LPC TERMS AND CONDITIONS OF USE FOR FIBER INTERNET ACCESS AND DIGITAL VOICE SERVICES
As a not-for-profit community-owned electric and broadband utility, our first priority is to serve our Customer-owners. It has long been LPC policy that customer-specific information will not be shared with third parties without the customer’s written permission or a court order. Our policy is also in compliance with the Colorado Open Records Act, where utility Customer information is specifically protected. It is also in compliance with governing state and federal requirements.
Longmont Power & Communications Net Neutrality Policy
Regardless of any changes in federal regulations, our first commitment remains to you – our owners – and to continuing the excellent internet service you’ve come to expect. Specifically: 1) We do not play favorites and we will not throttle your speed. We do not create “fast lanes” and “slow lanes” for users or services based on paid prioritization. All our Customers will be able to harness the power of the NextLightTM internet service to the fullest extent that their equipment and our terms and conditions allow. 2) We will be transparent in our commitment to you. Our policies, like our rates, will be clearly presented with no surprises.
1. SERVICES PROVIDED TO CUSTOMER
1.1 Subject to the terms and conditions as stated herein, the City of Longmont, (referred to as Longmont Power & Communications or LPC), as a non-common carrier, hereby provides Fiber Internet Access, Digital Voice, and/or Wireless Internet Access Service (collectively the “Service” or “Services”) to Customer for its exclusive use. Customer agrees to be bound by all the terms and conditions contained herein and in the Customer Acknowledgement & Authorization.
1.2 The Service shall be provided to Customer by LPC in accordance with LPC’s technical specifications.
1.3 In some instances, LPC may use a temporary drop connection to provide service to the Customer. Customer agrees to the use of a temporary connection and approves LPC or its contractor to place a temporary fiber cable drop at ground level across his or her property. Customer understands that he or she is solely responsible for his or her own safety, health, and welfare until such time as the fiber cable drop may be buried underground, and it is solely Customer’s responsibility to assess and avoid any clear or hidden dangers and to avoid actions that could prove potentially hazardous or dangerous to those who access the property. Customer understands that a return trip(s) will be necessary to remove the ground level temporary fiber cable drop and install a permanent underground fiber cable drop and further understands that there will be a temporary loss of service during this process.
1.4 LPC will use its best efforts to deliver the Service on the installation appointment date. In no event shall LPC be liable for any failure to deliver the Broadband Service on the original appointment date.
1.5 Customers operating as commercial entities shall be responsible for obtaining the facilities necessary to connect to the Service. Customer shall connect to the Broadband Service at the designated network demarcation, which shall be one or more ports on the LPC-provided Optical Network Terminal, unless otherwise agreed by LPC in advance of the installation of Service. The installation of facilities up to the designated network demarcation shall be made by LPC or a third party on behalf of LPC.
1.6 Upon reasonable notice thereof and without any notice in the event of an emergency, nothing in these Terms and Conditions shall prevent LPC or any LPC contracted third party from taking such actions as are necessary to repair and maintain the facilities by which the Service is provided hereunder but in either event, LPC shall not incur any liability as a result thereof even though, for example, the actions may render the Service unusable for a period of time. Notwithstanding the foregoing, and except for emergencies, LPC shall attempt to perform routine repair and maintenance at such times that will have minimum disruptive impact on the continuity or performance of the Service.
1.7 If LPC determines that the reason for repair and maintenance is due to Customer-provided facilities or Customer's actions or omissions, or the facilities, acts or omissions of any party with whom Customer has a relationship, such as a Customer of Customer, Customer shall compensate LPC for the reasonable costs and expenses thereof.
2. DIGITAL VOICE DISCLAIMER AND LIMITATION OF LIABILITY
2.1 Customer acknowledges reading, understanding, and accepting the limitations of LPC Digital Voice Service relative to emergency services and 911 dialing as described in the Digital Voice Disclaimer and Limitation of Liability.
2.2 Early termination fees. Customer shall pay an early termination fee if service is terminated prior to the end of any term package the Customer has subscribed to. The charge will include the full amount of the monthly recurring service fee for the terminated service, multiplied by the remaining months of the term.
2.3 Cancellation fees. If Customer does not keep their service for at least 30 days after exterior and/or interior install takes place, LPC reserves the right to recover from Customer all costs associated with the cancellation. These costs include, but are not limited to, the number porting fee, off-net circuit contracts and penalties, Customer-specific hardware, survey and permit fees, internal and external installation costs, expedite fees, and a minimum of one month of monthly recurring service fees.
2.4 Monthly recurring charges and one-time non-recurring fees shall be due in full before or on the applicable service commencement date. This includes but is not limited to any and all extraordinary costs or administrative fees incurred by LPC. Including those costs that are associated with, or in reliance of, any changes or delays by the Customer (or Customer’s representatives or third-party contractors).
2.5 LPC will supply one (1) battery to Digital Voice Customers when service is installed, for use as a reserve power supply in the event of an electrical outage. Replacement of the battery, when necessary, is solely the Customer’s responsibility.
3. COMPENSATION AND PAYMENTS
3.1 In consideration of the Service(s) provided by LPC to Customer, in addition to the connection costs referred to in Section 1.5 above, Customer agrees to pay to LPC the fees set forth on the LPC Broadband Rate Card (“Fees”), plus local, state and federal taxes or other fees including regulatory charges, if any, for the Service(s), plus any fees assessed as a result of this Agreement under any state or federal universal service fund, such as the Universal Service Fund set forth in Section 254 of the Telecommunications Act of 1996.
3.2 Customer’s obligation to pay the Fees shall commence upon Delivery, which is the date the service is available for use by Customer. The Fees for any period of time under this Agreement that is less than a calendar month shall be prorated based on the actual days of such month.
3.3 Customer shall pay the Fees subject to LMC CHAPTER 14.48, BROADBAND SERVICES.
4. SERVICE USAGE RESTRICTIONS AND COOPERATION
4.1 Customer shall take no action, knowingly or unknowingly, that constitutes a prohibited use. Prohibited uses and activities include, but are not limited to, using the Service, Customer Equipment, or the LPC Equipment, either individually or in combination with one another, to:
(a) interfere in any way with, impair, or adversely affect the facilities used by LPC to provide the Service(s);
(b) expose LPC or such facilities to any claim, lien, encumbrance or legal process;
(c) violate these Terms and Conditions or any law, rule or regulation, including, but not limited to, any transmission Customer intentionally or knowingly sends or the content thereof that violates any copyright or export control laws, or that is libelous, slanderous or an invasion of privacy;
(d) resell, repackage, or share the Service, either through a wired or wireless connection to any party outside the Customer premises, unless prior written authorization has been provided by LPC. For purposes of this restriction the
Customer premises shall be defined as the Customer home or housing unit (e.g. apartment) for residential Customers, and for commercial Customers, the commercial space being occupied and used solely by the commercial entity subscribing to the service. For the avoidance of doubt, a commercial Customer may not share or resell the service with or to other commercial entities within the same commercial premises, nor extend the Service beyond the Customer premises;
(e) use the Service for operation as an Internet service provider or for any business, other legal entity, or organization purpose (whether or not for profit); This limitation does not prohibit Customer from offering internet service on a temporary basis to a transient public guest so long as there is no additional fee charged to that user for this service.
(f) connect the LPC Equipment to any computer outside of Customer premises;
(g) impede others' ability to use, send, or retrieve information;
(h) restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any LPC (or LPC supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any LPC (or LPC supplier) facilities used to deliver the Service;
(i) restrict, inhibit, or otherwise interfere, regardless of intent, purpose or knowledge, with the ability of any other person to use or enjoy the Service (except for tools for safety and security functions such as parental controls, for example), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature;
(j) interfere with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abusing operator privileges, and attempts to “crash” a host;
(k) access and use the Service with anything other than a dynamic Internet Protocol (“IP”) address that adheres to the dynamic host configuration protocol (“DHCP”). Customer may not configure the Service or any related equipment to access or use a static IP address or use any protocol other than DHCP unless Customer is subject to a Service plan that expressly permits Customer to do so.
Customer shall promptly notify LPC of any event that would be reasonably likely to give rise to any such interference, impairment, affect, exposure, reselling, or service usage violation.
4.2 If LPC reasonably determines that Customer is using the Service(s) in violation of Section 4.1 above, LPC may immediately terminate the Service(s). Customer accepts liability for any damages resulting from Customer failure to comply with Section 4.1 service usage restrictions.
4.3 Customer and LPC each agree to cooperate with and support each other in complying with any requirements applicable to their respective rights and obligations hereunder imposed by any governmental or quasi-governmental authority.
4.4 LPC Digital Voice Service will not accept 976 nor 900 prefix or any such call types in which charges are placed on an end-users bill and where LPC might be expected to act as a collection agent. Use of LPC Digital Voice Service to support predictive dialers for more than five percent (5%) of all calls made is prohibited without LPC’s written consent.
5. LIMITATIONS ON LIABILITY; DISCLAIMER OF WARRANTIES
5.1 In no event shall LPC be liable to the Customer for any indirect, special, incidental, punitive or consequential damages, whether or not foreseeable, including loss of revenue, loss of Customers, loss of goodwill, or loss of profits arising out of or in relation to these Terms and Conditions or the performance or non-performance of any obligation hereunder, whether arising out of contract or tort.
5.2 LPC MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER THIRD PARTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE INSTALLATION, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF THE SERVICE(S) OR ANY OTHER MATTER WHICH IS THE SUBJECT OF THESE TERMS AND CONDITIONS, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
5.3 LPC shall not be liable for any mistakes, errors, omissions, interruptions, delays, outages or defects in the Service(s) which are caused by force majeure, repair and maintenance or the Customer or third parties with whom Customer has a relationship, such as a Customer of Customer. LPC shall not be liable for any act or omission associated with systems, the Service(s), or facilities which LPC does not furnish, including acts or omissions associated with the operation of Customer’s system, Service(s), or facilities.
5.4 In no event shall an outage be deemed a default under these Terms and Conditions.
5.5 Notwithstanding any other provisions of these Terms or Conditions, the Customer Acknowledgement & Authorization, the Digital Voice Disclaimer and Limitation of Liability, or the LPC Broadband Rate Card, LPC does not waive any rights, immunities, privileges, monetary limitations to judgments and defenses available to LPC under common law or the Colorado Governmental Immunity Act, Sec. 24-10-101 et seq. C.R.S.
5.6 Customer understands that LPC and its contractors have taken appropriate measures to secure and stabilize the temporary fiber drop cable. However, regardless of those measures, Customer assumes responsibility for themselves and others who access the property, to avoid the potential hazards related to the fiber drop cable location. Neither LPC nor its contractors shall be liable for any claims, actions, causes of action, demands, judgments, costs, expenses and all damages of every kind and nature, incurred by and on behalf of any person or corporation whatsoever, predicated upon injury to or death of any person or loss of or damage to property of whatever ownership relating to the use of a temporary drop on the Customer premises.
The Customer releases and agrees to indemnify, defend and hold harmless LPC, its agents, officers, employees and volunteers from and against all damages, claims, actions, causes of action, demands, judgments, costs, expenses of every kind and nature, predicated upon injury to or death of any person or loss of or damage to any property, arising, in any manner, from the Customer’s use or misuse of the Service(s), including but not limited to any violation or infringement of contractual rights, privacy, confidentiality, copyright, patent, trademark, trade secret or other intellectual property; from use or failure of the 911/E911 functionality or any other dialing associated with a home security, home detention, medical monitoring or other similar system; and from Customer’s breach of any provision of these Terms and Conditions.
7. FORCE MAJEURE
Without limiting any other provision of these Terms and Conditions, LPC shall not be held liable for any loss, damage, delay or failure to provide or maintain the Service(s) caused by anything beyond its control, such as acts of God, acts of civil or military authority, government regulations, eminent domain, embargoes, labor stoppage, epidemics, war, police actions, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, severe weather conditions, inability to secure facilities, products or services of other persons including transportation facilities.
8. GOVERNING LAW
These Terms and Conditions and any issues arising out of or in relation hereto shall be governed by the laws of the State of Colorado, without regard to its choice-of-law provisions. The Customer agrees that the federal and state courts of Colorado alone have jurisdiction over all disputes arising under these Terms and Conditions and the Customer consents to personal jurisdiction of those courts with respect to any disputes arising under these Terms and Conditions.
9. RELATIONSHIP OF THE PARTIES
The Customer is independent from that of LPC and nothing contained herein shall be construed to imply a partnership, joint venture, principal and agent, or employer and employee relationship between the parties.
10.1 Customer recognizes that LPC may enter into agreements with third parties to perform all or part of its obligations hereunder and that references herein to LPC include, where applicable, its agents and independent contractors.
10.2 LPC shall own and maintain the wiring external to the premises with the Services, the Optical Network Terminal and any other equipment necessary to provide the Services. Notwithstanding the foregoing, Customer shall be responsible for damages and repairs to any such equipment caused by Customer’s acts or omissions. Upon cancellation or termination of the Services, Customer shall return the equipment to LPC at 1100 South Sherman Street, Longmont, CO.
10.3 Customer agrees to allow LPC to enter his or her property for the purposes of installing, adjusting, repairing, replacing, maintaining, moving, auditing or removing any equipment if necessary. LPC shall also have the right to periodically audit the Service connections to confirm compliance with section 4.1(d), and Customer agrees to provide access to the property, equipment, and attached wiring for the purposes of the audit. Customer represents that Customer either owns the property or has the right to allow LPC to install any necessary equipment and wiring to provide the Service. Customer should always ask for proper identification anytime an LPC employee or contractor requests entry to the property. If identification is not provided, Customer should not allow access.
10.4 These Terms and Conditions and any other documents incorporated by reference, including but not limited to the Customer Acknowledgement & Authorization, the Digital Voice Disclaimer and Limitation of Liability, the Charter Member and Loyalty Incentive Programs and the LPC Broadband Rate Card, constitute the entire agreement and understanding between Customer and LPC with respect to LPC’s provision of the Service and related equipment. They replace any and all prior written or verbal agreements. If any portion of this agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. No waiver of any breach or default under these Terms and Conditions shall be a waiver of any other breach or default. Neither the course of conduct between the parties nor trade practice shall modify these Terms and Conditions.