Business Terms and Conditions (Treasure Coast
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BUSINESS SERVICES TERMS AND CONDITIONS (“BST&C”)– TREASURE COAST AREA
ITS Fiber, LLC dba Blue Stream Fiber directly and through its affiliates (collectively, “Blue Stream Fiber”), offers business customers a range of services (each a “Service” and collectively the “Services”) pursuant to these BST&C including:
A. Cloud Voice Services
B. Internet Services
C. Ethernet Services
D. IT Services
E. Data Center Services
1. GENERAL PROVISIONS
1.1 The BST&C, together with any Addenda, Exhibits, and Schedules (attached now or at a later date) incorporate the provisions, including pricing, of the Blue Stream Fiber Service Order & Master Service Agreement (“SO&MSA”). Customer acknowledges that each SO&MSA, together with the BST&C, make up the agreement under which Blue Stream Fiber will provide the purchased Services to Customer and shall be collectively referred to hereafter as the “Agreement.” Customer has read and understands the SO&MSA, Addenda, Exhibits, Schedules, and BST&C and agrees to be bound thereby. Customer has had the opportunity to perform all technical and administrative due diligence and requires no further investigation or information prior to entering into this Agreement. This Agreement shall be effective upon execution of the SO&MSA, (“Effective Date”). However, the monthly billing and service term begins on the date Customer’s signature is obtained on a Blue Stream Fiber Delivery and Acceptance Agreement (“D&A”). Service rates are defined in the SO&MSA. Additional Blue Stream Fiber Service Orders are necessary to change or add to the initial Services. Each subsequent Blue Stream Fiber Service Order will be added to this Agreement. Pricing excludes state and federal taxes, regulatory fees, and surcharges. In case of a conflict between the BST&C and any SO&MSA, the SO&MSA prevails.
1.2 Blue Stream Fiber has the right to cancel the Agreement within 45 days after the Effective Date, in the event that Blue Stream Fiber determines that Service cannot be provided economically to Customer or for technical reasons. Technical reasons may include but are not limited to: a technically acceptable transmission facility to Customer’s premises is unavailable; inadequate bandwidth capacity to provide the Service; unable to achieve acceptable transmission speeds after technical due diligence has been performed by Blue Stream Fiber; or Customer’s premises are located an excessive distance from Blue Stream Fiber’s facilities.
2. RATES AND CHARGES
2.1 The rates and charges, including both recurring and non-recurring charges, for the individual Services that comprise the complete package of Services ordered by the Customer are found in the SO&MSA.
2.2 Monthly recurring charges are billed one month in advance and are due and payable for the term of this Agreement, or until all Services are completely disconnected pursuant to Blue Stream Fiber’s normal disconnection process, whichever event occurs first. Disconnection of any portion of the Services ordered by the Customer during the term will constitute a cancellation of Services, for which a Cancellation Fee will apply (see Section 6 below).
2.3 All non-recurring charges resulting from this Agreement are due and payable prior to the Effective Date unless otherwise noted in the SO&MSA.
3. TERM, FEES AND TAXES
3.1 TERM AND RENEWAL
3.1.1 The Initial Term of the SO&MSA is specified in the SO&MSA. The Initial Term begins on the day Customer starts to be billed for recurring services or products as noted in the D&A, which shall be considered an addendum to the Agreement. After the expiration of the Initial Term (the “Term”), the SO&MSA shall automatically be renewed for successive one-year periods unless terminated by either party, as provided herein, or unless a new contract is signed. Termination by either party shall require ninety (90) days written notice prior to the expiration of any term.
3.1.2 Unless otherwise noted in the SO&MSA, the pricing of Services and products for the renewal period will automatically increase each year by the higher of three (3) percent or the percent change in the Consumer Price Index, as published in the Wall Street Journal, on the date of the renewal.
3.1.3 If either party wishes to modify the terms of the SO&MSA for any reason, it must provide a minimum of thirty (30) days advance written notice of the intended modification(s) to the other party. The terms of the SO&MSA may only be modified upon mutual agreement between Blue Stream Fiber and Customer.
3.2 FEES AND PAYMENT SCHEDULE
3.2.1 All recurring charges for Services and products as set forth in the SO&MSA or subsequent change orders will be invoiced by Blue Stream Fiber on a monthly basis in advance, except for charges that are dependent upon the level of usage, which will be billed a month in arrears. Rates are fixed for the Term unless otherwise noted on the SO&MSA but may be increased at Blue Stream Fiber’s absolute discretion before any renewal term, with thirty (30) days written notice. Invoicing for partial months will be prorated based on a calendar month and non-recurring fees will be invoiced the next billing cycle after the new Effective Date.
3.2.2 All invoices are due upon receipt and will be considered past due for late payment fee purposes thirty (30) days later if the balance due is not paid. All payments for Services and products shall be paid in US dollars. Any payment not
made when due may result in a temporary suspension of Service for non-payment and a late payment fee will apply. Reconnection fees will also apply. In regard to Co-Location Data Center Services, Blue Stream Fiber reserves the right to limit or restrict the Customer’s access to the facility, Customer owned equipment and Customer data hosted within the facility if balances are due. The Customer will be notified of any such restriction
3.2.3 Customer is liable for any attorneys’ fees or other costs associated with collecting late payments. Customer is responsible for payment of all sales, use, gross receipts, excise, access, franchise or other local, state and federal taxes, fees, charges or surcharges, however designated, imposed on or based upon the provision, sale or use of the Services and products provided. Customer shall incur a dishonored check or insufficient funds fee equal to $25.00, in addition to any fees charged by a bank, for each check, draft, order, ACH or like instrument which is returned unpaid.
3.2.4 Disagreements with invoices must be registered in writing within thirty (30) days of the invoice date and the undisputed portion must be paid in full. Disputes registered after thirty (30) days must pay in full the entire invoiced amount. Customer waives the right to dispute an invoice amount after sixty (60) days past the invoice date. Disputed amounts resolved in favor of the Customer will be credited to their account. Disputed amounts resolved in favor of Blue Stream Fiber are due and payable within ten (10) days of dispute resolution.
3.2.5 Cost Increases. In the event of any change in applicable law, regulation, rule or order, or any other change that materially increases the costs or other terms of delivery of products and services under the SO&MSA, Blue Stream Fiber and Customer agree to negotiate the rates to be charged due to the increased cost. If the parties are unable to reach agreement respecting new rates within thirty (30) days after Blue Stream Fiber’s delivery of written notice requesting negotiation, then Blue Stream Fiber may pass such increased costs through to the Customer. The Customer may then terminate the specific product or service in question, or all services, without termination penalty, so long as written notice is given within sixty (60) days of the first invoice reflecting the pass-through of such increased costs.
3.3.1 Customer agrees to pay or reimburse Blue Stream Fiber for all taxes, assessments, surcharges and other governmental charges, as applicable and when due, in connection with the Services provided hereunder.
3.3.2 Customer shall provide notice to Blue Stream Fiber of its own tax-exempt status, if applicable. It is Customer’s sole responsibility to ascertain, and to demonstrate to Blue Stream Fiber, whether any tax deduction is applicable for taxes incurred under this agreement. Customer is responsible to notify Blue Stream Fiber of any changes in its tax-exempt status.
3.4 AUTHORIZED CONTACT PERSONS (ACP). Customer shall designate in writing a primary point of contact and one or more other individuals as Authorized Contact Person(s) (ACP), for this Agreement to execute, without signature, such things as orders for interconnections, billing and account changes or requests for technical assistance services. The initial ACP(s) will be noted in the SO&MSA. Updates to the ACP list should be sent to the Blue Stream Fiber Account Executive.
4. WARRANTIES AND LIMITATIONS OF LIABILITY
4.1 EXCEPT AS MAY OTHERWISE BE SET FORTH IN THESE BST&C, BLUE STREAM FIBER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND ANY WARRANTIES ARISING IN CONSEQUENCE OF COURSE OF DEALING, USAGE OR TRADE PRACTICE.
4.2 Except for personal injury caused by Blue Stream Fiber’s gross negligence or willful misconduct, the entire liability of Blue Stream Fiber of whatever nature arising out of the furnishing of, or the failure to furnish, products or services described in the SO&MSA, including but not limited to mistakes, omissions, interruptions, delays, tortuous conduct, representations, errors, or other defects, whether caused by acts of commission or omission, shall be limited to an amount equal to the price of products and services purchased by Customer during the twelve (12) month period preceding the event which caused the damages or injury. Customer has reviewed and is familiar with the physical and data security provided by Blue Stream Fiber.
In no event shall Blue Stream Fiber be liable for unauthorized non-physical access, such as hacking, regardless of the nature of the exploit, to Customer’s transmission facilities or Customer’s equipment, or for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure or information through accident, fraudulent means or device, or any other method. Upon 60 days’ notice Blue Stream Fiber may request and Customer shall conduct a vulnerability assessment (penetration test) of Customers systems. Customer shall take all action needed to secure their systems from unauthorized penetration.
4.3 Notwithstanding any other provision hereof, Blue Stream Fiber shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including but not limited to damages for lost profits or lost revenues), whether or not caused by the acts or omissions or negligence of its employees or agents, and regardless of whether such party has been informed of the possibility or likelihood of such damages.
4.4 SERVICE OUTAGES. Customer is responsible for reporting any service outages or degradation to Blue Stream Fiber by calling the Blue Stream Fiber Support line, 855-503-3028 or 772-597-3423 which is available 24/7/365. Unless otherwise noted in the SO&MSA, Blue Stream Fiber will respond as quickly as possible in the event of a service outage which is caused by the Blue Stream Fiber network and which is not a Force Majeure event as described in Section 5 below.
4.5 CLAIMS. No action or proceeding against Blue Stream Fiber or its affiliates may be commenced more than twenty-four months (24) after the claim arises. A claim shall be considered ripe under this provision when the Customer upon consideration of all facts can reasonably anticipate the need for dispute resolution proceedings.
4.6.1 Each party shall indemnify, defend and hold harmless the other party against any claim, loss, damage, expense or liability (including reasonable attorney’s fees and court costs (collectively, “Claims”) to the extent that such Claims are proximately caused by the gross negligence or willful misconduct of the indemnifying party, its employees, agents or contractors. This includes, but is not limited to, Claims in anyway arising from or related to:
- Damage to tangible personal property or personal injury; and
- Infringement of patent, trademark, design, copyright or any other intellectual property rights in relation to the SO&MSA and use or inclusion of any information, photographs, art work or other content (including without limitation claims based on invasion of privacy, right of publicity, the Communications Decency Act of 1996, obscenity or pornography, and the violation of any statutes or ordinances or other laws).
4.6.2 This indemnification provision is limited. The indemnifying party’s liability shall not exceed the lesser of the indemnifying party’s insurance coverage for such claims or the indemnified party’s deductible for such claims. Each party is expressly responsible for its selection of insurance coverages and if no coverage is in place but was available to the damaged party, no liability may be imposed on the indemnifying party. There are no intended third-party beneficiaries to this provision nor shall anyone be entitled to be subrogated to the rights or remedies provided by this provision. This Section 4.6 shall survive any termination of the SO&MSA.
4.6.3 Neither party’s indemnification obligations hereunder shall be applicable to any damages to the extent caused by, arising out of or in connection with, the negligence, intentional acts or omissions or willful misconduct of the Indemnified Party, including its employees, agents and contractors.
5. FORCE MAJEURE. Blue Stream Fiber shall not be liable for any failed, diminished or delayed performance where such is the result of force majeure, interference by or inaction on behalf of third parties. If any tribunal or individual is called upon to interpret this provision it is the Parties’ intention that the exculpatory language be given the broadest possible scope – with the intended purpose of reducing liability or litigation and continuing the enforceability of the Agreement.
Either party may terminate its obligations under this Agreement if ordered to do so by the final order or ruling of a court or other governmental agency, or if such order or ruling would make it impossible for either party to carry out its obligations under this Agreement, or if the action of a governmental agency requires modification of the Services provided hereunder so as to impair such Services.
6. CANCELLATION OR REDUCTION OF SERVICES AND CANCELLATION FEE
6.1 If Customer chooses to elect a term commitment to receive discounts and terminates their service(s) prior to the end of the term for any reason other than pursuant to Section 8.1, then Customer will be billed an early termination penalty (“Cancellation Fee”). The Cancellation Fee shall be equal to the number of months remaining in the term multiplied by the monthly recurring charge, plus a $200 handling fee. This Cancellation Fee shall be billed following the termination of Services with Blue Stream Fiber. In the event Customer relocates their place of business and Blue Stream Fiber is able to provide Services at Customer’s new location, the Cancellation Fee will not apply if Customer utilizes Blue Stream Fiber’s Services at the new location; however, appropriate Installation and Service charges will apply.
6.2 At Blue Stream Fiber’s sole discretion, the Cancellation Fee may be prorated or reduced in accordance with a partial cancellation or reduction of Services. A reduction in services during the contract period will be treated as a line-item cancellation and the terms of this Section will apply to the line-item reduction.
7. CASUALTY OR EMINENT DOMAIN. In the event of taking by eminent domain or damage by fire or other casualty to the facility, Customer shall acquiesce and be bound by any action taken by Blue Stream Fiber, Customer shall have no rights to intervene or otherwise engage in the process of determining values or compensation.
8. TERMINATION OF AGREEMENT
8.1 In addition to termination pursuant to Section 1.2, this Agreement shall terminate as provided in this Section 8. If either party (the “Offending Party”) shall (i) apply for, consent to or suffer the appointment of a receiver, trustee, custodian or liquidator of all or any substantial part of its assets, or (ii) make a general assignment for the benefit of creditors, or (iii) file a petition or answer seeking, or admitting or shall otherwise take advantage of bankruptcy, reorganization or other relief under applicable bankruptcy law, then such action shall be considered to be an “Event of Default” by said Offending Party; or (iv) breach one or more of its obligations hereunder without correcting the same within thirty (30) days of written notice from the other party specifying the nature thereof, however, that where such failure cannot reasonably be cured within such 30-day period, if the defaulting party shall proceed promptly to cure the same and prosecute such cure with due diligence, the time for curing such breach shall be extended for such a period of time as may be necessary to complete such curing up to a maximum cure period of sixty (60) days. There is no cure period for breach of license, ownership rights, confidentiality or unauthorized use.
8.2 Upon an Event of Default, the other party (the “Offended Party”) may thereupon terminate this Agreement by giving the Offending Party thirty (30) days written notice of termination. Upon an Event of Default, each party shall have all remedies available to it under this Agreement, at law or in equity, and all such remedies shall be cumulative. Notwithstanding any other provision of this Agreement, Blue Stream Fiber may terminate this Agreement upon ten (10) days prior written notice if the Customer fails or refuses to pay Blue Stream Fiber in accordance with the provisions of this Agreement, violates any law, rule, regulation or policy of any governmental authority, or makes a material misrepresentation in any information provided to Blue Stream Fiber. Upon termination of this Agreement for any reason, Blue Stream Fiber shall be entitled to all payments due from Customer under this Agreement and the return of any equipment, hardware and software owned by Blue Stream Fiber, including Customer Premises Equipment (CPE) that is in the possession or control of Customer at the time of termination. If Customer fails to return such equipment, hardware and software, Customer shall incur the obligation to pay the replacement value of all unreturned equipment, hardware and software. Termination of this Agreement shall not relieve Customer of any unfulfilled obligations created hereunder, unless agreed to in writing by Blue Stream Fiber. Upon Termination, Blue Stream Fiber may suspend Customer’s access to its equipment and data until all balances are paid in full.
8.3.Upon termination for any reason, Blue Stream Fiber will return all property to Customer or, at Customer’s written request, provide transition services to another provider at the standard rates of Blue Stream Fiber, plus expenses, payable in advance, provided, however that Customer’s amount due to Blue Stream Fiber is paid in full.
9. SEVERABILITY. In the event any provision contained in this Agreement is for any reason held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be then construed as if such an unenforceable provision or provisions had never been included in this Agreement.
10. WAIVER. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.
11. ASSIGNMENT. Neither party may assign the SO&MSA in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Blue Stream Fiber may assign the SO&MSA to an affiliate or division so long as Blue Stream Fiber exercises management control over or owns a controlling interest in or is under common control with such affiliate or division. In addition, both Blue Stream Fiber and Customer have the unrestricted right to assign its rights and obligations under the SO&MSA to any individual, corporation or other business entity which acquires all or substantially all of its shares or assets, and upon such assignment, the assigning party shall be released of all its obligations under the SO&MSA arising from and after the date of such assignment, provided that any such assignee entity delivers to the other party a signed writing evidencing its agreement to be bound by the terms and conditions of the SO&MSA. The SO&MSA will bind and inure to the benefit of the parties and their respective permitted successors and assigns only. Customer’s assignment shall be conditioned upon: account is in good standing; all non-monetary obligations have been fulfilled; payment of the administrative costs, and completion of new corporate documentation re: contacts, solvency affidavit, employee security and venue for any cause of action.
Blue Stream Fiber may assign or pledge proceeds to be derived from this Agreement to the extent that there are no modifications to or transfer of Blue Stream Fiber’s obligations hereunder.
12. APPLICABLE LAW & COMPLIANCE
12.1 This Agreement shall be governed and interpreted according to the laws of the State of Florida without application of its conflict of laws provisions.
12.2 Each party agrees to comply with all laws, rules and regulations applicable to the performance of its obligations hereunder. Without limiting the generality of the foregoing, the Customer will have responsibility for ensuring that, except in respect to work performed hereunder by Blue Stream Fiber, or Blue Stream Fiber subcontractors or agents, the premises meet all applicable codes or other laws. Customer agrees to promptly correct any noncompliance with applicable codes and other laws if such noncompliance in any way prevents Blue Stream Fiber from performing under this Agreement. This Agreement is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Rules and Regulations of the FCC, Blue Stream Fiber’s applicable tariffs and price lists, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body.
13. SERVICE CHANGES AND FAILURE
13.1 In the event that Customer makes changes so as to require Blue Stream Fiber to make modifications to the services or equipment that it is providing to the Customer, then Customer shall pay all costs and expenses charged by Blue Stream Fiber for such additions, moves, changes or redesigns. In the event that Customer desires to change the in-service date on a service request after acceptance by Blue Stream Fiber, Customer may change the in-service date, at no charge, no less than five (5) business days prior to the in-service date unless otherwise noted in the SO&MSA. In the event Customer desires to change the in-service date on less than five (5) business days’ notice, or in the event that Customer changes the in-service date more than once, Customer shall pay a charge of $100.00 plus any costs incurred by Blue Stream Fiber as a result of the Customer’s change of the in-service date.
13.2 In the event that Service fails (i) as a result of Customer-provided facilities, wiring, equipment, or Customer employee operating error; (ii) due to insufficient internet bandwidth provided by another provider; (iii) due to equipment or wiring that has been subjected to Customer’s, or any other third party’s tampering, misuse, neglect, accident, unauthorized modification, or to uses in violation of instructions furnished by the manufacturer; (iv) due to equipment in which the serial number has been removed or altered; (v) due to any other failure caused by the Customer, its agents, vendors, or other related parties; or (vi) due to the failure of the Customer to provide any access or information needed by Blue Stream Fiber to perform its obligations under this Agreement; then Blue Stream Fiber shall have no liability to Customer for such failure of telecommunications.
14. CUSTOMER’S RESPONSIBILITIES
14.1. Customer, at Customer’s own expense, shall be responsible for all charges relating in any way to the provision of Blue Stream Fiber products or Services, including, without limitation, charges arising from misuse, abuse or fraudulent access to the Blue Stream Fiber products or Services. Customer shall not use or permit any use of the Blue Stream Fiber products or Services which is illegal, unlawful, or harassing. Customer must maintain reasonable security procedures and standards with respect to Customer’s equipment that interfaces with the Blue Stream Fiber products or Services. Equipment provided by Blue Stream Fiber that is the property of Blue Stream Fiber must be returned promptly in the event of termination of Blue Stream Fiber Services. Termination is not final until all Blue Stream Fiber equipment is returned and Customer has removed all Customer’s equipment from the Blue Stream Fiber facility. Charges shall continue to accrue until such time as termination is complete. Customer must provide Blue Stream Fiber with thirty (30) days written notification of any move(s) requiring Blue Stream Fiber equipment relocation. Customer hereby agrees to indemnify Blue Stream Fiber and its affiliates against any liabilities incurred by them to any third party as a result of the Customer’s use of the Blue Stream Fiber products or Services. In the event Customer notifies Blue Stream Fiber of suspected product or service failure, which constitutes Blue Stream Fiber providing a service call to Customer’s premises, with the ensuing results being determined as not related to Blue Stream Fiber’s products or Services, Blue Stream Fiber shall at its discretion render invoiced charges to Customer pursuant to applicable standard rates.
14.2 Customer will provide Blue Stream Fiber with reasonable access to its premises in order to install, maintain, and repair the Blue Stream Fiber products or Services and Customer shall authorize any other employee or its designated agent to grant access to Customer’s premises for these purposes. Customer understands and agrees that Blue Stream Fiber may drill, cut, and otherwise alter improvements on the premises. If Customer does not own its premises, Customer warrants that Customer has obtained permission from any necessary party, including but not limited to the owner, landlord, or building manager, to make the alterations that Blue Stream Fiber deems appropriate. Customer acknowledges that Blue Stream Fiber may, following notice, use existing wiring, including altering the wiring and removing accessories, located within Customer’s premises.
15. INDEPENDENT CONTRACTOR STATUS
15.1 Blue Stream Fiber is engaged in an independent business and will perform all other obligations under this Agreement as an independent contractor and not as the agent or employee of the Customer. Blue Stream Fiber’s personnel shall be considered solely the employees of Blue Stream Fiber and not employees or agents of the Customer. Blue Stream Fiber has and retains the right to exercise full control of and supervision over the performance of the services it provides and full control over the employment, direction, assignment, compensation, and discharge of all of its personnel performing services and full control of and supervision of its contractors. Blue Stream Fiber is solely responsible for all matters relating to the compensation and benefits for all of Blue Stream Fiber’s personnel. Blue Stream Fiber and Customer agree to the following rights consistent with an independent contractor relationship:
- Blue Stream Fiber has the right to perform services for others during the term of this contract.
- Blue Stream Fiber has the sole right to control and direct the means, manner and method by which the services required by this contract will be performed.
- Blue Stream Fiber has the right to hire assistants as sub-contractors, or to use employees to provide the services required by this Agreement.
- Blue Stream Fiber or its employees or sub-contractors shall perform the services required by this contract.
- Blue Stream Fiber shall allocate and shall have full control of the personnel and schedule required to fulfill the Services provided to Customer under this Agreement.
15.2 CUSTOMER WILL NOT ATTEMPT TO HIRE BLUE STREAM FIBER’S EMPLOYEES. If during the term of, or within twelve (12) months after the termination of this Agreement, the Customer hires directly, or indirectly contracts with any of Blue Stream Fiber’s employees for the performance of services similar to those provided by Blue Stream Fiber under this Agreement, CUSTOMER AGREES TO PAY BLUE STREAM FIBER EITHER ONE YEAR OF THE SALARY BLUE STREAM FIBER PAID TO THE EMPLOYEE OR THE AMOUNT PAID TO THE EMPLOYEE BY THE CUSTOMER FOR ONE YEAR, INCLUDING BONUSES, REGARDLESS OF HOW THE COMPENSATION IS STRUCTURED, WHICHEVER IS HIGHER.
16. RESOLVING DISPUTES
16.1 In the event of any dispute arising in connection with this Agreement, the parties shall use good faith efforts to arrive at an agreeable resolution through discussions. Discussions shall be conducted by individuals who have the absolute authority to resolve the dispute within their respective organizations. The party initiating the dispute shall provide written notice to the other party of such dispute. The Notice shall set forth in detail each element of the dispute, shall specifically reference documents or agreements relied upon in asserting the dispute and the remedy requested. Any matter not specified in the Notice shall be deemed waived for purposes of the negotiated discussions contemplated by this provision.
16.2 The parties shall negotiate in good faith for a period of thirty (30) days after the non-initiating party has received such notice of dispute.
16.3 If after such period the parties are unable to agree upon a resolution, then either party may initiate mediation in accordance with the procedures set forth in Section 16.4.
16.4.1 In the event the dispute between the parties cannot be resolved by good faith negotiations, the parties agree to participate in non-binding mediation.
16.4.2 A mediator Certified by the Florida Supreme Court will be selected by having counsel for each party agree on a single person to act as mediator. If counsel are unable to agree on a mediator, the mediator shall be selected by Blue Stream Fiber. The parties’ counsel, as well as officers of each party, and not more than two other participants from each party will appear before the mediator at a time and place determined by the mediator, but not more than sixty (60) days after the end of the good faith negotiating period.
16.4.3 The fees of the mediator and other costs of mediation will be shared equally by the parties.
16.5 BINDING ARBITRATION. In the event that a dispute is not resolved through negotiation or non-binding mediation, the parties may opt to pursue binding arbitration pursuant to the provisions of FL. STAT §§ 44.1011 – 44.406. In addition to the Standards for Arbitrators set forth in Chapter 44, the arbitrator must have adequate technical expertise in the disciplines covered by this agreement to qualify in those disciplines as an expert in judicial proceedings. If the parties are unable to agree upon an arbitrator, the arbitrator shall be selected by Blue Stream Fiber. In the event either party fails or refuses to submit to arbitration, this provision may be enforced and compelled in a judicial proceeding. The arbitrator is specifically agreed to have the authority to award fees and costs.
16.6.1 If, within two (2) years following notice of a dispute, the dispute is not resolved via non-binding mediation and the parties have opted not to pursue binding arbitration, the parties may resort to litigation in a court of competent jurisdiction located in Martin County, Florida, or in the Federal Court for the Southern District of Florida venued in St. Lucie County, Florida
16.6.2 The non-prevailing party in any binding dispute resolution proceeding or court proceeding will pay for costs and for the other party’s reasonable attorney fees. In Mediation, the Mediator may consider and award fees and allocate costs. If the case is brought in Federal Court, the recoverable costs shall be those permitted under Florida’s state guidelines.
17. CONFIDENTIALITY. Each party shall safeguard confidential information of the other party to the same reasonable degree of care it protects its own confidential information. Each party shall maintain in confidence all information marked, or reasonably appearing to be, confidential or proprietary including but not limited to pricing, financials, technical capabilities, this contract and its terms; marketing information, unless the information is not confidential because the information was received from a third party, is in the public domain, or is independently developed by the receiving party. In the event that the Customer fails to comply with this Section 17, Blue Stream Fiber reserves the right to terminate the Agreement by notice in writing with immediate effect and to seek a permanent injunction to comply with this Section without the need of proving irreparable harm.
18. ENTIRE AGREEMENT. This Agreement, together with any SO&MSA, Addenda, Exhibits or Schedules attached hereto, or to be attached in the future, or the Blue Stream Fiber Internet Terms and Conditions and Acceptable Use Policy or any Amendments attached hereto, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services described herein and therein, and no representation, promise, inducement or statement of intention has been made by either party and relied upon which is not embodied herein. Blue Stream Fiber shall not be bound by any agents’ or employees’ representations, promises or inducements not set forth herein.
19. EQUIPMENT. Customer agrees to abide by these BST&C. Blue Stream Fiber will install any equipment that is owned by Blue Stream Fiber and that is necessary to receive Services from Blue Stream Fiber. The Customer understands that it has not purchased this equipment and it must be used and returned to Blue Stream Fiber upon termination of Services. Customer is responsible for the loss or damage to the equipment that has been installed by Blue Stream Fiber. Customer has no right to sell, give away, transfer, pledge, mortgage, remove, relocate, alter, or tamper with the equipment at any time. Equipment is to be solely used for the provision of Blue Stream Fiber’s Services to Customer and may not be used for any other purpose. Blue Stream Fiber is not responsible for any special, incidental, or consequential damages relating to the equipment provided to Customer. In the event that the equipment becomes inoperative, Customer shall call Blue Stream Fiber technical support immediately. Customer is responsible for any damage to equipment due to Customer negligence, failed security or willful misconduct. Upon termination of Blue Stream Fiber’s Services, arrangements will be made for Blue Stream Fiber’s technicians to uninstall the equipment and remove it from Customer’s premises. The equipment must be returned in good working order. In the event that the equipment is not returned in good working order, Customer will be charged the replacement value for each item of the equipment not returned in good working order.
20. NOTICES. Notices, including those required by the SO&MSA, shall be sent by hand delivery or via email. If via email, notices shall be transmitted through a system that validates delivery and the full path of transmission. Notices hereunder shall be deemed properly given when delivered. Notices sent via Email shall be delivered to the address indicated below until such time as either party informs the other in writing of a change:
Address for Blue Stream Fiber:
ITS Fiber, LLC dba Blue Stream Fiber
|15931 SW Warfield Blvd (for hand delivery)|
|PO Box 397 (for delivery via USPS)|
|Indiantown, FL 34956|
Address for Customer: Notices sent to Customer shall be sent to Customer’s ACP as designated in the SO&MSA.
21. NOT A LEASE. The provisions of the SO&MSA, as well as these BST&C, are a service agreement and are not intended to and will not constitute a lease of real property. When Customer equipment is at Blue Stream Fiber’s facility, Customer acknowledges and agrees that it has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations or ordinances. Upon termination of the SO&MSA for any reason, Blue Stream Fiber will have the right to immediately remove all of Customer’s equipment located at the Blue Stream Fiber’s facility. The equipment may be disposed of in any fashion Blue Stream Fiber deems appropriate.
22. PROPRIETARY RIGHTS. This Agreement shall not be construed to grant to Customer any ownership right, title or interest in any intellectual property rights embodied in or associated with the products and services provided by Blue Stream Fiber hereunder. All intellectual property rights, title and interest in the methodology, technology and know-how that Blue Stream Fiber uses to provide the products and Services shall remain exclusively with Blue Stream Fiber and its licensors, as applicable.
23.1 The SO&MSA may be executed in two or more counterparts, each of which shall be deemed an original. This Agreement may be executed in accord with Florida’s Electronic Signatures Act, Florida Statute, Sections 668.001 – 668.006. This SO&MSA may be amended and Blue Stream Fiber may take any action herein prohibited or omit to perform any act herein required to be performed by it, if Blue Stream Fiber shall obtain the prior written consent of the Customer to such amendment, action or omission to act.
23.2 Customer understands that Internet use and related products and services provided under the SO&MSA may require registration and related administrative reports that are public in nature.
23.3 Blue Stream Fiber may elect or be required to file with the appropriate regulatory agency tariffs respecting the delivery of certain services by Blue Stream Fiber to Customer. In the event that such tariffs are filed respecting services ordered by Customer, then the terms set forth in the applicable tariff shall govern Blue Stream Fiber’s delivery of, and Customer’s consumption or use of, such Services.
23.4 Upon prior written consent from the Customer, Blue Stream Fiber may use Customer’s name in connection with proposals to prospective customers and in print or electronic form for marketing or other purposes, including compliance with applicable laws or regulations and the protection of any rights relating to Blue Stream Fiber or its business. Customer may use the name “Blue Stream Fiber” in connection with the Services provided to Customer by Blue Stream Fiber or otherwise only with Blue Stream Fiber’s prior written consent.
23.5 If one or more of the provisions contained herein or in the SO&MSA are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
23.6 Nothing in the SO&MSA or in the course of dealing between Blue Stream Fiber and Customer pursuant hereto shall be deemed to create between Blue Stream Fiber and Customer (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of independent contractors with respect to each other. No third party to this Agreement may assert or enforce any rights or obligations created in this Agreement.
23.7 Customer covenants and represents that it has negotiated the SO&MSA directly with Blue Stream Fiber, and has not authorized any broker, salesperson or finder to act for it in the negotiation and execution of the SO&MSA. Customer agrees to indemnify and hold harmless Blue Stream Fiber from any and all claims by any such broker, salesperson or finder for a commission or finder’s fee as a result of Customer having entered into the SO&MSA.
Additional Terms for Cloud Voice and POTS Services
I. GENERAL VOICE TERMS
A. Blue Stream Fiber provides voice communication services, which include direct-dialed calling and certain advanced features. Blue Stream Fiber reserves the right to offer, modify or discontinue features or advanced features, and may, at its discretion, require additional charges for features.
B. When Customer accepts the voice service, Customer becomes the main account holder for each telephone number assigned to the service and all plans, features, and functionalities associated with each telephone number, whether those telephone numbers, plans, features, and functionalities are purchased initially or are added subsequently.
C. For voice service, non-recurring and usage-based charges are generally billed in the billing cycle following the transaction and include, but are not limited to, international calling (including surcharges for international termination to a wireless phone number), operator services, directory assistance, call trace, and overage minutes associated with defined minutes-of-use plans. Partial minutes are rounded up for per-minute usage charges. Customer shall not resell or redistribute (whether for a fee or otherwise) the voice service, or any portion thereof, or otherwise charge others to use the service, or any portion thereof, unless there is a specific agreement between Blue Stream Fiber and the Customer which allows such resale.
D. For unlimited long distance calling plans, Blue Stream Fiber reserves the right to impose and enforce long distance minute usage thresholds based on individual voice service plans limiting the number of long distance minutes the Customer is able to make within specific time periods. In order to enforce a long distance minute usage threshold policy, Blue Stream Fiber reserves the right to do any of the following: (i) temporarily restrict the number of long distance minutes the Customer may make over the voice service network; (ii) impose charges for exceeding long distance minute limitations; or (iii) suspend or terminate voice service accounts where the level of long distance minutes is not characteristic of a typical user of a similar voice service account as determined by Blue Stream Fiberin its sole discretion.
E. Voice service requires Customer Premises Equipment (CPE) that may be provided by the Customer or by Blue Stream Fiber. The CPE must be compatible with the particular voice service ordered by Customer. Customer must comply with all of Blue Stream Fiber’s guidelines and procedures for 911 if the CPE is moved from the originally installed location or Customer uses a voice application on a mobile device.
F. Customer also acknowledges that Blue Stream Fiber may establish general practices and limits concerning use of the voice service and may restrict calls to certain area codes (e.g., 900/976 calls) as determined by Blue Stream Fiber. Customer acknowledges that Blue Stream Fiber also reserves the right to log off accounts or disconnect sessions that are inactive for an extended period of time. Customer further acknowledges that Blue Stream Fiber reserves the right to change its general practices and limits at any time without advance notice.
G. Local Number Portability. In the event Customer is transferring an existing non-Blue Stream Fiber phone number to Blue Stream Fiber for its voice service (i.e., porting a number to telephone and long distance service), Customer authorizes Blue Stream Fiber to process its order for telephone and long distance service and to notify the existing voice provider of the Customer’s decision to switch it’s local, local toll, and long distance services to Blue Stream Fiber’s voice service and Customer represents that Customer is authorized to take this action. Not all telephone numbers are eligible for porting to voice service.
H. Alarm and Other Device Compatibility. Monitored fire alarm and burglar alarm systems and medical monitoring devices may not be compatible with voice services and Blue Stream Fiber is not responsible for the proper functioning of such devices.
I. If Customer has or purchases a monitored fire alarm or burglar alarm system or a medical monitoring device that Customer intends to use with voice as the communications pathway, Customer agrees to contact its provider for those systems/devices to determine compatibility with voice service and to arrange for the alarm or medical monitoring provider to test such systems/devices after installation of voice service. Customer also acknowledges and understands that even if such systems and devices are compatible with voice service, they will not be able to communicate with monitoring stations during a power outage unless Customer maintains backup power for voice. If Customer purchases a monitored burglar alarm or monitored fire alarm system after the service has been installed, Customer also agrees to call Blue Stream Fiber prior to installation of any such system.
J. Inside Wiring. Blue Stream Fiber is not responsible for the operability or maintenance of any wiring beyond the Blue Stream Fiber point of demarcation, which shall be the Blue Stream Fiber network interface device (NID) or the Blue Stream Fiber Optical Network Terminal (ONT), as applicable, except where Customer has purchased an inside wiring maintenance plan from Blue Stream Fiber. Customer will be charged for a service call and all applicable repair charges if Blue Stream Fiber responds to a request for service and determines that the problem is caused by the inside wiring.
II. CLOUD VOICE ADDITIONAL TERMS
A. Cloud Voice requires bandwidth on at Internet connection to operate. The quality of the voice service is contingent on the quality of the Customer’s Internet connection. The following conditions must be met if Blue Stream Fiber does not supply the Internet connection:
- The Internet service delivered by the third party must be sufficient to handle both voice and data needs. Blue Stream Fiber cannot be held responsible for inadequate bandwidth provided by a third-party provider.
- The Internet service must meet certain delay, jitter and packet loss parameters to operate properly.
- The router/firewall and related network equipment must be in good repair and kept up to date and must be programmable and programmed to give priority to voice traffic over data traffic.
- The inside wire must be capable of supporting enough bandwidth to each workstation to support both the voice and data needs of each station. Blue Stream Fiber can design and provide upgrades to network components or additional inside wiring for an additional fee.
B. ALARM AND FAX MACHINES
- It may be necessary for Customer to provide a separate analog phone line or an equivalent line from another provider for each alarm system or fax machine that requires an analog line.
- Blue Stream Fiber does not accept, under any circumstance, responsibility or liability for the functionality of alarm or fax machine devices or devices designed to convert Internet service for use on analog devices or any other devices associated with alarm and fax machines. Blue Stream Fiber is not responsible for the performance or quality of analog or Internet lines provided to its Customers from other providers.
B. NOMADIC VOICE SERVICE & 911 SERVICE
- Because nomadic voice service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, Blue Stream Fiber does not guarantee that nomadic voice service will be continuous or error-free. Customer acknowledges and understands that Blue Stream Fiber cannot guarantee that nomadic voice services are secure.
- Customer acknowledges and understands that nomadic voice service requires electrical power to function. Blue Stream Fiber is not responsible for backup power.
- Nomadic Voice 911 limitations. Customer hereby acknowledges and agrees to all of the information below regarding the limitations of 911 nomadic voice service over IP voice service and the distinctions between 911 nomadic voice service versus 911 service over traditional telephone service. Customer agrees to advise all individuals who may place calls utilizing nomadic voice service of the 911 limitations described below.
911 Services: 911 services are not guaranteed with a basic (VoIP to VoIP) setup. However, it is available with many of the interconnected services that extend VoIP connectivity to traditional landlines. You should not assume that 911 services are present and working (even with interconnected VoIP services) but should consult with the terms of your service agreement. The FCC has described some of the challenges of VoIP services and has provided tips for VoIP subscribers. For more information, visit: http://www.fcc.gov/cgb/consumerfacts/voip911.html.
a. Blue Stream Fiber makes no warranty that nomadic voice service for access to 911 will be uninterrupted, timely, secure, or error-free or that battery backup power will be sufficient to maintain the service throughout any and/or all power outages.
b. 911 service with nomadic voice service is only available at Customer’s service address, while connected to properly powered equipment and after telephone and long distance has been activated.
c. 911 service on nomadic voice service will not function if Customer’s equipment fails or is not configured correctly or if the nomadic voice is interrupted or not functioning for any reason, including, but not limited to, in the event of a power outage (unless Customer has working back-up battery power), network outage, or disconnection of voice service because of non-payment. If there is a power outage, Customer may be required to reset or reconfigure the equipment prior to being able to use voice services, including use for 911 calling.
- Customer acknowledges that Blue Stream Fiber strongly recommends Customer maintain at all times an alternative means of accessing 911 services.
- Customer acknowledges and understands that Blue Stream Fiber will not be liable for any losses incurred directly or indirectly as a result of service outage and/or inability to dial 911 using nomadic voice service or inability to access emergency service personnel for any reason, including but not limited to the 911 characteristics and limitations set forth in this document and/or the characteristics, limitations, and/or failure of the 911 network itself.
- Without limiting any provisions of this Agreement, Customer agrees to defend, indemnify, and hold harmless Blue Stream Fiber, its subsidiaries, affiliates, officers, agents, directors, employees, who furnish services to Customer in connection with the nomadic voice service, from any and all claims, losses (including loss of profits or revenue), liabilities, damages, fines, penalties, demands, actions, costs, and expenses (including, without limitation, reasonable attorneys’ fees) by, or on behalf of, Customer or any third party or user of the its telephone and long distance service, regardless of the nature of the claim, including without limitation claims related to 911 dialing, arising from or in connection with any failure or outage of telephone and long distance service or any failure or outage of the 911 network itself.
D. OTHER CONSIDERATIONS
- Customer will ensure that their Information Technology (IT) consultant or employee is present to assist with any data equipment issues discovered during installation of Cloud Voice.
- In the event that the Customer requires any additional IT network equipment or IT services to support or install Cloud Voice or any other data-related need, Blue Stream Fiber will provide a separate proposal.
Additional Terms for Internet Service
Services. The term “Service” shall include Blue Stream Fiber Internet (“Internet”), Blue Stream Fiber E-Mail Service (“E-Mail Service”), including all software (as defined below), and such other products or services as Customer may subscribe to with Blue Stream Fiber. The Service shall also include any software or hardware that Blue Stream Fiber provides Customer in connection with the Service to which Customer has subscribed.
(A) The Services shall not be used for any illegal or unlawful purpose, sending unsolicited bulk email, or maintaining an open mail relay. Violation may result in suspension of the Services or access by Customer.
(B) All provisions of Blue Stream Fiber’s applicable tariffs, if any, are incorporated herein by this reference.
(C) Blue Stream Fiber reserves the right to make modifications and improvements in the Services or to change general rates, terms and conditions of the Services. No modifications shall override terms of a SO&MSA.
(D) Internet usage is limited to the primary Customer only, and may not be resold or shared, except within Customer’s organization. Any other use is considered a breach of contract subject to termination terms as specified in section 8 of the BST&C.
(E) Blue Stream Fiber reserves the right to impose and enforce bandwidth usage thresholds based on individual Internet service plans limiting the amount of data you are able to upload and download within specific time periods. In order to enforce a bandwidth usage threshold policy, Blue Stream Fiber reserves the right to do any of the following: (i) temporarily reduce the speed at which Customer may send or receive data over the access network; (ii) impose charges for exceeding bandwidth limitations; or (iii) suspend or terminate Internet Service accounts where data consumption is not characteristic of a typical user of a similar Internet Services account as determined by Blue Stream Fiberin its sole discretion.
- Compliance with Laws State, Federal and International Laws and Regulations govern the creation, transmission and storage of data. SOLE RESPONSIBILITY FOR COMPLIANCE WITH THESE LAWS AND REGULATIONS IS THE CUSTOMER’S. IN THE EVENT OF A LEGAL OR REGULATORY INVESTIGATION OF CUSTOMERS CREATION, TRANSMISSION OR STORAGE OF DATA – BLUE STREAM FIBER WILL FULLY COOPERATE WITH THE INVESTIGATIVE AGENCY AND COMPLY WITH ANY FACIALLY LEGAL ORDER OR PROCESS. THE COST OF COMPLIANCE WILL BE PAID BY THE CUSTOMER AS IT IS INCURRED OR ALL SERVICES MAY BE SUSPENDED.
- Customers. Blue Stream Fiber reserves the right to suspend or terminate the Service (or any portion thereof) without notice in the event that Customer’s use of the Service, is found to violate any applicable law, regulation or ordinance, or the terms of this Agreement or our AUP, or otherwise adversely affects or threatens any Blue Stream Fiber network or service, Customer or employee, or, if Customer is determined to be a repeat infringer pursuant to our copyright infringement policy under our AUP.
- Software Provided. If Customer chooses to utilize software which is proprietary to Blue Stream Fiber, such use constitutes an absolute acceptance of the Limited License granted by Blue Stream Fiber and the Terms specified in the Agreement appended to that software. All Intellectual Property Rights of any kind, created by any jurisdiction are reserved to the party possessing them prior to the grant by Blue Stream Fiber of the Limited License. If the Customer chooses to use software which is proprietary to third parties, Customer acknowledges and agrees Blue Stream Fiber has neither control or liability for Customer’s use.
- Return of Equipment and Software. Upon termination or expiration of this Agreement, Customer agrees to return to Blue Stream Fiber all hardware (other than hardware that has been purchased from Blue Stream Fiber), which Blue Stream Fiber has provided to it in connection with the Service, and to cease use of all the provided Software and immediately delete such Software from its computer. In the event such hardware and software is not returned to Blue Stream Fiber within thirty (30) calendar days following such termination or expiration, in accordance with Paragraph 8 of the BST&C, Customer agrees to pay the replacement value of all unreturned hardware and software.
- Customer Equipment and Internet Performance. Customer is solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software updates, patches or other fixes, which are or may become necessary to access the Internet Service, and to operate its computer and/or network. The preceding obligations apply regardless of whether Blue Stream Fiber or a third party provided the software or hardware to Customer. Customer understands that Internet bandwidth is provided on a per line basis, and that the speed and bandwidth available to each computer or device connected to the network will vary depending upon the number and types of computers or devices using the Service and the type of use (e.g., streaming media or downloading larger files). Only the manufacturer’s warranties included with any hardware or software provided by Blue Stream Fiber shall apply.
Additional Terms for Data Center Services
1. Scope of Services. Blue Stream Fiber owns, operates, maintains and provides monitoring and service personnel for an APC Hot Aisle Containment System (HACS) Data Center in which its Customers servers are co-located.
1.1 Blue Stream Fiber will provide Customer the Data Center Services as set forth in the SO&MSA as well as these BST&C and any referenced documents.
1.2 Customer shall use the products and services provided by Blue Stream Fiber solely for Customer’s internal business purposes. Customer shall not resell the Blue Stream Fiber services without the express written authorization of Blue Stream Fiber.
2. Use of Equipment Space. Blue Stream Fiber’s facility housing the HACS (the “Equipment Space”) shall be accessible to Customer in accordance with the terms of the SO&MSA and shall be utilized by Customer only for placement and maintenance of equipment, telecommunications or Internet access equipment necessary for the provision of co-location and hosting services.
2.1 Blue Stream Fiber shall have the right to access the Equipment Space for any business purpose at all times. EXCEPT AS EXPRESSLY STATED HEREIN THE EQUIPMENT SPACE SHALL BE DELIVERED BY BLUE STREAM FIBER AND ACCEPTED BY CUSTOMER “AS IS”, AND BLUE STREAM FIBER HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR WARRANTY AS TO THE FITNESS OF THE EQUIPMENT FOR THE CUSTOMERS INTENDED USE.
2.2 SPACE FOR CUSTOMER’S INTENDED PURPOSE. CUSTOMER OR CUSTOMER’S TECHNICAL REPRESENTATIVE HAS INSPECTED THE EQUIPMENT SPACE AND MADE ITS OWN DETERMINATION OF SUITABILITY.
2.3 Blue Stream Fiber will provide equipment (“Blue Stream Fiber Equipment”) necessary to the operation of the HACS. Blue Stream Fiber shall use reasonable efforts to provide and maintain the Blue Stream Fiber Equipment in good working order. Blue Stream Fiber shall be entitled to remove all Blue Stream Fiber Equipment for repair, replacement, or otherwise as Blue Stream Fiber may determine is necessary, but Blue Stream Fiber shall use reasonable efforts to minimize disruptions to the service provided to Customer and shall provide Customer with advanced notice where circumstances permit. Customer shall not, and shall not permit others, to rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the Blue Stream Fiber Equipment.
2.4 Customer Cabinet. Blue Stream Fiber shall provide and maintain the HACS cabinet space and racking for the equipment within the Data Center (the “Customer Cabinet”). The Customer Cabinet shall be suitable, as reasonably determined by Blue Stream Fiber in accord with Telecommunications Industries Association and Electrical Industries Alliance Standards – as may be applicable, for the proper storage and operation of the equipment. Other than for access required by authorized Blue Stream Fiber employees or contractors in order to perform Blue Stream Fiber’s obligations under this Agreement, or as may be required by applicable law or legal process, Blue Stream Fiber shall not permit any Person other than a Customer Representative to have access to any of the Customer Systems or any portion of the Customer Cabinet.
2.5 Notwithstanding the foregoing, Blue Stream Fiber may inspect and, following a reasonable effort to give notice to Customer, may remove or disable any equipment in the Customer Cabinet that it reasonably believes is unsafe or harmful to the Data Center, Blue Stream Fiber’s equipment, networks or systems or third-party equipment, networks or systems. Customer will use the Customer Cabinet only for the purposes of installing, operating, monitoring, maintaining, repairing, replacing and/or removing the Customer Systems.
2.6 Blue Stream Fiber shall not be responsible for the operation or maintenance of any Customer-provided equipment unless specified in the SO&MSA or an approved amendment.
2.7 Following termination of the SO&MSA, Blue Stream Fiber shall be entitled to remove all Blue Stream Fiber Equipment and Customer-provided equipment from the Customer Cabinet and to repair any damage to the Customer Cabinet. The Customer Cabinet shall be in the same condition as when the Customer first occupied it, normal wear and tear excepted. Customer shall reimburse Blue Stream Fiber promptly for the reasonable cost of any repairs required to restore the Equipment Space to its original condition.
2.8 Customer is solely responsible for the content of any transmissions utilizing Customer’s facilities or Blue Stream Fiber’s facilities. The use of another organization’s network or computing resources is subject to its respective permission and usage policies. Customer agrees to comply with all applicable laws with regard to the transmission and use of information and content. Customer further agrees not to use the services provided hereunder for illegal purposes, to interfere with or disrupt other network users, network services or network equipment.
2.9 Upon notice from Blue Stream Fiber, Customer shall promptly eliminate any hazard, interference or service obstruction that any hardware or software used by Customer (whether or not provided by Blue Stream Fiber), is causing, or is likely to cause. If Customer requests Blue Stream Fiber’s assistance in removing any such hazard, interference or service, Blue Stream Fiber may, but is not required to assist in such removal.
2.10 Blue Stream Fiber agrees to allow Customer to place the Customer’s equipment in the Customer Cabinet subject to the terms as specified by Blue Stream Fiber. Such placement shall be subject to the SO&MSA and Blue Stream Fiber’s installation and maintenance specifications, which Blue Stream Fiber shall provide to Customer from time to time.
3. Maintenance. Blue Stream Fiber shall perform such janitorial services, environmental systems maintenance, power plant maintenance and other actions as are reasonably required to maintain the facility in which the Equipment Space is located in a condition which is suitable for the operation of the HACS equipment.
3.1 Customer shall maintain its area of the Equipment Space in an orderly and safe condition. Failure to do so may result in Blue Stream Fiber cleaning the Customer area and passing the cost on to the Customer.
4. Security. Blue Stream Fiber provides multi-layered physical security for the hosting facility. The Customer has had the opportunity to inspect the facility, speak with security personnel and fully investigate the security provided by Blue Stream Fiber. Customer’s acceptance of this Agreement also constitutes and acceptance of the existing physical security. Blue Stream Fiber will notify the Customer of any changes to the facility’s security.
4.1 Notwithstanding the preceding Paragraph BLUE STREAM FIBER ASSUMES NO LIABILITY FOR ANY DAMAGE OR LOSS TO CUSTOMER’S EQUIPMENT RESULTING FROM ANY OTHER CUSTOMER’S ACCESS TO BLUE STREAM FIBER’S FACILITY. ANY SUCH DAMAGE OR LOSS WILL BE THE EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER WHO CAUSED SUCH LOSS OR DAMAGE. Blue Stream Fiber will provide reasonable assistance to resolve any disputes regarding such loss or damage.
5. Access. Customer is exclusively responsible for the management of all security devices, codes or other information provided to it under this Agreement. Any damage, costs or personnel time accruing to Blue Stream Fiber as a result of Customers failure to properly secure devices or information shall be an additional charge to Customer, with the same remedies available for any monetary default. In addition to the rights set forth elsewhere in the SO&MSA, Blue Stream Fiber shall have the right to terminate Customer’s use of the Equipment Space or the Services in the event that: Blue Stream Fiber’s rights to use the facility within which the Equipment Space is located terminates or expires for any reason; Customer makes any material alterations to the Equipment Space without first obtaining the written consent of Blue Stream Fiber; or Customer violates any posted or otherwise communicated rules relating to use of or access to the Equipment Space.
6. Rights to Equipment and Software. Customer represents, warrants and covenants that it owns or has the legal right and authority, and will continue to own or secure the legal right and authority, during the term of the SO&MSA, to use the Customer’s equipment and software located in the Equipment Space.
7. Acceptable Use of Internet. Customer is responsible for abiding by Blue Stream Fiber’s Acceptable Use Policy, Terms and Conditions and all other policies associated with the use of Blue Stream Fiber’s Internet services which are included on Blue Stream Fiber’s website (www.bluestreamfiber.com) and considered part of the SO&MSA. Customer represents that it has reviewed and is familiar with these policies. If applicable, Customer shall execute an Intellectual Property and ESI Custody and Control Agreement at the time of executing the SO&MSA
8. Service Level Agreements. Blue Stream Fiber guarantees that its Services will be provided in accordance with Blue Stream Fiber’s current SLA, incorporated in the SO&MSA.
8.1 If Blue Stream Fiber fails to meet the objective during a calendar month due to outages as described in the SO&MSA – Service Level Agreement, the Customer may request a credit. The amount of the credit is 1/30th of the monthly recurring charge for the service being provided to Customer for every twenty-four (24) hour period that the service was unavailable during the month due to an outage. Outages will be counted only if Customer opens a trouble ticket requesting an SLA investigation with Blue Stream Fiber’s technical support within five (5) days of the outage.
9. Insurance. Prior to use of the Equipment Space and during the term of the SO&MSA, Customer shall procure and maintain the following minimum insurance coverage: Workers’ Compensation in an amount not less than that prescribed by statutory limits; Employer’s Liability with limits of $500,000 each accident; Commercial General Liability with combined single limits of $1,000,000 each occurrence; and “All Risk” Property insurance covering all of Customer’s personal property located in the Equipment Space. THE CUSTOMER’S FAILURE TO OBTAIN THE REQUIRED INSURANCE SHALL BE AN AFFIRMATIVE WAIVER OF ANY CLAIM AGAINST BLUE STREAM FIBER OR BLUE STREAM FIBER’S AFFILIATES.
Customer’s Commercial General Liability policy shall be endorsed to show Blue Stream Fiber (and any underlying property owner, as requested by Blue Stream Fiber) as an additional insured. Customer shall require any contractor entering the Equipment Space on its behalf to procure and maintain the same types, amounts and coverage extensions as required of Customer.
10. Ability to Change Equipment Space. Blue Stream Fiber reserves the right to change the location or configuration of the Equipment Space; provided, however, that Blue Stream Fiber shall not arbitrarily or discriminatorily require such changes. Blue Stream Fiber and Customer shall work in good faith to minimize any disruption in Customer’s services that may be caused by such changes in location or configuration of the Equipment Space and the cost will be borne by Blue Stream Fiber.