Terms and Conditions

This document (the “T&Cs”) provide additional terms and conditions for a Special Services Contract (“SSC”), Managed Services Agreement (“MSA”) or other agreement between BTC Communications, Inc. or any of its affiliates (“BTC”) and the Customer specified in the SSC or MSA. BTC refers only to the entity designated on the SSC or MSA and no other affiliate shall have any liability under an SSC or MSA it is not a party to. The SSC or MSA, the T&Cs and all attachments and exhibits comprise the “Agreement”. References to SSC and MSA will include any other agreements that incorporate these T&Cs.

1. Service Fees and Billing. Customer agrees to pay the monthly charges for Services, the implementation and other charges indicated on the SSC or MSA or otherwise due hereunder (collectively, “Fees”) and all applicable taxes. Fees include additional charges (at BTC’s current rates) for dispatch of BTC resources when it is determined that the issue is not the responsibility of BTC.
2. Recurring Fees. BTC will bill Customer monthly in advance for all recurring Fees and in arrears for usage-based Fees. Billing will begin on the date BTC notifies Customer that the Services are ready for use. The first month Customer will be billed a prorated amount for the Services provided since installation in addition to the full amount for the following month.
3. Payment. Customer shall pay in full all invoices from BTC in U.S. dollars within thirty (30) days of the date of invoice. Late payments will accrue interest at a rate of one and one-half percent (1 ½%) per month or the highest rate allowed by applicable law, whichever is lower and an additional $10 late payment fee shall be due. If payment is returned to BTC with insufficient funds, Customer is considered to have not paid and is subject to a returned check charge of $25.
4. Service Level Agreement (“SLA”) Credits. Credits may be provided to Customer as provided in the SLA attached to an SSC or MSA. SLA credits are the sole remedy for Service degradation, interruption unavailability or failure to meet performance standards.
5. No Resale. Customer agrees that all services provided under this Agreement are solely for the Customer’s internal use and may not be resold, sublicensed, shared, or otherwise distributed to any third party without the prior written consent of BTC. This restriction includes, but is not limited to, offering services to other end users, vendors, service providers, or resellers, whether for compensation or otherwise. Any violation of this provision shall be considered a material breach of this Agreement. Upon such a breach, BTC may (i) immediately terminate or suspend all Services without notice or refund; (ii) charge Customer a fee of up to $2,500.00 per occurrence; (iii) Seek injunctive relief or pursue other legal remedies available under law; and (iv) recover all reasonable legal fees and costs incurred in enforcing this provision from Customer.
6. Other Networks. Customer is responsible for paying any fees and complying with any usage policies applicable to transmitting data beyond the facilities owned and controlled by BTC. BTC is not responsible or liable for the performance of such networks.
7. NO WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S OWN RISK. BTC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BTC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE FROM MALICIOUS ACTS BY THIRD PARTIES.
8. Limitations of Liability.
   8.1 Personal Injury. BTC will not be liable for any harm or personal injury to Customer personnel or equipment resulting from any cause other than BTC’s gross negligence or willful misconduct.
   8.2 Damage to Customer Business. To the fullest extent permitted by law BTC will not be liable for: (i) any incidental, punitive, indirect, or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or loss of use of Service or any other similar claims by Customer, even if BTC is advised of the possibility of such damages, or (ii) any damages or expenses incurred by Customer as a result of any deficiency, error, or defect in BTC’s services whether due to equipment, hardware, software, security practices or BTC’s failure to correct the same.
   8.3 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, BTC’s maximum aggregate liability to Customer related to this Agreement whether under contract, tort, strict liability or otherwise will be limited to the total amount paid by Customer to BTC for six months’ services.
9. Indemnification. Customer will indemnify, defend and hold harmless BTC and its affiliates, and their officers, directors, employees and agents from and against any and all claims, arising out of Customer’s use of the Services alleging: (a) infringement or misappropriation of any intellectual property rights; defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or spamming or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Policy; (b) any loss suffered by, damage to or injury to BTC or any other BTC customer caused by acts or omissions by Customer. Customer agrees to reimburse BTC for the expense and cost of handling such claims including, without limitation, legal fees.
10. Term.
    10.1 Initial and Renewal Terms. This Agreement will commence when the SSC or MSA is executed and shall continue for the number of months set forth in the SSC or MSA after the date billing starts for the Services (the “Initial Term”). The Agreement shall automatically renew for an additional one (1) year period (each, a “Renewal Term”) under the same terms and conditions, unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days prior to the end of the then-current term. The Initial Term along with any Renewal Terms comprise the “Term Payment Period”.
    10.2 Rate Adjustments. After the Initial Term, BTC may increase rates by giving Customer ninety (90) days advance notice of its intention to do so. Customer may terminate the Agreement within the ninety (90) day period or continue to use the Services at the increased rate.
11. Termination.
    11.1 Nonpayment. BTC may suspend Service to Customer if any amount due hereunder is not paid in full within fifteen (15) days after Customer is sent an overdue notice. To reinstate Service, BTC may require payment of the overdue amount and additional security. BTC may terminate this Agreement and at its option, all other SSCs and MSAs incorporating these T&Cs if any amount due hereunder is not paid in full within thirty (30) days after Customer is sent an overdue notice.
    11.2 Bankruptcy. BTC may terminate this Agreement upon written notice to Customer if Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
    11.3 Early Termination by Customer Prior to Service Availability. Customer may terminate the Agreement prior to the date on which BTC notifies Customer the Services are ready for use (or for an MSA the date on which the Services are scheduled to commence) upon seven (7) days notice and payment of BTC’s full costs for implementation of the Services, whether or not such costs have been incurred by BTC prior to termination. For avoidance of doubt, because BTC may have planned to recover some portion of its implementation costs over the term of the Agreement, this cost is not limited to the quoted cost for implementation. This clause is not applicable and any attempted termination is null if payment of BTC’s costs for implementation are not paid within fifteen (15) days of receipt of the applicable invoice.
    11.4 Early Termination by Customer After Service Availability. Customer may terminate the Agreement after the date on which BTC notifies Customer the Services are ready for use, but prior to the end of the Term Payment Period upon thirty (30) days notice and payment of 85% of the sum of monthly recurring payments remaining in the Term Payment Period. If termination occurs prior to the expiration of the 30th month of the Agreement, Customer shall also pay any waived installation charge. This clause is not applicable and any attempted termination is null if payment of the specified costs are not paid within fifteen (15) days of receipt of the applicable invoice.
    11.5 Termination for Impossibility of Performance. BTC reserves the right to discontinue all or part of the Services with a sixty (60) day notice, if the provision of such Services becomes illegal, impractical or uneconomical to perform under applicable laws or regulations or for circumstances beyond BTC’s control.
    11.6 Termination for Breach. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of notice of the same.
    11.7 Effect of Termination. Upon expiration or termination of this Agreement: (a) BTC may cease providing the Services; and (b) except in the case of termination by Customer pursuant to Section 11.1 through 11.5, all of Customer payment obligations under this Agreement, including but not limited to monthly Service Fees through the end of the Term Payment Period will immediately become due in full.
12. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration or termination of this Agreement.
13. Miscellaneous Provisions.
    13.1 Force Majeure. Other than with respect to failure to make payments due hereunder, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, epidemic or pandemic, or any other cause beyond its reasonable control “Force Majeure Events”.
    13.2 Assignment. Customer may not assign its rights under this Agreement without the prior written consent of BTC. Any attempted assignment without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
    13.3 Notices. Any required notice hereunder may be emailed, delivered personally or by courier; sent by confirmed facsimile; or mailed by registered or certified mail, return receipt requested, postage prepaid, to either party at the name and address on the signature page of this Agreement, or at such other address as such party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is emailed, or delivered personally or by courier, or three (3) days after it is sent by confirmed mail. Verbal notices shall be deemed ineffective.
    13.4 Relationship of Parties. This Agreement will not establish any relationship of partnership, joint venture, or agency between the parties.
    13.5 Choice of Law and Venue and Recovery of Legal Costs. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, excluding its conflict of laws principles. For any litigation permitted by Section 13.14, venue shall be appropriate in Brantley County, GA. If either party prevails in any arbitration or suit relating to this Agreement, the prevailing party will have the right to recover from the non-prevailing party its costs including fees of attorneys, accountants, and other professionals, including costs upon appeal.
    13.6 Confidential Information. Each party shall take reasonable measures to keep in confidence the terms and conditions of this Agreement, and any confidential, sensitive, or proprietary information of the other party (hereinafter referred to as “Confidential Information”), and shall not disclose such Confidential Information without the prior written consent of the other party. Confidential Information excludes information generally available to the public not because of the receiving party’s fault. A party may disclose information as required by law, provided that it notifies the other party and takes reasonable steps to ensure the confidential treatment of such information to the extent permitted.
    13.7 Integration. This Agreement is the complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral.
    13.8 Counterparts. This Agreement may be executed in two or more counterparts (and the signature pages may be delivered with ink or electronic signature or by facsimile or email), each will be deemed an original, but all together will constitute one and the same instrument.
    13.9 Modification. This Agreement may be modified only through a written instrument signed by both parties. Should any provision of this Agreement be declared void or unenforceable, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect.
    13.10 Conflicts. If a conflict arises between Customer’s purchase order terms and this Agreement, this Agreement shall take precedence. If a conflict arises between an SSC or MSA and these T&Cs, the SSC or MSA will take precedence.
    13.11 Acceptable Use Policy. Customer shall comply with the BTC Acceptable Use Policy found at https://www.btconline.net/acceptable/. BTC shall have the right to immediately suspend or terminate the Services for any violation. BTC may update the BTC Acceptable Use Policy from time to time. References to the BTC Acceptable Use Policy shall mean the most updated version.
    13.12 Address Space. BTC may assign IP addresses to Customer. Addresses assigned to Customer by BTC may only be used during the Term Payment Period.
    13.13 Equipment. In event BTC provides equipment as part of the Services, Customer will use reasonable care to avoid damaging the equipment and Customer will not move, relocate, alter, or otherwise tamper such equipment. In event any of the equipment is damaged (except by BTC) or is not returned in good condition immediately upon termination of the Agreement, Customer shall pay the replacement or repair value of the equipment.
    13.14 Arbitration: All disputes and claims associated with the Services may be asserted only through arbitration by the rules of the American Arbitration Association or through the Brantley County Magistrate Court. This includes, but is not limited to, claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory. In magistrate’s court a party may only bring an individual action seeking only individualized relief for disputes or claims that are within the scope of that court’s authority, and only so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction. This Section does not apply to requests for injunctive relief or an action to enforce the result of arbitration. In the event of litigation in court, the Parties unconditionally waive the right to a trial by jury.