SOUTH HADLEY ELECTRIC LIGHT DEPARTMENT TELECOMMUNICATIONS

TERMS AND CONDITIONS

South Hadley Electric Light Department (doing business as “Fibersonic”) seeks to provide and foster an on-line community that can be used and enjoyed by all its telecommunications customers. By using and/or activating IP network or telecommunications connectivity services with Fibersonic (“Network Services” or “Services”) and/or clicking the accept button on the login/registration page, you agree to be bound by the terms and conditions set forth below. Further, you acknowledge that upon use of the Services, Fibersonic will rely upon and commence processing your order and will incur expenses and obligations immediately, for which you acknowledge your obligation to comply with this agreement.

1. The Customer agrees to pay Fibersonic, in full and on a timely basis, the applicable charge associated with the Network Services requested by you, as set forth on Fibersonic’s web site. Fibersonic reserves the right, in its sole discretion, to change, modify, add, or remove portions of this Agreement, and Customer agrees to be bound by any such modifications as a consequence of Customer’s continued use of Services. Fibersonic may cancel the Service in the event of Customer nonpayment or violation of this Agreement. Fibersonic may modify the Services at any time, including but not limited to upgrades and downgrades, with thirty (30) days prior written notice to you of such change to occur. Fibersonic may impose limits on Services or restrict the Customer’s access to parts or all of the Service without notice or liability. Any notice of such changes will be posted on the Fibersonic Web site located at www.fibersonic.com.

2. All customers of Fibersonic are provided at no additional cost our Standard Service Level Agreement that includes 24-hour access to Fibersonic technical support. The Standard Service Level Agreement provides problem resolution response on a first‐come, first-served, best-effort basis, and does not provide for service guarantees. Off‐net support is available at the applicable rate.

3. Any and all customer premises equipment provided by Fibersonic to the Customer that is used to deliver the Services must be returned to Fibersonic undamaged, upon the expiration or termination of the Agreement, at: 85 Main Street, South Hadley, MA 01075. The Customer agrees to provide to Fibersonic the full replacement cost of such equipment, if the Customer fails to return such equipment at the end of the term of this Agreement in the identical condition as initially provided to the Customer, commercially reasonable wear and tear excepted. The Customer has the sole responsibility to adequately protect the equipment against power surges and all other potential damage and harm, exclusive of customary wear and tear associated with its assigned use. Any and all such damage to the equipment that results from the Customer’s failure to provide such protection shall be the Customer’s sole responsibility.

4. The Customer agrees to pay all charges billed by Fibersonic on a monthly basis, throughout the Term (as defined below) (the “Monthly Recurring Charges”). The Customer agrees and acknowledges that Fibersonic shall not be liable if, during the order and installation process, it is determined that Service cannot be provided to Customer or that it is commercially impracticable to do so. In addition, in the event that Fibersonic incurs additional cost over and above usual and customary charges to provide Service to the Customer, which may include but not be limited to extended wiring charges, alternative business hour service installation charges, or emergency service repair charges, the Customer shall be responsible for any and all such charges.

5. The Customer agrees that the electric bill for the requested service location is to be paid in full before SHELD will connect Customer to the Fibersonic system.

6. Fibersonic services terminated for non-payment will be restored within 48 business-hours upon the following conditions:

    1. Customer provides payment in full via CC/Cash/Bank Check
    1. An Administrative Fee of at least $49.95 will be added to the customers account and paid in full via CC/Cash/Bank Check prior to restoration.
    1. Reconnection of service must be authorized by the Credit Department.
    1. Administrative Fees will be charged as follows: Normal Working Hours $49.95 (Monday-Friday 7 a.m. – 3:30 p.m.)
    1. After Hours/Weekends/Holidays $99.95 plus $49.95 truck roll fee

7. Fibersonic offers two seasonal disconnect options for customers who will be away for between 3 and 6 months. For customers who do not have phone service or do not wish to keep their phone number there is no charge. Upon their return, the customer should provide Fibersonic with 48-hour notice to reconnect service.

For customers who have Fibersonic phone service and wish to keep their phone number, Fibersonic will provide a soft disconnect of services while reserving your phone number during this period. A fee of $5.95 (subject to change based on services and taxes) per month will be billed to the account at reactivation. Upon their return, the customer should provide Fibersonic with 48-hour notice to reconnect service at no charge. Regular monthly internet and phone service fees will begin upon activation.

8. The Customer agrees that Fibersonic’s network and its Services may be used only for lawful purposes. Fibersonic is not responsible for the content of any websites linked to, accessed or accessible by the Services; links are provided as Internet navigation tools only. Users may not use the network or Services to transmit, distribute or store material (a) in violation of any applicable law, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, (c) that is obscene, threatening, abusive or hateful or contains a virus, worm, Trojan horse, or other harmful component; or (d) that contains fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive or misleading statements, claims or representations.

9. The Customer agrees that renting, selling, or otherwise transferring the Service for the benefit of a third party is strictly prohibited by this Agreement and violates applicable law.

10. The Term begins upon activation of Customer’s Services (the “Activation Date”) and expires upon forty‐eight (48) hour notice from the Customer. All notices must be sent to Fibersonic on Customer letterhead, by one of the listed contacts on the current Customer Information form on file, ATTN: Fibersonic Telecommunications, 85 Main Street, South Hadley, MA 01075.

11. Fibersonic will invoice the Customer on a monthly basis for Network Services and any applicable equipment charges. The Customer agrees that any failure to pay for Services thirty (30) days after the invoice date may subject the Customer to: (a) a 1.5% late fee charged per month or the maximum rate permitted by law, on the outstanding balance. (b) charges for any Fibersonic equipment replacement costs, if applicable; and (c) the termination of Services. The Customer is required to provide Fibersonic with updated and current phone numbers, email addresses, fax numbers, mailing addresses, and other contact information at all times during the Term. The Customer agrees to assume all costs and expenses incurred by Fibersonic in connection with collecting unpaid amounts due, including, but not limited to, reasonable attorneys’ fees and court costs incurred in the course of such collection. Returned checks shall incur a $25.00 returned check fee. Fibersonic may, in its sole discretion, consider successive returned checks as failure to pay.

12. In the event the Customer selects and is approved for the credit card payment option, the Customer expressly authorizes Fibersonic to charge the Customer’s credit card account for outstanding account balances and any future Monthly Recurring Charges that accrue. This authorization remains valid until the Customer provides written notice to Fibersonic terminating Services or Fibersonic’s authorization. Fibersonic may terminate Services for declined credit cards, returned checks, or any other non‐payment to the Customer’s account. The Customer electing the credit card option is required to provide Fibersonic with updated and current credit card information at all times during the Term. Services terminated for non-payment are subject to an administrative fee prior to reconnection of service.

13. The Customer acknowledges and agrees that Fibersonic has the right to engage in the collection and storing of certain personal and business data concerning the customer (“Customer Data”). This data (i) will be used by Fibersonic and/or its service delivery partners and contractors to provide Services, (ii) will be treated as confidential, and (iii) will not be used other than in the normal course of Fibersonic business. Fibersonic may release Customer Data to third parties outside the normal course of Fibersonic business only to comply with valid legal requirements. The Customer may request the return of any personal and business data stored by Fibersonic by providing a written request within thirty (30) days after the expiration or termination of the Agreement (“Data Retrieval”). In the event the Customer requests Fibersonic’s assistance with respect to Data Retrieval, the Customer agrees to pay Fibersonic its customary fee.

14. Equipment, hardware, and software not provided and owned by Fibersonic are the sole and exclusive responsibility of Customer. It is understood and agreed that when Fibersonic provides equipment, Fibersonic acts solely as a reseller and all failures and/or disputes concerning the operation of such equipment will be governed by the manufacturer’s warranty(s) and policies, and are not the obligation or responsibility of Fibersonic unless otherwise stated in the Customer’s Service Agreement with Fibersonic.

15. Fibersonic grants the Customer a non‐transferable, non‐exclusive, and terminable right and license to use the applications and software necessary for the delivery and receipt of Services, if any, provided that Customer or any third party on behalf of the Customer does not copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the applications or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the applications. The Customer agrees not to modify the applications in any manner or form. “Fibersonic,” the Fibersonic logo, and other Fibersonic trademarks, service marks, logos, and product and service names are trademarks of Fibersonic (the “Fibersonic Marks”). The Customer and its employees, agents, contractors, and/or representatives agree not to display or use the Fibersonic Marks in any manner without Fibersonic’s express prior written permission.

16. The Customer hereby grants Fibersonic the right to disclose that it is a Customer of Fibersonic and the right to display the Customer’s logo on Fibersonic materials including, but not limited to, Fibersonic’s Web site and literature. In the event Fibersonic decides to use one or all of the Customer’s logos, Fibersonic shall adhere to the Customer’s specifications for use of such logo that the Customer has provided to Fibersonic. Fibersonic shall not acquire any other rights to the Customer’s intellectual property including, but not limited to, trade names, trademarks, product name, logo, case studies, and customer testimonials. The Customer may deny Fibersonic the use of such intellectual property by providing written notice of such a decision on the Customer’s company letterhead. Fibersonic hereby grants the Customer the right to display the Fibersonic logo on the Customer’s materials including, but not limited to, the Customer’s Web site and literature to publicize that Fibersonic is a provider of Services to the Customer.

17. The Agreement represents the entire agreement between the Customer and Fibersonic with respect to the Services provided, superseding all previous communications or agreements regarding such subject matter. These Terms and Conditions are subject to revision by Fibersonic in its sole discretion. Notice of modification may be provided through an update of the Fibersonic web page, and Customer’s continued use of Services following the date of revision shall be considered the Customer’s acceptance of the change(s).

18. The Customer understands and acknowledges that Fibersonic is not liable for any indirect, incidental, special, punitive, or consequential damages; lost profits, loss of data, loss of hardware or software, loss or liability resulting from computer viruses, Service defects, Service interruption or security insufficiency arising out of or related to this Agreement, the performance or breach thereof; the Services provided or failure to be provided; or any delay, non‐delivery, wrong delivery, or Service Interruption whether or not caused by the acts or negligence of Fibersonic or their agents, employees, contractors or any party, even if the party has been advised of the possibility thereof.

19. The Customer’s correspondence or business dealings with, or participation in promotions of, content providers, advertisers, or sellers of goods and services found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between the Customer and such entity. The Customer agrees that Fibersonic shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers, content providers, or sellers in connection with the Services.

20. The Customer shall indemnify, defend with Fibersonic counsel, and hold Fibersonic harmless from any and all claims resulting or alleged to result from: (a) The Customer’s use of the connection provided by Fibersonic and/or any service equipment or software provided by Fibersonic; (b) fault, negligence, or failure of the Customer to perform the Customer’s responsibilities hereunder; (c) claims against the Customer by any other party; (d) any act or omission of Fibersonic and any party furnishing services and/or products hereunder; or (e) the installation and/or removal of any and all equipment supplied by any person, including, but not limited to, Fibersonic.

21. South Hadley Electric Light Department (SHELD) has sole discretion for determining the final location of the overhead and/or buried fiber optic service line to and within the premise and may at times require scheduled access to this property for the purpose of maintenance and service. Fibersonic acknowledges that damage to customer property solely attributable to the on-site installation and maintenance of this fiber service shall be repaired to preexisting condition. Installation of the Fibersonic service may involve modifications to a rental property. While these modifications are often minor, standard professional installation may include drilling holes to run fiber optic cable and attach equipment securely to the premise. The Customer attests that these required modifications are authorized by the landlord, or its authorized representative. Customer indemnifies, holds harmless and defends with Fibersonic counsel relating to any liability related to damages your landlord may claim as a violation of your lease/rental agreement.

22. Fibersonic shall not be liable to the Customer under this Agreement for any failure or delay in performance that is due to causes beyond its reasonable control and without its fault or negligence including, but not limited to, acts of nature, acts of civil or military authority, governmental actions, fires, civil disturbances, interruptions of power, or transportation problems. Fibersonic shall also not be liable for any delay or performance failure caused by the Customer’s failure to perform any of its obligations under this Agreement.

23. This Agreement shall be governed under the laws of the Commonwealth of Massachusetts, and to the extent applicable, federal law, without regard to choice of law principles. The Customer and Fibersonic hereby agree that the state courts of the Commonwealth of Massachusetts in Hampshire County shall determine any dispute relating to or arising out of this Agreement.

24. THE CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT FIBERSONIC IS NOT LIABLE FOR ANY DAMAGES RESULTING FROM ANY FAILURE OR DELAY DURING INSTALLATION AND PROVIDING SERVICES. FIBERSONIC MAKES NO GUARANTEES OR PROMISES WITH REGARD TO THE EXACT DATE OF THE COMPLETE INSTALLATION AND OPERATIONAL STATUS OF THE CUSTOMER. FIBERSONIC AND CUSTOMER HEREBY WAIVE ALL RIGHTS TO TRIAL BY A JURY.

25. SERVICES PROVIDED BY FIBERSONIC ARE “AS IS.” FIBERSONIC MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON‐INFRINGEMENT, OR ANY WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. FIBERSONIC ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THEIR SERVICES AND DOCUMENTS ASSOCIATED WITH SERVICES BY REFERENCE OR LINKS. REFERENCES TO THIRD PARTIES, THEIR SERVICES, AND THEIR PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. FIBERSONIC SERVICES AND DOCUMENTS ASSOCIATED WITH SERVICES COULD INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS.

26. FIBERSONIC RESERVES THE RIGHT TO CHANGE THE ACCEPTABLE USE POLICY AT ANY TIME WITHOUT PRIOR NOTICE. IN THE EVENT THAT ANY CHANGES ARE MADE, THE REVISED TERMS AND CONDITIONS SHALL BE POSTED ON THIS WEBSITE. PLEASE CHECK THE LATEST INFORMATION POSTED HEREIN TO INFORM YOURSELF OF ANY CHANGE.

REVISED FEBRUARY 2019