Terms & Conditions

GENERAL PROVISIONS

1.1  These Service Terms and Conditions (“Terms and Conditions”), together with any Addenda, Exhibits, and Schedules (attached now or later), incorporate the provisions, including pricing, of the Designated PSC Service Order Agreement designated by you, the customer (“Customer,” “you,” or “your”), for the purchased Services (“Designated PSC Service Order”). Each Designated PSC Service Order, together with these Terms and Conditions, make up the agreement under which PSC will provide the purchased Services to Customer (collectively, the “Agreement”).

Customer has read, understands, and agrees to be bound by the Designated PSC Service Order, Addenda, Attachments, Exhibits, Schedules, the items listed in section 1.5, below, and these Terms and Conditions, in exchange for PSC providing the Services. This Agreement is effective as of the service date listed on the Designated PSC Service Order (“Effective Date”).

1.2  The Designated PSC Service Order delineates the Rates for the Services. Additional Designated PSC Service Orders will be required to change or add to the initial Services. Each subsequent Designated PSC Service Order signed by Customer for changed or additional services is part of this Agreement. Pricing excludes state and federal taxes, regulatory fees, and surcharges.

1.3  In case of any conflict between these Terms and Conditions and any Designated PSC Service Order, the Designated PSC Service Order prevails.

1.4  PSC may cancel the Agreement within 45 days after the Effective Date if PSC determines that it cannot provide Service economically to Customer or for technical reasons, including but not limited to a technically acceptable transmission facility to Customer’s premises is unavailable; adequate capacity to provide the Service is unavailable; acceptable transmission speed cannot be achieved after PSC performs technical due diligence; or Customer’s premises are located an excessive distance from PSC’s switching facilities.

1.5  This Agreement includes the following materials, incorporated herein by reference:

1. 1. Your Designated PSC Customer Service Order Confirmation and Summary
   2. PSC

RATES AND CHARGES

2.1  The Designated PSC Service Order contains the Rates and charges, including both recurring and non-recurring charges, for the individual Services that comprise the complete package of Services ordered by the Customer.

2.2  PSC shall bill Customer for monthly recurring charges one month ahead. Customer shall pay such charges upon receipt of the invoice during the term of this Agreement. The complete disconnection of all of Customer’s Services will constitute a Cancellation of Services, for which a Cancellation Fee may apply (see section 6 below).

2.3  All non-recurring charges incurred under this Agreement are due and payable as of the “Effective Date” of the Designated PSC Service Order unless otherwise dictated in the Designated PSC Service Order.

AGREEMENT TERM AND CONDITIONS

3.1 The Designated PSC Service Order specifies the length of this Agreement (“Term”) and begins on the date that Service commences as noted in the Designated PSC Service Order Confirmation Terms and Conditions. On the initial and subsequent expiration dates, this Agreement will renew automatically for one year unless a different term is specified in writing or either Party gives written notice to the other at least 30 days prior to the expiration of the then-existing term that it elects not to renew the Agreement.

3.2 FEES, PAYMENT SCHEDULE, AND LATE FEES. Except for Lifeline or Affordable Connectivity Program service, the fees and payment schedule for the Services are set out in the Designated PSC Service Order. Rates are fixed for the Term unless otherwise noted on the Designated PSC Service Order.  PSC may increase the Rates before any renewal term with at least 30 days’ written notice to Customer. Payment by Customer for invoiced charges is due on the 17th day of each month. PSC may charge a $10 late fee for any balances not received by the due date. PSC may suspend Customer’s Service for nonpayment of any balances not received one month after the due date. If PSC suspends Service because of nonpayment as described under this paragraph 3.2, then Customer shall pay a reconnection fee of $25 to reconnect Service. Customer shall be liable for all costs incurred in the collection of past due balances, including but not limited to collection fees, attorney’s fees, filing fees, and court costs.

3.3 TAXES. Customer will promptly pay or reimburse PSC, as applicable, for all taxes, assessments, and other governmental charges levied or assessed in connection with the Services provided.

3.4   AUTHORIZED CONTACT PERSON. Customer shall designate in writing an Authorized Contact Person (ACP) to act as PSC’s point of contact. PSC shall note the ACP in the Designated PSC Service Order. If Customer desires to change the ACP, Customer should promptly communicate such change to its PSC Account Executive.

WARRANTIES AND LIMITATIONS OF LIABILITY

4.1  PSC makes no warranty, expressed or implied, including but not limited to any warranty of fitness for a particular purpose or use or any warranty of merchantability with respect to services or products furnished under this Agreement.  All such warranties are specifically disclaimed by PSC.

4.2  PSC shall in no event be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever arising out of or in connection with this Agreement incurred or suffered by Customer or any third party, even if the other party or any other person has been advised of the possibility of damages.

4.3  Customer shall report any Service outages or degradation to PSC by calling the PSC repair line at 877-915-7724 which is available 24/7/365. Unless otherwise noted in the Designated PSC Service Order, PSC will respond as quickly as possible in the event of a Service outage caused by the PSC Network and which is not a Force Majeure event as described in Section 5 below.

4.4  Except for personal injury caused by PSC’s negligence or willful misconduct, the entire liability of PSC and its affiliates for any damage or expense from any cause whatsoever arising from the Services provided under this Agreement shall in no event exceed the monthly recurring charge of the product or service that directly gives rise to the claim.

4.5  Customer may not commence any action or proceeding against PSC, or its affiliates, more than 24 months after the claim arises.

4.6  INDEMNIFICATION. Each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party (the “Indemnified Party”) from and against losses, costs, claims, liabilities, damages, and expenses (including reasonable attorney’s fees) (collectively, “Damages”) suffered or asserted by other third parties for:

Damage to tangible personal property or personal injury proximately caused by the negligence or willful misconduct of the Indemnifying Party, its employees, agents, or contractors; and
Claims for libel, slander, or infringement of copyright arising from the material transmitted over the Indemnified Party’s facilities arising from the Indemnifying Party’s own communications (including its employees, agents, and contractors).
Indemnification under section 4.6 does not apply to any Damages to the extent caused by, arising out of, or in connection with, the negligence, intentional acts or omissions, or willful misconduct of the Indemnified Party, including its employees, agents, and contractors.

FORCE MAJEURE

5.1  PSC shall not be liable for delay in performance or nonperformance of any term or condition of this Agreement directly or indirectly resulting from matters beyond PSC’s control, including, without limitation, fire, explosion, terrorism, accident, flood, pandemic, labor trouble or stoppage, any regulation, rule or act promulgated by any governmental agency, inability to obtain or shortage of suitable software, material, components, parts, equipment, machinery, fuel, power, transportation, acts of God, a fiber cut, or damage caused by a third party. Either party may terminate its obligations under this Agreement if ordered to do so by the final order or ruling of a court or other federal or state governmental agency or if such order or ruling would make it impossible for either party to carry out its obligations under this Agreement or require a modification of the Services so as to impair such Services.

TERMINATION OR CANCELLATION OF SERVICE

6.1.  BY CUSTOMER. You may cancel your Service, but if you do so before the end of the Term, you will be subject to an early termination penalty as specified in your Designated PSC Service Order or applicable Fee Schedule (“Early Termination Fee” or “ETF”). At the conclusion of your Term, or if you did not agree to a Term Plan, PSC shall continue to provide Service on a month-to-month basis. If you elect to continue Service on a month-to-month basis, you should review the then-current Agreement at www.pscfiber.net. The then-current Agreement will govern your Service. Continuing to receive Service represents your agreement to the then-current Agreement.

6.2  BY PSC. PSC may immediately terminate or suspend your Account and all or a portion of your Service without notice for any of the reasons set forth in PSC’s Acceptable Use Policy, or if: (a) you provide false or inaccurate information to PSC; (b) you (or anyone you permit to utilize the Service), violate this Agreement or the PSC Acceptable Use Policy; (c) you (or anyone you permit to utilize the Service) engage in conduct that is a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws);  (d) if you engage in conduct that is threatening, abusive, or harassing to PSC employees or any of its vendor’s employees or representatives; or (e) payment of your bill is late as described in section 3.2 above.

If PSC terminates your Service and you have a term commitment that is subject to an ETF, PSC may charge you that ETF in addition to exercising any other rights available under this Agreement. If PSC terminates or suspends Customer’s Service, the license to use any software provided in connection with the Service is also terminated or suspended (as applicable). If PSC terminates the Service, PSC may immediately delete all data, files, and other information stored in or for Customer’s account without further notice. PSC has the right to require payment of all outstanding charges prior to reinstatement of service.

APPLICABLE LAW

7.1  This Agreement shall be governed and interpreted according to the laws of the State of Indiana.

TERMINATION OF AGREEMENT FOR DEFAULT

8.1  In addition to termination pursuant to Paragraph 6 of these Terms and Conditions, the parties may terminate this Agreement after an Event of Default, which occurs when either party (the “Offending Party”) (i) breaches one or more of its obligations under this Agreement without correcting the same within 30 days of written notice from the other party specifying the nature of the breaching conduct; however, where such failure cannot reasonably be cured within 30 days, if the defaulting Party promptly acts to cure the breach with due diligence, the time for curing such breach shall be extended for as long as necessary to complete such curing up to a maximum cure period of 60 days; (ii) applies for, consents to, or suffers the appointment of a receiver, trustee, custodian, or liquidator of all or any substantial part of its assets, (iii) makes a general assignment for the benefit of creditors, or (iv) files a petition or answer seeking, or admitting or otherwise taking advantage of bankruptcy, reorganization, or other relief under applicable bankruptcy law.

8.2  Upon an Event of Default, the other party (the “Offended Party”) may thereupon terminate this Agreement by giving the Offending Party 30 days’ written notice of termination. Upon an Event of Default, each party may exercise all remedies available to it under this Agreement, at law or in equity, and all such remedies are cumulative. Notwithstanding any other provision of this Agreement, PSC may terminate this Agreement upon 10 days prior written notice if the Customer fails or refuses to pay PSC in accordance with the provisions of this Agreement. Upon termination of this Agreement for any reason, Customer shall pay all amounts due under this Agreement and return any equipment, hardware, and software owned by PSC, including Customer Premise Equipment (CPE) that is in the possession or control of Customer at the time of termination. If Customer fails to return such equipment, hardware, or software, Customer shall pay the fair market value of all unreturned equipment, hardware, and software. Termination of this Agreement shall not relieve Customer of any unfulfilled obligations that have been created by this Agreement unless agreed to in writing by PSC.

SEVERABILITY

9.1  In the event any provision contained in this Agreement is for any reason held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be then construed as if such an unenforceable provision or provisions had never been included in this Agreement.

WAIVER

10.1  The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.

SUCCESSORS AND ASSIGNS

11.1  Customer may not assign this Agreement without the express written consent of PSC. Assignment of this Agreement shall not release Customer from liability accrued under this Agreement, and this Agreement shall also be binding upon the successors and assigns of the parties hereto.

COMPLIANCE WITH APPLICABLE LAWS

12.1  Each party shall comply with all laws, rules, and regulations applicable to the performance of its obligations hereunder. Without limiting the generality of the foregoing, Customer shall ensure that except with respect to work performed hereunder by PSC, or PSC subcontractors or agents, the premises meet all applicable codes or other laws. Customer shall promptly correct any noncompliance with applicable codes and other laws if such noncompliance in any way prevents PSC from performing under this Agreement. This Agreement is subject to all applicable federal, state, and local laws and regulations, rulings, and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Rules and Regulations of the Federal Communications Commission (FCC), and price lists, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body.

SERVICE OR NETWORK CHANGES AND FAILURE

13.1  If Customer makes changes that require PSC to make additions, moves, changes, or redesigns to the Services or equipment that it is providing to the Customer, then Customer shall pay all costs and expenses for such additions, moves, changes, or redesigns. If Customer desires to change the In Service Date on a Service Request after acceptance by PSC, Customer may change the In Service Date, at no charge, 5 business days prior to the In Service Date unless otherwise noted in the Designated PSC Service Order. In the event Customer desires to change the In Service Date on less than five 5 business days’ notice, or in the event that Customer changes the In Service Date more than once, Customer shall pay a charge of $100.00 plus any costs incurred by PSC as a result of the Customer’s change of the In Service Date.

13.2  PSC may temporarily suspend or terminate Service as necessary to make changes in how Service is provided to Customer over PSC’s facilities and network. To the extent required by this Agreement, applicable regulations, and law, PSC will provide reasonable advanced notice of network changes. To ensure continued quality Service, network changes may require a technician to be dispatched to install new or additional network equipment or facilities to Customer’s premise. Network equipment or facilities installed at Customer’s home may require the use of Customer’s electrical power. If Customer declines to allow the installation of the new network equipment or facilities, PSC may terminate or suspend the Service in accordance with Section 8 above.

13.3  If Service fails (i) as a result of Customer-provided facilities, wiring, or equipment; (ii) due to insufficient Internet Bandwidth provided by another provider; (iii) due to equipment or wiring that has been subjected to Customer’s, or any other third party’s tampering, misuse, neglect, accident, unauthorized modification, or to uses in violation of instructions furnished by the manufacturer; (iv) due to equipment in which the serial number has been removed or altered, or (v) due to any other failure caused by the Customer, its agents, vendors, or other related parties, then PSC shall have no liability to Customer for such failure of telecommunications.

CUSTOMER’S RESPONSIBILITIES

14.1  Customer, at its own expense, shall pay all charges relating in any way to the provision of the Services, including, without limitation, charges arising from misuse, abuse, or fraudulent access to the Services or equipment. Customer shall not use or permit the use of the Services that is illegal, unlawful, or harassing. Customer must maintain reasonable security procedures and standards with respect to Customer’s equipment that interfaces with the Services. Customer must provide 30 days’ written notification of any moves requiring PSC equipment relocation. If PSC makes a Customer-initiated Service Call to Customer’s premise, but the problem with the Service is not related to PSC’s equipment or Services, PSC may charge Customer pursuant to applicable standard rates.

14.2  Access to Premises. Customer shall provide PSC with reasonable access to its premises to install, maintain, or repair equipment or Services, and Customer shall authorize any other employee or agents to grant access to Customer’s premises for these purposes. PSC may drill, cut, and otherwise alter improvements on the premises. If Customer does not own its premises, Customer warrants that Customer has obtained permission from any necessary party, including but not limited to the owner, landlord, or building manager, to make the alterations that PSC deems appropriate. Customer acknowledges that PSC may use existing wiring, including altering the wiring and removing accessories, located within Customer’s premises.

NOTICE:  Installation, inspection, maintenance, repair, and/or removal of any equipment could result in service outages or potential damage to your equipment, computers, computer network, and the contents thereof.

Customer is solely responsible for providing any needed back-up for your information and data or programming.  In no event will PSC or any of its employees, agents, contractors, or business associates be liable for any loss of data or programming or damage to your equipment, computers, computer network and the contents thereof. Installation may require an on-site survey for signal strength or other Service availability and installation of equipment from a PSC-certified installer.

INDEPENDENT CONTRACTOR STATUS

15.1  PSC is an independent business and will perform all obligations under this Agreement as an independent contractor and not as the agent or employee of Customer. PSC’s personnel are solely the employees of PSC and not employees or agents of Customer. PSC may exercise full control of and supervision over the performance of the services it provides and full control over the employment, direction, assignment, compensation, and discharge of all its personnel performing services and full control of and supervision of its contractors. PSC is solely responsible for all matters relating to the compensation and benefits for all of PSC’s personnel. The following additional rights govern the independent contractor relationship:

15.2  PSC may perform services for others during the term of this contract.

15.3  PSC has the sole right to control and direct the means, manner, and method by which the services required by this contract will be performed.

15.4  PSC may hire assistants as sub-contractors or use its employees to provide the services required by this Agreement.

15.5  PSC or its employees or sub-contractors shall perform the services required by this contract.

15.6  PSC shall allocate and shall have full control of personnel and schedules required to fulfill the Services provided to Customer under this Agreement.

RESOLVING DISPUTES

16.1  If any dispute arises in connection with this Agreement, the Parties shall use good faith efforts to arrive at an agreeable resolution through discussions escalating to at least the Vice President level within their respective organizations. The Party initiating the dispute shall provide written notice setting forth the nature of the dispute and the remedy requested to the other Party of such dispute.

16.2  The Parties shall negotiate in good faith for a period of 30 days after the non-initiating Party has received such notice of dispute.

16.3  If after such period, the Parties are unable to agree upon a resolution, then either Party may initiate mediation in accordance with the procedures set forth in section 16.4.

16.4 Mediation.

16.4.1 In the event the dispute between the Parties cannot be resolved by good faith negotiations, the Parties shall participate in non-binding mediation.

16.4.2  The Parties shall select a mediator by having counsel for each Party agree on a single person to act as mediator. The Parties’ counsel, as well as officers of each Party, and not more than two other participants from each Party will appear before the mediator at a time and place determined by the mediator, but not more than 60 days after the end of the good faith negotiating period.

16.4.3  The Parties shall share the fees of the mediator and other costs of mediation equally.

16.5 Litigation

16.5.1  If, within 2 years following notice of a dispute, the dispute is not resolved via non-binding mediation, the Parties may resort to litigation in a court of competent jurisdiction located in Indiana

CONFIDENTIALITY

17.1  The existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance of this Agreement are confidential information. Each Party shall maintain the confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations or orders of the court or other government authorities. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.

17.2  If Customer fails to maintain the confidentiality of all such confidential information, PSC may terminate this Agreement by notice in writing with immediate effect.

ENTIRE AGREEMENT

18.1  This Agreement sets forth the entire understanding of the parties and supersedes any, and all prior agreements, arrangements, or understandings related to the Services described herein and therein, and no representation, promise, inducement, or statement of intention has been made by either party which is not embodied in this Agreement. PSC shall not be bound by any agents’ or employees’ representations, promises, or inducements not set forth herein.

EQUIPMENT

19.1  In order to receive Services under this Agreement, PSC may install PSC-owned equipment (“equipment”). Unless Customer has purchased the equipment, Customer must return it to PSC upon termination of the Services. Customer is responsible for the loss or damage to the equipment. Customer may not sell, give away, transfer, pledge, mortgage, remove, relocate, alter, or tamper with the equipment at any time. Equipment is to be solely used for the provision of PSC Services to Customer and may not be used for any other purpose. If the equipment becomes inoperative, Customer shall call the PSC technical support immediately. In addition to the above, Customer is also responsible for any damage to the equipment due to negligence or willful misconduct. Upon termination of the Services, PSC technicians shall uninstall the equipment and remove it from Customer’s premises. Customer must return the equipment in good working order. If the equipment is not returned in good working order, Customer shall pay the replacement value for each item.