These Terms of Service (“Terms”) establish the terms and conditions which govern the provision and use of all Services purchased by Customer from Eastern Carolina Broadband LLC (“ECB”).
The word “Customer” refers to the entity that has purchased a Service from ECB.
ECB will provide Customer with services (the “Service(s)”) as described in various Service Order Agreements, service orders, service tickets, work orders and other contracts and agreements (each a “Service Order”). These terms apply to all Service Orders to the extent these Terms are incorporated in a Master Services Agreement or another contract instrument (the “MSA” or “Agreement”) that governs the Service Orders and is signed by ECB and Customer. In the event of a conflict or inconsistency between the provisions of these Terms and those of such Agreement or a Service Order (including applicable Service Order addendum(s)), precedence will be given to the documents in the following order:
- the Service Order, including any Service Order addendum(s)
- the Agreement and
- these Terms
PROVISION OF SERVICE BY ECB
ECB will provide Services, including enhancements or modifications thereto, where technically feasible and subject to availability of network capacity or other required resources. A Service Order shall be deemed accepted by ECB at the time ECB begins provisioning of the Services pursuant to the Service Order. Whether or not ECB enters into a Service Order to provide Services to Customer is in ECB’s sole discretion. In addition to the terms of any Service Order, the Agreement, and these Terms, the Services will be provided in accordance with all applicable federal, state, local laws, rules, regulations, and orders of any applicable governing authority (collectively, the “Law” or “Laws” as the context requires) and to the extent of any conflict, the Law shall control.
CUSTOMER USE OF SERVICE
Customer shall use the Services for lawful purposes only and in accordance with these Terms and any other agreement signed by the parties. Customer represents and warrants that it will (i) comply with all Laws that are applicable to the Customer’s use of the Services; (ii) recognize and agree that the Services provided to Customer are specifically for the internal use of Customer and its specified affiliates if any, and (iii) not resell the Services or sublease any of the ECB Equipment. Customer agrees that it will:
- upon request, take any and all actions necessary in order to install and activate the Services;
- provide adequate facilities at no cost to ECB to house and operate ECB’s Equipment;
- be solely responsible to establish and maintain security measures (including, without limitation, codes, passwords or other features) necessary to restrict access to its computers, servers or other equipment through the Services;
- be solely responsible for all fraudulent, unauthorized, illegal or improper use of the Services by persons accessing those Services through Customer’s facilities, equipment or Service Address;
- not permit any unauthorized use of the Services;
- comply with ECB’s Acceptable Use Policy(“AUP”) as described in Section 18 below;
- comply with any written instructions for use provided by ECB;
- notify ECB immediately of any loss of Service or any other problems with any of the Services; and
- maintain and identify to ECB in writing Customer contacts who are authorized to represent Customer on any aspect of the Services and the account (including escalations, maintenance and all requests for moves, additions, deletions or changes to the Services).
ECB reserves the right to terminate or suspend Services, in whole or in part, and/or remove Customer’s content from the Services, if ECB believes, in its sole discretion, the Services are being used in violation of the AUP; are being used in an unlawful, abusive or fraudulent manner or are being used in any manner that causes harm or interferes with ECB’s ability to provide Services to Customer or others. Further, if ECB, in its sole discretion, believes that Customer has violated the Version 1, October 20, 2017, above restrictions, with regard to content, ECB may forward the objectionable material, as well as Customer’s communications with ECB and Customer’s personally identifiable information to the appropriate authorities in accordance with applicable Law. Customer hereby consents to such forwarding. ECB’s actions or inaction under this Section shall not constitute review or approval of Customer’s use or content. Customer will indemnify and hold ECB harmless against any and all liability arising from the content transmitted by or to Customer or to any other users using the Services and from any use prohibited under these Terms. A “user” means any person, whether authorized or unauthorized, using the Service and/or ECB Equipment provided to Customer.
A violation of the restrictions and obligations as outlined above in this Section 2 will be considered a material breach and in the event that ECB terminates the Services, Customer remains responsible for any charges provided for in the Service Order, all of which will immediately become due and payable pursuant to Section 7(D) below. In the event ECB elects to suspend any Services, Customer must pay all resumption and other charges, including but not limited to, past due charges, late payment fees, and a resumption charge.
CREDIT APPROVAL AND SECURITY DEPOSIT
ECB may withhold implementation of Service pending credit approval of Customer, and Customer does hereby authorize ECB to take such steps as ECB deems necessary to review Customer’s credit history. Customer agrees to provide a deposit as a guarantee of payments under the Agreement or to increase a prior deposit should ECB find the Customer credit standing, financial circumstances or payment history unsatisfactory at any time or if Customer’s account incurs excessive usage charges as determined by ECB in its Sole Discretion. The amount of the deposit will be at ECB’s sole discretion. ECB reserves the right to apply a deposit amount to any past due charges under the Agreement, with or without notice to Customer. The customer also agrees to re-deposit the amount so applied, promptly at ECB’s request, or ECB may terminate Services without notice to Customer as described in Section 7(B) below.
TAXES AND FEES
Any applicable foreign, federal, state or local use, excise, gross receipts, sales, value added or privilege taxes; duties, surcharges to recover universal service contributions, regulatory assessment fees or other taxes, fees, charges, surcharges or similar liabilities imposed on or based upon the provision, sale or use of the Service furnished by ECB (collectively, “Taxes and Additional Charges”) shall be paid by Customer in addition to the recurring and non-recurring rates and charges set forth in each Service Order, excluding taxes based upon ECB’s net income or real property. Applicable Taxes and Additional Charges shall include those if any that are imposed after the execution of this Agreement and shall also include all interest, penalties, fees and other charges for late payment. In the event Customer believes it is exempt from any Taxes and Additional Charges, Customer shall provide ECB with a valid exemption certificate from the appropriate taxing authority evidencing such claimed exemption. Customer shall be liable to ECB for any and all costs, expenses and liabilities of any kind incurred by ECB (including, without limitation, the time value of money related to tax refunds for payments made by ECB based upon Customer’s Service that are subsequently exempt from taxation) in connection with an otherwise valid exemption certificate not provided by Customer to ECB within one (1) month of the Service Date.
SERVICE CHARGES AND PAYMENT
ECB’s billing for any Service begins when Services are available for use. “Available for use” shall mean: when the Services are available to Customer when provisioned by ECB but no earlier than the agreed-upon Service delivery date (whether or not activated by Customer).
Except as may be provided otherwise in the Agreement or a Service Order, ECB will send or email a single monthly invoice for the Services to one location designated by the Customer with all Services invoiced in advance. One-time installation and set-up fees are due upon completion of the installation. The customer is liable for all amounts owed under each Service Order. Payment in U.S. currency is due on the first day of each month (the “Due Date”), except as otherwise provided in Section 6(C) below with respect to billing disputes. Unless otherwise agreed by the parties, Customer shall be automatically billed electronically each month, as specified in the service contract. In addition to charges for Services as specified Version 1–October 20, 2017, in the Agreement or Service Order, Customer is also liable to pay ECB for any excise, sales, use or other taxes; all fees or charges applicable to ECB’s provision of Service to Customer (including but not limited to Universal Service Fund (“USF”), Telecommunications Relay Service (“TRS”) and number porting fees); and any such surcharges as may be identified in an applicable Service Order. Such taxes, fees, charges, and surcharges will be separately stated on the applicable monthly invoice. ECB will assess a late charge of $5.00 for Customer’s failure to pay in full by the Due Date. Customer shall reimburse ECB for reasonable attorneys’ fees and any other costs associated with collecting delinquent or dishonored payments. Late charges and any collection fees must be paid prior to the resumption of Service to the Customer. Restrictive endorsements or other statements on payment checks accepted by ECB will not apply. Customers whose service has been terminated for non-payment of their bill, will be charged a reconnection fee of $10.00, should they wish to reestablish their service.
If Customer disputes any charges billed pursuant to these Terms or any Service Order, Customer must notify ECB in writing no later than the invoice Due Date detailing the disputed charges. Such billing disputes must be submitted to billing@ECBroadband.com and must include details of the amount disputed, the reason for the dispute and any other relevant information. Unless otherwise agreed in writing, ECB will issue credits only for charges disputed and submitted in writing as provided in this Section 6(C). Customer must pay all undisputed charges by the Due Date. All claims regarding disputed charges not submitted in such a manner as described herein are hereby waived. If, after investigation, ECB determines that a refund is due, it will be credited on a subsequent invoice. Upon receipt of notice from ECB that the disputed charges are correct and payable, there will be no adjustment to the Customer’s account.
DEFAULT AND TERMINATION
In the event of a material breach of these Terms, the Agreement or any Service Order by ECB that ECB fails to cure within thirty (30) days of receipt of notice from Customer, Customer, as its sole and exclusive remedy, may terminate the adversely affected Service Order upon providing written notice to ECB; In the case of termination pursuant to this Section 7(A), ECB shall credit any amounts prepaid for Services beyond the effective date of termination.
ECB may terminate any Service or Service Order, in whole or in part, or suspend the Service at any time upon written notice to Customer, in the event of: (i) any failure of Customer to pay any undisputed amounts due hereunder pursuant to the terms in Section 6 above; (ii) any material breach by Customer of any provision of these Terms, including without limitation obligations in Section 3) above, the Agreement or any Service Order; or (iii) any insolvency, bankruptcy, assignment for the benefit of creditors, the appointment of a trustee or receiver or similar event with respect to Customer.
Customer’s obligations to make payments under Section 6, this Section 7, or otherwise under these Terms, the Agreement and/or any Service Order shall survive the termination or other cancellation or expiration of these Terms, the Agreement and/or any Service Order. Version 1–November 20, 2017
SERVICE STANDARDS AND SUPPORT
ECB will exercise its reasonable best efforts to provide the Services in accordance with these Terms, the Agreement and the applicable Service Order. In the event of an interruption of Service (“Outage”), Customer must report the Outage, together with the Customer number to ECB at the following number: 1-252-516-0025. If Customer fails to adhere to such reporting process, ECB shall have no obligation to restore the Service.
ECB provides only internet service connectivity. Customer may choose to use a third party telephony service, such as Magic-Jack, Vonage, or other similar services. Such usage will be at the customer’s sole discretion and risk. ECB makes no claim as to the usability of ECB’ Service for the use of telephone service.
LIMITATION OF LIABILITY
Customer acknowledges that use of the services, use of ECB’s equipment (defined below) and customer’s own network equipment, and customer’s provision of back up power in the event of power outages are at its own risk. ECB and its suppliers, vendors, and underlying contractors will not be liable (including for any third party claims) for the use by customer of the services, or for any lost revenue, lost profits, direct, incidental, special, punitive, indirect, or consequential damages, even if advised of the possibility of such damages. ECB will not be liable for any failure or delay in providing the services caused by or attributable to acts or omissions of any underlying services, power outages, equipment, network or facility failure, or for any other circumstances beyond the reasonable control of ECB, including, without limitation, any acts of God such as adverse weather condition, fire, flood, riot, strike, accident, war, governmental requirement, inability to secure materials, labor or transportation, cable cut or other similar cause (any such event, an “excusable delay or failure”).
Customer hereby acknowledges that the services provided hereunder are provided on an “as is” or “as available” and “best effort” basis, with all faults. Except as otherwise expressly set forth in these terms and the applicable service order, ECB makes no warranties, representations or other agreements, express or implied, with respect to the service or the ECB equipment, including, without limitation, implied warranties of merchantability or fitness for a particular purpose. ECB’s entire liability for any claim, loss, expense or damage under these terms will not exceed sums actually paid by customers to ECB for the service which gives rise to the claim.
Customer agrees to indemnify, defend and hold ECB harmless from and against all liability, loss, cost, damage and expense (including, without limitation, reasonable attorneys’ fees and the expense of litigation, administrative proceedings or arbitral proceedings) arising out of the following: (a) the negligent or willful misconduct, act or omission of Customer or any of its agents, servants, employees, officers, directors, contractors, subcontractors, invitees or representatives; (b) Customer’s use of the Services, (c) the breach of these Terms, the AUP, any Service Order, any violation of Law, or infringement upon third party rights by Customer or any of its agents, servants, employees, contractors, representatives, officers, directors, subcontractors or invitees, (d) any loss or damage to the ECB Equipment; or (e) proceedings to recover taxes, fines or penalties for failure of Customer to obtain or to maintain in effect all permits, licenses, certificates, and other approvals required by applicable Law to acquire and use the Services. This provision shall survive the termination or expiration of these Terms, the Agreement and/or any Service Order for any reason.
ECB Equipment: Customer will not allow or cause any facility or equipment ECB provides to Customer in connection with the provision of Services (collectively, the “ECB Equipment”) to be rearranged, moved, modified, repaired or relocated without ECB’s consent. The ECB Equipment shall at all times remain the personal property of ECB, regardless of where located or how it is attached to Customer’s premises. Customer will not create or allow any liens or other encumbrances to be placed on any ECB Equipment and will be responsible for all loss or damage to such ECB Equipment during the term of any applicable Service Order. If Customer relocates or changes the place of the Service provided under the applicable Service Order, Customer will pay all related costs and expenses associated with such relocation. Access to all ECB Equipment shall be made available to ECB within one (1) day of termination of the applicable Service Order in the same condition as when received, except for reasonable wear and tear. In the event Customer fails to make available the ECB Equipment within such time period, Customer will be charged the replacement value of the ECB Equipment. ECB may change, replace or remove the ECB Equipment as it deems necessary to provide the Services, and these Terms constitute Customer’s consent to such change, replacement or removal.
OTHER THAN WARRANTIES AS TO THE ECB EQUIPMENT EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE ECB EQUIPMENT, ECB MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANT ABILITY, FITNESS OF THE ECB EQUIPMENT FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE ECB EQUIPMENT OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE ECB EQUIPMENT.
- Customer Equipment: Customer is responsible for (i) obtaining and maintaining any equipment (other than the ECB Equipment) necessary to access or otherwise receive the Services (including software) and for ensuring that such equipment is compatible with the Services and (ii) ensuring that there is sufficient power and other applicable utilities or environmental conditions for the provision of Services. ECB has no obligation to install, maintain or repair any equipment owned or provided by the Customer and shall not be liable for the same. For purposes of this Section 14(B) Customer acknowledges that to ensure Customer equipment is compatible with the Service, Customer shall send a request to support@ECBroadband.com, which request must include technical specifications (manufacturer, make and model of equipment Customer desires to connect) and, if further requested by ECB, other equipment information. ECB approval of Customer equipment shall not unreasonably be denied. Notwithstanding the use of Customer equipment, ECB’s responsibility for delivery of service, including but not limited to maintenance and testing, shall end at the Customer connection point to ECB’s equipment or facility. Customer and its end users shall not operate hardware or software that ECB, in its sole discretion, deems harmful, hazardous, or capable of causing interference, congestion, or interruptions to the Network, ECB Equipment, or Service. Upon written or verbal notice from ECB, Customer and/or end-user(s) shall immediately remove the offending hardware or software. If Customer and/or end user(s) fail to do so, ECB may suspend Service Order without further notice as provided in Section 7(B) above; provided, however, that ECB shall afford Customer a reasonable opportunity for a cure before terminating the Service Order.
- Access: ECB may require access to the Customer’s premises to install and maintain the Services and ECB Equipment necessary for the provision of Services. Customer agrees to provide reasonable access including conduit if required, space, power, and environmental conditioning to ECB or its agents as applicable to install and maintain the Services or ECB Equipment, as the case may be.
- Theft: Customer agrees to notify ECB immediately, in writing or by calling the ECB customer support line, referencing Customer’s Circuit or Port ID or primary telephone billing number or Customer account number, if ECB Equipment is stolen or if Customer becomes aware at any time that a Service is being stolen or fraudulently used. Failure to do so in a timely manner may result in the termination of the Service and additional charges to the Customer. Until such time as ECB receives notice of the theft or fraudulent use, Customer will be liable for all use of the Service using ECB Equipment stolen from Customer and any and all stolen Service or fraudulent use of the Service.
In some cases, Customer will need to purchase additional equipment in order to gain full Internet access. This comes in the form of a wireless repeater used to cover a greater service area. Cost per repeater begins at $5/month above monthly surcharges and can/will be increased per equipment needs. Upon purchase, Eastern Carolina Broadband will actively manage and support the device(s).
If the Customer chooses to purchase repeater equipment outside of ECB, ECB cannot be responsible for lag in signal nor routine support and/or maintenance.
SPECIAL PROVISIONS IN CONNECTION WITH VOICE OVER INTERNET PROTOCOL (“VOIP”)
The customer acknowledges that the VOIP Service is dependent on a broadband connection, adequate power, compatible software/firmware/hardware, and correct configuration of an IP phone, IP office, Terminal Adapter (“TA”), or other device used to convert internet service into telephone service.
Service Limitations: In the event, Customer elects to purchase local and long-distance telephone services, the Customer acknowledges that voice services may not be compatible with all non-voice communications equipment, including but not limited to security systems, security systems set up to make automatic phone calls, fax machines, satellite television systems, and computer modems. Customer waives any claim against ECB for interference with or disruption of such services and equipment due to the Services.
Loss of Service Due to Power Failure or Internet Service Outage (As Applicable to Customer Installed Voice Services): In the event, Customer elects to purchase local and long-distance telephone services as set forth above, Customer acknowledges that voice service does not function in the event of a power failure. The customer further acknowledges that voice service requires a functional broadband connection and that in the event of an outage or termination of broadband services, voice services will not function.
A SPECIAL NOTE CONCERNING MINORS
Protecting children’s privacy is especially important to us. It is our policy to comply with the Children’s Online Privacy Protection Act of 1998 and all other applicable laws. ISP recommends that children ask a parent for permission before sending personal information to ISP, or to anyone else online. If you are under the age of 13, you are not authorized to provide us with personally identifying information, and we will not use any such information in our database collection activities. We appreciate your cooperation with this federally mandated requirement.