1. Introduction
This document, Global Terms and Conditions (“GTC”), constitutes part of, is incorporated into, and should be read in conjunction with the Fiber Optic Service Agreement (“Agreement”) applicable to access North East Fiber, LLC ’s fiber optic network (“SPARC”) requested by an individual or entity (“Subscriber”).
Read the agreement carefully. All of these terms affect Subscriber’s legal rights by, among other things, limiting SPARC’s Liability and Requiring Mandatory Arbittration of Disputes.
2. Agreement
Subscriber agrees to be bound by the Agreement and to use the Service in compliance with the Agreement. If Subscriber does not agree to all the terms and conditions of the Agreement, including any future revisions, Subscriber shall not use the Service and must cancel Service immediately. Certain provisions of the Agreement will survive cancellation or termination.
3. SPARC’S Right to Make Changes
SPARC may, in its sole discretion, change, modify, add, or remove (collectively “Revisions”) portions of this GTC, including the Acceptable Use Policy referenced herein (“AUP”), at any time. SPARC may give Subscriber notice of any Revisions that SPARC determines, in its sole discretion, to be material to Subscriber’s Service or the Agreement. Notice of Revisions shall be deemed given when the Revisions are posted on SPARC’s website terms. Notice that Revisions have occurred shall also be deemed given when reference to the Revisions are either: (a) transmitted to Subscriber’s last known email address or other electronic means, (b) mailed as a letter, bill message, bill insert, postcard, or other notice via the US mail to Subscriber’s last known address, or (c) delivered by hand to Subscriber. The revised GTC or AUP will be effective upon the earliest of any of the above notice methods, including posting to SPARC’s website. Any revised GTC or AUP will supersede any prior version of same. Subscriber’s continued use of the Service following such notice shall be deemed as Subscriber’s acceptance of any Revisions. If Subscriber does not agree to the Revisions, Subscriber’s only recourse will be to cancel Service as set forth within the Agreement. Subscriber may not modify the Agreement, this GTC, or the AUP by making any typed, handwritten, or other changes to same for any purposes.
4. Subscription
Subscriber must be at least 18 years of age, and have legal authority to enter into the Agreement. Subscriber represents that all information provided during the subscription process is accurate and complete and that Subscriber will update such information with SPARC should any such information change.
5. Pricing
Current installation prices and monthly fees for each Level of Service offered by SPARC are posted on SPARC’s website. All prices, fees, charges, packages, features, functionality, and offers are subject to change without notice. Any upgrades or modifications to existing
Service may incur additional charges.
6. Payment Obligations of Subscriber
Subscriber’s installation fee, if any, shall be paid by the earlier of the due date as set by SPARC or the date Service is made available. The monthly Service fee will begin upon the date Service is made available. Service is offered and billed in full calendar month increments. Excepting the first month of service, which will be pro-rated, no refunds will be given for partial months of Service. Subscriber is responsible for all charges to Subscriber’s account. All charges are considered valid unless disputed in writing within 30 days of the billing date. Adjustments will not be made for charges that are more than 45 days old. Default in payment, including failure to timely pay may, at SPARC’s sole discretion, result in late fees, reconnection fees, or disconnection of the Service, or both.
7. Equipment
Depending on Level of Service available to and selected by Subscriber, certain equipment (the “Equipment”) will be required for Service. This equipment may include an Optical Network Terminal, in-home fiber cable, Wi-Fi extender, gigabit switch, power strip, and battery backup unit or other Equipment. SPARC will provide Subscriber with the Equipment, which shall at all times remain the property of SPARC, shall not be tampered with, and upon termination or cancellation of Service shall be returned to SPARC in the same condition as existed at the time of delivery, reasonable wear and tear excepted, within ten days from the date of termination or cancellation. All Equipment must be returned to SPARC’s business address, which can be found on SPARC’s website. Failure to return the Equipment to SPARC within ten days will result in Subscriber being liable for and charged the cost of the Equipment.
8. Cancellation
Subscriber may cancel Service only as follows: a) Telephone Cancellation: (662) 234-6331
b) Email: marketing@nesparc.com
c) In person at North East Fiber, LLC Headquarters, 1389 Cooperative Way, Oxford, MS 38655
9. Authorized User
Subscriber and members of Subscriber’s household, including guests of Subscriber, are the only authorized users of the Service and must comply with the Agreement. Subscriber may not sell, transfer, lease, encumber, or assign all or part of the Service. If Subscriber installs a wireless router, no one outside of Subscriber’s household may access the Service through Subscriber’s account. Subscriber is responsible for all traffic coming into or from Subscriber’s account even if it is an unauthorized user. Subscriber shall assure that any use of the Service complies with all applicable laws, regulations, and rules. This limitation on authorized users includes, but is not limited to, hosting applications such as the provision of e-mail, FTP, HTTP, VoIP, and Telnet access. Although resale of such services is prohibited, a business rate plan allows for the hosting of these services for the business’s own purpose (e.g., employee email, basic business website for marketing).
10. Installation
Installation of the Service means that Service has been made available to Subscriber, which,
depending on the Level of Service available to and selected by Subscriber, may include access to a data or voice connection. SPARC cannot guarantee that the Service can be provisioned to a specific location. SPARC may, in its sole discretion, accept or reject any potential Subscriber. Because of the complex nature of the Service, availability, and the underlying infrastructure, it may not be possible to provide the Service to everyone. SPARC may, in its sole discretion, require Aid-In-Construction (“AIC”), fees, or charges, to cover the cost of installation of the service, if the costs of installation of service is deemed excessive or unreasonable (as determined by SPARC). Where, after installation has begun for a Subscriber, it is learned that Service is not reasonably possible, SPARC will cancel the installation process and refund any money Subscriber paid for installation.
11. Access to Subscriber’s Premises
Subscriber shall allow SPARC and its agents the right to enter Subscriber’s real property and premises at reasonable times, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing, and removing the Service and Equipment.
12. Easement on Subsriber’s Property
In consideration of receiving Service from SPARC, Subscriber hereby grants or will grant to SPARC or agent of SPARC any easements required by SPARC or agent of SPARC on, under, over or through Subscriber’s real estate for purposes of extending fiber optic cable so to provide Service to Subscriber and others as well as to perform maintenance, service upgrades, and periodic clearing of rights of way. When economically feasible, all extensions shall follow any existing utility easements. Subscriber warrants that he/she is the owner of the property or has express permission from the owner of the property for the installation of service and service related equipment such as NID, fiber optic cable, wiring boxes, wall plates, or other special equipment.
13. Credit Inquiries
Subscriber authorizes SPARC to make inquiries and to receive information about Subscriber’s credit experience from others, to enter such information into Subscriber’s file, and to disclose such information to appropriate third parties for reasonable business purposes. Subscriber further authorizes and consents to SPARC reporting any late payment or non-payment of any Service Fees by Subscriber to credit grantors or credit reporting agencies.
14. SPARC’S Use of Equipment
Subscriber agrees and understands SPARC may utilize the Equipment provided by SPARC to the Subscriber to extend coverage of the fiber optic network for SPARC’s or other subscribers’ use. Such use will utilize an account and network independent of the Subscriber’s Service and will not impede or restrict Subscriber’s Service.
15. General Restrictions on the Service
The Service speeds and quality identified in SPARC’s marketing materials and other communications reflect Service speed and quality capability and are dependent upon the Level of Service selected and available. The high-end of the speed or quality range for Service represents the potential wired maximum speed and quality capability for a Level of Service, but is not a statement or guarantee of the maximum speed or quality Subscriber will receive. SPARC may contract with third parties to provide portions of the Service.
16. Monitoring the Service
SPARC has no obligation to monitor the Service, but may do so and disclose information regarding use of the Service for any reason if SPARC, in its sole discretion, believes that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Service properly; or protect itself and its Subscribers. SPARC may immediately remove Subscriber material or information from SPARC servers, in whole or in part, which SPARC, in its sole and absolute discretion, determines to infringe another’s property rights or to violate the Agreement.
17. Acceptable Use of the Service
Subscriber shall not use or to allow others to use the Service for illegal or inappropriate activities, including but not limited to: invading another person’s privacy; unlawfully using, possessing, posting, transmitting or disseminating obscene, profane or pornographic material; posting, transmitting, distributing or disseminating content that is unlawful, threatening, abusive, harassing, libelous, slanderous, defamatory or otherwise offensive or objectionable. SPARC has no responsibility for the accuracy, completeness, value, or usefulness of any content, advice or opinions contained in any emails, third party websites, message boards, chat rooms, social networks or online services. The internet may contain material that is unsuitable for minors, and Subscriber agrees to supervise and to accept sole responsibility and liability for any use of the Service by minors through Subscriber’s account. Subscriber shall comply with SPARC’s AUP, which SPARC may modify at any time. The current AUP is available for review at the following address, subject to change: www.nesparc.com. SPARC may take any legal and technical remedies to enforce or prevent the violation of the AUP.
18. Disclaimer of Warranties & Limitation of Liability
The service and the equipment are provided on an “as is” and “as available” basis. SPARC and its suppliers do not warrant the performance of the service, that the service will be uninterrupted, error-free or free of viruses or other harmful components. SPARC and its suppliers make no express warranties regarding the service and the equipment and disclaim all implied warranties including, but not limited to, warranties of title, noninfringement, merchantability and fitness for a particular purpose.
SPARC and its officers, directors, employees, subsidiaries, affiliates, agents, suppliers and vendors (collectively “SPARC parties”) will have no liability for any claims, losses, actions, damages, suits, or proceedings in connection with the service and the equipment resulting from: (i) availability or quality within the coverage area regardless of the cause(s) of the problem; (ii) other users accessing subscriber device; (iii) variations in the speed or bandwidth availability to each device connected to the SPARC Network; (IV) security breaches; (V) eavesdropping; interception of traffic sent or received using the service; (VI) subscriber’s reliance on or use of the service; (VII) interruptions (including due to maintenance), deletion of files, errors, or defects regardless of whether subscriber’s data is maintained on the SPARC servers or subscriber device(s); (viii) delays in operation, transmissions, corruption of data, invalid destinations or any failure of performance of the service; (IX) use of the service by subscriber or a third party that infringes a third party’s copyright, patent, trademark, trade secret, confidentiality, privacy, other intellectual property, proprietary, or contractual rights; or (x) accuracy, completeness, and usefulness of any third party products, services or information or the merchantability of such items
(Including any such items offered through co-branded Web sites linked from the SPARC Web sites).
The SPARC parties will have no liability whatsoever for (i) subscriber failure to properly install, use, or operate the equipment or (ii) any damage to or loss or destruction of any of subscriber’s devices, software, files, data, peripherals or property due to subscriber’s installation, attempted installation, use, repair or removal of the equipment.
The foregoing limitations apply to the acts, omissions, negligence and gross negligence of the SPARC parties which, but for this provision, would give rise to the cause of action against any SPARC party in contract, tort, or any other legal doctrine. Subscriber’s exclusive and only remedies under the agreement are as expressly set forth in the agreement.
The cumulative liability of any SPARC party to subscriber for any and all claims relating to the use of the service and the equipment will not exceed the total amount of servce fees paid during the three months immediately preceding a claim. Notwithstanding anything contained in this agreement to the contrary, no SPARC parties will, under any circumstances, be liable to subscriber or any third party for consequential, incidental, special, punitive, or exemplary damages arising out of or related to the agreement, including, but not limited to, lost profits or loss of business.
Subscriber may have other rights under certain laws in certain states which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages.
19. Indemnification
Subscriber agrees to defend, indemnify and hold the SPARC Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an SPARC Party may sustain or incur by reason of Subscriber’s use or misuse of the Service or the equipment provided by SPARC for use of the Service, or such use or misuse by anyone else through Subscriber’s account including, but not limited to, by such use or misuse (i) in violation of applicable laws or regulations or the terms of the Agreement; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data); or (iv) any claims of the owner of Subscriber’s premises in connection with the installation of the Service.
20. Wavier & Performance
SPARC’s failure to require strict performance of any term of the Agreement will not be a waiver of SPARC’s right to require performance of any term or condition of the Agreement.
21. Electronic Communications & Phone Communications
Subscriber consents to receive notices, documents, disclosures and other communications from SPARC about Subscriber’s account or Service (“Communications”) in an electronic format to Subscriber’s contact email address and agrees that the Communications provided to Subscriber by SPARC electronically will be deemed a writing. Subscriber agrees to regularly check his/her email account for Communications. If Subscriber does not want to receive Communications from SPARC electronically or if Subscriber withdraws Subscriber’s consent to receive such Communications electronically, then Subscriber must stop using the Service. The withdrawal of Subscriber’s consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between SPARC and Subscriber prior to the time Subscriber withdraws Subscriber’s consent.
a) Phone Calling and Texting. In addition, Subscriber hereby agrees that Subscriber’s execution of the Agreement or use of the Service constitutes Subscriber’s express written consent to receive automated and manually dialed calls, text messages, and pre-recorded messages at the phone number(s) that Subscriber provides SPARC in connection with the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from SPARC is not required to purchase products or services from SPARC.
b) Changing Subscriber Contact Preferences Subscriber may exercise Subscriber’s option to not receive any marketing communications from and/or automated or manually dialed calls, text messages, and pre-recorded messages from SPARC by going to www.nesparc.com. Subscriber may also text STOP in response to any text message from SPARC to stop receiving text messages from SPARC.
22. Dispute Resolution by Binding Arbitration
SPARC and Subscriber agree to resolve all disputes and claims between SPARC (including SPARC’s Parties as defined herein) and Subscriber related to or associated with the Service through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to all claims or disputes arising out of or relating to any to any aspect of the relationship between SPARC and Subscriber, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. It also includes all claims and disputes that arose before this or any prior agreement; claims that are currently the subject of purported class action litigation in which Subscriber is not a member of a certified class; and claims that may arise after the termination or cancellation of this Agreement. Notwithstanding the foregoing agreement, SPARC is not bound to use arbitration to initiate debt collection against Subscriber except in response to claims Subscriber may have made in arbitration. In addition, by agreeing to resolve disputes through arbitration, Subscriber and SPARC agree to unconditionally waive the right to a trial by jury or to participate in a class action as a plaintiff or class member. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to SPARC should be addressed to:
SPARC
Notice of Dispute
1389 Cooperative Way
Oxford, MS 38655
A Notice must include the Subscriber’s name, account number, address, and telephone number, and must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to Subscriber from SPARC will be addressed to the billing address that SPARC has on file for Subscriber.
If SPARC and Subscriber do not reach an agreement to resolve the claim within 45 days after the Notice is received, Subscriber or SPARC may commence an arbitration proceeding. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA or as mutually agreed to, in writing, by the Subscriber and SPARC.
The arbitrator is bound by the terms of the Agreement. All issues are for the arbitrator to decide, except issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless SPARC and Subscriber agree otherwise, any arbitration hearings will take place in Lafayette County, MS. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
The arbitrator’s decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit, including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.
23. Jurisdiction
The Agreement is governed by Mississippi law without regard to conflict of law provisions. To the extent any suit is filed related to this Agreement, the federal and state courts located in Mississippi alone have jurisdiction over all disputes arising out of or related to the Agreement and the Service. Subscriber consents to the personal jurisdiction of such courts sitting in Arkansas with respect to such matters, and waives Subscriber’s rights to removal.
24. No Third-Party Rights
The Agreement is made solely for the benefit of the Subscriber and SPARC and does not, and will not, be construed to grant any rights or remedies to any other person or entity other than expressly provided for in the Agreement.
25. Miscellaneous
The Agreement constitutes the entire agreement between Subscriber and SPARC with respect to Subscriber’s use of the Service. Subscriber may not assign any rights or delegate any duties under the Agreement without the prior written consent of SPARC, and any attempted assignment or delegation without such consent will be void. If 1 or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 20; if that prohibition is found to be unenforceable, the entire Dispute Resolution by Binding Arbitration provision (but only the Dispute Resolution by Binding Arbitration provision) will be null and void and the dispute will be heard by a court. SPARC may amend or replace such unenforceable provision with 1 that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of SPARC as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. SPARC will not be liable for delays, damages, or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.