1. On-Site Facilities:
1.1 Customer is responsible for providing space, power, and all conditions necessary to support the commercial or the residential telecommunications equipment used by the customer. Customer shall be responsible for securing the facilities from unauthorized physical access, electrical interference, and/or all 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 OPEN INFRA and will not apply to any SLA calculations or credits.
2. Installation:
2.1. OPEN INFRA shall be responsible for the installation of the fiber optics cables and equipment for the Customer of Record to access the fiber optical network as well as the labor expenses for such installation to the demarcation point. All operations and/or installations concerning Service to the Customer of Record from the demarcation point at the customer’s premises will be performed at Customer’s expense including any necessary or Customer requested on-site cabling, conduits, relocations, retrofits, structural work, racks, or other expenses necessary to properly support OPEN INFRA’s demarcation equipment and the interconnection with Customer’s equipment.
2.2. Customer agrees that OPEN INFRA, its employees, contractors, agents and/or representatives may enter the premises where the services are provided and/or the Equipment is located at reasonable times for the purpose of installing, adjusting, replacing, maintaining, moving, auditing, removing and/or servicing in any manner. OPEN INFRA may charge an installation fee, repair fee, service fee, audit fee or maintenance fee. Customer represents that it owns the premises or has the right to possess or access to all areas OPEN INFRA needs to perform the activities referenced above and to check the performance of the services and Equipment. Customer acknowledges and agrees not to hold OPEN INFRA liable for any interruption in service if OPEN INFRA removes, replaces, services the Equipment or for any reason that is outside of OPEN INFRA’s control.
2.3. OPEN INFRA is not responsible for the maintenance, operation, service, repair or replacement of any equipment owed by the customer that is connected or used in conjunction with the Services or Equipment Customer agrees to allow OPEN INFRA to send software, applications, updates and data to and/or through customer’s equipment and to configure customer’s equipment and to provide features, changes, additions, removals, modifications and updates even if doing so impacts the functionality and/or the performance of the customer’s equipment. OPEN INFRA makes no representations or warranties that the software, application, updates or data does not contain viruses or harmful software or data. Customer agrees to take appropriate measures and actions to protect its equipment software, applications and data and not to hold OPEN INFRA liable for any damage to its equipment, for any losses or corruption to or of its software, data, storage or electronics absent gross negligence or willful misconduct. If customer is not the owner of the equipment customer shall obtain any necessary approvals from the owner for allow OPEN INFRA access the equipment and to perform the activities described above.
3. Use:
3.1. Customer is granted a license during the term of this Agreement to use the Equipment only for commercial or residential use in the way it is intended by OPEN INFRA. Customer shall not (i) make the Services and/or the Equipment available or permit the Services or Equipment to be used by third parties (ii) resell or transfer the Services to any other person or entity (iii) use the Services or Equipment in a manner that is contrary to the policies of OPEN INFRA. Customer agrees to read and familiarize itself with OPEN INFRA’s policies. (OPEN INFRA’s policies are available at <www.openinfra.com>) Customer may not tamper with OPEN INFRA’s Equipment or Services or to adjust, bypass, or circumvent any monitoring, security, or configuration of the OPEN INFRA’s Equipment, systems, or facilities. Any tampering, hacking or interference with OPEN INFRA’s Equipment or software will void any and all licenses granted herein. Customer agrees not to use or assist any other person or entity to use any unauthorized equipment or device to access or tamper with OPEN INFRA’s fiber optic network, the Services and/or Equipment.
4. Cooperation:
4.1. Customer will cooperate with OPEN INFRA to install, operate, maintain, or repair Service. Customer will provide access to Customer’s facilities for the installation and maintenance of OPEN INFRA’s equipment. Any failure to provide access exempts OPEN INFRA from any duties, obligations and/or liability in OPEN INFRA’s SLA or commitments on Service Delivery Dates. Billing for applicable services may begin in advance of Service Delivery Date if installation is held up by Customer.
5. Customer Service:
5.1. Customer may request an OPEN INFRA to dispatch technicians for Service Problems regarding the Services OPEN INFRA charge the Customer of a dispatch and or service problem 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 OPEN INFRA. Problems Customer agrees that OPEN INFRA may record requests and communications regarding Customer Service requests and services preformed. Problems with Service Provider services regarding activated service with the Service Provider should be reported to the Service Provider.
5.2. If Customer’s Service is terminated or cancelled, unless expressed otherwise in writing, Customer shall promptly return the Equipment. The Equipment must be returned to OPEN INFRA in the same condition as when received, ordinary wear and tear excepted.
6. Service Changes:
6.1. Customer may add, move, or upgrade each Service according to the terms of the OPEN INFRA Services Catalog.
7. Service Interruptions:
7.1.Service interruption means a total disruption of the Service subject to restrictions and exclusions outlined in applicable OPEN INFRA SLA.
8. Agreement Term:
8.1. The Agreement will remain in effect until the Service is terminated as contemplated by the Termination Section 12 of the Agreement.
9. Rates:
9.1. Rates are as specified in any specific Service Orders for the Customer are incorporated by reference and are part of and included as a material term to this Agreement. Rates for new orders are subject to change at any time according to the then current OPEN INFRA Services 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 OPEN INFRA and Customer. Any rate changes shall in writing signed/acknowledged by the parties to this Agreement.
10. Payment:
10.1. Billing: Customer must pay OPEN INFRA all applicable charges by the due date on the invoice if specified. 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. OPEN INFRA maintains the right to terminate this Agreement and any associated Services for non-payment under the terms of this Agreement
10.2. Grace Period: Customer may request a Grace Period for the delivery of services. OPEN INFRA may at its sole discretion, grant reasonable Grace Periods where Services and billing are suspended until Customer is ready to receive Services. OPEN INFRA will require Customer to accept Service by the end of the Grace Period. If Customer has not accepted the Service by the end of the Grace Period, then OPEN INFRA may consider the services as accepted by the Customer and commence billing or terminate the Service subject to the Termination section of the Agreement.
11. Confidentiality:
11.1. 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.
12. Termination:
12.1. 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 OPEN INFRA 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 OPEN INFRA and not fully reimbursed by NRCs. Minimum Termination Charges are 80% of the MRC for the duration of the Service as specified in the Fiber Service Order Form under the section “SERVICE.”
12.2. Agreement: Customer may terminate the Agreement and all Service by providing 30 days written notice to OPEN INFRA. OPEN INFRA may terminate Agreement and all Service by providing 15 days written notice without cause and immediately without notice for cause. 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 an applicable OPEN INFRA SLA. If Customer terminates the Agreement for Convenience or OPEN INFRA terminates it for Cause, then Customer will pay to OPEN INFRA the Termination Charges set forth in section 9.1 of this Agreement.
12.3. Unpaid Charges: Customer will remain liable for charges accrued but unpaid as of the termination date.
13. Authorized Service Provider Charges:
13.1 In connection with Customer’s use of the Service and Equipment, Customer may be able to access, subscribe to, use and/or purchase products, services, software or applications that are provided to Customer by third parties (“Authorized Service Provider”). Customer acknowledges that Customer may incur charges in connection with the subscription to, purchase or use of these Authorized Service Provider products, services, software or applications. All such charges, including any additional fees and applicable taxes, shall be paid by Customer to the Authorized Service Provider and are not the responsibility of OPEN INFRA. Credits or billing adjustments for products, services, software or applications billed by a Authorized Service Provider shall be subject to the stated billing practices of that Authorized Service Provider. Termination of a service or subscription offered for a separate charge billed directly by a Authorized Service Provider shall be effected in accordance with the Terms of Service or pursuant to the agreement between the Customer and the Authorized Service Provider.
14. Equipment:
14.1 Customer agrees that all equipment, including but not limited to, any fiber cables, wires, cable boxes, battery backup units, converters, routers, gateways, distributed to and/or installed for use in the Customer’s service location(s) by or on behalf of OPEN INFRA (“Equipment”), network facilities, and software installed or provided by OPEN INFRA remains the property of OPEN INFRA. The Equipment shall remain the property of OPEN INFRA at all times and shall not become or considered a fixture or in any way part of the premises. Customer agrees it shall be liable for any damage, loss or theft to the Equipment. OPEN INFRA may replace or remove any OPEN INFRA’S Equipment, at OPEN INFRA’s discretion, at any time the services are active and or at termination of services.. The Equipment, software, hardware and /or devices are issued, installed or provided to the Customer by OPEN INFRA for use in connection with its use and access to OPEN INFRA’s fiber optic service and not sold to the customer. OPEN INFRA may replace or remove any OPEN INFRA’S Equipment, at OPEN INFRA’s discretion, at any time the services are active and or at termination of services.
14.2 All wiring on the Customer’s side of the demarcation point at Customer’s service location, whether installed by OPEN INFRA or by Customer, shall be Customer property and not OPEN INFRA Equipment, and repair and maintenance for such wiring is the responsibility of Customer unless otherwise agreed by Customer and OPEN INFRA. The demarcation point shall mean a point at (or about) twelve (12) inches outside of where the fiber enters the Customer’s service location where the Fiber termination point is placed. None of the Equipment shall become a fixture nor shall distribution, installation, and/or use of Equipment be deemed a lease of such Equipment. Customer will acquire no ownership or other interest in the Equipment, network facilities, and software by virtue of payments made pursuant to this Agreement or by the attachment of any portion of the Equipment or network facilities to Customer’s residence or premises.
15. Governing Law; Jurisdiction and Venue:
15.1 This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Texas, without giving effect to its principles of conflicts of laws. All legal proceedings arising out of this Agreement shall be brought in the State or Federal Courts located in or for Collin County, Texas. Customer agrees to the jurisdiction of the State or Federal Courts located in or for Collin County, Texas and waives any and all challenges and/or objections to the jurisdiction over the Customer by those Courts.
16. No Warranty; Limitation of Liability:
16.1 OPEN INFRA MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES AMD EQUIPMENT WHATSOEVER INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT THE SERVICES AND/OR THE EQUIPMENT WILL MEET THE CUSTOIB N ER’SREQUIREMENTS. CUSTOMER EXPRESSLY AGREES THAT: (A) THE SERVICES PROVIDED ARE BEST EFFORTS SERVICES AND THE SERVICES, SOFTWARE AND EQUIPMENT ARE PROVIDED BY OPEN INFRA ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. OPEN INFRA PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR IMPAIRMENT OF SERVICE DUE IN WHOLE OR IN PART TO CUSTOMER OWNED- OR PROVIDED-EQUIPMENT AND ALL USE OF THE SERVICES, SOFTWARE AND EQUIPMENT, INCLUDING THAT PROVIDED BY THIRD PARTY PROVIDERS, AS WELL AS THE PURCHASE, DOWNLOAD OR USE OF ANY THIRD PARTY SERVICE, PRODUCT, OR APPLICATION PROVIDED BY OR ACCESSED THROUGH THE SERVICES OR EQUIPMENT, ARE PROVIDED AT CUSTOMER’S SOLE RISK AND CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR CUSTOMER’S OR ANY USER’S USE OF THE SERVICES. THE S ERVICES ARE NOT FAIL-SAFE MAY BE DISRUPTED. THE SERVICES ARE NOT DESIGNED FOR USE IN SITUATIONS IN WHICH AN ERROR OR INTERUPTION COULD LEAD TO INJURY TO BUSINESS, PERSONS, PROPERTY OR THE ENVIRONMENTWITHOUT LIMITIN THE FOREGOING, OPEN INFRA DOES NOT WARRANT THEAT THE SERVICES AND EQUIPMENT BE WITHOUT FAILURE, DELAY, ERROR, INTERUPTION, DEGRADATION OF QUALITY AND PERFORMANCE OR LOSS OF CONTENT, DATA, OR INFORMATION. STYATEMENTS AND/OR DESCRIPTIONS OF SERVICES OR EQUIPMENT GIVEN BY OPEN INFRAS OR ITS AUTHORIZED REPRESENTATIVES ARE INFROMATIONALAND ARE NOT GIVEN AS WARRABTIES OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE OPEN INFRA PARTIES MAKE NO WARRANTY: (I) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE EQUIPMENT WILL WORK AS INTENDED; (II) AS TO TRANSMISSION OR UPSTREAM OR DOWNSTREAM SPEEDS OF THE NETWORK; (III) THAT THE SERVICES, EQUIPMENT OR SOFTWARE ARE COMPATIBLE WITH ANY CUSTOMER OWNED- OR PROVIDED-EQUIPMENT; OR (IV) AS TO THE SECURITY OF CUSTOMER’S COMMUNICATIONS VIA OPEN INFRA’S FACILITIES OR SERVICES, OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR CUSTOMER’S COMMUNICATIONS. CUSTOMER HAS THE SOLE RESPONSIBILITY TO SECURE CUSTOMER’S COMMUNICATIONS AND THE OPEN INFRA PARTIES WILL NOT BE LIABLE FOR ANY LOSS ASSOCIATED WITH SUCH UNAUTHORIZED ACCESS. IN ADDITION, NEITHER THE OPEN INFRA PARTIES NOR ANY THIRD PARTY PROVIDER OF SERVICES OR PRODUCTS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY PRODUCT OR SERVICES OFFERED THROUGH THE SERVICES OR EQUIPMENT, AND OPEN INFRA SHALL NOT BE PARTY TO NOR RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD PARTY PROVIDER OF PRODUCTS OR SERVICES.
16.2. IN NO EVENT (INCLUDING BY REASON OF OPEN INFRA’S NEGLIGENCE) WILL THE OPEN INFRA PARTIES, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS BE HELD RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE, COST OR EXPENSE INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EARNINGS, BUSINESS OPPORTUNITIES, LOSS OF DATA, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR LEGAL FEES AND EXPENSES, SOUGHT BY CUSTOMER OR ANYONE ELSE USING CUSTOMER’S SERVICE ACCOUNT: (X) RESULTING DIRECTLY OR INDIRECTLY OUT OF THE USE OR INABILITY TO USE THE SERVICES (INCLUDING THE INABILITY TO ACCESS EMERGENCY 911 OR E911 SERVICES) AND/OR USE OF THE SOFTWARE, EQUIPMENT OR PROVIDED THIRD PARTY SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE OF SERVICES, SOFTWARE, SECURITY BREACHES, VIRUSES, EAVSEDROPPING, INTERCEPTION OR INTERUPTION OF THE SERVICES AND/OR EQUIPMENT OR CUSTOMER’S RELIANCE ON THE SERVICES, SOFTWARE AND/OR EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURE OR MALFUNCTION, DELETION OR CORRUPTION OF OR LOSS OF FILES AND/OR DATA AND INFORMATION, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN INSTALLATION, FAILURE TO MAINTAIN PROPER STANDARDS OR OPERATION, FAILURE TO EXERCISE REASONABLE SUPERVISION, DELAYS IN TRANSMISSION, BREACH OF WARRANTY OR FAILURE OF PERFORMANCE OF THE SERVICES, SOFTWARE AND/OR EQUIPMENT; OR (Y) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING RELATING TO SERVICES, SOFTWARE AND/OR EQUIPMENT, OR THE INFRINGEMENT OF THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY. IN THE EVENT THAT OPEN INFRA IS HELD LIABLE FOR DAMAGES ARISING OUT OF THIS AGREEMENT, OPEN INFRA’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEDD THE AMOUNT PAID BY THE CUSTOMER FOR THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEEDING THE LAST EVENT GIVING RISE TO THE LIABLITY.
17. Indemnification
Customer agrees to defend, indemnify and hold harmless the OPEN INFRA Parties from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of or related in any way to the use of the Service and Equipment by Customer or otherwise arising out of the use of Customer’s account or any equipment or facilities in connection therewith, or the use of any other products or services provided by OPEN INFRA or an Authorized Service Provider to Customer. Customer agrees to indemnify and hold harmless the OPEN INFRA Parties against claims, losses or suits and expenses, including reasonable attorneys’ fees for injury to or death of any person, or damage to any property which arises from the use, placement or presence or removal of OPEN INFRA’s Equipment, facilities and associated wiring on Customer’s premises and further, Customer indemnifies and holds harmless the OPEN INFRA Parties against claims and expenses, including reasonable attorneys’ fees for libel, slander, or the infringement or violation of contractual rights, privacy, confidentiality, copyright, trademark, patent, trade secret and/or other intellectual property arising directly or indirectly from the material transmitted over the facilities of OPEN INFRA, the use thereof by Customer; and arising from or in combination with or using in connection with, facilities furnished by OPEN INFRA, and apparatus, Equipment, and systems provided by Customer; and against all other claims arising out of any act or omission of Customer in connection with the Services or facilities provided by OPEN INFRA. Customer agrees to defend, indemnify and hold harmless the OPEN INFRA Parties from and against any and all claims and expenses, including reasonable attorneys’ fees, from Customer’s breach of this Agreement. Customer agrees and understands that the indemnification provided under this section runs not only to OPEN INFRA but also to its offices, directors, shareholders, agents employees, contractors, attorneys, representatives, suppliers, vendors, licensors and Authorize Service Providers.
18. Severability
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule, the validity, legality and enforceability of the other provision of this Agreement will not be affected or impaired thereby.
19. Assignability
Neither this Agreement nor any right remedy, obligation or liability arising hereunder or by reason hereof shall be assignable (including by operation of law) by either party without the prior written consent of the other party to this Agreement, except that OPEN INFRA may, without the consent of the Customer, assign its rights and obligations under this Agreement to any corporation, firm, or other business entity with or into which the OPEN INFRA may merge or consolidate, or to which OPEN INFRA or OPEN INFRA’s shareholders may sell or transfer all or substantially all of its assets or a majority of its voting capital stock. After any such assignment by OPEN INFRA, OPEN INFRA shall be discharged from all further liability hereunder and such assignee shall thereafter be deemed to be OPEN INFRA for the purposes of all provisions of this Agreement including this Section.
20. Entire Agreement:
This Agreement (including the exhibits, schedules and other documents referred to herein) contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understanding, agreements or representations, written or oral.
21. Modification, Amendment, Waiver or Termination:
No provision of this Agreement may be modified, amended, waived or terminated except in a writing signed by the parties to this Agreement. The parties agree that no course of dealing between the parties will modify, amend, waive or terminate any provision of this Agreement or any rights or obligations of any party under or by reason of this Agreement. . The parties agree that no delay on the part of a party in exercising any right hereunder shall operate as a waiver of such right. The parties agree that no waiver, express or implied, by a party of any right or any breach by the other party shall constitute a waiver of any other right or breach of such other party.
22. Successors and Assigns:
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
23. Third-Party Benefit:
Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities of any nature whatsoever.
24. No Relationship:
Nothing in this Agreement will create any joint venture, joint employer, franchisee-franchisor, employer-employee or principal-agent relationship between OPEN INFRA and any content, backbone, network, circuit and other technology or communications providers, software and other licensors, hardware and equipment suppliers or other third party providers of elements of the Service, nor impose upon any such companies any obligations for any losses, debts or other obligations incurred by the other.
25. Survival:
All representations, warranties, indemnifications, dispute resolution provisions and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination (including legal conditions, payment, and OPEN INFRA rights and the rights of others).
26. Force Majeure:
OPEN INFRA shall not be liable for any delay or failure of performance or Equipment due to causes beyond its control, including but not limited to: acts of God, fire, flood, explosion or other catastrophes; any law, order, regulation, direction, action or request of the United States government or of any other government including state and local governments having or claiming jurisdiction over OPEN INFRA, or of any department, agency, commission, bureau, corporation or other instrumentality of any one or more of these federal, state, or local governments or of any military authority; preemption of existing service in
27. Headings:
The headings and any table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
28. 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 OPEN INFRA 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 OPEN INFRA 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 OPEN INFRA designated physical interface between the OPEN INFRA 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.
“GRAMA” means the Government Records Access and Management Act.
“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 OPEN INFRA.
“Initial Service Term” means the period following the Service Acceptance Date, as evidenced by OPEN INFRA 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 OPEN INFRA records.
“Service Due Date” means the date OPEN INFRA makes the Service available to Customer for testing.
“Service Provider” means any provider of Internet, VOIP, TV, Security, or other applicable service that is authorized to provide such services via OPEN INFRA’s network.
“SLA” means the service level agreement for each OPEN INFRA 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 OPEN INFRA 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 applicable Service Exhibits and Service Provider Agreements.