Terms and Conditions Applying to UPN Lit Fiber Services
Terms and Conditions Applying to UPN Lit Fiber Services
1. Lit Services. The following terms and conditions apply to all lit ethernet and internet services provided by Unite Private Networks, LLC (“UPN”) under UPN service orders, orders placed through UPN’s online ordering portal, or similar instruments utilized and approved by UPN (each, a “Service Order”). Each Service Order shall, at a minimum, identify the (i) Point(s) of Demarcation (as “Point(s) of Demarcation” is defined in Section 4); (ii) Service type; (iii) Service Order Term; (iv) monthly recurring charges (“MRC”); (v) non-recurring charges (“NRC”); and (vi) bandwidth. Customer acknowledges and agrees that the services provided to Customer in this Lit Service Order (“Services”) will not be accessible to Customer other than at the applicable Points of Demarcation listed in the Service Order.
2. Acceptance. UPN shall issue a Service Commencement Letter (as “Service Commencement Letter” is hereinafter defined) on the Installation Date of the Service. Customer shall either accept or reject the Services within two (2) days of UPN issuing a Service Commencement Letter. If Customer rejects a Service, Customer shall provide a written description reasonably detailing failure of the Service. UPN shall then re-test the Service and issue another Service Commencement Letter. This process shall continue until the Service meets industry standards. Customer shall be deemed to have provided its “Acceptance” of a Service on the earlier of (i) Customer’s written acknowledgement that the Service is in material compliance with these Terms and Conditions; (ii) Customer’s failure to accept or properly reject the Service within the designated two (2) day period; or (iii) Customer’s use of the Service for any commercial or other non-testing purpose. Notwithstanding the preceding or anything to the contrary, in the event UPN is unable to complete installation of a Service due to (1) Customer’s failure to complete any applicable tasks necessary to allow UPN to complete installation of the Service or (2) any reason outside of UPN’s control, at UPN’s discretion, UPN may (a) cancel the Service without any liability to Customer, or (b) Customer shall be deemed to have accepted the Service as of the thirtieth (30th) day after UPN provides written notice to Customer that UPN is unable to proceed further due solely to Customer’s delay. In the event UPN cancels a Service due to Customer’s failure to complete any applicable tasks or fulfill any obligations, Customer will be liable under Section 13. Customer’s inability to accept a Service shall not constitute a valid reason for rejection. “Service Commencement Letter” means the written communication sent from UPN to Customer informing Customer that the Services have been installed and are available for Customer’s use.
3. Payment Terms. If not stated on the Service Order, Customer will provide UPN with a billing address for receipt of invoices immediately upon request by UPN. Customer shall pay all undisputed charges by ACH transfer of immediately available funds to the account designated by UPN. All undisputed charges shall be paid by Customer within thirty (30) calendar days following receipt of an invoice. Any undisputed portion of an invoice not paid by the applicable due date shall be overdue and Customer shall incur a fee of 1.5% per month, or the maximum amount permitted by law, until paid in full. All MRC will be invoiced in advance on or around the first day of each month. If the Service Order Term commences on a day other than the first day of the month, Customer shall be invoiced on the first day of the following month and the first invoice shall include the pro-rated amount of the prior month’s MRC in addition to the current month’s MRC. In the event Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice by the due date and submit a written claim reasonably documenting all reasons for disputing the remaining amount. Unless a claim is submitted in this manner and received by UPN within thirty (30) days from the date the invoice is issued, Customer waives all rights to dispute such charges unless otherwise provided by law.
4. Points of Demarcation, Special Construction, Building Access, Space, and Power.
a. Points of Demarcation. “Point(s) of Demarcation” means the physical point where UPN’s obligation to terminate the Services ends. UPN shall only be responsible for construction of the Services and maintenance activities on the Services to the applicable Point of Demarcation. Unless otherwise specified on a Service Order, the Point of Demarcation shall be the minimum point of entry (“MPOE”). The MPOE is the closest practical point to where the cable enters the building. If Customer requests extension of the Point of Demarcation beyond the MPOE, such extension may carry additional charges.
b. Building Access, Space, and Power. Where the Point of Demarcation extends onto the premises where Customer is located, Customer acknowledges that it will (i) procure all necessary building entrance and property rights (“Access Rights”) for UPN to have access and permission to enter the locations noted on the applicable Service Order, and (ii) provide UPN sufficient space (“Space”) and power (“Power”) on the premises to support the Services at no cost to UPN. Customer understands that any delay in receiving the Access Rights, Space, and/or Power may cause a delay in the Installation Date listed on the Service Order. Customer shall be responsible for all costs (initial and on-going) incurred by UPN related to the Access Rights, Space, and Power, including but not limited to any charges or fees imposed on UPN by the property owner or landlord. In the event Customer is unwilling or unable to pay for such fees imposed by the building owner or landlord, UPN shall have the option to cancel the applicable Service Order and Customer shall be responsible for payment of Early Cancellation Liability pursuant to Section 13.
c. Special Construction. Prior to Acceptance of a Service, UPN may notify Customer of price increases due to unanticipated special construction costs needed to implement the Services. Customer shall have five (5) days to accept the additional charges or cancel the Service without incurring any liability under Section 13 below. In the event Customer fails to accept the additional charges or cancel the service without liability within the five (5) day period, Customer shall have been deemed to have accepted the additional charges. UPN may require Customer to execute an amendment or a replacement Service Order to memorialize any changes to a Service.
5. Routine Maintenance. UPN shall perform all routine and emergency maintenance for all Services. UPN shall use its best efforts to perform routine maintenance between the hours of 12:00 AM and 6:00 AM, local time, to minimize any potential disruptive impact on the continuity or performance level of the Services. Notwithstanding the preceding, UPN may perform maintenance at any time to alleviate any conditions that could affect the Services or UPN’s network.
6. Notice of Maintenance. UPN shall provide Customer with notice of all maintenance that has a substantial likelihood of affecting the Services.
7. UPN Equipment Protection; Notice of Damage. Customer must not cause or allow any facility, equipment, hardware, system, or material that is owned, operated, or maintained by UPN (“UPN Equipment”) to be rearranged, tampered with, moved, disconnected, altered, maintained, interfered with, or repaired without UPN’s prior written consent. Customer is responsible for providing and maintaining at no charge to UPN an appropriate operating environment consistent with generally accepted industry standards for any UPN Equipment on any premises where UPN Equipment is being used to provide Services to Customer. Customer shall promptly notify UPN of any matters pertaining to any damage or impending damage to or loss of the use of UPN Equipment.
8. Internet Data Flow and Warranties. UPN cannot guarantee uninterrupted Service for Internet access and use. UPN will use commercially reasonable efforts to remedy impairment or disruption of Customer’s access to the Internet directly attributable to UPN’s Equipment. UPN DISCLAIMS ALL WARRANTIES, EXCEPT FOR THE WARRANTY FROM THIS SECTION TO USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY IMPAIRMENT OR DISRUPTION, EITHER EXPRESSED OR IMPLIED OR BY OPERATION OF LAW INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR INTERNET SERVICE.
9. Ownership and Encumbrances. Customer acknowledges that it has no title to any fiber, equipment, or materials provided by UPN under a Service Order and shall not in any way encumber the Services, cable, or any property that is the subject of or related to a Service Order.
10. Service Order Term. The term of each Service Order shall commence on the Installation Date listed within each Service Order and continue in effect for the period set forth therein (the “Service Order Initial Term”). Thereafter, the Service Order shall automatically renew for successive one (1) year periods (each such period, an “Additional Service Order Term” and, together with the Service Order Initial Term, the “Service Order Term”) unless and until terminated by either party upon ninety (90) days’ written notice to the other party prior to the end of the Service Order Initial Term or an Additional Service Order Term, as applicable. Notwithstanding the preceding, if a Service Order contains multiple circuits, Customer shall be invoiced for its first monthly recurring charge on the Installation Date of the first circuit. Each subsequent monthly recurring charge shall be pro-rated based on the number of circuits that have been installed until all circuits have been installed, at which time the monthly recurring charge shall be the total monthly recurring charge listed in the Service Order and this total monthly recurring charge shall continue for the entire Service Order Term listed in the Service Order. For clarity, on a multi-circuit Service Order, the Service Order Term shall commence upon the installation of all circuits.
11. Porting. Subject to fiber availability and UPN’s sole discretion, Customer shall have the option to port the Services to a new location and UPN shall waive any applicable early termination charges so long as: (i) the new, ported location is “On-Net,” meaning UPN will incur no construction or related costs to provide the lit fiber service to the new, ported location; (ii) Customer and UPN enter into a replacement Service Order for a term equal to or greater than the term remaining on the Service Order being replaced; (iii) the replacement Service Order contains the same or greater monthly recurring charges as the Service Order being replaced; and (iv) Customer pays a non-recurring charge to cover any construction, splicing, or other costs related to the replacement Service Order. Any
ported service shall be memorialized in an amendment, Service Order, or similar documentation signed by both parties.
12. Early Termination. In the event that, after Acceptance of a Service, UPN terminates the Service for Customer Default (as “Customer Default” is defined in Section 17(a)) or Customer terminates any Service for any reason other than UPN Default (as “UPN Default” is defined in Section 17(b)) (“Early Termination”), Customer shall pay an early termination fee to UPN which shall be equal to (i) 100% of the remaining monthly recurring charges plus (ii) any waived or otherwise unpaid NRC or special construction charges, plus (iii) any fees payable to third parties and attributable to the terminated services, if any, to the extent such fees are not captured by the amounts in subsection (i) of this section (together, the “Early Termination Liability” or “ETL”). ETL shall be due and payable within ten (10) days of the date of an invoice for the same. Customer acknowledges that the ETL is a reasonable estimate of damages to be suffered by UPN as a result of the termination of a Service, and that the ETL is intended as liquidated damages and not a penalty.
13. Early Cancellation. In the event that, subsequent to the execution of a Service Order but prior to Acceptance, UPN cancels or terminates a Service due to Customer Default, UPN cancels or terminates a Service for Customer’s failure to attain Access Rights pursuant to Section 4, or Customer cancels or terminates a Service for any reason other than for UPN Default (“Early Cancellation”): (i) UPN may immediately stop work without further notice to Customer; (ii) such services shall terminate and Customer shall not be entitled to a refund of any prior consideration paid; (iii) UPN shall owe Customer no further duties, obligations, or consideration with regard to the terminated Service(s); and (iv) Customer shall immediately reimburse UPN for any third-party termination charges incurred by UPN as a result of such Early Cancellation and pay UPN an amount equal to the greater of (a) seventy-five percent (75%) of all monthly recurring charges for the Service Order Initial Term or (b) UPN’s actual and verifiable costs expended toward providing the Service(s) plus twenty-one percent (21%) (the “Early Cancellation Liability” or “ECL”). ECL shall be due and payable within ten (10) days of the date of an invoice for the same. Customer acknowledges that the ECL is a reasonable estimate of damages to be suffered by UPN as a result of the cancellation of a Service and that the ECL is intended as liquidated damages and not a penalty.
14. Relocation Procedures. If UPN determines in its reasonable business judgment, or is required by a third party with applicable legal authority, to relocate all or any portion of the Services or any of the facilities, materials, or equipment used to furnish the Services to Customer, UPN shall provide Customer prior written notice of any such relocation, if possible. If the relocation is necessitated solely by UPN, UPN shall be responsible for the cost of such relocation. If the relocation is necessitated by Customer, Customer shall be responsible for the cost of such relocation. If the relocation is necessitated by a third party with legal authority, Customer shall pay its Proportionate Share of the costs. “Proportionate Share” means a fair reasonable amount determined by UPN in good faith.
15. Condemnation and Eminent Domain. In the event that a Service or any portion of a Service becomes the subject of a proceeding by any governmental agency or other party having the power of eminent domain for public purpose or use, UPN and Customer shall be entitled, to the extent permitted by law, to participate in such condemnation or eminent domain proceeding for compensation by either joint or separate awards for the economic value of their respective interests in the Services that are subject to the condemnation or eminent domain proceeding.
16. Termination for Lack of Rights. UPN may terminate any affected Service Order without liability to Customer if (i) UPN’s franchise authority needed to provide the Service(s) is cancelled or terminated; (ii) UPN is prohibited from furnishing the Services by regulation, statute, court order, or ruling by the Federal Communications Commission or any other federal, state or local governmental authority; or (iii) UPN’s pole attachment and/or conduit use rights are terminated or become subject to such restrictions or conditions that continuation of the applicable Service is impracticable or prohibited.
17. Default and Cure. Customer shall be in default (“Customer Default”) under these Terms and Conditions and/or a Service Order in the event of any of the following:
(i) Customer fails to make a payment of any undisputed amount required under a Service Order and such failure continues for more than fifteen (15) days after Customer receives written notice of such failure from UPN; or
(ii) Customer fails to comply with any material obligation, agreement, term, or provision of these Terms and Conditions or a Service Order not contemplated under subsection (i) above and such failure continues for more than thirty (30) days after receipt of written notice of such failure from UPN; provided however, that if such default cannot reasonably be cured within thirty (30) days and if Customer is proceeding promptly and with due diligence in curing the default, the cure period shall be extended for a period of time, not to exceed ninety (90) days, as may be necessary; or
(iii) Customer’s use of a Service will violate any law or cause UPN to violate any law; or
(iv) Customer becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors;
(v) Customer becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing;
(vi) Customer’s use of the Services would cause a forfeiture of the rights of UPN to occupy the property where such Services or other UPN facilities are located; or
(vii) Customer or Customer’s end-user’s equipment, or anyone acting on Customer’s behalf, interferes with the operational integrity of the UPN’s fiber, equipment, or network. In the event of such interference, UPN may immediately disconnect the Service(s) and/or take any steps necessary to remedy the interference.
18. Indemnification. Customer shall indemnify, defend, and hold harmless UPN, its directors, officers, employees, representatives, members, partners, trustees, and affiliates from and against all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorney’s fees) resulting from any third party claim, demand, suit, action, judgment, loss, or proceeding brought against UPN for (a) personal injury, including death; (b) damage to any personal or real property; (c) any unauthorized use of UPN facilities; (d) a violation of any United States intellectual property right arising directly or indirectly from the negligence or intentional acts or omissions of Customer or its representatives or agents; or (e) any breach of UPN’s Acceptable Use Policy.
19. Limitation of Liability. IN NO EVENT SHALL UPN OR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, PARTNERS, TRUSTEES, SERVANTS, REPRESENTATIVES, AGENTS, AFFILIATES, OR PARENT COMPANIES BE LIABLE FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF REPLACEMENT SERVICES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
20. Taxes and Governmental Fees. In the event UPN is assessed taxes, charges, or fees (hereinafter “Taxes and Fees”) related to a Service, UPN shall bill such Taxes and Fees to Customer in the manner and for the amount permitted by law. Taxes include federal, state or local sales, gross receipts, occupation, franchise, governmental assessments, regulatory charges, state and federal USF charges, excise, or other similar transfer taxes. UPN shall not bill to or otherwise attempt to collect from Customer any tax with respect to which Customer has provided UPN with a valid exemption certificate. Taxes shall not include taxes on UPN’s income.
21. Notice Addresses. All notices and communications concerning a Service shall be in writing and addressed to the other party as follows:
If to Unite Private Networks:
7200 NW 86th Street, Suite M
Kansas City, MO 64153
Attn: Legal Department
legaldept@upnfiber.com
Customer’s notice address shall be the same as Customer’s billing address unless otherwise stipulated in writing to UPN by Customer.
Any notice or communication required or permitted to be given hereunder shall be in writing and may be delivered by hand, deposited with a nationally recognized overnight courier, sent by confirmed electronic mail, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated above, or to such other address as either party may notify the other in writing from time to time. Such notice will be deemed to have been given as of the date given by hand or electronic confirmation, the day after deposit with a nationally recognized overnight courier, or five (5) days after it was mailed.
22. Force Majeure. UPN shall not be in default with respect to any failure or delay in performing its obligations to the extent that such failure or delay is caused by acts of nature, god, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, labor difficulties, strikes, slowdowns, picketing or boycotts, fiber cuts, delays caused by the inaction of utilities, local exchange carriers, cities, municipalities, or other political subdivisions in granting access to rights of way, poles, or any other required items or any other circumstances beyond the reasonable control and not involving any fault or negligence of the delayed party (each, a “Force Majeure Event”).
23. Assignment Customer may not assign or otherwise transfer its rights or obligations related to a Service without the prior written consent of UPN. Any attempted assignment in contravention of this provision shall be null and void. UPN may assign its right and obligations related to a Service to (i) any Affiliate (as “Affiliate” is hereinafter defined), or (ii) a person, firm, corporation, partnership, association, trust or other entity which purchases all or substantially all of its assets whether via merger, sale, stock purchase, or other similar equity arrangement. UPN shall have the right at any time, without the prior consent of Customer, to mortgage, pledge, or grant a security interest in any Service Order or any of UPN’s system in connection with any borrowing or financing activity
of UPN. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this section, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
24. Warranties Relating to Validity By contracting to receive a Service from UPN, Customer represents and warrants to the other that (a) it has the full right and authority, and has taken all necessary corporate or similar action, to enter into, execute, deliver, and perform its obligations hereunder and (b) its execution of and performance shall not violate any applicable existing regulations, rules, statutes, or court orders of any local, state, or federal government agency, court, or body.
25. Intrastate Traffic. If Customer is receiving a private line service, Customer acknowledges and certifies that for the duration of the Service Order Term, the interstate traffic (including Internet and international traffic) will constitute ten percent (10%) or less of the total traffic on the private line that has been provided by UPN. Customer is responsible for notifying UPN if the Customer’s average usage exceeds this ten percent (10%) threshold.
26. Confidentiality
(a) Confidential Information. For the purposes hereof, “Confidential Information” shall include any and all information that UPN holds as confidential or proprietary, including, without limitation, (i) all technical information, including, without limitation, product data and specifications, know-how, formulae, software, source codes and other software information, processes, inventions, research projects, derivative works, and product development; (ii) all business information of or relating to UPN, including, without limitation, accounting and financial information, sales and marketing information, research, investment analyses, investment strategies and techniques, investment transactions and holdings, plans or strategies, processing, equipment designs, clients, personnel, shareholders and information concerning funds and clients advised by UPN, know-how, data and material used or licensed by UPN, including computer software, programming, research, financial information and analyses and the like, and documentation relating thereto; (iii) UPN employee or customer information; (iv) UPN’s confidential information disclosed to the other by third parties; (v) rates, terms, or other information relating to the Services and (vi) any information which a reasonable person would deem to be confidential. Confidential Information shall be governed by any applicable non-disclosure or confidentiality agreement between the Parties. Customer shall not disclose any of the UPN’s Confidential Information to any third party or use any of UPN’s Confidential Information for any purpose other than in connection with the receipt of services hereunder. Customer will not use UPN’s name or the name(s) of any UPN product(s) or service(s) publicly without UPN’s prior written consent. UPN’s Confidential Information shall remain its property and shall be either returned to UPN or destroyed promptly upon the termination. If Confidential Information is destroyed, Customer must certify to the destruction. Customer shall not appropriate Confidential Information for its benefit or the benefit of any third party.
(b) Obligation to Disclose. Customer will promptly notify UPN if Customer receives a demand from a third party for Confidential Information and Customer shall not disclose the same to such third party without the prior written consent of UPN, except as required by law. If Customer believes that it is legally required to disclose any of the Discloser’s Confidential Information, Customer will not disclose such Confidential Information until Customer has notified UPN and UPN shall be entitled to seek a protective order or other appropriate remedy. In the event that Customer is required by law to disclose any Confidential Information, Customer will furnish only the portion of the Confidential Information that is legally required and will exercise commercially reasonable efforts to obtain a protective order or other reliable assurance that the Confidential Information will be treated as confidential upon terms substantially the same as contained herein.
27. Miscellaneous
(a) Negotiated Agreements. Service Orders are deemed to have been fully negotiated between and jointly drafted by UPN and Customer.
(b) Document Precedence. In the event of a conflict between the provisions of these Terms and Conditions and an applicable Service Order, the provisions of the applicable Service Order shall prevail
(c) Limited Effect of Waiver. Any waiver or failure to enforce a provision of these Terms and Conditions or any Service Order shall not be construed as a general waiver or relinquishment of the provision.
(d) Applicable Law and Venue. The domestic laws of Missouri, without reference to its choice of law principles, shall govern all Services. Any dispute or claim arising out of or related to these Terms and Conditions or a Service shall be adjudicated in the appropriate court in Platte County, Missouri.
(e) Severability. If any term or provision is determined to be invalid or unenforceable by a court or body of competent jurisdiction, both parties shall be relieved of all obligations arising under such provision and the provision shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent.
(f) Integration. These Terms and Conditions, along with the applicable Service Order, constitutes the entire and final agreement and understanding between UPN and Customer with respect to Service(s).
(g) Amendment. Service Orders may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of UPN and Customer.
(h) Changes to Terms and Conditions. These Terms and Conditions are subject to change in UPN’s reasonable discretion.
(i) Acceptable Use. By entering into a Service Order, Customer represents and warrants that it shall comply with all relevant laws pertaining to the Services and Customer’s use thereof. Customer further represents and warrants that at all times Customer shall conform its use of the Service to the UPN Acceptable Use Policy, which is available at www.uniteprivatenetworks.com/acceptable-use-policy/.