Terms and Conditions for Delivery of Service
The terms and conditions in this agreement (“Agreement”) shall govern the services Fiberdash Networks, LLC (“Fiberdash”) has contracted to provide to you under the Service Order Form (“Order Form”) executed by you. You understand that Fiberdash may change these Terms and Conditions at any time in its sole discretion. Any such change is effective immediately upon it being posted on the Fiberdash website or delivery of any other notice to you. Continued use of the Services after such change becomes effective constitutes your agreement and acceptance of the change. Upon notice of any material change in these Terms and Conditions pertaining to the cost or quality of Services you may immediately terminate the Agreement.
Term. The initial term (“Initial Term”) of this Agreement commences on the date the order for service was placed and shall continue until the end of the Service Term as defined on the Order Form. After expiration of the Initial Term, this Agreement shall terminate with no further obligation.
Service. Fiberdash agrees to provide you services as specified on the Order Form for the Term of this agreement. Unless otherwise specified, the services provided to you by Fiberdash are for your personal and non-commercial use. Fiberdash agrees to provide its services to you from the point at which Fiberdash’s network connects to your network, hereafter referred to as the “DEMARC”, this “DEMARC” may or may not be located on your premises but will always have the unified characteristic of being dedicated exclusively to a single party which is you. Fiberdash will provide all equipment (“Equipment”) and installation services up to and including your “DEMARC” point, but will not be responsible for configuration beyond the “DEMARC.”
Connection Speeds. You have been advised and understand that Fiberdash’s service relies on and is limited by the inherent shared nature of the Internet and that Fiberdash will use its actual best efforts to provide you with the highest speed at which data will pass through networks controlled by third-parties reasonably available. Fiberdash’s service is delivered to the customer via a 1000baseT Ethernet connection. Due to overhead in Ethernet connections, customer DEMARC, Internet protocols, customer’s network hardware, or customer’s computer hardware and software, connection speeds will not test at the full line speed.
Customer Equipment Configuration. It is understood that under the terms of this Agreement, Fiberdash is under no obligation to configure any of your equipment. All configurations of your equipment, including router configurations, computer configuration, and the like are your sole responsibility. At its discretion Fiberdash may, but is not required to, assist you in configuring your equipment to utilize Fiberdash’s service. Any assistance which Fiberdash may provide is without warranty of any kind and in consideration for such assistance, you expressly waive any and all claims against Fiberdash which may arise from such assistance.
Invoicing. You agree to timely pay all fees and other charges billed to your account. Services will be billed by Fiberdash in advance of the month in which the service is to be used. Payment is due by the first day of the service period in which service is to be used. If the customer chooses to pay their invoices automatically each month with a credit card the customer herby authorizes Fiberdash to charge all fees to the customer’s supplied credit card. Credit card charges are posted three (3) days prior to the due date on the invoice and will appear on the bill as Fiberdash or Fiberdash Networks.
Late Fees and Non-Payment. Fiberdash reserves the right to temporarily or permanently suspend service in the event a customer’s account is past due.
Equipment. You acknowledge and agree that: (i) Fiberdash is the owner of all Equipment and intellectual property rights related to Fiberdash’s services to be delivered to you pursuant to this Agreement; and (ii) Fiberdash has not granted you any rights or licenses to such Equipment or intellectual property except as contained in this Agreement. In exchange for the use of such equipment, you accept full responsibility for Equipment located on your premises and agrees to pay the full replacement cost for any Equipment that is lost, stolen, damaged, sold, transferred or in any other way not returned in working order to Fiberdash upon termination of this Agreement.
Access to Equipment. By executing the Order Form, you agree to allow Fiberdash personnel, and independent contractors acting on behalf of Fiberdash, reasonable access to your premises for the purpose of installing, repairing, and removing Fiberdash Equipment. In the event your premises are leased from a third party, you also agree that you have obtained appropriate authorization from your landlord for (i) the placement of Equipment on your premises and (ii) reasonable access to Fiberdash personnel and independent contractors to install, repair, and remove Equipment.
Use and Abuse of Services. You understand and agree that services provided to you by Fiberdash may only be used for lawful purposes; that the you are fully responsible for any data or traffic originating from your customer IP connections; and to assist Fiberdash in investigating all uses not permitted by this Agreement (“Abuses”) which Fiberdash believes have originated from the your customer IP connections. Abuses include, but are not limited to (i) transmission of unsolicited bulk email (“SPAM”), (ii) transmissions from computers involved in DOS and dDOS attacks, IRC bots, (iii) “Hacking” activity and (iv) copyright infringement (v) any other activity which is generally defined by the global internet community as malicious. Fiberdash reserves the right to terminate your service immediately for any Abuse of Services.
Maintenance. Fiberdash reserves the right to interrupt service for routine maintenance at such times as may be reasonably necessary. You agree that Fiberdash will not be liable to you for any consequences of any interruptions to the service, which may render you unable to access the Internet.
Force Majeure. You acknowledge that Fiberdash’s ability to provide its services may be impeded by events or actions outside of Fiberdash’s reasonable control, including, without limitation, acts of God, floods, fires, hurricanes, earthquakes, acts of war, labor actions, failure of third party suppliers, changes in applicable laws and regulations, or any similar action or event (“Force Majeure”). You agree that In the event of a Force Majeure, Fiberdash shall not be responsible for any failure to provide service and Fiberdash agrees that in such an event you will not be liable for payment of the fees otherwise due under this Agreement.
Indemnification and Liability Release. You and your agents, successors and/or assignees expressly agree to indemnify and release Fiberdash, its affiliates, subcontractors, suppliers, agents, employees, successors and assignees from any liability for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the installation and/or use of Fiberdash’s services and/or Equipment. Furthermore You and your agents, successors and/or assigns releases Fiberdash from any liability resulting from use of content on the internet or any other network to which Fiberdash connects but is not in control of.
Warranty Limitations. Fiberdash warrants only that it shall, subject to the terms and conditions of this Agreement, provide you with the service contracted for. YOU AGREE THAT THE SERVICE AND EQUIPMENT ARE BEING PROVIDED “AS AVAILABLE” AND “AS IS,” WITH ALL FAULTS ACCEPTED. FIBERDASH MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FIBERDASH MAKES NO WARRANTIES WITH RESPECT TO (i) THE EQUIPMENT, OR (ii) THE SERVICES PROVIDED BY ANY THIRD PARTY. FIBERDASH SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, EVEN IF THE FIBERDASH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE FIBERDASH’S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO FIBERDASH IN ANY SINGLE MONTH UNDER THIS AGREEMENT.
Entire Agreement. This Agreement, the Order Form, the SLA and any exhibits, addenda and/or amendments executed by both parties, shall constitute the entire understanding of the parties related to the subject matter hereof. In the event of any conflict between either: (a) the Order Form and this Agreement; and/or (b) any Customer purchase order, the Order Form and this Agreement, the terms and conditions of this Agreement shall control.
Arbitration. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Washington and the United States of America, without regard to their principles of conflicts of law. You agree that any legal action or proceeding relating to your use of our website shall be settled totally and finally by arbitration in King County, Washington or such other location as the Company prescribes, in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association. If you file a claim or counterclaim against Fiberdash, you shall do so on an individual basis and not with any other person or party or as part of a class action. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court of competent jurisdiction. The prevailing party shall be entitled to receive from the losing party costs and expenses of arbitration, including legal filing fees. This agreement to arbitrate shall survive any termination or expiration of the Agreement.
No Waiver. The failure of either party at any time to enforce any right or remedy available to it under the Order Form, this Agreement, or the SLA with respect to any breach or failure by either party shall not be construed to be a waiver as such right or remedy with respect to any other breach or failure by either party.
Attorney’s Fees and Cost of Collection. In any dispute whether or not suit is filed including but limited to costs incurred prior to any action, during said action and appeal and collection of any judgment of said action arising out of this Agreement, the substantially prevailing party shall be entitled to an award of its reasonable attorneys’ fees and other costs incurred therein.
IP Address Allocation. All Public IP address allocations are made based on established standards as defined by ARIN, the American Registry for Internet Numbers. Fiberdash makes allocations based on these reasonable standards and reserves the right to request justification for static Public IP address assignments. Such justifications may require a host-count and/or a plan network map to be provided to Fiberdash prior to the allocation of IP address resources.