General Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SERVICE

LIVEOAK FIBER, LLC

1. Definitions.

As used in the Agreement and this Attachment herein:

• “Agreement” means the Installation and Services Agreement, the Schedule and Service Terms and Conditions and Exhibits thereto, this Attachment containing General Terms and Conditions of Service and Exhibits thereto.
• “Building” means each building within the applicable property or community where Provider installs Equipment and delivers Services, including, without limitation, wiring closets, communications and/or utility rooms, rooftops, conduits, related easements, wiring, and power infrastructure.
• “Commencement Date” means the date of Provider’s first invoice for Services, which will occur after installation has been completed in each Unit, unless Provider is unable to access a Unit as scheduled due to circumstances beyond Provider’s control.
• “Effective Date” is the date that the Agreement is fully executed by the Parties.
• “Equipment” means equipment installed by Provider to deploy the Services described in this Agreement, including all wiring not part of In-Unit Wiring.
• “Force Majeure Event” has the meaning set forth in Paragraph 8 herein.
• “In-Unit Wiring” means the internal wiring contained within a Unit of a subscriber which begins at the demarcation point.
• “Owner” means the owner defined on page 1 of the Schedule and the signing party to the Agreement.
• “Property” means the real property where Nantucket Cottages is located and includes the Building(s) and the project described in Item 3 of the Schedule.
• “Renewal Term” has the meaning set forth in Paragraph 1 of the Agreement.
• “Service Fee” is the amount set forth in Item 5 of the Schedule, computed as set forth in this Agreement.
• “Term” has the meaning set forth in Paragraph 1 of the Agreement and Item 4 of the Schedule.
• “Unit” means a residential unit located in the Building.
• “Value-Added Service” includes the customer service practices by Provider to be provided as specified in Exhibit 2 herein.

2. Late Payments.

Provider may charge interest on all late payments that are past due at an annualized rate that is the lower of eighteen percent (18%) per annum or the highest amount permitted by law.

3. Credit Card Payments.

Payment by credit card will be subject to a convenience fee of 3%.

4. Ownership of Equipment.

Provider shall hold all right, title, and interest in or to the Equipment during and after the Term of the Agreement. Provider shall own and have the exclusive right to operate its Equipment and the non-exclusive right to provide Retail Services to the residents for so long as the Provider elects, in its sole discretion, to provide Retail Services at the Property.

Owner shall take reasonable efforts to keep Provider’s Equipment free from any and all liens or claims. Owner does herein confirm ownership or availability of In-Unit Wiring and the ability of Provider to use this wiring without charge for the Term of this Agreement. In the event the In-Unit Wiring needs to be replaced or repaired to provide the Bulk Service, Provider agrees to consult with Owner regarding the cost of such repair or replacement, which shall be the responsibility of the Owner or Unit owner/resident. Owner shall maintain ownership of all such wiring at all times. Owner shall not allow any third parties to interfere with Provider’s use of the In-Unit Wiring.

5. Right of Entry / Installation of Equipment.

Owner grants Provider the non-exclusive right to enter the Building and Property during reasonable times upon reasonable notice to provide Services, to install and to remove Equipment, and to perform maintenance as provided in this Agreement (“Exclusive Right of Entry”). Owner grants Provider the right to use Building without charge to transmit its broadband connectivity at Provider’s cost to other properties provided such service to other properties does not impair the Services herein. Owner grants Provider the right to install the Equipment and Services in the most time efficient manner and shall undertake commercially reasonable efforts to provide unit labeling upon execution (unit labeling shall be in an excel format and shall include each Unit number). In emergency situations, which shall include, but not be limited to, impaired or damaged Equipment affecting more than two (2) Units, Provider shall have the right to enter the Building with proper identification and introduction to security personnel at any time including between 6 AM and Midnight (12 AM). Any access to a Unit shall be in compliance with the applicable landlord tenant or other applicable laws. Provider shall have the right to maintain vehicles at the Building and/or Property without charge to perform installation, service maintenance and removal of the Equipment. Provider shall have the right to use any and all existing wiring owned by Owner in the Building and shall have the exclusive use of such wiring for all video, voice, and Broadband service for the Term of the Agreement. Provider will install the Equipment in accordance with a schedule to be agreed upon by Provider and Owner; provided, however, that (i) the schedule will provide Provider sufficient time to install the Equipment prior to the Commencement Date, and (ii) the schedule shall be such that Provider is able to install the Equipment during normal working hours Monday through Friday. Owner grants to Provider such access to the Property and the common elements as Provider reasonably requires from time to time to enable it to fulfill its obligations under this Agreement. Provider shall, at its expense, provide all necessary and reasonable repairs and maintenance to the Equipment. Provider shall be responsible at its cost for all repair or replacement of distribution wiring for the Term. Notwithstanding the foregoing, Provider reserves the right to charge Owner the full costs (including labor or administrative costs) of any repairs or maintenance which is required directly or indirectly as a result of the acts or omissions of Owner or any of Owner’s or the Property’s residents, employees, agents, contractors, or invitees.

6. Marketing Rights.

Owner hereby grants to the Provider the exclusive right to market any and all Services provided by Provider to the Property during the Term of this Agreement. The marketing rights granted hereunder includes the Provider’s right to have reasonable access to the Property to conduct marketing at such times and at such locations as are mutually agreeable between the Owner and the Provider, Owner’s assistance in marketing Provider’s Services and distributing Provider’s marketing materials to residents in electronic and other formats available.

7. Provider Responsibilities and Service Level Agreement.

Provider represents that it is experienced and qualified to do the work necessary to install and to operate the Equipment; provide the Services; and has the legal authority and resources necessary to perform its obligations under this Agreement. Provider shall perform its work in accordance with all applicable laws, ordinances, governmental regulations, and building codes. Provider agrees that its employees, agents, and subcontractors will adhere to all Owner written rules and regulations provided by Owner to Provider. Further, Provider shall be responsible for establishing and enforcing all safety precautions and safety programs in connection with its work under this Agreement; shall give notices related to the safety of persons and/or protection of property; shall maintain required signage and warnings against hazards to person or property; shall exercise care in the use or storage or hazardous materials and equipment to be utilized under the Agreement; and shall supervise, direct and/or perform the work. Provider shall keep the Property premises free from accumulation of waste materials, rubbish or debris caused by the Provider’s Services. Provider agrees through the provision of adequate resources in the area to comply with the Service Level Agreement attached hereto as Exhibit 1.

8. Force Majeure.

Neither party shall be liable or responsible for failure to perform all or part of this Agreement by reason of labor dispute, riots, act of God (including weather related disasters), war, governmental orders or laws, regulations or restrictions, actions by third party service providers, non-delivery or inadequate performance by program or equipment suppliers (including but not limited to inability to operate equipment within the manufacturer’s specifications), installation contractors, local exchange or underlying network providers, or any other cause beyond their respective reasonable control (collectively, “Force Majeure Event”). Upon occurrence of a Force Majeure Event that impairs Provider’s Services, Provider shall (i) undertake and maintain diligent efforts to restore the Services and (ii) undertake commercially reasonable efforts to make available to residents a reasonably available alternative to the Services.

In the event that the Property is destroyed or becomes uninhabitable during the term of this agreement, delivery and payment for Provider’s Services may be suspended until an agreed upon point in time by both parties.

9. Technology Review.

Upon completion of the first fifty percent (50%) of the Term of the applicable Agreement, and at Owner’s request, Provider and Owner shall work together in good faith to review the Services in comparison to similar service providers in the area and, if mutually agreed, develop a plan to implement such functionality.

10. Enforcement.

a. Default and Termination. This Agreement shall terminate upon the first to occur of the following:

1. Upon the mutual written consent of the Parties hereto.
2. At the option of either Party, if the other Party materially breaches any of its obligations under this Agreement, and fails to cure such breach within thirty (30) days after receipt of written notice from the non-breaching party (or, if such default cannot be cured within such time period, should the breaching Party fail to commence to cure such default within said default period and pursue the same to completion with due diligence), and which notice shall describe the material breach(es) in reasonable detail and specify the non-breaching Party’s intention to terminate this Agreement if such breach(es) are not cured. Notwithstanding this section, Owner shall be in default and Provider may terminate this Agreement and/or suspend any Bulk Services provided hereunder at any time upon Owner’s failure to pay any amount when due that is not cured within fifteen (15) calendar days after the date of a written notice from Provider.
3. At the option of the Provider, upon providing Owner with at least ninety (90) days advance written notice, in the event that there is a change in law or regulation governing the provision of the Services or a portion thereof that, in the reasonable opinion of Provider, materially impacts the ability of Provider to provide the Services in a commercially reasonable manner. Notwithstanding the foregoing, Provider may, at its option, elect to cease providing a portion of the Services or to continue to provide all or a portion of the Services under terms consistent with such change in law or regulation, in lieu of terminating the Agreement and Owner and Provider agree that the Agreement shall be automatically amended to reflect the removal of such service or amendment of the Agreement to conform to the change in law or regulation following the ninety (90) day notice period.
4. As may otherwise be provided for in this Agreement.

b. Termination Liability. In the event of Owner’s termination of this Agreement without cause prior to the expiration of the Term or Provider’s termination for Owner’s material breach, the parties agree that Provider’s damages for such termination would be difficult, if not impossible, to determine particularly since Provider has supplied and maintained the Equipment at its expense and the parties further agree that in such event, Provider may recover from Owner as liquidated damages, and not as a penalty an early termination, charge equal to all the unpaid monthly Bulk Service Fees for the duration of the Term as defined in the Agreement. Nothing in this Agreement is intended nor shall be construed to limit Owner’s liability under this section.

c. Dispute Resolution. All disputes under this Agreement shall be submitted to and settled by arbitration in the County in which the Property is located, in accordance with the rules of the American Arbitration Association. The parties shall appoint a mutually agreeable arbitrator reasonably familiar with broadband communications systems and services. In the event the parties are unable to agree to a single arbitrator, the dispute shall be submitted to a panel of three (3) arbitrators, one of which shall be reasonably familiar with broadband systems and services. Each party shall appoint an arbitrator and the two arbitrators so appointed shall then select a third arbitrator. The arbitrators shall apply applicable federal laws and regulations and the laws of the jurisdiction in which the Property is located, without regard to its choice of law principles. The decision of the arbitrators shall be binding and conclusive on all parties involved, and judgment upon their decision may be entered in a court of competent jurisdiction.