FPUAnet Communications
Bandwidth Connection
Service Agreement 

1.              INTRODUCTION

FPUAnet (formerly GigaBand) and ispEZ services are provided by Fort Pierce Utilities Authority ("FPUA"), Ft. Pierce, Florida, USA and the terms, ispEZ, FPUAnet, GigaBand and FPUA are service marks that may be used interchangeably in this Agreement.  By using this Bandwidth Connection service (the “Service”) or by establishing an account, “you,” the customer, agree to be bound by this agreement (the “Agreement”) and to use the Service in compliance with this Agreement; ispEZ’s Privacy Policy and Acceptable Use Policy only insofar as the Service is used in conjunction with Internet access; all other applicable user policies (collectively “Terms of Service”) available on the World Wide Web at  http://www.ispez.net/policies.html ; as well as Sales Order(s) (if any) by which you ordered your Service, and any other related documents signed by you.  Special notes printed in the Sales Order prior to execution by both parties shall supercede the corresponding language of this agreement.  Bandwidth Connection service alone does not include Internet service nor maintenance of your network, but such services may be purchased separately, either as separate line items or on separate, additional Sales Order(s).  FPUA reserves the right to revise the Terms of Service.  Although FPUA will attempt to notify you of such revisions, you accept sole responsibility for periodically reviewing the Terms of Service for any and all changes.  If you do not agree to any future revisions of the Terms of Service, and you have a current Sales Order, you may notify FPUA in writing within 30 days after the revision.  If you have thus notified FPUA and have a valid Sales Order that has been executed prior to the revision date, the revision to which you have reported objection will not apply for the duration of the Sales Order.  In the absence of your notification under a valid Sales Order, your continued use of this Service following the posting of any revisions to the Terms of Service constitutes your acceptance of those revisions.  

2.              SERVICES

(A)   In consideration for the payments to be made by "you", the customer, pursuant to the terms of this Agreement, the Service Provider (“FPUA”), will provide for your use a data connection, via FPUA ‘s optical fiber and network facilities, between a customer port in FPUA‘s equipment at each end of the link, which will be operated seven days per week, twenty-four hours per day.  Each customer port will be considered the end, or edge of FPUA’s network, and the cable connected into the customer port will be considered the end, or edge of the customer network.  Each interface between the customer’s network and FPUA‘s network at a customer port shall be called a “Demarcation” point, and it’s location and configuration shall be described in the Sales Order.  Typically, each Bandwidth Connection will terminate at two Demarcation points, or both ends of the link.

(B)  FPUA shall install and maintain all portions of its Network up to the Demarcation Point. FPUA shall use its reasonable best efforts to give you at least 10 business days notice prior to the date of any scheduled, non-emergency work on the network that may affect the Service. 

(C)  Except as modified in the Sales Order, you will provide FPUA with ingress and egress to the property from the public right of way, for the installation to each Demarcation Point.  You will be responsible for all costs associated with any building modifications or conduit installation from the right of way or on the premises.   Where the premises are not owned by you, you shall obtain all necessary approvals, including easements where applicable from the owner which will allow FPUA to locate, install and maintain its equipment, and to remove its equipment, cable and wire in the event of your default of any of the provisions of this Agreement or at the termination of this Agreement.

(D)  Any unscheduled outage of the Service will require FPUA to perform emergency repairs. You agree to report the outage by telephone at FPUA’s 24-hour/7-day emergency repair crew dispatch number (currently 772-466-1600 ext. 6209).  FPUA will remotely troubleshoot and, if necessary, dispatch repair crew personnel for emergency dispatch 24 hours a day, seven days a week, and shall not be prohibited from contracting for the repair when deemed necessary.  FPUA shall use reasonable best efforts to have its first maintenance person at the site requiring an emergency repair within four hours after the fault is identified and dispatch is deemed necessary.  FPUA will attempt to restore the Service no later than six hours after the fault is identified.

(E)   FPUA shall not be liable to you for interruptions in service due to scheduled maintenance or events beyond its control, including without limitation acts of God, acts of any public enemy, acts of the customer or others authorized by the you, failures of services or equipment not provided by the FPUA, sabotage or other criminal acts of third parties, floods, strikes, statutory or other laws, regulations, rules or orders of the federal, state or local government or any agency thereof.  However, if the service becomes interrupted for any other reason for a period in excess of four hours, you will be granted a service credit.  This service credit will be your sole and exclusive remedy in the case of a service interruption, and will be calculated as 1/760th of the monthly rate for the affected service for each hour that the interruption continues.  

3.              THE FPUA EQUIPMENT

(A)   Equipment provided by FPUA (“the Equipment”) for the Service is owned by FPUA and is to be returned to FPUA upon cancellation of the Service, unless otherwise stated in the Sales Order. 

(B)  FPUA agrees to keep the Equipment in good repair for the duration of the Service.   Except as modified in the Sales Order, you grant to FPUA and its agents six (6) rack units, or equivalent wall or shelf space at each Demarcation, electricity and access to operate and service FPUA equipment.

(C)  You will protect the Equipment, and be responsible for any damage resulting from abuse or negligence, or acts of God, as determined solely by FPUA.

(D)  This warranty is in lieu of all other warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose.

(E)   You agree to return all FPUA Equipment within 7 days after cancellation of the Service, and to immediately pay the fair market value for any part of the Equipment not returned to FPUA within that 7-day period.  Fair market value will be reasonably determined at FPUA’s sole discretion.

(F)   If FPUA damages your premises (“the Premises”) during the Service installation or maintenance, FPUA will compensate the owner of the Premises for reasonable, actual and documented costs of necessary repair, not to exceed $1,000, as a credit against the Service fees. 

4.              PAYMENT

(A)   In consideration for the Service to be provided by FPUA, you shall pay fees to FPUA, including a monthly fee, in advance and in accordance with the Sales Order, or in the absence of a Sales Order, FPUA’s applicable fee schedule or price list.  After the first three months of service, the monthly service rate will be adjusted each March, based on the percent Annual change in the CPI report, "U.S. All items, 1982-84=100 - CUUR0000SA0" available from USDOL Bureau of Labor Statistics ( http://data.bls.gov/cgi-bin/surveymost?bls ).  You shall also pay appropriate deposits and late payment fees in accordance with then current security deposit, credit and collection policies of Fort Pierce Utilities Authority, and any sales tax, Communications Services tax, or any taxes or other fees required by applicable law.   To the extent permitted by law, the parties agree to make all reasonable efforts to cooperate and to provide assistance to one another in an attempt to obtain all available exemptions from any taxes generated by this Agreement.

(B)  Payment shall be due in accordance with your monthly bill.  Three billing options are available:

1. Include Communication Services charges on your monthly paper invoice.  This option is available at no extra charge if you receive a paper invoice for electric, water, wastewater, gas or other FPUA utilities.  If you do not already receive a paper invoice, a monthly processing fee will be added.

2. Automatic bank draft using FPUA’s EZPay service.  There is no extra charge for this option.  EZPay authorizes FPUA to make automatic monthly charges each calendar month against your bank account. This authorization shall be cancelable by you via written notice to FPUA, delivered either by email, facsimile transmission or United States Mail (First Class, postage prepaid).  To sign up, go to FPUA’s Payment Options page at http://www.fpua.com/mybusiness/payment.html .

3. Automatic credit card payments.  A third party "convenience fee" will be applied to all credit card payments.  For details, go to our Online Services page at http://www.fpua.com/account/index.php .

5.              TERM OF AGREEMENT

(A)   Your Service Term of Agreement is sixty (60) months, unless otherwise stated in the Sales Order.  At the end of the initial Term of Agreement, the Service and Agreement will continue on a month-to-month basis until cancelled by either party or renewed by written agreement of both parties. 

(B)  If the FPUA materially defaults in performance of any duty or obligation imposed by this Agreement, you may terminate this Agreement after giving written notice to FPUA specifying the existence and nature of the default, and giving FPUA thirty (30) days from the effective date of the notice to cure the default. Events of material default by FPUA shall include, but are not limited to, failure to perform its duties hereunder three or more times within any calendar month.

(C)  FPUA may suspend the Service without notice, and Service suspension under this section shall not release you from your monthly payments or other obligations for the remainder of your Service Term of Agreement, upon (i) your failure to pay any amounts invoiced hereunder within thirty (30) days after the date of the invoice; or (ii) FPUA 's determination, in its sole discretion, that you have violated any other part of our Terms of Service; or (iii) credit is refused to FPUA on any monthly charge when you are paying monthly fees on an Auto-Charge basis, and such credit is not reinstated; or (iv) Your failure or refusal to cure any breach of this Agreement (other than as mentioned above) within fifteen days after notice of such breach has been given by FPUA to you. 

(D)  FPUA may cancel the Service, and Service cancellation under this section shall not release you from your monthly payments or other obligations for the remainder of your Service Term of Agreement, if you fail or refuse to cure any of the following within thirty days after notice of such breach has been given by FPUA to you:  (i) your failure to pay any amounts invoiced hereunder within thirty (30) days after the date of the invoice; or (ii) FPUA 's determination, in its sole discretion, that you have violated any other part of our Terms of Service; or (iii) credit is refused to FPUA on any monthly charge when you are paying monthly fees on an Auto-Charge basis, and such credit is not reinstated; or (iv) your disruption of FPUA‘s network services or any other breach of this Agreement. 

(E)   If you cancel the Service prior to the completion of the full Term of Agreement, you agree to pay FPUA, within 7 days, all of the balance on your account, the fair market value of any Equipment not returned, as described in section 3 of this agreement, and 90% of the monthly Service charges for the balance of the Term of Agreement.   

6.              NO ARCHIVAL SERVICES

This Service DOES NOT include storage or backup services for your data.  FPUA shall have no responsibility for your failure to backup, or loss of any of your data. You are responsible for providing any archival history services with respect to your data, whether created by you or a third party.

 7.              DISCLAIMER OF WARRANTIES

FPUA exercises no control whatsoever over the content, accuracy or quality of the information passing through its network or any products ordered by you via its network. The information or products obtained by you through the Service are provided "as is" without any warranties whatsoever, expressed or implied.  

 8.              LIMITATION OF LIABILITY

In no event shall either party be liable to the other for any indirect, incidental or consequential damages arising out of or in relation to this Agreement or the Service, including, but not limited to, damages incurred by you resulting from loss of data due to delays, non-deliveries, mis-deliveries or interruptions in Service, regardless of the cause.

 9.              FORCE MAJEURE

Neither party shall be considered in default of its obligations hereunder (except the payment of money, which shall not be excused) if performance of such obligations is prevented or delayed by acts of God, government, war, riots, acts of civil disorder, labor disputes, failure or delay of transportation or such other causes as are beyond such party's control.

 10.        ASSIGNMENT

You may not assign your rights or delegate your duties hereunder, in whole or in part, without the prior, written consent of FPUA.

 11.        NOTICES

Any notice permitted or required by this Agreement shall be in writing and shall be either delivered in person, mailed by United States Mail, certified with return receipt requested and all postage prepaid, or delivered by Federal Express, UPS or other widely recognized overnight courier services. Notice sent by certified mail shall be effective on the third business day following postmark, whether or not actually received, if properly addressed with postage prepaid. Notice delivered in person shall be effective upon delivery. Notice sent by overnight courier service, properly addressed with all charges prepaid, shall be effective at 5:00 PM on the next business day following placement of the notice in the hands of the courier service for delivery.

 12.        GOVERNING LAW

This Agreement shall be construed under the laws of Florida, and as applicable, of the United States of America. Venue for any action or proceeding arising out of this Agreement shall be in St. Lucie County, Florida.

 

Revised 10/06/06 by dtel