This Terms and Conditions of Service Agreement (“Service Agreement”) is made between Xiber, LLC, a Delaware limited liability company (“Xiber”) and the Customer listed on the Service Order that references this Service Agreement (“Customer’’). Together, this Service Agreement and each Service Order executed pursuant to this Service Agreement constitute the “Agreement.” The Agreement is effective upon execution both by Customer and Xiber (“Effective Date”) of the related Service Order(s). Customer and Xiber may be referred to individually as a “Party” or collectively as the “Parties.”
Service Orders: Customer and Xiber may execute in writing one or more order forms for Customer to purchase telecommunication and related services or equipment (or both) at certain location(s) (“Premises”) from Xiber which reference and are made pursuant to this Service Agreement (each a “Service Order”). A Service Order shall describe the telecommunication and related services or equipment (or both) that Xiber proposes to deliver to Customer (“Services”) and specify the price(s), duration, Premises, and other terms and conditions of those Services, which are subject to the terms and conditions of this Service Agreement. Any and all Service Orders when duly executed between the Parties are integrated into and become part of this Agreement. This Service Agreement and all duly executed Service Orders form the only agreement between the parties with respect to the Services and supersede any other understandings between the Parties in regard to the Services whether in written or oral form. The Agreement and any related duly executed Service Order can only be amended or modified in a written document that is signed by both Parties. All Services are offered subject to availability, and Xiber may not accept a proposed Service Order submitted by Customer to Xiber. If a Service Order has been duly executed by the Parties, Xiber shall provide the Services stated in such duly executed Service Order for the term agreed to in such Service Order and for all renewal periods thereafter (collectively, the “Service Term”).
Term: The initial Service Term with respect to any Service is stated in the duly executed Service Order (“Initial Term”). The Service Term with respect to a duly executed Service Order will automatically renew on a month-to-month basis upon expiration of the Initial Term until terminated by either Party upon 30 days prior written notice to the other Party, unless otherwise stated in the Service Order. This Agreement shall continue to be in effect until the expiration or termination of all the Service Orders duly executed pursuant to this Agreement. The expiration or termination of any single Service Order shall not affect the validity of the remaining Service Term of any other Service Order.
Cancellation, Modification or Expedition of Orders:
a. CANCELLATION
Customer may cancel a duly executed Service Order, if the request is received in writing by Xiber at least 7 days prior to the planned installation date and prior to any installation work being done on-Premises pursuant to the Service Order (“Cancellation”). In the event of a Cancellation, Xiber may charge Customer a fee in the amount of 3 months of the MRC (as defined in Subsection 3(b) below) applicable to the cancelled Service(s), which Customer acknowledges reasonably represents the cost of preparation to deliver the Services as of the date of Cancellation, including, without limitation, the cost of design, permitting, and procurement or return of equipment (“Cancellation Fee”). In addition to the Cancellation Fee, Customer shall pay the reasonable cost that Xiber may owe to any other service provider for provision to Customer of the Service(s) subject to the Cancellation. Xiber and Customer may agree to another Cancellation Fee in a Service Order.
b. Modification
Customer may request in writing the modification of any Service Order(s) (“Modification”). All Modifications are subject to Xiber’s acceptance of the requested Modification. Xiber may charge Customer a “Modification Charge” not to exceed $50 for the administrative burden of modifying the Service Order, if Xiber accepts the requested Modification, in addition to the cost changes to the Service Order associated with the Modification request. Customer shall give Xiber at least 30 days prior notice, if Customer intends to move the Services to a different location than the Premises (“Relocation”). Xiber may refuse any Relocation request, in which case Customer shall continue to be obligated under the related Service Order(s) until expiration or termination of the related Service Order(s). If Xiber accepts a Relocation request, Xiber may, in addition to the Modification Charge, charge additional installation and relocation fees and modified fees for the Services. If Xiber receives a written Modification request for delay of installation less than 3 days prior to the planned installation date, Customer may be assessed, in addition to the Modification Charge, the monthly recurring charge (“MRC”) applicable to the delayed Service for the shorter of 1 billing month or the period from the original Due Date (as defined below) to the requested installation date. Xiber may cancel a Service Order if the installation date stated on the original Service Order is delayed more than 2 times by Customer or is delayed more than 60 days.
c. Expedite
Customer may request an expedited installation date. If Xiber accepts the expedited installation date, Xiber may assess a reasonable “Expedite Charge” in addition to any other amounts set forth on the applicable Service Order.
d. Third Party Charges
In addition to the charges set forth in Sections 3(a), (b) and (c) above, Xiber may bill Customer for any third-party charges it incurs in order to complete Customer’s request for Cancellation, Modification, Relocation, or expedited installation.
Xiber Network, Access and Interconnection:
a. Responsibilities
Xiber owns and controls the telecommunications equipment, cable and facilities installed and operated by Xiber for provision of the Services to Customer (“Xiber Network”), which includes, without limitation, cabling, switches, patch panels, cable terminations, radios, dishes, and customer Premises equipment (including, without limitation, routers and Wi-Fi access points for inside Premises Internet distribution and set-top-boxes for television services) (“CPE”). The Xiber Network will remain Xiber’s personal property regardless of where located or attached. Xiber has the right, in its sole and absolute discretion, to upgrade, replace or remove the Xiber Network in whole or in part, regardless of where located, so long as the Services continue to be provided by Xiber to Customer. Xiber has the right, in its sole and absolute discretion, to limit the manner in which any portion of the Xiber Network is used in order to protect the technical integrity of the Xiber Network. Customer may not alter, move or disconnect any parts of the Xiber Network, and Customer is solely responsible for any and all damage to, or loss of, the Xiber Network caused by Customer’s (or Customer’s guest’s or end users’) breach of this provision or caused by Customer’s (or Customer’s guest’s or end users’) negligence or misconduct. Xiber has no obligation to install, maintain or repair any equipment owned or provided by Customer, unless otherwise agreed to in writing by the Parties. If Customer’s equipment is incompatible with the Service, Customer is solely responsible for any special interface equipment or facilities necessary to achieve compatibility, provided, however, that any such interface equipment and/or facilities must be approved by Xiber in its sole and absolute discretion. Customer shall not use the Xiber Network in violation of any Applicable Law and the Acceptable Use Policy. Customer shall not move any Services or any part of the Xiber Network to any other location besides the Premises without Xiber’s prior consent.
b. Access
Customer must provide Xiber with access to the Premises during normal business hours and during any other period agreed by the Parties to install and maintain Services and Xiber’s Network. The phrases “business hours” and “business days” mean Monday through Friday, 8:00am to 5:00pm in the time zone local to the Premises, except authorized holidays which have been recognized by the federal United States government. Customer must provide, at its sole expense, the following (collectively “Premise Requirements”): (i) appropriate space, power and environmental conditioning; and (ii) reasonable access rights and/or rights of way from third parties, as may be required for the installation and maintenance of the Xiber Network at and into Customer’s Premises. Customer must pay a Modification Charge if Customer does not provide the Premise Requirements prior to the scheduled installation date. In addition to the Modification Charge, Xiber may charge Customer for the reasonable time and materials incurred and documented by Xiber that are caused by Customer’s failure to timely provide the Premise Requirements, plus any third party charges assessed against Xiber. Customer must provide Xiber with a contact and/or help desk number that can be reached 24 hours per day/7 days per week in order to coordinate access to the Premises or remote access to the Xiber Network in order to maintain or troubleshoot the Xiber Network.
c. Demarcation Point and Inside Wiring
Xiber shall be responsible for provisioning Service up to the Demarcation Point (as defined in the next sentence) and Customer is responsible for providing and maintaining any necessary wiring and facilities on Customer’s side of the Demarcation Point. “Demarcation Point” means the Xiber designated physical interface between Xiber’s Network and Customer’s equipment, which point shall be either (i) in the case of a Service terminating at a Xiber-owned or controlled Premises, Xiber’s designated distribution panel or network interface device located within such Xiber Premises or (ii) in the case of a Service terminating at Customer’s Premises, the distribution panel or network interface device located at the common telecommunications (“telco”) demarcation at the Customer or end-user Premises (e.g., entry point for telco facilities, telco closet or common telco room) or the CPE (if any) provided by Xiber to Customer. If requested by Customer, Xiber may install, coordinate or otherwise arrange for installing or obtaining from third parties, facilities on Customer’s side of the Demarcation Point (“Inside Wiring”). Customer agrees to pay time and materials rates for any Inside Wiring performed by Xiber personnel and agrees that Xiber may bill Customer for any third-party charges Xiber incurs to provide such Inside Wiring.
d. Letter of Authorization | Carrier Facility Assignment
If Customer intends to connect the Service(s) to facilities that neither Customer, nor Xiber, owns, Customer must provide Xiber with, and maintain (for the Service Term) in full effect, a current letter of authorization, right of entry, or carrier facility assignment (or all of them, if required), for such facilities.
Installation and Maintenance:
a. Installation
Xiber will notify Customer when the Service(s) has been successfully installed and is available for Customer’s use (“Service Date”). Unless Customer notifies Xiber by noon (time local to the Premises) on the day following the Service Date (“Rejection Expiration”) that the Service(s) are not operational, the Service Term will commence on the Service Date. If Customer notifies Xiber that the Service(s) are not operational prior to the Rejection Expiration, the Service Date and Service Term commencement shall be on the day when the Service is confirmed operational thereafter by the Xiber or the Customer. The Service Date will not be delayed or postponed due to problems with Customer’s equipment or Customer’s lack of readiness to accept or use the Service(s).
b. Maintenance:
i. Scheduled Maintenance. Xiber will monitor Xiber’s Network 24 hours per day, 7 days per week. Scheduled Maintenance will be performed between the hours of midnight and 6:00 a.m. in the time zone local to the Premises unless another time is agreed to by the Parties for the particular circumstance. Xiber will endeavor to provide Customer with at least 5 business days’ notice before performing Scheduled Maintenance unless a shorter notice period is required under the circumstances.
ii. Emergency Maintenance. If Xiber has to perform maintenance outside of the Scheduled Maintenance window set forth in Section 5(b)(i) above due to an unplanned outage to the Services, Force Majeure Event (as defined in Section 18), or in order to restore or establish Services to any of Xiber’s customers, then Xiber will provide as much prior notice to Customer as is practicable under the circumstances.
Charges, Billing, Taxes and Payment:
a. Billing
Services are billed on a monthly basis commencing with the Service Date, unless otherwise specified in the Service Order. Services are invoiced in advance and shall be sent by Xiber in writing (each an “Invoice”) each month (or other period stated on a Service Order), but charges based on actual usage of Services by the Customer shall be invoiced in arrears, if applicable. Invoices shall be sent by electronic mail (if an e-mail address is provided by Customer or by mail to Customer’s address at the Premises). Any installation charges or other nonrecurring charges (e.g., deposits) shall appear on the first monthly Invoice following when the related Services are delivered to the Customer. Installation charges are non-refundable. All charges payable by Customer hereunder shall be set forth in a Service Order.
b. Deposit
Xiber may require a deposit prior to the provision of any new Service as stated on the related Service Order. Xiber also may require (i) a deposit, (ii) a credit card to be placed on file to which Xiber is pre-authorized by Customer to charge all amounts due pursuant to this Agreement, or (iii) both as a condition to its obligation to continue to provide Service(s) if Customer has failed to timely pay for Service(s) on 2 occasions during any 6-month period. Deposits may be applied by Xiber to pay any past due amounts unpaid by Customer pursuant to this Agreement or to compensate Xiber for any CPE or other parts of the Xiber Network provided by Xiber as part of the Services that is damaged by the Customer or that Customer fails to return to Xiber pursuant to Section 15. Any remaining amount of any deposit shall be returned to the Customer within 45 days after Recovery is requested pursuant to Section 15 or, if no Recovery is requested, 45 days of the expiration or termination of the related Service Order(s).
c. Taxes
“Tax” or “Taxes” mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated, imposed, or sought to be imposed, on or with respect to purchases by Customer from Xiber for consideration under this Agreement or for Xiber’s use of public streets, rights of way, telco facilities, or broadcast, or retransmission rights, which Xiber is required or permitted by Applicable Law (as defined in Section 9) or a telco tariff to collect from Customer. Notwithstanding the immediately preceding sentence, Taxes do not include any tax on Xiber’s corporate existence, status, income, corporate property or employee payroll. Xiber shall include Taxes as a line item charge separate from the MRC’s for the Services on the related Invoice. If Customer claims an exemption for any Tax, Customer must provide Xiber with a proper Tax exemption certificate as authorized by the appropriate taxing authority. Customer must pay the applicable Taxes to Xiber until it provides Xiber with a valid Tax exemption certificate. If a Service is exempt under Applicable Law from a Tax, but there is no exemption procedure for such Service, then Xiber will not collect such Tax if Customer provides Xiber with a letter signed by one of its officers: (i) claiming a right to the exemption; (ii) identifying the Applicable Law that allows such exemption and does not require an exemption certificate; and (iii) agreeing to indemnify and hold Xiber harmless from any Tax, interest, penalties, loss, cost or expense asserted against Xiber as a result of its not collecting the Taxes from Customer.
d. Payment
Customer shall pay all amounts stated on any Invoice that are not the subject of a valid Charge Dispute (as defined in Section 7) no later than 5 days after Customer’s receipt of the Invoice from Xiber (“Due Date”). Customer may, or Xiber may require Customer to, have a valid credit card on file to which Xiber is pre-authorized to charge all fees on an Invoice or otherwise due pursuant to this Agreement automatically. If Customer fails to pay an amount on an Invoice that is not the subject of a valid Charge Dispute by the Due Date (“Overdue Amount”) the Overdue Amount shall begin to accrue a late charge as of the Due Date at the greater of $10 per month or 1.5% per month until the date paid in full (“Late Charge”) or, if the Late Charge exceeds the maximum rate permitted by Applicable Law, then the maximum permitted by Applicable Law shall be charged as the Late Charge. In addition to applicable Late Charges, Xiber may charge a fee of $40 for any check or credit card charge returned as non-payable for any reason by Customer’s bank or credit card issuer.
Charge Disputes: Customers may, in good faith, dispute charges on an Invoice received from Xiber (“Charge Dispute”) by submitting in writing the details of the dispute to xperts@xiber.net or to Xiber’s mailing address 1429 Chase Court Carmel
Indianapolis, IN 46032, Attention: Billing Department. Customer must submit any Charge Dispute to Xiber in one of the manners specified in the immediately preceding sentence prior to end of the Charge Dispute Period (as defined in the next sentence). The “Charge Dispute Period” is either: (i) the time period between the date of the Invoice associated with the Charge Dispute and 2 business days after the Due Date of that Invoice, if Customer intends not to pay or fails to pay the charge that is the subject of the Charge Dispute by the Due Date of the associated Invoice; or (ii) within 90 calendar days of the date of the Invoice associated with the Charge Dispute, if the Customer has paid the charge that is the subject of the Charge Dispute. If Customer does not deliver a Charge Dispute within the Charge Dispute Period, Customer is deemed to have accepted all charges on the Invoice as valid and due and such charges cannot be submitted to any Dispute Resolution procedure pursuant to this Section 7 or Section 12. Xiber shall contact the Customer within 5 business days of receiving a timely Charge Dispute and endeavor to resolve the Charge Dispute within 21 days after receipt of the Charge Dispute (“Charge Resolution Period”). If Xiber determines any of the charges that were subject of a valid Charge Dispute were valid as invoiced during the Charge Resolution Period, then Customer must pay those charges deemed valid by Xiber within 5 business days following written, electronic, or telephonic notice of the resolution by Xiber (the “Dispute Resolution Date”) and such charges shall begin to accrue Late Charges as of the original Due Date, if Customer fails to pay by the Dispute Resolution Due Date. If a Charge Dispute is resolved either by Xiber during the Charge Resolution Period or pursuant to the Dispute Resolution procedures of Section 12 with a finding that Customer disputed the related charge(s) in bad faith or to avoid payment for any reason not related to a bona fide belief that the charge(s) was(were) not valid and due, then the charge(s) that were subject of the Charge Dispute shall become immediately due and payable as of the Dispute Resolution Date and applicable Late Charge rate shall be deemed to have accrued beginning on the original Due Date until the date paid in full. Notwithstanding anything to the contrary in this Section 7 or Section 12, if a Charge Dispute is commenced by Customer that involves any MRC charge(s) for any Service(s) stated in a valid and unterminated Service Order during the Initial Term and no applicable Credits (as defined in Section 8) have been timely claimed by the Customer related to such charge(s), then such Charge Dispute shall automatically deemed in bad faith and the charge(s) disputed in such Charge Dispute shall immediately be subject to the immediately preceding sentence regarding accrual of Late Charges and such Charge Dispute shall not be eligible to be submitted to the Dispute Resolution procedures set forth in Section 12. A Charge Dispute may only be submitted to the Dispute Resolution procedures of Section 12, subject to the immediately preceding sentence, if Xiber fails to resolve a valid Charge Dispute within the Charge Resolution Period or the Customer pays the charge(s) in question after Xiber resolves a Charge Dispute against the Customer but Customer still disputes, in good faith, that such charges were owed by Customer. Notwithstanding anything to the contrary in this Section 7 or Section 12, Xiber may continue to pursue collection of any Overdue Amount or any charges (along with applicable Late Charges) deemed due and payable as the result of any Charge Dispute finally resolved in Xiber’s favor for as long as Xiber desires to pursue payment of such amounts.
Service Levels | Service Outage Credits:
a. Service Level Agreement (“SLA”)
The SLA for a particular Service, which specifies the applicable performance metric(s) (“Performance Requirement(s)”) is contained in each Service Order. Except as otherwise stated in a Service Order, credits for Service Outages (defined in Subsection 8(b) below) shall be issued at Customer’s request at 1/1440 of the applicable MRC per 30 minute outage for up to a 24-hour period, but if a Service Outage lasts greater than 24 hours, then credits for such Service Outage shall be issued at Customer’s request at 1/144 of the applicable MRC per 3 hour period (“Credits”).
b. Service Outage Definition
A “Service Outage” is defined as either: (a) material noncompliance with any specific performance metric(s) in a SLA and such non-compliance is caused by Xiber on the Xiber Network; or (b) a complete loss of transmission or reception capability for a Service caused by Xiber on the Xiber Network.
c. Reporting and Tracking of Service Outages
If there is a Service Outage, Customer must contact Xiber’s Customer Service Center at either (888) 366-2211 or xperts@xiber.net, and Xiber will open a trouble ticket and provide Customer with a trouble ticket number for tracking purposes. Before reporting any Service Outage, Customer first shall conduct testing to determine if such outage is not caused by, or associated with, Customer’s network or equipment.
d. Duration of Service Outage and Application of Credits
For the purpose of calculating applicable Credits, a Service Outage begins when Customer reports the Service Outage to Xiber and ends when the Service is restored to meet the applicable Performance Requirements for that Service. The duration of the Service Outage only includes outages that are caused by Xiber on the Xiber Network and do not include:
i. outages caused by (x) the equipment, acts, or omissions of Customer or third parties, or (y) Force Majeure Events (as defined in Section 18);
ii. outages occurring during scheduled or emergency maintenance;
iii. outages occurring during Non-payment Disconnect (as defined in Section 13); or
iv. outages occurring during any time when Xiber is not allowed access to the Premises necessary to restore the affected Service
Credits for Service Outages are only issued if requested by Customer, and such requests must be submitted to Xiber within 120 days from the date Service is restored. Credits requested during any calendar month shall be applied to the following month’s Invoice and shall not exceed the MRC for that month associated with the affected Service that experienced the Service Outage(s).
e. Chronic Trouble Services
If 2 Service Outages have occurred on a particular Service during a 30-day period, and a third Service Outage occurs within 30 days following the second Service Outage, Customer may terminate the applicable Service without paying Early Termination Liability pursuant to Section 15 by sending written notice to Xiber no later than 30 days after the third Service Outage referenced in this Subsection 8(e).
f. Remedies
Notwithstanding anything to the contrary in this Agreement, the remedies set forth in the SLA for the affected Service(s) and in Sections 8(a) and 8(e) of this Agreement constitute Customer’s sole and exclusive remedy for Service Outages.
g. Service Outages Not Caused by Xiber
If Xiber responds to a service call initiated by Customer, and Xiber reasonably determines that the cause of the problem is: (i) not due to Xiber’s operation of the Xiber Network; or (ii) on Customer’s side of the Demarcation Point, Customer must compensate Xiber for the service call at Xiber’s then prevailing time and materials rates.
Governmental Regulation – Changes:
a. Compliance with Law
This Agreement is subject to all applicable federal, state and local laws, rules and regulations (collectively, the “Applicable Law”), and each Party must comply with all Applicable Law in performing its obligations hereunder. To the extent any provision herein conflicts with any Applicable Law, such Applicable Law will supersede the conflicting provision.
b. Regulatory Changes
“Regulatory Changes” mean additional or materially changed requirements placed on Xiber by Applicable Law after the Effective Date of this Agreement in providing the affected Service(s) that have a material, adverse impact on the economic feasibility of Xiber providing the affected Service(s). Xiber may discontinue, or impose additional requirements necessary to continue, providing any of the Services in response to any Regulatory Changes, upon 30 days written notice to Customer. If Xiber discontinues a Service due to a Regulatory Change, Customer is not responsible for the termination liability set forth in Section 15 below. Notwithstanding anything to the contrary in this Agreement or any Service Order, Customer shall pay (in addition to the charges stated in the relevant Service Order) the additional reasonable cost of Xiber providing any of the affected Services that Xiber elects to continue after a Regulatory Change.
Indemnification:
“Claim” means any demand, claim, action, proceeding, or liability (whether criminal or civil, in contract, tort or otherwise) for losses, damages, legal costs or other expenses of any nature whatsoever. Each Party (“Indemnitor”) shall indemnify, defend and hold harmless the other Party (“Indemnitee”) from any and all Claims arising from or related to bodily injury or physical damage to tangible property caused by the negligence or willful misconduct of Indemnitor. Customer shall indemnify, defend and hold Xiber harmless from all Claims arising from Customer’s breach or alleged breach of this Agreement, violation of third party intellectual property rights, all claims of any kind by Customer’s end users or guests, or any act or omission of Customer associated with (i) Customer’s use of any Service, or (ii) Customer’s provision of access to any third-party (including, without limitation, Customer’s employees, guests, and end-users) through any of the Services to any of Customer’s services or equipment or any third-party service or equipment. Each Party agrees to provide the other Party with notice of any Claim that may result in an indemnification obligation under this Agreement. The Indemnitor may defend Claims with counsel of Indemnitor’s own choosing provided that no settlement or compromise of any such Claim shall occur without the written consent of the Indemnitee, which such consent shall not be unreasonably withheld or delayed. The indemnification obligations contained in this Section 10 shall survive expiration or termination of this Agreement.
Limitation of Liability:
Except for the Parties’ respective obligations set forth in Sections 8 and 15 herein, neither Party is liable to the other Party for indirect, consequential, special, incidental, or punitive damages of any kind or nature whatsoever, including, without limitation, lost profits, lost revenues, lost savings, lost opportunity or harm to business (whether arising out of transmission interruptions or problems, any interruption to or degradation of Service, or otherwise), whether or not foreseeable, whether or not the Party had or should have had any knowledge, actual or constructive, that such damages might be incurred, and regardless of the form of action, nature of the Claim asserted or the frustration of either Party’s purpose. Nothing contained herein shall operate as a limitation on the right of either Party to bring an action for damages against any third party, including Claims for indirect, special or consequential damages, based on any acts or omissions of such third party. Indirect damages include, but are not limited to, damages of the kinds specified in this Section 11 that are incurred by a third party and are asserted against a Party (including attorneys’ fees and expenses). Xiber’s liability to Customer for direct damages may not exceed the greater of (i) the applicable Credits requested by Customer, or (ii) 1 month’s calculation of MRCs applicable to the affected Service(s) regardless of the form of action, nature of the claim asserted or the frustration of either Party’s purpose. Xiber has no liability for the content of information that Customer passes through Xiber’s Network, for Customer’s transmission errors, or for any failure to establish connections outside the Xiber Network.
Dispute Resolution:
a. Informal Resolution
Each Party (“Claiming Party”) shall notify the other Party (“Responding Party”) of the existence of a Claim or dispute (including, without limitation, any alleged Default, as defined in Section 13) between the Parties related to this Agreement or any Service Order (“Dispute”) promptly, but in no event later than 15 days after the Claiming Party discovers or reasonably should have discovered the facts giving rise to the Dispute, except as otherwise expressly allowed pursuant to this Agreement. Notwithstanding the immediately preceding sentence, Charge Disputes shall follow the procedures set forth in Section 7 prior to being submitted to the procedures of this Section 12. The Parties shall first endeavor to resolve any Dispute in good faith between the Parties within 30 days after Responding Party receives notice of the Dispute (“Informal Resolution Period”). Representatives of each Party shall meet in-person or by teleconference within 10 days after Responding Party receives notice of the Dispute to discuss and attempt to resolve the Dispute.
b. Mediation
Disputes that are not resolved within the Informal Resolution Period may be submitted to mediation by mutual agreement in writing between the Parties. If the Parties agree to submit the Dispute to mediation, the Parties shall, within 15 days of the end of the Informal Resolution Period, select a mediator for the purposes of resolving the dispute and shall share the cost equally of the selected mediator. Mediation of any Dispute shall be concluded no later than 75 days after Responding Party originally received notice of the Dispute and shall not require more than 2 half-day mediation sessions. Any conversations or resolutions between the Parties regarding a Dispute during the Informal Resolution Period or in mediation are Confidential Information and shall remain confidential pursuant to Section 28.
c. Arbitration
If a Dispute is not resolved during the Informal Resolution Period or through mutually agreed upon mediation (or is not submitted to mediation by the Parties) then either Party may, no later than 180 days after Claiming Party sent notice of the Dispute (“Repose Period”), request in writing to the other Party that the Dispute be resolved through binding arbitration. If either Party timely requests the Dispute be resolved through binding arbitration, the Dispute shall be adjudicated by a single arbitrator in Indianapolis, Indiana, in accordance with the commercial rules of the American Arbitration Association (“AAA”) then in effect. The Parties shall each select a AAA-certified arbitrator candidate in the Indianapolis area to be the arbitrator of the Dispute within 15 days of receipt of the request to submit the Dispute to arbitration. The arbitrator of the Dispute shall be selected randomly (by a method mutually agreeable to the Parties) from the candidates named by the Parties pursuant to the immediately preceding sentence (or if either Party fails to name a qualified candidate in time, the other Party’s candidate shall automatically be selected). The fees for the arbitrator of the Dispute shall be shared equally between the Parties, except as otherwise awarded by the arbitrator of the Dispute. The arbitrator shall have the authority to award reasonable attorneys’ fees and expenses to the Party the arbitrator names the Prevailing Party (as defined in the next sentence) in the Dispute, including fees and expenses incurred in the arbitration or in any litigation concerning the dispute, including but not limited to litigation to compel arbitration or stay court proceedings. “Prevailing Party” means a Party who receives substantially the award or the result that Party desired or is substantially more favorable to that Party at the final adjudication of the Dispute by the arbitrator of the Dispute. The Prevailing Party or the arbitrator (if applicable) may enter judgment on the arbitration award in any court having jurisdiction, if necessary, to enforce the arbitrator’s award in the Dispute.
d. Settlement and Judicial Proceedings
The Parties may agree in a writing executed between the Parties to settle any Dispute at any time prior to adjudication by the arbitrator of the Dispute and terminate any of the procedures set forth in this Section 12. The procedures specified in this Section 12 shall be the sole and exclusive procedures for the resolution of Disputes between the Parties arising out of or relating to this Agreement. Notwithstanding the immediately preceding sentence, a Party may seek a preliminary injunction or other preliminary judicial relief if in the reasonable judgment of that Party such action is necessary to avoid irreparable damage (including in the case of disclosure of that Party’s Confidential Information) and both Parties hereby agree to waive the right to jury trial related to any such permitted judicial proceedings. Despite the initiation of any such permitted judicial proceedings, the Parties will continue to participate in good faith in the procedures specified in this Section 12. Notwithstanding the time periods set forth in this Section 12, the Parties may not submit any Dispute to arbitration or any permitted litigation after the earlier of: (i) the end of the Repose Period or (iii) 300 days after the Party discovers or reasonably should have discovered the facts giving rise to a Dispute.
Termination by Xiber:
a. Disconnection and Termination with Notice
Xiber may terminate this Agreement or any or all Service Orders upon 30 days (“Cure Period”) prior written notice to the Customer for: (i) Customer’s breach of a noneconomic, material provision of this Agreement, which remains uncured at the end of the Cure Period (“Default”); (ii) Customer’s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver (also a Default); and/or (iii) any Regulatory Change pursuant to Section 9. If any Overdue Amount remains unpaid 30 days or more after the Due Date, Xiber may disconnect Customer’s access to the Services, in whole or in part (“Non-payment Disconnect”), upon giving Customer at least 2 business days prior written notice. If Customer fails to pay Xiber the Overdue Amount in full with Late Charges accrued within 2 business days after Xiber sends notice of the Non-payment Disconnect, then such failure is a Default and Xiber may terminate this Agreement or any or all Service Orders immediately upon notifying Customer.
b. Termination without Notice
Xiber may terminate any Services provided to Customer without prior notice to Customer, if: (i) reasonably necessary to protect Xiber’s Network or the operability of services to Xiber’s other customers, including, without limitation, during a Force Majeure Event or Customer’s violation of Subsection 13(b)(ii); (ii) Customer uses the Services in violation of any Applicable Law or the Acceptable Use Policy (which is a Default); or (iii) required by a Regulatory Change. If Xiber terminates Services pursuant to this Subsection 13(b), then Xiber shall promptly notify Customer of the reason for the termination in writing.
c. Post Termination/Disconnection
If Xiber terminates any Service or any Service Order pursuant to this Section 13, Customer shall continue to be obligated under the terms of any unterminated and unexpired Service Order and shall still be liable for any Service still being provided by Xiber under a Service Order in which Xiber has terminated one or more other Services. In the event Customer requests reconnection of any Service after a Non-payment Disconnection, Xiber may require, prior to reconnecting the Service(s), Customer to do any or all of the following: (i) pay any and all past due charges related to the Agreement (including Service Orders not related to the Non-payment Disconnection) along with accrued Late Charges, (ii) pay a reconnection charge of at least $100 up to Xiber’s then current installation fees for the Service(s) at the Premises, (iii) pay a deposit equal to 2 months’ MRCs for the reconnected Service(s), or (iv) place a valid credit card on file to which Customer has pre-authorized Xiber to automatically charge future charges due pursuant to this Agreement. In addition to the remedies set forth in this Agreement, Xiber shall have the right, but not the obligation, to pursue in a Dispute any legal remedies it may have under Applicable Law or principles of equity relating to an event of Default.
Termination by Customer:
Customer may terminate this Agreement and/or any Service Order hereunder upon 30 days prior written notice, without incurring Early Termination Liability pursuant to Section 15, for Xiber’s (i) breach of any material provision of this Agreement, including, without limitation, Subsection 8(e) or any Applicable Law that materially affects Customer’s use of the Service(s), which remains uncured at the end of the 30-day notice period or (ii) bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event (“Insolvency Proceeding”) that is not dismissed in Xiber’s favor within 90 days of the filing of the Insolvency Proceeding.
Termination Liability:
If Xiber terminates this Agreement or any Service Order(s) due to an event of Default (as indicated in Subsections 13(a) and (b)) or if Customer terminates this Agreement or any Service Order(s) for any reason other than as set forth in Section 14 above, Customer shall pay to Xiber all MRCs accrued related to the terminated Service(s) as of the date of termination plus the greater of: (x) $750 or (y) the remaining MRC’s associated with the terminated Service(s) for the balance of the applicable Service Term (“Early Termination Liability”). Customer shall pay the Early Termination Liability within 15 days of termination of this Agreement or any Service Order(s) as set forth in this Section 15 and Late Charges shall be applicable to any late payment of the Early Termination Liability. At the expiration or termination of this Agreement or the applicable Service Order(s) for any reason, Customer shall return the related CPE to Xiber in the condition the CPE was provided to Customer by Xiber minus normal wear and tear and Xiber may recover any or all other portions of the Xiber Network on the Premises (“Recovery”). Xiber or Xiber’s representative will contact Customer promptly upon expiration or termination of this Agreement or any Service Order to schedule a mutually acceptable time and date for Xiber’s Recovery. Alternatively, Xiber may request that Customer package up and return Xiber’s Network equipment, at Xiber’s cost, to a location identified by Xiber. If Xiber contacts the Customer requesting Recovery and Customer fails to return or provide access to recover the CPE or any other part of the Xiber Network within 15 days of the Xiber’s request for Recovery, Customer shall pay Xiber the fair market value (“FMV”) of the unrecovered CPE and parts of the Xiber Network plus an administrative fee of the greater of $50 or 15% of the FMV of the unrecovered CPE and parts of the Xiber Network (which cost may be deducted from any deposit held by Xiber or charged to any credit card Customer has put on file with Xiber pursuant to Section 6).
Assignment:
Neither Party may assign this Agreement without the prior written consent of the other Party, which such consent shall not to be unreasonably conditioned, withheld, conditioned or delayed, except that: (1) Xiber may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c) for purposes of financing; and (2) Customer may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (i) the proposed assignee satisfies Xiber’s reasonable credit and deposit standards; (ii) Customer has fully paid for all Services through the date of assignment; and (iii) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
Entire Agreement:
This Agreement together with the Service Order(s) set forth the entire agreement with respect to the subject matter of this Agreement, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the Service Order shall prevail over this Agreement and any Applicable Law that conflicts with either shall prevail over both the Service Order and this Agreement. Modifications, amendments, supplements to, or waivers of, this Agreement must be in writing and executed by both Parties.
Force Majeure:
Either Party (“Delayed Party”) shall be excused from any performance due under this Agreement, except for Customer’s obligation to pay any monetary amounts pursuant to this Agreement, if inability to perform is due to a cause or causes beyond such Party’s reasonable control, including, without limitation, acts of God, fire, explosion, vandalism, acts of terrorism, cable cuts caused by a third party, weather conditions affecting the safety of the performance, labor strikes, and governmental action (each a “Force Majeure Event”). The Party claiming relief under this Section 18 shall notify the other Party in writing of the existence of the Force Majeure Event and of the cessation of such Force Majeure Event. The Delayed Party shall use all commercially reasonable efforts to resume performance as soon as is practicable after the cessation of the Force majeure Event. If the Delayed Party’s inability to perform due to the Force Majeure Event continues for 90 days or longer, the other Party may terminate the affected Services without further obligation to the other Party, including, without limitation, that no Early Termination Liability shall be due.
Governing Law:
The interpretation of the rights and duties of the Parties and any Claim arising under or related to this Agreement shall be governed by and subject to the laws of the State of Indiana, excluding its principles of conflicts of law, as if both parties had entered into this Agreement, and all Services provided pursuant to this Agreement are being delivered wholly, in the State of Indiana.
Headings:
Headings and section numbers herein are for convenience and reference only and are not intended to have substantive significance in interpreting this Agreement.
Notices:
Any notice required or allowed to be in writing under this Agreement is valid and effective as of delivery if sent, in writing, by either (i) electronic mail, (ii) by overnight courier with courier delivery confirmation or registered or certified mail with delivery confirmed by return receipt, or (iii) by first-class US mail, to the following:
Notices to Customer shall be sent by Xiber to Customer’s e-mail address or the Premises mailing address reported to and on file with Xiber.
Notices to Xiber shall be sent to the addresses and methods specified in Sections 7 and Section 8 and a copy of all notices related to any Claim or Dispute shall be sent to:
Xiber, LLC
1429 Chase Court Carmel
Indianapolis, IN 46032
Attention: General Counsel
E-mail: legal@xiber.net
Delivery of written notice by electronic mail is deemed to be the sooner of 24 hours after being sent by a Party or upon acknowledgement by the recipient Party by return electronic mail. Any notice sent by electronic mail that is returned as undeliverable by the recipient Party’s electronic mail system is deemed not delivered to the other Party and must be re-sent by one of the other methods allowed in this Section 21. Delivery of written notice by first-class US mail is deemed to be 3 days after being deposited by the sending Party in the US mail system. A Party may require that written notices under this Agreement be sent to such other address(es) and person(s) as the party may designate to the other in writing, if the request is given or served in the manner specified in this Section 21.
No Waiver:
Either Party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
Public Releases, Use of Name: Neither Party may issue a news release, public announcement, advertisement or other form of publicity regarding this Agreement or the Services provided hereunder without the prior written consent of the other Party. Customer may not use Xiber’s name, logo or service mark without Xiber’s prior written consent. Xiber may use Customer’s name and logo in materials presented only to investment analysts and potential or existing investors.
Representations and Warranties:
a. Authorization
Each Party (“Representing Party”) represents and warrants that the Representing Party, and the person signing on Representing Party’s behalf, is fully authorized to enter into this Agreement and that no additional proceeding on Representing Party’s part is necessary to authorize the execution and delivery of this Agreement.
b. Equipment Warranty
Xiber shall replace during the term of this Agreement, at no cost to Customer, any CPE or part of the Xiber Network that becomes non-operational to deliver the Services for any reason other than (i) misuse (which includes, without, limitation violation of the Acceptable Use Policy or Applicable Law) by Customer or a guest or end-user of Customer or (ii) physical or software damage caused Customer, a guest or end-user of Customer, or Customer’s equipment connected to the Xiber Network. If the replacement of any CPE or part of the Xiber Network by Xiber is due to one of the causes described in the immediately preceding sentence, then Customer shall pay Xiber the fair market value of the affected CPE or part of the Xiber Network plus an administrative fee of the greater of $50 or 15% of the cost of the CPE or part of the Xiber Network (which cost may be deducted from any deposit held by Xiber).
c. Non-infringement
Xiber represents and warrants to Customer that, to the best of Xiber’s knowledge upon completion of installation of the Xiber Network, the Xiber Network will not infringe or otherwise violate any patent, copyright, trade secret, trademark or other intellectual property right of any third party (each violation, an “Infringement”). The warranty in the immediately preceding sentence will be void with respect to any Infringement attributable to: (a) the modification or alteration of the Xiber Network made without the prior written consent of Xiber or by any person other than Xiber or Xiber’s authorized agent; (b) the failure of Customer to use bug-fixes, error corrections, or enhancements as reasonably required in writing by Xiber in Customer’s equipment connected to the Xiber Network; or (c) misuse (which includes, without, limitation violation of the Acceptable Use Policy or Applicable Law) by Customer or a guest or end-user of Customer. Customer shall not use the Services or the Xiber Network in any way that is an Infringement. If Xiber receives notice from a third-party of an alleged Infringement by Customer (or one of Customer’s guests or end-users) over the Xiber Network (“Infringement Notice”), including, without limitation, a Digital Millennium Copyright Act (“DMCA”) takedown notice, Xiber may take any action (“Takedown Response”) against Customer or Customer’s use of the Xiber Network reasonably necessary to comply with the Applicable Law related to the Infringement Notice or reasonably necessary to protect Xiber from liability related to infringement Notice, including, without limitation, blocking Customer’s access to all or part of the Services related to the alleged Infringement or removing any content specified in the Infringement Notice from the Xiber Network. Xiber is not in breach of this Agreement by performing a reasonable Takedown Response and Customer shall not be eligible for any Credits or any other damages or rights of termination under this Agreement due to Xiber’s Takedown Response, unless Xiber is found to have acted unreasonably at the final adjudication or settlement of a Dispute.
d. Service Warranty
Any warranties for any Service are contained in the SLA and the exclusive remedies related to the SLA are stated in Section 8 of this Agreement (“Service Warranties”). The Service Warranties do not apply to any Services delivered to Customer through a third-party subcontractor by Xiber. Xiber shall pass through to Customer (only) any warranties provided by a third-party subcontractor for any Services delivered to Owner through such third-party subcontractor by Xiber.
e. Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN OR INCORPORATED BY REFERENCE INTO THIS SECTION 24, XIBER MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES IN REGARDS TO THE SERVICES OR THE XIBER NETWORK, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND XIBER SPECIFICALLY DISCLAIMS AND BOTH PARTIES ACKNOWLEDGE THE WAIVER AND INVALIDITY OF ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
Severability:
If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties’ original intent.
Survival:
The terms and conditions of this Agreement that expressly require performance or payment or allow certain actions by the Parties after the expiration or termination of this Agreement or any Service Order shall survive for the periods specified or implied in this Agreement or the related Service Order (or both, if applicable).
Relationship of Parties; No Third-Party Beneficiaries: The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of the Parties, and the Parties’ permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
Confidentiality:
a. Definition
“Confidential Information” is information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that is marked as confidential or would normally under the circumstances be considered confidential information of the Disclosing Party, including, without limitation, trade secrets, business methods, personally identifiable information of Disclosing Party or Disclosing Party’s employees or contractors, pricing and terms of this Agreement, non-public financial information, methods and equipment used in the installation of the Services, and other non-public information shared between the Parties.
b. Non-disclosure
Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the Parties, the Receiving Party agrees that it shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided for in this Agreement any Confidential Information of the Disclosing Party, except to its employees or consultants to whom it is reasonably necessary to disclose the Confidential Information in order to perform its obligations under this Agreement. The Receiving Party will take reasonable measures to maintain the confidentiality of the Disclosing Party’s Confidential Information, but not less than the measures the Receiving Party uses for protection of Receiving Party’s own Confidential Information.
c. Exceptions
Receiving Party shall not be in Breach of the terms of this Section 28 for a disclosure or other non-permitted use of Confidential Information in which the Receiving Party can reasonably demonstrate by competent evidence that the Confidential Information in question:
i. was already known to or in the possession of the Receiving Party at the time of disclosure;
ii. is, or becomes, publicly known, through no violation of any confidentiality obligation between the Parties;
iii. was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information;
iv. was rightfully obtained by the Receiving Party from a third-party authorized to make such disclosure without restriction;
v. is identified in writing by the Disclosing Party as no longer proprietary or confidential; or
vi. must be disclosed pursuant to a Compelled Disclosure, as defined in and subject to the terms and provisions of Subsection
d. Compelled Disclosure
If Receiving Party receives a request or order (including, without limitation, oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information pursuant to any Applicable Law or court order (“Compelled Disclosure”), the Receiving Party shall provide the Disclosing Party with prompt notice of the Compelled Disclosure, so that the Disclosing Party may seek an appropriate protective order blocking the Compelled Disclosure or provide written consent to the Receiving Party to comply with the Compelled Disclosure. If the Disclosing Party fails to seek or obtain a protective order against the Compelled Disclosure and does not provide consent to the Compelled Disclosure prior to the Compelled Disclosure being due, and the Receiving Party must, in the written opinion of Receiving Party’s counsel, disclose the Confidential Information pursuant to the Compelled Disclosure under threat of liability for contempt or other censure or penalty (“Liability”), then the Receiving Party may disclose the Confidential Information only to the extent necessary to comply with the Compelled Disclosure and avoid the Liability.
e. RETURN OF CONFIDENTIAL INFORMATION
The Receiving Party shall return to the Disclosing Party or destroy such Confidential Information (except to the extent necessary to comply with obligations under Applicable Law or that the Receiving Party believes cannot be reasonably destroyed, as in the case of automated record-keeping or other retention systems) upon the written request of the Disclosing Party. The Receiving Party agrees that Breach of this Section 28 may cause the Disclosing Party irreparable damage for which recovery of money damages would be inadequate. The Disclosing Party is, therefore, entitled to obtain timely injunctive relief to protect the Disclosing Party’s rights under this Section 28. The provisions of this Section 28 shall survive the expiration or early termination of this Agreement for a period ending on the earlier of: 2 years after the expiration or early termination of this Agreement or such time as the Confidential Information becomes publicly known and made generally available through no action or inaction of the Receiving Party.
Modifications of Agreement:
Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be made by written amendment or addendum to this Agreement signed by the Parties. No oral modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be permitted. Notwithstanding the anything to the contrary in this Section 29, a Cancellation, Modification, Relocation, or Expedite request made by Customer in writing pursuant to Section 3 must be accepted by Xiber in writing (including electronic mail) but is not required to be put into an amendment or addendum to the Service Order signed by both parties and shall become part of the related Service Order upon acceptance in writing by Xiber.
Counterparts:
This Agreement may be executed (on the Service Order form) in 1 or more counterparts, all of which taken together shall constitute 1 and the same instrument.
Service Orders: Customer and Xiber may execute in writing one or more order forms for Customer to purchase telecommunication and related services or equipment (or both) at certain location(s) (“Premises”) from Xiber which reference and are made pursuant to this Service Agreement (each a “Service Order”). A Service Order shall describe the telecommunication and related services or equipment (or both) that Xiber proposes to deliver to Customer (“Services”) and specify the price(s), duration, Premises, and other terms and conditions of those Services, which are subject to the terms and conditions of this Service Agreement. Any and all Service Orders when duly executed between the Parties are integrated into and become part of this Agreement. This Service Agreement and all duly executed Service Orders form the only agreement between the parties with respect to the Services and supersede any other understandings between the Parties in regard to the Services whether in written or oral form. The Agreement and any related duly executed Service Order can only be amended or modified in a written document that is signed by both Parties. All Services are offered subject to availability, and Xiber may not accept a proposed Service Order submitted by Customer to Xiber. If a Service Order has been duly executed by the Parties, Xiber shall provide the Services stated in such duly executed Service Order for the term agreed to in such Service Order and for all renewal periods thereafter (collectively, the “Service Term”).
Term: The initial Service Term with respect to any Service is stated in the duly executed Service Order (“Initial Term”). The Service Term with respect to a duly executed Service Order will automatically renew on a month-to-month basis upon expiration of the Initial Term until terminated by either Party upon 30 days prior written notice to the other Party, unless otherwise stated in the Service Order. This Agreement shall continue to be in effect until the expiration or termination of all the Service Orders duly executed pursuant to this Agreement. The expiration or termination of any single Service Order shall not affect the validity of the remaining Service Term of any other Service Order.
Cancellation, Modification or Expedition of Orders:
a. CANCELLATION
Customer may cancel a duly executed Service Order, if the request is received in writing by Xiber at least 7 days prior to the planned installation date and prior to any installation work being done on-Premises pursuant to the Service Order (“Cancellation”). In the event of a Cancellation, Xiber may charge Customer a fee in the amount of 3 months of the MRC (as defined in Subsection 3(b) below) applicable to the cancelled Service(s), which Customer acknowledges reasonably represents the cost of preparation to deliver the Services as of the date of Cancellation, including, without limitation, the cost of design, permitting, and procurement or return of equipment (“Cancellation Fee”). In addition to the Cancellation Fee, Customer shall pay the reasonable cost that Xiber may owe to any other service provider for provision to Customer of the Service(s) subject to the Cancellation. Xiber and Customer may agree to another Cancellation Fee in a Service Order.
b. Modification
Customer may request in writing the modification of any Service Order(s) (“Modification”). All Modifications are subject to Xiber’s acceptance of the requested Modification. Xiber may charge Customer a “Modification Charge” not to exceed $50 for the administrative burden of modifying the Service Order, if Xiber accepts the requested Modification, in addition to the cost changes to the Service Order associated with the Modification request. Customer shall give Xiber at least 30 days prior notice, if Customer intends to move the Services to a different location than the Premises (“Relocation”). Xiber may refuse any Relocation request, in which case Customer shall continue to be obligated under the related Service Order(s) until expiration or termination of the related Service Order(s). If Xiber accepts a Relocation request, Xiber may, in addition to the Modification Charge, charge additional installation and relocation fees and modified fees for the Services. If Xiber receives a written Modification request for delay of installation less than 3 days prior to the planned installation date, Customer may be assessed, in addition to the Modification Charge, the monthly recurring charge (“MRC”) applicable to the delayed Service for the shorter of 1 billing month or the period from the original Due Date (as defined below) to the requested installation date. Xiber may cancel a Service Order if the installation date stated on the original Service Order is delayed more than 2 times by Customer or is delayed more than 60 days.
c. Expedite
Customer may request an expedited installation date. If Xiber accepts the expedited installation date, Xiber may assess a reasonable “Expedite Charge” in addition to any other amounts set forth on the applicable Service Order.
d. Third Party Charges
In addition to the charges set forth in Sections 3(a), (b) and (c) above, Xiber may bill Customer for any third-party charges it incurs in order to complete Customer’s request for Cancellation, Modification, Relocation, or expedited installation.
Xiber Network, Access and Interconnection:
a. Responsibilities
Xiber owns and controls the telecommunications equipment, cable and facilities installed and operated by Xiber for provision of the Services to Customer (“Xiber Network”), which includes, without limitation, cabling, switches, patch panels, cable terminations, radios, dishes, and customer Premises equipment (including, without limitation, routers and Wi-Fi access points for inside Premises Internet distribution and set-top-boxes for television services) (“CPE”). The Xiber Network will remain Xiber’s personal property regardless of where located or attached. Xiber has the right, in its sole and absolute discretion, to upgrade, replace or remove the Xiber Network in whole or in part, regardless of where located, so long as the Services continue to be provided by Xiber to Customer. Xiber has the right, in its sole and absolute discretion, to limit the manner in which any portion of the Xiber Network is used in order to protect the technical integrity of the Xiber Network. Customer may not alter, move or disconnect any parts of the Xiber Network, and Customer is solely responsible for any and all damage to, or loss of, the Xiber Network caused by Customer’s (or Customer’s guest’s or end users’) breach of this provision or caused by Customer’s (or Customer’s guest’s or end users’) negligence or misconduct. Xiber has no obligation to install, maintain or repair any equipment owned or provided by Customer, unless otherwise agreed to in writing by the Parties. If Customer’s equipment is incompatible with the Service, Customer is solely responsible for any special interface equipment or facilities necessary to achieve compatibility, provided, however, that any such interface equipment and/or facilities must be approved by Xiber in its sole and absolute discretion. Customer shall not use the Xiber Network in violation of any Applicable Law and the Acceptable Use Policy. Customer shall not move any Services or any part of the Xiber Network to any other location besides the Premises without Xiber’s prior consent.
b. Access
Customer must provide Xiber with access to the Premises during normal business hours and during any other period agreed by the Parties to install and maintain Services and Xiber’s Network. The phrases “business hours” and “business days” mean Monday through Friday, 8:00am to 5:00pm in the time zone local to the Premises, except authorized holidays which have been recognized by the federal United States government. Customer must provide, at its sole expense, the following (collectively “Premise Requirements”): (i) appropriate space, power and environmental conditioning; and (ii) reasonable access rights and/or rights of way from third parties, as may be required for the installation and maintenance of the Xiber Network at and into Customer’s Premises. Customer must pay a Modification Charge if Customer does not provide the Premise Requirements prior to the scheduled installation date. In addition to the Modification Charge, Xiber may charge Customer for the reasonable time and materials incurred and documented by Xiber that are caused by Customer’s failure to timely provide the Premise Requirements, plus any third party charges assessed against Xiber. Customer must provide Xiber with a contact and/or help desk number that can be reached 24 hours per day/7 days per week in order to coordinate access to the Premises or remote access to the Xiber Network in order to maintain or troubleshoot the Xiber Network.
c. Demarcation Point and Inside Wiring
Xiber shall be responsible for provisioning Service up to the Demarcation Point (as defined in the next sentence) and Customer is responsible for providing and maintaining any necessary wiring and facilities on Customer’s side of the Demarcation Point. “Demarcation Point” means the Xiber designated physical interface between Xiber’s Network and Customer’s equipment, which point shall be either (i) in the case of a Service terminating at a Xiber-owned or controlled Premises, Xiber’s designated distribution panel or network interface device located within such Xiber Premises or (ii) in the case of a Service terminating at Customer’s Premises, the distribution panel or network interface device located at the common telecommunications (“telco”) demarcation at the Customer or end-user Premises (e.g., entry point for telco facilities, telco closet or common telco room) or the CPE (if any) provided by Xiber to Customer. If requested by Customer, Xiber may install, coordinate or otherwise arrange for installing or obtaining from third parties, facilities on Customer’s side of the Demarcation Point (“Inside Wiring”). Customer agrees to pay time and materials rates for any Inside Wiring performed by Xiber personnel and agrees that Xiber may bill Customer for any third-party charges Xiber incurs to provide such Inside Wiring.
d. Letter of Authorization | Carrier Facility Assignment
If Customer intends to connect the Service(s) to facilities that neither Customer, nor Xiber, owns, Customer must provide Xiber with, and maintain (for the Service Term) in full effect, a current letter of authorization, right of entry, or carrier facility assignment (or all of them, if required), for such facilities.
Installation and Maintenance:
a. Installation
Xiber will notify Customer when the Service(s) has been successfully installed and is available for Customer’s use (“Service Date”). Unless Customer notifies Xiber by noon (time local to the Premises) on the day following the Service Date (“Rejection Expiration”) that the Service(s) are not operational, the Service Term will commence on the Service Date. If Customer notifies Xiber that the Service(s) are not operational prior to the Rejection Expiration, the Service Date and Service Term commencement shall be on the day when the Service is confirmed operational thereafter by the Xiber or the Customer. The Service Date will not be delayed or postponed due to problems with Customer’s equipment or Customer’s lack of readiness to accept or use the Service(s).
b. Maintenance:
i. Scheduled Maintenance. Xiber will monitor Xiber’s Network 24 hours per day, 7 days per week. Scheduled Maintenance will be performed between the hours of midnight and 6:00 a.m. in the time zone local to the Premises unless another time is agreed to by the Parties for the particular circumstance. Xiber will endeavor to provide Customer with at least 5 business days’ notice before performing Scheduled Maintenance unless a shorter notice period is required under the circumstances.
ii. Emergency Maintenance. If Xiber has to perform maintenance outside of the Scheduled Maintenance window set forth in Section 5(b)(i) above due to an unplanned outage to the Services, Force Majeure Event (as defined in Section 18), or in order to restore or establish Services to any of Xiber’s customers, then Xiber will provide as much prior notice to Customer as is practicable under the circumstances.
Charges, Billing, Taxes and Payment:
a. Billing
Services are billed on a monthly basis commencing with the Service Date, unless otherwise specified in the Service Order. Services are invoiced in advance and shall be sent by Xiber in writing (each an “Invoice”) each month (or other period stated on a Service Order), but charges based on actual usage of Services by the Customer shall be invoiced in arrears, if applicable. Invoices shall be sent by electronic mail (if an e-mail address is provided by Customer or by mail to Customer’s address at the Premises). Any installation charges or other nonrecurring charges (e.g., deposits) shall appear on the first monthly Invoice following when the related Services are delivered to the Customer. Installation charges are non-refundable. All charges payable by Customer hereunder shall be set forth in a Service Order.
b. Deposit
Xiber may require a deposit prior to the provision of any new Service as stated on the related Service Order. Xiber also may require (i) a deposit, (ii) a credit card to be placed on file to which Xiber is pre-authorized by Customer to charge all amounts due pursuant to this Agreement, or (iii) both as a condition to its obligation to continue to provide Service(s) if Customer has failed to timely pay for Service(s) on 2 occasions during any 6-month period. Deposits may be applied by Xiber to pay any past due amounts unpaid by Customer pursuant to this Agreement or to compensate Xiber for any CPE or other parts of the Xiber Network provided by Xiber as part of the Services that is damaged by the Customer or that Customer fails to return to Xiber pursuant to Section 15. Any remaining amount of any deposit shall be returned to the Customer within 45 days after Recovery is requested pursuant to Section 15 or, if no Recovery is requested, 45 days of the expiration or termination of the related Service Order(s).
c. Taxes
“Tax” or “Taxes” mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated, imposed, or sought to be imposed, on or with respect to purchases by Customer from Xiber for consideration under this Agreement or for Xiber’s use of public streets, rights of way, telco facilities, or broadcast, or retransmission rights, which Xiber is required or permitted by Applicable Law (as defined in Section 9) or a telco tariff to collect from Customer. Notwithstanding the immediately preceding sentence, Taxes do not include any tax on Xiber’s corporate existence, status, income, corporate property or employee payroll. Xiber shall include Taxes as a line item charge separate from the MRC’s for the Services on the related Invoice. If Customer claims an exemption for any Tax, Customer must provide Xiber with a proper Tax exemption certificate as authorized by the appropriate taxing authority. Customer must pay the applicable Taxes to Xiber until it provides Xiber with a valid Tax exemption certificate. If a Service is exempt under Applicable Law from a Tax, but there is no exemption procedure for such Service, then Xiber will not collect such Tax if Customer provides Xiber with a letter signed by one of its officers: (i) claiming a right to the exemption; (ii) identifying the Applicable Law that allows such exemption and does not require an exemption certificate; and (iii) agreeing to indemnify and hold Xiber harmless from any Tax, interest, penalties, loss, cost or expense asserted against Xiber as a result of its not collecting the Taxes from Customer.
d. Payment
Customer shall pay all amounts stated on any Invoice that are not the subject of a valid Charge Dispute (as defined in Section 7) no later than 5 days after Customer’s receipt of the Invoice from Xiber (“Due Date”). Customer may, or Xiber may require Customer to, have a valid credit card on file to which Xiber is pre-authorized to charge all fees on an Invoice or otherwise due pursuant to this Agreement automatically. If Customer fails to pay an amount on an Invoice that is not the subject of a valid Charge Dispute by the Due Date (“Overdue Amount”) the Overdue Amount shall begin to accrue a late charge as of the Due Date at the greater of $10 per month or 1.5% per month until the date paid in full (“Late Charge”) or, if the Late Charge exceeds the maximum rate permitted by Applicable Law, then the maximum permitted by Applicable Law shall be charged as the Late Charge. In addition to applicable Late Charges, Xiber may charge a fee of $40 for any check or credit card charge returned as non-payable for any reason by Customer’s bank or credit card issuer.
Charge Disputes: Customers may, in good faith, dispute charges on an Invoice received from Xiber (“Charge Dispute”) by submitting in writing the details of the dispute to xperts@xiber.net or to Xiber’s mailing address 1429 Chase Court Carmel
Indianapolis, IN 46032, Attention: Billing Department. Customer must submit any Charge Dispute to Xiber in one of the manners specified in the immediately preceding sentence prior to end of the Charge Dispute Period (as defined in the next sentence). The “Charge Dispute Period” is either: (i) the time period between the date of the Invoice associated with the Charge Dispute and 2 business days after the Due Date of that Invoice, if Customer intends not to pay or fails to pay the charge that is the subject of the Charge Dispute by the Due Date of the associated Invoice; or (ii) within 90 calendar days of the date of the Invoice associated with the Charge Dispute, if the Customer has paid the charge that is the subject of the Charge Dispute. If Customer does not deliver a Charge Dispute within the Charge Dispute Period, Customer is deemed to have accepted all charges on the Invoice as valid and due and such charges cannot be submitted to any Dispute Resolution procedure pursuant to this Section 7 or Section 12. Xiber shall contact the Customer within 5 business days of receiving a timely Charge Dispute and endeavor to resolve the Charge Dispute within 21 days after receipt of the Charge Dispute (“Charge Resolution Period”). If Xiber determines any of the charges that were subject of a valid Charge Dispute were valid as invoiced during the Charge Resolution Period, then Customer must pay those charges deemed valid by Xiber within 5 business days following written, electronic, or telephonic notice of the resolution by Xiber (the “Dispute Resolution Date”) and such charges shall begin to accrue Late Charges as of the original Due Date, if Customer fails to pay by the Dispute Resolution Due Date. If a Charge Dispute is resolved either by Xiber during the Charge Resolution Period or pursuant to the Dispute Resolution procedures of Section 12 with a finding that Customer disputed the related charge(s) in bad faith or to avoid payment for any reason not related to a bona fide belief that the charge(s) was(were) not valid and due, then the charge(s) that were subject of the Charge Dispute shall become immediately due and payable as of the Dispute Resolution Date and applicable Late Charge rate shall be deemed to have accrued beginning on the original Due Date until the date paid in full. Notwithstanding anything to the contrary in this Section 7 or Section 12, if a Charge Dispute is commenced by Customer that involves any MRC charge(s) for any Service(s) stated in a valid and unterminated Service Order during the Initial Term and no applicable Credits (as defined in Section 8) have been timely claimed by the Customer related to such charge(s), then such Charge Dispute shall automatically deemed in bad faith and the charge(s) disputed in such Charge Dispute shall immediately be subject to the immediately preceding sentence regarding accrual of Late Charges and such Charge Dispute shall not be eligible to be submitted to the Dispute Resolution procedures set forth in Section 12. A Charge Dispute may only be submitted to the Dispute Resolution procedures of Section 12, subject to the immediately preceding sentence, if Xiber fails to resolve a valid Charge Dispute within the Charge Resolution Period or the Customer pays the charge(s) in question after Xiber resolves a Charge Dispute against the Customer but Customer still disputes, in good faith, that such charges were owed by Customer. Notwithstanding anything to the contrary in this Section 7 or Section 12, Xiber may continue to pursue collection of any Overdue Amount or any charges (along with applicable Late Charges) deemed due and payable as the result of any Charge Dispute finally resolved in Xiber’s favor for as long as Xiber desires to pursue payment of such amounts.
Service Levels | Service Outage Credits:
a. Service Level Agreement (“SLA”)
The SLA for a particular Service, which specifies the applicable performance metric(s) (“Performance Requirement(s)”) is contained in each Service Order. Except as otherwise stated in a Service Order, credits for Service Outages (defined in Subsection 8(b) below) shall be issued at Customer’s request at 1/1440 of the applicable MRC per 30 minute outage for up to a 24-hour period, but if a Service Outage lasts greater than 24 hours, then credits for such Service Outage shall be issued at Customer’s request at 1/144 of the applicable MRC per 3 hour period (“Credits”).
b. Service Outage Definition
A “Service Outage” is defined as either: (a) material noncompliance with any specific performance metric(s) in a SLA and such non-compliance is caused by Xiber on the Xiber Network; or (b) a complete loss of transmission or reception capability for a Service caused by Xiber on the Xiber Network.
c. Reporting and Tracking of Service Outages
If there is a Service Outage, Customer must contact Xiber’s Customer Service Center at either (888) 366-2211 or xperts@xiber.net, and Xiber will open a trouble ticket and provide Customer with a trouble ticket number for tracking purposes. Before reporting any Service Outage, Customer first shall conduct testing to determine if such outage is not caused by, or associated with, Customer’s network or equipment.
d. Duration of Service Outage and Application of Credits
For the purpose of calculating applicable Credits, a Service Outage begins when Customer reports the Service Outage to Xiber and ends when the Service is restored to meet the applicable Performance Requirements for that Service. The duration of the Service Outage only includes outages that are caused by Xiber on the Xiber Network and do not include:
i. outages caused by (x) the equipment, acts, or omissions of Customer or third parties, or (y) Force Majeure Events (as defined in Section 18);
ii. outages occurring during scheduled or emergency maintenance;
iii. outages occurring during Non-payment Disconnect (as defined in Section 13); or
iv. outages occurring during any time when Xiber is not allowed access to the Premises necessary to restore the affected Service
Credits for Service Outages are only issued if requested by Customer, and such requests must be submitted to Xiber within 120 days from the date Service is restored. Credits requested during any calendar month shall be applied to the following month’s Invoice and shall not exceed the MRC for that month associated with the affected Service that experienced the Service Outage(s).
e. Chronic Trouble Services
If 2 Service Outages have occurred on a particular Service during a 30-day period, and a third Service Outage occurs within 30 days following the second Service Outage, Customer may terminate the applicable Service without paying Early Termination Liability pursuant to Section 15 by sending written notice to Xiber no later than 30 days after the third Service Outage referenced in this Subsection 8(e).
f. Remedies
Notwithstanding anything to the contrary in this Agreement, the remedies set forth in the SLA for the affected Service(s) and in Sections 8(a) and 8(e) of this Agreement constitute Customer’s sole and exclusive remedy for Service Outages.
g. Service Outages Not Caused by Xiber
If Xiber responds to a service call initiated by Customer, and Xiber reasonably determines that the cause of the problem is: (i) not due to Xiber’s operation of the Xiber Network; or (ii) on Customer’s side of the Demarcation Point, Customer must compensate Xiber for the service call at Xiber’s then prevailing time and materials rates.
Governmental Regulation – Changes:
a. Compliance with Law
This Agreement is subject to all applicable federal, state and local laws, rules and regulations (collectively, the “Applicable Law”), and each Party must comply with all Applicable Law in performing its obligations hereunder. To the extent any provision herein conflicts with any Applicable Law, such Applicable Law will supersede the conflicting provision.
b. Regulatory Changes
“Regulatory Changes” mean additional or materially changed requirements placed on Xiber by Applicable Law after the Effective Date of this Agreement in providing the affected Service(s) that have a material, adverse impact on the economic feasibility of Xiber providing the affected Service(s). Xiber may discontinue, or impose additional requirements necessary to continue, providing any of the Services in response to any Regulatory Changes, upon 30 days written notice to Customer. If Xiber discontinues a Service due to a Regulatory Change, Customer is not responsible for the termination liability set forth in Section 15 below. Notwithstanding anything to the contrary in this Agreement or any Service Order, Customer shall pay (in addition to the charges stated in the relevant Service Order) the additional reasonable cost of Xiber providing any of the affected Services that Xiber elects to continue after a Regulatory Change.
Indemnification:
“Claim” means any demand, claim, action, proceeding, or liability (whether criminal or civil, in contract, tort or otherwise) for losses, damages, legal costs or other expenses of any nature whatsoever. Each Party (“Indemnitor”) shall indemnify, defend and hold harmless the other Party (“Indemnitee”) from any and all Claims arising from or related to bodily injury or physical damage to tangible property caused by the negligence or willful misconduct of Indemnitor. Customer shall indemnify, defend and hold Xiber harmless from all Claims arising from Customer’s breach or alleged breach of this Agreement, violation of third party intellectual property rights, all claims of any kind by Customer’s end users or guests, or any act or omission of Customer associated with (i) Customer’s use of any Service, or (ii) Customer’s provision of access to any third-party (including, without limitation, Customer’s employees, guests, and end-users) through any of the Services to any of Customer’s services or equipment or any third-party service or equipment. Each Party agrees to provide the other Party with notice of any Claim that may result in an indemnification obligation under this Agreement. The Indemnitor may defend Claims with counsel of Indemnitor’s own choosing provided that no settlement or compromise of any such Claim shall occur without the written consent of the Indemnitee, which such consent shall not be unreasonably withheld or delayed. The indemnification obligations contained in this Section 10 shall survive expiration or termination of this Agreement.
Limitation of Liability:
Except for the Parties’ respective obligations set forth in Sections 8 and 15 herein, neither Party is liable to the other Party for indirect, consequential, special, incidental, or punitive damages of any kind or nature whatsoever, including, without limitation, lost profits, lost revenues, lost savings, lost opportunity or harm to business (whether arising out of transmission interruptions or problems, any interruption to or degradation of Service, or otherwise), whether or not foreseeable, whether or not the Party had or should have had any knowledge, actual or constructive, that such damages might be incurred, and regardless of the form of action, nature of the Claim asserted or the frustration of either Party’s purpose. Nothing contained herein shall operate as a limitation on the right of either Party to bring an action for damages against any third party, including Claims for indirect, special or consequential damages, based on any acts or omissions of such third party. Indirect damages include, but are not limited to, damages of the kinds specified in this Section 11 that are incurred by a third party and are asserted against a Party (including attorneys’ fees and expenses). Xiber’s liability to Customer for direct damages may not exceed the greater of (i) the applicable Credits requested by Customer, or (ii) 1 month’s calculation of MRCs applicable to the affected Service(s) regardless of the form of action, nature of the claim asserted or the frustration of either Party’s purpose. Xiber has no liability for the content of information that Customer passes through Xiber’s Network, for Customer’s transmission errors, or for any failure to establish connections outside the Xiber Network.
Dispute Resolution:
a. Informal Resolution
Each Party (“Claiming Party”) shall notify the other Party (“Responding Party”) of the existence of a Claim or dispute (including, without limitation, any alleged Default, as defined in Section 13) between the Parties related to this Agreement or any Service Order (“Dispute”) promptly, but in no event later than 15 days after the Claiming Party discovers or reasonably should have discovered the facts giving rise to the Dispute, except as otherwise expressly allowed pursuant to this Agreement. Notwithstanding the immediately preceding sentence, Charge Disputes shall follow the procedures set forth in Section 7 prior to being submitted to the procedures of this Section 12. The Parties shall first endeavor to resolve any Dispute in good faith between the Parties within 30 days after Responding Party receives notice of the Dispute (“Informal Resolution Period”). Representatives of each Party shall meet in-person or by teleconference within 10 days after Responding Party receives notice of the Dispute to discuss and attempt to resolve the Dispute.
b. Mediation
Disputes that are not resolved within the Informal Resolution Period may be submitted to mediation by mutual agreement in writing between the Parties. If the Parties agree to submit the Dispute to mediation, the Parties shall, within 15 days of the end of the Informal Resolution Period, select a mediator for the purposes of resolving the dispute and shall share the cost equally of the selected mediator. Mediation of any Dispute shall be concluded no later than 75 days after Responding Party originally received notice of the Dispute and shall not require more than 2 half-day mediation sessions. Any conversations or resolutions between the Parties regarding a Dispute during the Informal Resolution Period or in mediation are Confidential Information and shall remain confidential pursuant to Section 28.
c. Arbitration
If a Dispute is not resolved during the Informal Resolution Period or through mutually agreed upon mediation (or is not submitted to mediation by the Parties) then either Party may, no later than 180 days after Claiming Party sent notice of the Dispute (“Repose Period”), request in writing to the other Party that the Dispute be resolved through binding arbitration. If either Party timely requests the Dispute be resolved through binding arbitration, the Dispute shall be adjudicated by a single arbitrator in Indianapolis, Indiana, in accordance with the commercial rules of the American Arbitration Association (“AAA”) then in effect. The Parties shall each select a AAA-certified arbitrator candidate in the Indianapolis area to be the arbitrator of the Dispute within 15 days of receipt of the request to submit the Dispute to arbitration. The arbitrator of the Dispute shall be selected randomly (by a method mutually agreeable to the Parties) from the candidates named by the Parties pursuant to the immediately preceding sentence (or if either Party fails to name a qualified candidate in time, the other Party’s candidate shall automatically be selected). The fees for the arbitrator of the Dispute shall be shared equally between the Parties, except as otherwise awarded by the arbitrator of the Dispute. The arbitrator shall have the authority to award reasonable attorneys’ fees and expenses to the Party the arbitrator names the Prevailing Party (as defined in the next sentence) in the Dispute, including fees and expenses incurred in the arbitration or in any litigation concerning the dispute, including but not limited to litigation to compel arbitration or stay court proceedings. “Prevailing Party” means a Party who receives substantially the award or the result that Party desired or is substantially more favorable to that Party at the final adjudication of the Dispute by the arbitrator of the Dispute. The Prevailing Party or the arbitrator (if applicable) may enter judgment on the arbitration award in any court having jurisdiction, if necessary, to enforce the arbitrator’s award in the Dispute.
d. Settlement and Judicial Proceedings
The Parties may agree in a writing executed between the Parties to settle any Dispute at any time prior to adjudication by the arbitrator of the Dispute and terminate any of the procedures set forth in this Section 12. The procedures specified in this Section 12 shall be the sole and exclusive procedures for the resolution of Disputes between the Parties arising out of or relating to this Agreement. Notwithstanding the immediately preceding sentence, a Party may seek a preliminary injunction or other preliminary judicial relief if in the reasonable judgment of that Party such action is necessary to avoid irreparable damage (including in the case of disclosure of that Party’s Confidential Information) and both Parties hereby agree to waive the right to jury trial related to any such permitted judicial proceedings. Despite the initiation of any such permitted judicial proceedings, the Parties will continue to participate in good faith in the procedures specified in this Section 12. Notwithstanding the time periods set forth in this Section 12, the Parties may not submit any Dispute to arbitration or any permitted litigation after the earlier of: (i) the end of the Repose Period or (iii) 300 days after the Party discovers or reasonably should have discovered the facts giving rise to a Dispute.
Termination by Xiber:
a. Disconnection and Termination with Notice
Xiber may terminate this Agreement or any or all Service Orders upon 30 days (“Cure Period”) prior written notice to the Customer for: (i) Customer’s breach of a noneconomic, material provision of this Agreement, which remains uncured at the end of the Cure Period (“Default”); (ii) Customer’s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver (also a Default); and/or (iii) any Regulatory Change pursuant to Section 9. If any Overdue Amount remains unpaid 30 days or more after the Due Date, Xiber may disconnect Customer’s access to the Services, in whole or in part (“Non-payment Disconnect”), upon giving Customer at least 2 business days prior written notice. If Customer fails to pay Xiber the Overdue Amount in full with Late Charges accrued within 2 business days after Xiber sends notice of the Non-payment Disconnect, then such failure is a Default and Xiber may terminate this Agreement or any or all Service Orders immediately upon notifying Customer.
b. Termination without Notice
Xiber may terminate any Services provided to Customer without prior notice to Customer, if: (i) reasonably necessary to protect Xiber’s Network or the operability of services to Xiber’s other customers, including, without limitation, during a Force Majeure Event or Customer’s violation of Subsection 13(b)(ii); (ii) Customer uses the Services in violation of any Applicable Law or the Acceptable Use Policy (which is a Default); or (iii) required by a Regulatory Change. If Xiber terminates Services pursuant to this Subsection 13(b), then Xiber shall promptly notify Customer of the reason for the termination in writing.
c. Post Termination/Disconnection
If Xiber terminates any Service or any Service Order pursuant to this Section 13, Customer shall continue to be obligated under the terms of any unterminated and unexpired Service Order and shall still be liable for any Service still being provided by Xiber under a Service Order in which Xiber has terminated one or more other Services. In the event Customer requests reconnection of any Service after a Non-payment Disconnection, Xiber may require, prior to reconnecting the Service(s), Customer to do any or all of the following: (i) pay any and all past due charges related to the Agreement (including Service Orders not related to the Non-payment Disconnection) along with accrued Late Charges, (ii) pay a reconnection charge of at least $100 up to Xiber’s then current installation fees for the Service(s) at the Premises, (iii) pay a deposit equal to 2 months’ MRCs for the reconnected Service(s), or (iv) place a valid credit card on file to which Customer has pre-authorized Xiber to automatically charge future charges due pursuant to this Agreement. In addition to the remedies set forth in this Agreement, Xiber shall have the right, but not the obligation, to pursue in a Dispute any legal remedies it may have under Applicable Law or principles of equity relating to an event of Default.
Termination by Customer:
Customer may terminate this Agreement and/or any Service Order hereunder upon 30 days prior written notice, without incurring Early Termination Liability pursuant to Section 15, for Xiber’s (i) breach of any material provision of this Agreement, including, without limitation, Subsection 8(e) or any Applicable Law that materially affects Customer’s use of the Service(s), which remains uncured at the end of the 30-day notice period or (ii) bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event (“Insolvency Proceeding”) that is not dismissed in Xiber’s favor within 90 days of the filing of the Insolvency Proceeding.
Termination Liability:
If Xiber terminates this Agreement or any Service Order(s) due to an event of Default (as indicated in Subsections 13(a) and (b)) or if Customer terminates this Agreement or any Service Order(s) for any reason other than as set forth in Section 14 above, Customer shall pay to Xiber all MRCs accrued related to the terminated Service(s) as of the date of termination plus the greater of: (x) $750 or (y) the remaining MRC’s associated with the terminated Service(s) for the balance of the applicable Service Term (“Early Termination Liability”). Customer shall pay the Early Termination Liability within 15 days of termination of this Agreement or any Service Order(s) as set forth in this Section 15 and Late Charges shall be applicable to any late payment of the Early Termination Liability. At the expiration or termination of this Agreement or the applicable Service Order(s) for any reason, Customer shall return the related CPE to Xiber in the condition the CPE was provided to Customer by Xiber minus normal wear and tear and Xiber may recover any or all other portions of the Xiber Network on the Premises (“Recovery”). Xiber or Xiber’s representative will contact Customer promptly upon expiration or termination of this Agreement or any Service Order to schedule a mutually acceptable time and date for Xiber’s Recovery. Alternatively, Xiber may request that Customer package up and return Xiber’s Network equipment, at Xiber’s cost, to a location identified by Xiber. If Xiber contacts the Customer requesting Recovery and Customer fails to return or provide access to recover the CPE or any other part of the Xiber Network within 15 days of the Xiber’s request for Recovery, Customer shall pay Xiber the fair market value (“FMV”) of the unrecovered CPE and parts of the Xiber Network plus an administrative fee of the greater of $50 or 15% of the FMV of the unrecovered CPE and parts of the Xiber Network (which cost may be deducted from any deposit held by Xiber or charged to any credit card Customer has put on file with Xiber pursuant to Section 6).
Assignment:
Neither Party may assign this Agreement without the prior written consent of the other Party, which such consent shall not to be unreasonably conditioned, withheld, conditioned or delayed, except that: (1) Xiber may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c) for purposes of financing; and (2) Customer may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (i) the proposed assignee satisfies Xiber’s reasonable credit and deposit standards; (ii) Customer has fully paid for all Services through the date of assignment; and (iii) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
Entire Agreement:
This Agreement together with the Service Order(s) set forth the entire agreement with respect to the subject matter of this Agreement, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the Service Order shall prevail over this Agreement and any Applicable Law that conflicts with either shall prevail over both the Service Order and this Agreement. Modifications, amendments, supplements to, or waivers of, this Agreement must be in writing and executed by both Parties.
Force Majeure:
Either Party (“Delayed Party”) shall be excused from any performance due under this Agreement, except for Customer’s obligation to pay any monetary amounts pursuant to this Agreement, if inability to perform is due to a cause or causes beyond such Party’s reasonable control, including, without limitation, acts of God, fire, explosion, vandalism, acts of terrorism, cable cuts caused by a third party, weather conditions affecting the safety of the performance, labor strikes, and governmental action (each a “Force Majeure Event”). The Party claiming relief under this Section 18 shall notify the other Party in writing of the existence of the Force Majeure Event and of the cessation of such Force Majeure Event. The Delayed Party shall use all commercially reasonable efforts to resume performance as soon as is practicable after the cessation of the Force majeure Event. If the Delayed Party’s inability to perform due to the Force Majeure Event continues for 90 days or longer, the other Party may terminate the affected Services without further obligation to the other Party, including, without limitation, that no Early Termination Liability shall be due.
Governing Law:
The interpretation of the rights and duties of the Parties and any Claim arising under or related to this Agreement shall be governed by and subject to the laws of the State of Indiana, excluding its principles of conflicts of law, as if both parties had entered into this Agreement, and all Services provided pursuant to this Agreement are being delivered wholly, in the State of Indiana.
Headings:
Headings and section numbers herein are for convenience and reference only and are not intended to have substantive significance in interpreting this Agreement.
Notices:
Any notice required or allowed to be in writing under this Agreement is valid and effective as of delivery if sent, in writing, by either (i) electronic mail, (ii) by overnight courier with courier delivery confirmation or registered or certified mail with delivery confirmed by return receipt, or (iii) by first-class US mail, to the following:
Notices to Customer shall be sent by Xiber to Customer’s e-mail address or the Premises mailing address reported to and on file with Xiber.
Notices to Xiber shall be sent to the addresses and methods specified in Sections 7 and Section 8 and a copy of all notices related to any Claim or Dispute shall be sent to:
Xiber, LLC
1429 Chase Court Carmel
Indianapolis, IN 46032
Attention: General Counsel
E-mail: legal@xiber.net
Delivery of written notice by electronic mail is deemed to be the sooner of 24 hours after being sent by a Party or upon acknowledgement by the recipient Party by return electronic mail. Any notice sent by electronic mail that is returned as undeliverable by the recipient Party’s electronic mail system is deemed not delivered to the other Party and must be re-sent by one of the other methods allowed in this Section 21. Delivery of written notice by first-class US mail is deemed to be 3 days after being deposited by the sending Party in the US mail system. A Party may require that written notices under this Agreement be sent to such other address(es) and person(s) as the party may designate to the other in writing, if the request is given or served in the manner specified in this Section 21.
No Waiver:
Either Party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
Public Releases, Use of Name: Neither Party may issue a news release, public announcement, advertisement or other form of publicity regarding this Agreement or the Services provided hereunder without the prior written consent of the other Party. Customer may not use Xiber’s name, logo or service mark without Xiber’s prior written consent. Xiber may use Customer’s name and logo in materials presented only to investment analysts and potential or existing investors.
Representations and Warranties:
a. Authorization
Each Party (“Representing Party”) represents and warrants that the Representing Party, and the person signing on Representing Party’s behalf, is fully authorized to enter into this Agreement and that no additional proceeding on Representing Party’s part is necessary to authorize the execution and delivery of this Agreement.
b. Equipment Warranty
Xiber shall replace during the term of this Agreement, at no cost to Customer, any CPE or part of the Xiber Network that becomes non-operational to deliver the Services for any reason other than (i) misuse (which includes, without, limitation violation of the Acceptable Use Policy or Applicable Law) by Customer or a guest or end-user of Customer or (ii) physical or software damage caused Customer, a guest or end-user of Customer, or Customer’s equipment connected to the Xiber Network. If the replacement of any CPE or part of the Xiber Network by Xiber is due to one of the causes described in the immediately preceding sentence, then Customer shall pay Xiber the fair market value of the affected CPE or part of the Xiber Network plus an administrative fee of the greater of $50 or 15% of the cost of the CPE or part of the Xiber Network (which cost may be deducted from any deposit held by Xiber).
c. Non-infringement
Xiber represents and warrants to Customer that, to the best of Xiber’s knowledge upon completion of installation of the Xiber Network, the Xiber Network will not infringe or otherwise violate any patent, copyright, trade secret, trademark or other intellectual property right of any third party (each violation, an “Infringement”). The warranty in the immediately preceding sentence will be void with respect to any Infringement attributable to: (a) the modification or alteration of the Xiber Network made without the prior written consent of Xiber or by any person other than Xiber or Xiber’s authorized agent; (b) the failure of Customer to use bug-fixes, error corrections, or enhancements as reasonably required in writing by Xiber in Customer’s equipment connected to the Xiber Network; or (c) misuse (which includes, without, limitation violation of the Acceptable Use Policy or Applicable Law) by Customer or a guest or end-user of Customer. Customer shall not use the Services or the Xiber Network in any way that is an Infringement. If Xiber receives notice from a third-party of an alleged Infringement by Customer (or one of Customer’s guests or end-users) over the Xiber Network (“Infringement Notice”), including, without limitation, a Digital Millennium Copyright Act (“DMCA”) takedown notice, Xiber may take any action (“Takedown Response”) against Customer or Customer’s use of the Xiber Network reasonably necessary to comply with the Applicable Law related to the Infringement Notice or reasonably necessary to protect Xiber from liability related to infringement Notice, including, without limitation, blocking Customer’s access to all or part of the Services related to the alleged Infringement or removing any content specified in the Infringement Notice from the Xiber Network. Xiber is not in breach of this Agreement by performing a reasonable Takedown Response and Customer shall not be eligible for any Credits or any other damages or rights of termination under this Agreement due to Xiber’s Takedown Response, unless Xiber is found to have acted unreasonably at the final adjudication or settlement of a Dispute.
d. Service Warranty
Any warranties for any Service are contained in the SLA and the exclusive remedies related to the SLA are stated in Section 8 of this Agreement (“Service Warranties”). The Service Warranties do not apply to any Services delivered to Customer through a third-party subcontractor by Xiber. Xiber shall pass through to Customer (only) any warranties provided by a third-party subcontractor for any Services delivered to Owner through such third-party subcontractor by Xiber.
e. Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN OR INCORPORATED BY REFERENCE INTO THIS SECTION 24, XIBER MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES IN REGARDS TO THE SERVICES OR THE XIBER NETWORK, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND XIBER SPECIFICALLY DISCLAIMS AND BOTH PARTIES ACKNOWLEDGE THE WAIVER AND INVALIDITY OF ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
Severability:
If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties’ original intent.
Survival:
The terms and conditions of this Agreement that expressly require performance or payment or allow certain actions by the Parties after the expiration or termination of this Agreement or any Service Order shall survive for the periods specified or implied in this Agreement or the related Service Order (or both, if applicable).
Relationship of Parties; No Third-Party Beneficiaries: The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of the Parties, and the Parties’ permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
Confidentiality:
a. Definition
“Confidential Information” is information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that is marked as confidential or would normally under the circumstances be considered confidential information of the Disclosing Party, including, without limitation, trade secrets, business methods, personally identifiable information of Disclosing Party or Disclosing Party’s employees or contractors, pricing and terms of this Agreement, non-public financial information, methods and equipment used in the installation of the Services, and other non-public information shared between the Parties.
b. Non-disclosure
Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the Parties, the Receiving Party agrees that it shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided for in this Agreement any Confidential Information of the Disclosing Party, except to its employees or consultants to whom it is reasonably necessary to disclose the Confidential Information in order to perform its obligations under this Agreement. The Receiving Party will take reasonable measures to maintain the confidentiality of the Disclosing Party’s Confidential Information, but not less than the measures the Receiving Party uses for protection of Receiving Party’s own Confidential Information.
c. Exceptions
Receiving Party shall not be in Breach of the terms of this Section 28 for a disclosure or other non-permitted use of Confidential Information in which the Receiving Party can reasonably demonstrate by competent evidence that the Confidential Information in question:
i. was already known to or in the possession of the Receiving Party at the time of disclosure;
ii. is, or becomes, publicly known, through no violation of any confidentiality obligation between the Parties;
iii. was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information;
iv. was rightfully obtained by the Receiving Party from a third-party authorized to make such disclosure without restriction;
v. is identified in writing by the Disclosing Party as no longer proprietary or confidential; or
vi. must be disclosed pursuant to a Compelled Disclosure, as defined in and subject to the terms and provisions of Subsection
d. Compelled Disclosure
If Receiving Party receives a request or order (including, without limitation, oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information pursuant to any Applicable Law or court order (“Compelled Disclosure”), the Receiving Party shall provide the Disclosing Party with prompt notice of the Compelled Disclosure, so that the Disclosing Party may seek an appropriate protective order blocking the Compelled Disclosure or provide written consent to the Receiving Party to comply with the Compelled Disclosure. If the Disclosing Party fails to seek or obtain a protective order against the Compelled Disclosure and does not provide consent to the Compelled Disclosure prior to the Compelled Disclosure being due, and the Receiving Party must, in the written opinion of Receiving Party’s counsel, disclose the Confidential Information pursuant to the Compelled Disclosure under threat of liability for contempt or other censure or penalty (“Liability”), then the Receiving Party may disclose the Confidential Information only to the extent necessary to comply with the Compelled Disclosure and avoid the Liability.
e. RETURN OF CONFIDENTIAL INFORMATION
The Receiving Party shall return to the Disclosing Party or destroy such Confidential Information (except to the extent necessary to comply with obligations under Applicable Law or that the Receiving Party believes cannot be reasonably destroyed, as in the case of automated record-keeping or other retention systems) upon the written request of the Disclosing Party. The Receiving Party agrees that Breach of this Section 28 may cause the Disclosing Party irreparable damage for which recovery of money damages would be inadequate. The Disclosing Party is, therefore, entitled to obtain timely injunctive relief to protect the Disclosing Party’s rights under this Section 28. The provisions of this Section 28 shall survive the expiration or early termination of this Agreement for a period ending on the earlier of: 2 years after the expiration or early termination of this Agreement or such time as the Confidential Information becomes publicly known and made generally available through no action or inaction of the Receiving Party.
Modifications of Agreement:
Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be made by written amendment or addendum to this Agreement signed by the Parties. No oral modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement will be permitted. Notwithstanding the anything to the contrary in this Section 29, a Cancellation, Modification, Relocation, or Expedite request made by Customer in writing pursuant to Section 3 must be accepted by Xiber in writing (including electronic mail) but is not required to be put into an amendment or addendum to the Service Order signed by both parties and shall become part of the related Service Order upon acceptance in writing by Xiber.
Counterparts:
This Agreement may be executed (on the Service Order form) in 1 or more counterparts, all of which taken together shall constitute 1 and the same instrument.
Business customers
Terms & Conditions of Service
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