UTOPIA Fiber Network Services Agreement
1. Services:
UTOPIA Fiber will provide, and Customer will purchase, the services (“Services”) as set forth in each signed UTOPIA Fiber Services Order. Customer understands the Agreement is for UTOPIA Fiber communications services directly or in partnership with authorized UTOPIA Fiber Service Provider partners.
2. Customer Responsibilities:
2.1. On-Site Facilities – Customer is responsible for providing space, power, and environmental conditions that support typical telecommunications equipment. Customer is also responsible for securing the facilities from unauthorized physical access, electrical interference, or other disruptive activities that may adversely affect the performance of Services. Any interruptions of service due to failure to provide and protect the on-site facilities is not the responsibility of UTOPIA Fiber and does not apply to SLA calculations or credits.
2.2. Other than the initial demarcation equipment and UTOPIA Fiber installation labor expenses, all operations concerning Service at Customer’s premises will be performed at Customer’s expense. This includes any necessary or Customer requested on-site cabling, conduits, relocations, retrofits, structural work, racks, or other expenses necessary to properly support UTOPIA Fiber’s demarcation equipment and the interconnection with Customer’s equipment.
2.3. Customer will use the Service only in the way as intended and may not tamper with UTOPIA Fiber equipment or services in a way to adjust, bypass, or circumvent any monitoring, security, or configuration of the UTOPIA Fiber equipment, systems, or facilities.
2.4. Customer will cooperate with UTOPIA Fiber to install, operate, maintain, or repair Service. Customer will provide access to Customer’s facilities for the installation and maintenance of UTOPIA Fiber’s equipment. Any failure to provide access exempts UTOPIA Fiber from negative impact from UTOPIA Fiber’s SLA or Service Delivery Dates. Billing for services may begin in advance of Service Delivery Date if installation is held up by Customer.
2.5. Customer may request a UTOPIA Fiber technician dispatch for Service problems. Before dispatching a technician, UTOPIA Fiber may notify Customer of a dispatch fee that will be assessed if it is determined that the problem is on Customer’s side of the Demarcation Point or was not caused by UTOPIA Fiber.
3. Waiver:
The failure of either Party to enforce any of the provisions of this Agreement, or the waiver thereof in any instance, shall not be construed as a general waiver or relinquishment on its part of any such provision, but the same shall nevertheless be and remain in full force and effect.
4. Service Changes:
Customer may add, move, or upgrade each Service according to the terms of the Early Termination and Revenue Replacement Section of the UTOPIA/UIA Product Catalog.
5. Service Interruptions:
Service interruption means a total disruption of the Service subject to restrictions and exclusions outlined in UTOPIA SLA.
6. Agreement Term:
The Agreement will remain in effect as long as any Service is offered under it (“Agreement Term”). Should all Services under the Agreement expire or terminate as contemplated by the Termination section of the Agreement, then the Agreement will terminate.
7. Rates:
Rates are as specified in any specific Services Order. Rates for new orders are subject to change at any time according to the then current UTOPIA Fiber Product Catalog or other negotiated rates that may include financed build costs or promotional discounts. Rates for Services under an order may not change within the initial term of the Services Order unless mutually agreed upon by UTOPIA Fiber and Customer.
8. Payment:
8.1. Billing: Customer must pay UTOPIA all charges by the due date on the invoice if specified. Services are billed monthly in advance of the applicable services month. Any amount due or owed in credit from a partial month will be applied to the following billing cycle. Any amount not paid when due is subject to a late payment charge of the lesser of 1.5% per month or the maximum rate allowed by law.
8.2. Grace Period: In the event that Customer requests a Grace Period for the delivery of services, UTOPIA Fiber may at its sole discretion, grant reasonable Grace Periods where Services and billing are suspended until Customer is ready to receive Services. UTOPIA Fiber will require Customer to accept Service by the end of the Grace Period, in which case UTOPIA Fiber will commence with regular monthly billing for the Service and Customer agrees to pay for the billed Service. If Customer has not accepted the Service by the end of the Grace Period, then UTOPIA Fiber may consider the services as accepted by the Customer and commence billing or terminate the Service subject to the Termination section of the Agreement.
8.1. Confidentiality: This Agreement and all protection of records exchanged between the parties hereunder shall be governed by GRAMA. In the event a party claims protection of a record, the claim shall be made with specificity. Blanket claims of protection will be denied. If a record is classified as “protected” under GRAMA, the party benefitting from such protection shall be solely responsible, at its expense, to defend such classification.
9. Termination:
9.1. Before Service Due Date: If Customer cancels an order for Service before the Service Due Date, or does not accept the Service by the conclusion of the Grace Period, and UTOPIA Fiber terminates the Service at the end of the Grace Period, Termination Charges will apply, including the full NRCs that would have otherwise applied and any non-reusable and non-recoverable portions of expenditures or liabilities, such as Construction charges incurred exclusively on behalf of the Customer by UTOPIA Fiber and not fully reimbursed by NRCs.
9.2. After Service Acceptance Date: Either party may terminate an individual Service ordered under a Service Exhibit after the Service Acceptance Date under the terms of the applicable Service Exhibit. UTOPIA Fiber will waive the Termination Charge in excess of the Initial Service Period if Customer terminates due to a move or upgrade of all or a portion of Service and all of the following conditions are met (“Waiver Policy”):
9.2.1. Customer must have satisfied the Initial Service Term for the existing Service or be subject to the Termination Charge applicable to the unexpired portion of the the Initial Service Term;
9.2.2. Customer must agree to a new service term and Initial Service Term for the new service;
9.2.3. The total value of the new Service must be equal to or greater than 110% of the remaining value of the Service being terminated. NRCs and Construction charges will not contribute toward the 110% calculation;
9.2.4. The request to disconnect the existing Service and the request for the new service are received by UTOPIA Fiber at the same time and both requests must reference this Waiver Policy;
9.3. Agreement: Either party may terminate the Agreement and all Service by providing 30 days’ written notice to the other party. Cause to terminate the entire Agreement for Service-related claims will exist only if Customer has Cause to terminate all or substantially all of the Services under the UTOPIA SLA. If Customer terminates the Agreement for Convenience or UTOPIA Fiber terminates it for Cause, then Customer will pay to UTOPIA Fiber the Termination Charges set forth in the applicable Service Exhibit(s).
9.4. Unpaid Charges: Customer will remain liable for charges accrued but unpaid as of the termination date.
10. Credit Approval:
Provision of Services is subject to UTOPIA Fiber’s credit approval of Customer. As part of the credit approval process, UTOPIA Fiber may require Customer to provide a deposit or other security. Additionally, during the Term, if Customer’s financial circumstance or payment history becomes reasonably unacceptable to UTOPIA Fiber, UTOPIA Fiber may require adequate assurance of future payment as a condition of continuing UTOPIA Fiber’s provision of Services. Customer’s failure to provide adequate assurances required by UTOPIA Fiber is a material breach of the Agreement. UTOPIA Fiber may provide Customer’s payment history or other billing/charge information to credit reporting agencies or industry clearinghouses.
11. Governing Law; Jurisdiction and Venue:
This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Utah, without giving effect to its principles of conflicts of laws. For purposes of this Agreement, jurisdiction and venue shall be exclusively with the state and federal courts sitting in Salt Lake City, Salt Lake County Utah.
12. Definitions:
“Affiliate” means any entity controlled by, controlling, or under common control with a party.
“Cause” means the failure of a party to perform a material obligation under the Agreement, which failure is not remedied: (a) for payment defaults by Customer, within five days of separate written notice from UTOPIA of such default; or (b) for any other material breach, within 30 days after written notice.
“Confidential Information” means any information that is not generally available to the public, whether of a technical, business, or other nature, (including CPNI), and that: (a) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party; or (b) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect the information from unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of the Agreement by the receiving party or is already known or is independently developed by the receiving party. Confidential Information protected under GRAMA and may be protected
“Construction” means when Service may not be available due to facilities limitations and it is necessary for UTOPIA to construct facilities.
“Convenience” means any reason other than for Cause.
“CPE” means any customer premises equipment, software, and/or other materials used in connection with the Service.
“CPNI” means Customer Proprietary Network Information, which includes confidential account, usage, and billing-related information about the quantity, technical configuration, type, destination, location, and amount of use of a customer’s telecommunications services. CPNI reflects the telecommunications products, services, and features that a customer subscribes to and the usage of such services, including call detail information appearing in a bill. CPNI does not include a customer’s name, address, or telephone number.
“Demarcation Point” means the UTOPIA designated physical interface between the UTOPIA demarcation equipment and Customer’s telecommunications equipment;
“Force Majeure Event” means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, explosion, lightning, hurricane, labor dispute, cable cuts by third parties, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services.
“Grace Period” means a period from the later of the Service Due Date or the date when Service is made available to the Customer, and during which the applicable Service will be held available for Customer upon Customer’s request if approved by UTOPIA.
“Initial Service Term” means the period following the Service Acceptance Date, as evidenced by UTOPIA records and the Services Order.
“MRC” means monthly recurring charge.
“NRC” means nonrecurring charge.
“Rates” means the MRCs and NRCs for the Service.
“Regulatory Activity” is a regulation or ruling by any regulatory agency, legislative body, or court of competent jurisdiction.
“Service Acceptance Date” means the date Customer accepts the Service and billing commences, as evidenced by UTOPIA records.
“Service Due Date” means the date UTOPIA makes the Service available to Customer for testing.
“SLA” means the service level agreement for each UTOPIA Service; SLAs are subject to change. Each SLA provides Customer’s sole and exclusive remedy for Service interruptions or Service deficiencies of any kind whatsoever for the applicable Service. Not all Services have a Service-specific SLA.
“Taxes” means foreign, federal, state, and local excise, gross receipts, sales, use, privilege, or other tax (other than net income) now or in the future imposed by any governmental entity (whether such Taxes are assessed by a governmental authority directly upon UTOPIA or the Customer) attributable or measured by the sale price or transaction amount, or surcharges, fees, and other similar charges, that are required or permitted to be assessed on the Customer.
“Termination Charge” means the termination charges detailed in the Service Exhibits.
