FLASH FIBER DATA SERVICES AGREEMENT
This Service Agreement (“Agreement”) describes certain terms under which JWEMC COMMUNICATIONS, LLC (dba “Flash Fiber”), in conjunction with its parent company, Joe Wheeler Electric Membership Corporation (“JWEMC”), will provide fiber-optic broadband services (the “Service”) to you (“Subscriber”). By accepting service from JWEMC COMMUNICATIONS, LLC d/b/a Flash Fiber, you agree to these terms and conditions and agree to be legally bound.
1. TERMS OF SERVICE AND COMPLIANCE. Subscriber agrees to comply with all terms contained within this Agreement, and any revised Agreement and to comply with FLASH FIBER’s policies, rules and price schedules related to the Service. This Agreement, along with FLASH FIBER’s policies, rules and price schedules, are collectively referred to herein as the “Terms of Service.” The Terms of Service constitute a binding contract between the Subscriber and FLASH FIBER. The Subscriber acknowledges and agrees that the Terms of Service may change from time to time following notice of such change and will remain contractually binding. The Subscriber’s signing of the Participation Form at the time service is requested and use of the Service shall be deemed acknowledgment that the Subscriber has read and agreed to all the Terms of Service, including this Agreement.
2. OWNERSHIP OF THE SERVICE LOCATION. The Subscriber represents that it lawfully owns the real property at which the Subscriber is to receive the Service (the “Service Location), or that the Subscriber has the legal right and permission of such owner(s) to enter this Agreement.
3. BILLING AND PAYMENT. The Subscriber agrees to pay all current and future rates, fees, deposits, and other charges related to the Service, including installation fees (if applicable) covering non-standard installation for one data connection, one phone line (if applicable), and Wi-Fi extenders (if applicable).
The Subscriber agrees that failure to pay all rates, fees, and charges may result in termination of Service and FLASH FIBER’s immediate collection of all amounts owed. Installation fee (if applicable) is due upon scheduling of the install. The first bill will include the upcoming month’s service plus the prorated amount for the bill for the month of install. The billing period covers the first day through the last day of the month. The bill will be generated on the first business day of each month and will have a due date of the 15th of the same month. A late fee of 5% of the total due will be assessed if the account is not paid in full by the 20th of the same month. Accounts not paid in full by 4:00 pm on the 20th of the same month will be remotely disconnected. If the account is disconnected for non-payment, the account must be made current, including any late fee or reconnection fee in place at the time before Services may be reconnected.
4. a) TERM OF AGREEMENT AND TERMINATION BY RESIDENTIAL SUBSCRIBER. This Agreement is for no fixed term, and Subscriber can cancel Service at any time. The Router/Gateway, if any, and Optical Network Terminal (“ONT”) on the Subscriber’s premises remain the property of FLASH FIBER and the JWEMC, respectively, and must be returned to FLASH FIBER upon cancellation or discontinuation of Service in accordance with paragraph 10 hereof.
4. b) TERM OF AGREEMENT AND TERMINATION BY COMMERCIAL SUBSCRIBER. This Agreement is for a 36-month term as outlined in the contract for service. Unless otherwise stated in the contract for service, the Router/Gateway, wireless extender(s), if any, Optical Network Terminal (“ONT”), and any other provided and installed equipment on the Subscriber’s premises remain the property of FLASH FIBER and JWEMC, respectively and must be returned to FLASH FIBER upon cancellation or discontinuation of Service in accordance with paragraph 10 hereof
5. TERMINATION BY JWEMC COMMUNICATIONS, LLC/FLASH FIBER. Notwithstanding anything else in this Agreement, FLASH FIBER may terminate or decline to provide Service to Subscriber at any time for convenience, for non-payment, or for any other breach of the Terms of Service.
6. COMPLIANCE WITH APPLICABLE LAWS. Subscriber agrees not to use the Service in a way prohibited by the Terms of Service or by local, state, or federal law, including but not limited to trademark, copyright or other intellectual property laws.
7. GRANT OF EASEMENT. As a condition of receiving Service, and without financial compensation, Subscriber grants to FLASH FIBER and JWEMC (or, at FLASH FIBER’s direction, to a third party) a perpetual electric and commercial communications easement on and through the Service Location to provide electric, data, and (if applicable) voice services on wire, transport fiber, distribution fiber and service extension fiber, if applicable, for Service to both the Subscriber and to other subscribers, and to perform necessary maintenance, service upgrades, and periodic right-of-way maintenance. If the electric utility facilities cross the Service Location, these easements will generally, but are not required to, follow those facilities.
8. INSTALLATION PROCESS. FLASH FIBER will use best practices when installing a fiber service drop to the Subscriber’s premises. It shall be the Subscriber’s responsibility to notify FLASH FIBER if a desired route is requested. No one is required to be present for the service drop installation, so prior notification of this step will not be provided unless an issue is encountered. It is also the responsibility of the Subscriber to notify FLASH FIBER of the existence and identify any underground impediment or equipment (i.e., sprinklers, underground pet fences, etc.) are present or installed on the Subscriber’s premises. FLASH FIBER shall assume no responsibility to underground obstructions for which no notice is given.
After the drop service has been installed, a FLASH FIBER representative will contact the Subscriber to schedule the installation, and an adult over 18 years of age will be required to be present for the remaining entirety of the installation process. Subscribers who own the property must provide proof of ownership acceptable to FLASH FIBER and those renting or leasing must have the Landlord or Property Manager’s written permission for installation prior to the service drop construction and the arrival of the FLASH FIBER installer for the installation. Proper installation may require drilling through interior and/or exterior walls in order to run wire and installing outside and interior equipment, and you hereby authorize FLASH FIBER to do so and release it from liability related to the same.
9. SERVICE LEVEL GUARANTEES. The Subscriber understands and agrees that bandwidth and speed capabilities fluctuate based on a number of factors present on the system and that the Subscriber’s chosen speed represents a target within a range and speed offerings are descriptive in nature. FLASH FIBER does not guarantee that any amount of bandwidth on the Service will be made available to the Subscriber or that any speed or throughput of the Subscriber’s connection to the Service will be available to the Subscriber at all times. The Service is subject to both scheduled and unscheduled maintenance outages; however, FLASH FIBER will work to minimize the impact of scheduled maintenance outages. The Subscriber understands that the Service requires electricity at the Service Location and, if an electrical outage occurs, the Service (which may include telephone) will not function.
The Subscriber’s FLASH FIBER is provided by a Gigabit Passive Optical Network (GPON) and Optical Network Terminal (ONT), which is powered by plugging it into an electrical wall outlet. In the event of an electrical outage, the Router/Gateway will not receive power. If this were to happen, the Subscriber’s phone service, including any medical or security alert systems, like E911, will not be available to the Subscriber unless the ONT and phone are powered by an Uninterruptible Power Supply (UPS). If the Subscriber has a medical alert system or security equipment, they are strongly encouraged to utilize and maintain a battery back-up. It is the responsibility of the Subscriber to provide, maintain, monitor, and/or replace the battery back-up.
10. FLASH FIBER EQUIPMENT AND SOFTWARE. FLASH FIBER’s equipment is designed to be used on the premises in which service is installed. The equipment that FLASH FIBER installs in your home or business is the property of FLASH FIBER and JWEMC. In the event that the Subscriber relocates, or if the Service is disconnected or terminated for any reason, the Subscriber must return the Router/Gateway and, if applicable, any wireless extender(s) or other equipment to the FLASH FIBER office. If the units are not returned, the current recovery fee ($200 at the time of this Agreement, but subject to change based on the specific equipment installed) will be assessed to cover the cost of such equipment. The Subscriber assumes the risk of loss, theft, or damage to the equipment at all times prior to the removal of the units by FLASH FIBER or return of the units by the Subscriber.
11. SUBSCRIBER EQUIPMENT. The Subscriber is responsible for maintaining the wiring and all other applicable devices which the Service Location needs to utilize the Service. The Subscriber is responsible for meeting and complying with the minimum computer, device, and system requirements established by FLASH FIBER and contained herein.
If the Subscribers are using their own FLASH FIBER approved Wi-Fi router. then the Subscriber will be responsible for the Wi-Fi network. FLASH FIBER will only provide support for the ONT and will not provide Wi-Fi technical support in this application. If a FLASH FIBER technician is sent to the Subscriber’s home or business and the problem was caused by the Subscriber’s Wi-Fi equipment, then a service charge will be applied to the Subscriber’s account. At the time of signing this Agreement, the Service Charge is $50.00. The Service Charge is subject to change based on prevailing rates and conditions.
12. RESIDENTIAL RECONNECT FEE: Subscribers shall not be responsible for connection or reconnection fees unless a subscriber disconnects and reconnects a service more than two (2) times in a twelve (12) month period. The third and any other subsequent connection visits by a FLASH FIBER technician will incur a reconnection fee of $50 per visit.
13. TECHNICAL SUPPORT. Unless otherwise provided by the Terms of Service, FLASH FIBER does not provide technical support or assistance with third-party hardware or software.
14. PRIVATE NETWORK. The Subscriber agrees and understands that FLASH FIBER and JWEMC may utilize the wireless component in the ONT or Router/Gateway in order to extend coverage of a private network for internal or external use independent of the Subscriber’s network or services.
15. LIMITATION OF LIABILITY. The Subscriber agrees that in the event of a loss of Service due to defective software or equipment provided by FLASH FIBER, Subscriber’s sole remedy shall be receipt of a credit to Subscriber’s account in the amount of up to one month’s charge for the Service based roughly on the outage time as a pro-rating factor, and to have FLASH FIBER replace or repair any such defective software or equipment provided by FLASH FIBER. Except as expressly stated in the preceding sentence, FLASH FIBER, its officers, operating managers, owners, parent company, employees, affiliates and agents (“FLASH FIBER Parties”) will not be liable for any interruptions in service or the effects therefrom, or liable for any delay or failure to perform, nor for any indirect, incidental, special, punitive or consequential damages that arise out of or relate to this Agreement or the Service provided hereunder, including without limitation business interruption, lost profits, computer failure or malfunction, any damages for loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions. In no event shall the FLASH FIBER Parties have any liability for special, indirect, incidental, or consequential damages relating to the equipment or resulting from FLASH FIBER furnishing or failing to furnish any services or equipment to the Subscriber or from any fault, failure, deficiency or defect in services or equipment furnished to the Subscriber.
16. NO WARRANTY. FLASH FIBER DOES NOT WARRANT CONSTANT SPEED OR BANDWIDTH OR UNINTERRUPTED USE OF THE SERVICE, NOR DOES IT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, MALWARE, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE, DENIAL OF SERVICE ATTACKS OR OTHER HARMFUL COMPONENTS. FLASH FIBER DOES NOT WARRANT THAT ANY DATA OR FILES THE SUBSCRIBER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO THE SUBSCRIBER’S INFORMATION. THE SERVICE AND FLASH FIBER EQUIPMENT ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE SERVICE, EQUIPMENT, AND SOFTWARE FLASH FIBER PROVIDES, AND FLASH FIBER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE FLASH FIBER EQUIPMENT, SOFTWARE OR ANY SERVICE FURNISHED TO THE SUBSCRIBER, ALL OF WHICH WARRANTIES ARE EXPRESSLY EXCLUDED.
17. INDEMNITY. The Subscriber shall defend, indemnify, and hold harmless FLASH FIBER and JWEMC, along with their directors, officers, employees, affiliates and agents, from and against any third-party claims, damages, losses, attorney’s fees, and expenses relating to or arising from the Subscriber’s breach of the Terms of Service or negligent or criminal acts in regard to the use of Services contemplated hereunder..
18. SUCCESSORS AND ASSIGNS. FLASH FIBER’s rights and obligations under this Agreement shall accrue to and inure to the benefit of FLASH FIBER’s corporate parent, affiliates, successors and assigns. The Subscriber may not sell, transfer, or assign this Agreement to a third party without FLASH FIBER’s prior written consent.
19. JURISDICTION. The Subscriber agrees that exclusive jurisdiction for any claim or dispute with FLASH FIBER or JWEMC relating to this Agreement or any other Terms of Service shall be in the courts of Alabama and that this Agreement shall be governed by Alabama law. If legal action is necessary to enforce or interpret the terms of this Agreement or compel performance thereof, the substantially prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which such party may be entitled.
20. CONSENT TO COMMUNICATIONS. The Subscriber consents to receive communications from FLASH FIBER relating to the Service by any commercially reasonable method, including regular U.S. mail, email, text messages, and phone calls. The Subscriber may opt-out of any non-emergency or non-billing communications by contacting the FLASH FIBER office.
21. SECURITY. The Subscriber agrees that using the Service presents certain security risks that may enable other Internet users to gain access to or use of Subscriber’s equipment or information. The Subscriber is solely responsible for taking all appropriate security measures when using the Service and agrees that neither FLASH FIBER nor JWEMC, nor their officers, employees, affiliates or agents, shall be responsible for security or information breaches. The Subscriber agrees that FLASH FIBER may block traffic to and from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network and/or eliminate spam.
22. AMENDMENT OF TERMS OF SERVICE. FLASH FIBER reserves the right to modify the Terms of Service at any time by posting changes online at www.jwflash.com The Subscriber’s continued use of the Service following online notice of such modification shall be deemed to be the Subscriber’s acceptance of any such modification. If the Subscriber does not agree to any modification of the Terms of Service, the Subscriber must immediately cease using the Service and notify FLASH FIBER that the Subscriber is terminating the Service.
23. ENTIRE AGREEMENT. The Terms of Service are the only terms and conditions that govern the Service. No undertaking, representation or warranty made by any agent or representative of FLASH FIBER or JWEMC in connection with the sale, installation, maintenance or removal of the Service shall modify or amend the Terms of Service.
24. COVID-19 WAIVER. WHEREAS, Customer desires to have internet services installed in his/her/their/its home or business (the “Installation”) provided by JWEMC, an Alabama electric membership corporation, JWEMC Comminutions, LLC, an Alabama limited liability company d/b/a Flash Fiber, and/or other third party independent contractors working with Cooperative Connections (collectively the “Installers”).
WHEREAS, Customer is aware of and acknowledges health risks are associated and any human contact and that there exists a current worldwide pandemic caused by the COVID-19 virus and that the Centers for Disease Control have issued recommendations and guidelines relative to said COVID-19 virus, including guidelines regarding individuals coming into contact with each other. Customer understands the risks inherent in having Installers complete the Installation in Customer’s home or business, including, but not limited to the risk of contact between Customer and Installers, and nevertheless desires to have Installers complete such installation.
NOW THEREFORE, in exchange for the Installers agreeing to perform the installation, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer hereby covenants and agrees as follows.
CUSTOMER IS AWARE AND UNDERSTANDS THAT THE INSTALLATION MAY INVOLVE EMPLOYEES, AGENTS, CONTRACTORS, AND/OR TECHNICIANS OF INSTALLERS ENTERING INTO THE CUSTOMER’S DWELLING OR PLACE OF BUSINESS AND COMING INTO CONTACT WITH CUSTOMER OR OTHER PERSONS THEREIN. CUSTOMER IS AWARE AND UNDERSTANDS THAT THE INSTALLATION MAY INVOLVE THE RISK OF EXPOSURE OF CUSTOMER AND OTHER PERSONS AT CUSTOMER’S DWELLING OR BUSINESS TO PATHOGENS AND THAT SUCH EXPOSURE MAY RESULT IN SERIOUS INJURY AND/OR DEATH. HAVING KNOWLEDGE OF THE POTENTIAL RISKS INVOLVED, CUSTOMER VOLUNTARILY REQUESTS THAT THE INSTALLERS PROCEED WITH THE INSTALLATION AND CUSTOMER HEREBY AGREES TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, ILLNESS, OR DEATH RELATED TO CONTRACTION OF THE ALL PATHOGENS, INCLUDING THE COVID-19 VIRUS, AND TO HOLD INSTALLERS HARMLESS FROM THE SAME, WHETHER CAUSED BY THE NEGLIGENCE OF THE INSTALLERS OR OTHERWISE.
25. GENERAL RELEASE: Customer hereby expressly waives and releases any and all claims, now known or hereafter known, against each of the Installers, and their officers, directors, employees, agents, affiliates, members, successors, and assigns (collectively, “Releasees”), on account of injury, illness, death, or property damage arising out of, related to, incident to or attributable to the installation or coming into contact with the Installers or Releasees, whether arising out of the negligence of the Installers or any Releasees or otherwise. Customer covenants forever not to make or bring any claim, demand, action, cause of action or suit of any kind or nature against any of the Installers or any other Releasee, arising out of, related to or incident to the installation or coming into contact with the Installers or Releasees, and forever releases and discharges each of the Installers and all other Releasees from liability under such claims. Customer acknowledges and agrees that Installers would not perform the Installation without Customer executing this Agreement, and that Customer has not been pressured to enter into this Agreement. Customer shall defend, indemnify, and hold harmless each of the Installers and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, arising out or resulting from any claim of a third party related to the installation.
This Agreement constitutes the sole and entire Agreement of the Customer with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement. This Agreement is binding on and shall inure to the benefit of the Installers and Customer and their respective successors and assigns. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule. Any claim or cause of action arising under this Agreement may be brought only in the state court located in Lawrence County, Alabama and Customer hereby consents to the exclusive jurisdiction of such courts.