the equipment necessary for you to receive access to the Network may be installed and configured. You agree that Medina 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 Medina Fiber may take photographs of the equipment installed by or on behalf of Medina Fiber on the exterior or interior of the Premises for quality control purposes. You also agree that Medina Fiber may, 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 will provide Medina Fiber with a right of ingress and egress to the Premises, and you agree not to damage, remove, disconnect, or in any way interfere with the Installation, Network, or equipment used to facilitate the same.
You also agree that you have the necessary authority and permissions to approve the rights afforded Medina 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 Medina Fiber to perform the Installation. If Medina Fiber incurs any costs or losses, including attorneys’ fees, because you did not get the necessary authorization(s) for Medina Fiber to perform the Installation, you are responsible for reimbursing Medina Fiber for those costs or losses.
Acceptance of these Terms does not guarantee that Medina Fiber will complete the Installation. Medina Fiber may require a separate agreement before you can access or use the Network.
Sometimes we may need to charge a fee in connection with the Installation (an “Installation Fee”). You will be notified of an estimated Installation Fee prior to completing your Application. The final amount of the Installation Fee is subject to change at any time prior to the completion of the Installation. 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 these Terms, you agree to pay the outstanding balance of the Installation Fee as of the date of such change, cancellation or termination.
Medina Fiber may provide or rent various pieces of equipment to you in connection with the Installation of or your use of the Network. 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. If you lose or damage this equipment after installation, Medina Fiber may charge you a fee for replacement equipment.
Unless explicitly stated otherwise in these Terms, Medina Fiber owns all equipment provided by Medina Fiber in connection with the Installation and the Network. You also agree not to use the Medina Fiber-owned equipment for any purpose other than using the Network.
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 Network. 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.
Medina Fiber reserves the right to terminate the Installation at any time, in its sole discretion, without notice.
Our Warranties and Disclaimers
The Installation will be performed using a commercially reasonable level of skill and care.
OTHER THAN AS SET FORTH ABOVE, MEDINA FIBER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE INSTALLATION OR THE NETWORK, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
IN NO EVENT SHALL MEDINA FIBER BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MEDINA FIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL MEDINA FIBER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE INSTALLATION OR THE NETWORK, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MEDINA FIBER PURSUANT TO THE INSTALLATION.
Any controversy or claim arising out of or relating to the Installation or the Network shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). Any arbitration pursuant to these Terms will take place on an individual basis; class arbitrations and class actions are prohibited. The award rendered by the arbitrator shall be final, non-reviewable, non-appealable, and binding on the parties hereto and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the parties within 20 days of receipt of the request for arbitration appointed by the AAA in accordance with its Commercial Rules. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS, MEDINA FIBER AND YOU ARE (I) EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND (II) EACH ACKNOWLEDGING THAT, SUBJECT TO THE RIGHT TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT, ARBITRATION IS THE EXCLUSIVE REMEDY FOR ALL DISPUTES ARISING OUT OF OR RELATED TO THE INSTALLATION OR THE NETWORK. As the exclusive alternative to arbitration, Medina Fiber or you may initiate an individual action in small claims court.
If more than one arbitration is commenced with respect to the Installation or the Network and any party hereto contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrator selected in the first-filed proceeding shall determine whether, in the interests of justice and efficiency, the proceedings should be consolidated before that arbitrator.
The seat or place of arbitration shall be Birmingham, Alabama. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties hereto, unless to protect or pursue a legal right. The arbitrator will have no authority to award punitive damages or consequential damages. In any arbitration proceeding between the parties hereto, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs incurred in connection with such arbitration from the other party.
Changes To These Terms
Medina Fiber may modify these Terms unilaterally and in its sole discretion, without notice to you. Your continued engagement of Medina Fiber for the Installation after your being given notice of the change by Medina Fiber shall be considered your acknowledgement and acceptance of the changes, and the most-recent version of these Terms controls the relationship between you and Medina Fiber with respect to the Installation. You may not modify these Terms by making any typed, handwritten, or any other changes to it for any purpose. This is a binding legal document. Notwithstanding the foregoing, Medina Fiber agrees that if Medina Fiber makes any future change to the arbitration provisions of these Terms during the Installation, you may reject any such change by sending Medina Fiber written notice within 30 days of the change to the following address:
By rejecting any future change, you agree to arbitrate any dispute in accordance with the arbitration provisions of these Terms.