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DescriptionPrivacy Policy & Terms of Use
The NM FIber Network, LLC Privacy Policy describes the way NM FIBER NETWORK, LLC protects collects, and utilizes its Customer and users’ personal information. The Privacy Policy applies to Customers who purchase NM FIBER NETWORK, LLC services and users who use its website. To address governmental regulations and technology changes, this Privacy Policy is subject to change without notice. NM FIBER NETWORK, LLC encourages its Customers and users to check its website periodically for any changes or revisions to the Privacy Policy. The latest revision date is displayed at the bottom of this document.
General Collection and Use of Information
NM FIBER NETWORK, LLC may collect different types of information on its Customers and users based upon its business relationship with the Customer or user of its website. NM FIBER NETWORK, LLC collects information through the following means: Information a user supplies NM FIBER NETWORK, LLC by submitting personal information through the use of its website Information a Customer or potential customer supplies NM FIBER NETWORK, LLC when requesting or purchasing service through NM FIBER NETWORK, LLC. Third parties such as a credit agency in which Customer supplies NM FIBER NETWORK, LLC its written approval to gain such information.
NM FIBER NETWORK, LLC uses the information to: Address Customer needs when purchasing and using its services. Communicate with Customers regarding service updates and offers. Address any security or network issues. Respond to website requests and inquiries.
Information protection and security.
NM FIBER NETWORK, LLC does NOT sell Customer or users’ personal information to third parties. NO EXCEPTIONS. NM FIBER NETWORK, LLC uses best practices to ensure the integrity and privacy of any information collected from Customers or users. NM FIBER NETWORK, LLC requires all third parties acting on behalf of NM FIBER NETWORK, LLC to protect Customer or user information consistent with this Policy.
NM FIBER NETWORK, LLC Website (www.mytraconsulting.com) and Applications. NM FIBER NETWORK, LLC may collect anonymous Customer and user information as these individuals use the NM FIBER NETWORK, LLC website . The data collected may be used to gather information as to how Customers and users may interact with the website and the specific products and services. It is also a measure of the website’s traffic.
NM FIBER NETWORK, LLC may use cookies for a variety of reasons.
A cookie is a text file that the NM FIBER NETWORK, LLC website or application will transfer to the Customer or user’s hard disk so the website or application may remember the browser in case the individual would like to use the website or application in the future. Cookies allow the website to run more efficiently and increase the Customer or user’s experience with the website or applications while allowing NM FIBER NETWORK, LLC to better understand usage of its websites and applications. Cookies do not contain any personal information. A Customer or user may change their browser settings to accept or decline cookies; please consult the manufacturer of the browser in order to modify any personal settings.
Information Not Subject to this Privacy Policy
If Customer or user participates in public forums of any kind including but not limited to social networking sites, social media, bulletin boards, blogs, chat rooms or forums even if NM FIBER NETWORK, LLC participates in these sites, the Customer or user is advised the information submitted to these sites is considered public. Any information considered public may be read, collected, distributed or used by others without the consent of the Customer or user. Use of the sites referenced herein are at Customer or user’s sole discretion. Information shared on these sites is not covered by this Policy.
If Customer or user navigates to any website other than NM FIBER NETWORK, LLC’s website (www.nmfibernetwork.com) then information and data collected by that website or application is governed by the policies of that particular site and not this Policy. When navigating to another website, NM FIBER NETWORK, LLC recommends and encourages that its Customers and users review the other website’s Privacy Policies before supplying any personal information to them. Information required by law enforcement agencies through court orders, subpoenas, warrants and other legal proceedings.
Unless otherwise negotiated in writing between the parties, NM FIBER NETWORK, LLC does not provide notice to Customers or users of demands from law enforcement agencies. Any violations of federal or state law. NM FIBER NETWORK, LLC Company Correspondence. All Customers or users who receive correspondence from NM FIBER NETWORK, LLC or an affiliate may choose to opt out of any such future correspondence by reporting it to NM FIBER NETWORK, LLC at Contact@mytraconsulting.com.
Although Customers and users may opt out of marketing correspondence, Customers will still receive service related contacts and notices from NM FIBER NETWORK, LLC. NM FIBER NETWORK, LLC will work with all Customers to establish a reasonable method of correspondence between NM FIBER NETWORK, LLC and Customer for service related issues. Any correspondence request may take up to thirty (30) days for Customer or users requests to be processed.
Privacy of Children
NM FIBER NETWORK, LLC websites are not designed nor intended for children under the age of 18. NM FIBER NETWORK, LLC does not knowingly collect any information from children under the age of 18. The NM FIBER NETWORK, LLC website, applications and services are designed specifically for individuals over the age of 18.
Revision date: April 15, 2022 text goes here
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STANDARD TERMS AND CONDITIONS
The following STANDARD TERMS AND CONDITIONS (“Terms”) are the terms and conditions under which NM Fiber Network, LLC (“NM Fiber Network”) agrees to sell its services (“Services”) to a customer (“Customer”) of such Services where such Customer has not entered into a Master Services Agreement with NM Fiber Network.
THE FOLLOWING IS A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER AND NM FIBER NETWORK WITH RESPECT TO SERVICES. EACH CUSTOMER EXPRESSLY REPRESENTS AND WARRANTS THAT (i) THE CUSTOMER HAS READ, UNDERSTOOD, ACCEPTED AND AGREED TO EACH AND EVERY ONE OF THE TERMS SET FORTH BELOW;
(ii) IS AT LEAST 18 YEARS OF AGE; (iii) HAS THE POWER AND AUTHORITY TO ENTER INTO THE TERMS.
The Terms will become binding upon NM Fiber Network for any Service Order only when the Services are delivered to Customer. The Terms shall be immediately binding upon Customer upon its placement of any Service Order, regardless of how such Service Order is placed. Any deviations from these Terms are not valid unless expressly confirmed in a signed writing by NM Fiber Network. The parties reject any and all terms and conditions that are supplemental to these Terms unless expressly approved in a signed writing by NM Fiber Network. No course of prior dealing, business practices (whether existing, past or future) of NM Fiber Network with respect to sales of Services through online, offline or other channels or means, or industry practices, will modify, supplement or explain the Terms used herein.
ARTICLE 1- DEFINITIONS
1. Meaning. Words shall have their normal or common meanings, except as otherwise defined in this Agreement:
(a) Affiliate: An entity that controls, is controlled by, or is under common control with, either NM Fiber Network or Customer. “Control” is the ability to affect, directly or indirectly, the policies, management and operations of an entity through ownership of voting securities, by contract, or otherwise.
(b) Agreement: These Terms, including incorporated Addenda, Exhibits, Schedules, Appendices and other documents, as well as any amendments made by the Parties.
(c) Circuit. A telecommunications facility connecting two or more Customer locations.
(d) Effective Date: The date on which these Standard Terms and Conditions become legally binding on the Parties, identified as the date on which Customer signs the Exhibit A, Service Order or Access Service Request.
(e) Exhibit: A document (including appended Schedules or other attachments) that is appended to and made part of this Agreement and pertains to a particular product, including without limitation any and all Exhibit A, Service Orders or Access Service Requests.
(f) Governmental Charges: Charges, both retroactive and prospective, that NM Fiber Network is required or permitted to collect from Customer in connection with the furnishing of Service by NM Fiber Network. The charges result from the application, enforcement or interpretation of existing, new or revised laws or regulations, actions taken by federal, state, local or foreign regulatory authorities, or judicial acts or decisions (collectively, “Governmental Activity”) that directly or indirectly impose costs on NM Fiber Network. Governmental Charges include, but are not limited to, those arising out of local, state, federal, foreign and third-party actions, programs or requirements relating to Universal Service, number portability, TRS, E911, access, reciprocal compensation and franchising.
(g) Network: The telecommunications network of one of the Parties, as applicable.
(h) On-Net Service: Service where all locations at which Service is provided are served directly by NM Fiber Network’s Network, allowing the entire Service to be furnished by NM Fiber Network.
(i) Point of Presence (POP): A specific location within a Local Access Transport Area (LATA) where Service originates or terminates.
(j) Point of Termination: A location at which NM Fiber Network’s Service responsibilities end and Customer’s responsibilities begin. A Point of Termination may be the demarc where NM Fiber Network and Customer interconnect at Customer Premises, a local exchange carrier’s central office, or a long-distance carrier’s POP identified on Exhibit A.
(k) Premises: A physical address at which Service is provided and identified as a Point of Termination or Service location in a Service Order.
(l) Customer: The person, firm, corporation or other entity that orders Service and is responsible for the payment of all charges for Service, as well as compliance with applicable requirements set forth in this Agreement.
(m) Service: NM Fiber Network-provided telecommunications or related service described in an Exhibit, a Schedule, an Access Service Request, or a Service Order. Service may include entrance cables or drop wires terminating in a NM Fiber Network distribution panel (DSX) situated on Customer Premises.
(n) Service Order, Access Service Request, or Exhibit A: A Service request set forth on an “Exhibit A” form (Or an Access Service Request form) that specifies the type and quantity of Service desired, Premises addresses, Points of Termination, protocols, requested Start of Service Date, and other information needed to provision Service.
(o) Service Request Date: The Service availability date requested by Customer in a Service Order.
(p) Start of Service Date: The date Service is first available for use by Customer, which date may be an accepted Service Request Date or the date NM Fiber Network notifies Customer of Service availability. NM Fiber Network will commence billing Customer for the Service(s) ordered as of the Start of Service Date for the Term indicated in the Service Order (“Exhibit A” or Access Service Request).
(q) Taxes: Amounts NM Fiber Network is required or permitted by federal, state, local or foreign taxing authorities to collect from Customer in connection with the furnishing of Service. Taxes include, but are not limited to, personal property taxes on property used to provide Service and sales, use, receipts, telecommunications, excise, utility, or other similar transaction-based taxes, however designated, imposed directly on the Service or upon NM Fiber Network as a result of its provision of Service. “Taxes” does not include any tax based on NM Fiber Network’s net income, net worth, capital structure or payroll.
ARTICLE 2 - SERVICE; OBLIGATIONS/LIMITATIONS
1. Service. NM Fiber Network will provide, and Customer will receive, the Service or Services as set forth in an Exhibit A and such subsequent Exhibit A as the Parties may mutually agree. NM Fiber Network shall not be required to provide any Service for which it has not received a signed Exhibit A and signed billing information schedule from Customer. NM Fiber Network will be deemed to have accepted such Exhibit A at such time as NM Fiber Network signs the Exhibit A. Notwithstanding the foregoing, any Exhibit A not signed by NM Fiber Network will be deemed valid and binding upon the Parties upon commencement and acceptance of the Services ordered pursuant to such Exhibit A.
2. Availability of Facilities.
(a) Service is offered and furnished subject to the availability of all necessary facilities, including those acquired by NM Fiber Network from or through third parties. Service where one or more of the locations at which Service is provided is not served directly by NM Fiber Network’s Network, may require that a portion of Service be furnished by a third-party service provider. When NM Fiber Network provides a portion of Service furnished by a third-party, the terms, conditions and pricing is done on an individual case basis (“ICB”) and will be subject to the requirements of the underlying service provider for that part of the Service it provides. NM Fiber Network may limit or allocate Service, if necessary, due to facilities availability, taking into account NM Fiber Network’s then-current and projected capacity and the reasonable expectations of its existing and future customers.
(b) Except as expressly provided otherwise in an Exhibit, Access Service Request or Service Order, NM Fiber Network, following the provision of reasonable notice to Customer, may: (1) alter the methods, processes or suppliers by or through which it provides Service; (2) discontinue furnishing a feature or supporting an application associated with Service; (3) change the facilities used to provide Service; or (4) substitute comparable Service for that being furnished to Customer.
(c) Except as expressly provided otherwise in an Exhibit, Access Service Request or Service Order, the facilities used to provide Service will be of NM Fiber Network’s exclusive choosing. In no event will title to those facilities vest in Customer or any other individual or entity.
3. Equipment and Access to Premises.
(a) NM Fiber Network’s will own and control all NM Fiber Network equipment necessary to provide the Service, which will remain NM Fiber Network’s personal property regardless of where located or attached (“NM Fiber Network Equipment”). NM Fiber Network may upgrade, replace or remove NM Fiber Network Equipment, regardless of where located, so long as the Services continue in effect as set forth herein. Customer may not alter, move or disconnect NM Fiber Network Equipment and is responsible for any damage to, or loss of, NM Fiber Network Equipment caused by Customer’s breach of this provision or as the result of Customer’s negligence or willful misconduct. NM Fiber Network has no obligation to install, maintain or repair any equipment owned or provided by Customer, unless otherwise agreed to in a writing executed by the Parties. If Customer’s equipment is incompatible with the Service, Customer is responsible for any special interface equipment or facilities necessary to achieve compatibility. NM Fiber Network shall not be liable for any failure to provide or maintain any Service if such failure is the result of a lack of access rights as required hereunder.
(b) NM Fiber Network may require access to Customer’s premises to provision, install, inspect, maintain and repair the Services and the NM Fiber Network’s Equipment. Customer must provide NM Fiber Network with a contact and/or help desk number that can be reached at all times. Customer must also provide reasonable access rights and/or rights of way from third parties, space, power and environmental conditioning as may be required for installation and maintenance of the NM Fiber Network Equipment at Customer’s premises.
(c) If Customer intends to connect the Services to facilities that it does not own, it must provide NM Fiber Network with and maintain (for the Service Term) a current letter of authorization and carrier facility assignment, as applicable.
(d) If Customer requests that NM Fiber Network perform work associated with Customer’s side of the Point of Demarcation, such as demarcation extensions, preparation of Customer’s premises, testing of Customer’s equipment or facilities, inside wiring and/or maintenance work on Customer’s equipment, facilities or wiring, and NM Fiber Network agrees to perform such work, Customer shall be responsible for paying NM Fiber Network a time and materials charge associated with performance of the work.
4. Delays; Non-performance. NM Fiber Network will not be liable to Customer or others with respect to any: (a) delay in meeting a Service Request Date; or (b) inability to provide Service after the Start of Service Date, except to the extent set forth in this Agreement.
5. Customer Information. Customer must provide all information necessary to provision Service, and/or such other information reasonably requested by NM Fiber Network relating, among other things, to Customer’s application or use of Service.
ARTICLE 3 - BILLING; PAYMENT; FINANCIAL STANDING
1. Billing. Monthly recurring charges are billed in advance; usage charges are billed in arrears; and non-recurring charges may be billed in advance or in arrears, as agreed in any Service Order. If Service is made available on a day other than the first day of a monthly billing period, or if Service is discontinued on a day other than the last day of a monthly billing period, monthly recurring charges will be prorated for the monthly billing period.
2. Customer Payment Obligation. Except as provided in Section 3.5 with respect to disputed amounts or as set forth on any Exhibit, Customer must pay all invoiced charges for Service without deduction or setoff within thirty (30) days of the date of an invoice (“Payment Period”). Unless otherwise permitted by NM Fiber Network, payment must be made by check or wire transfer in accordance with instructions provided by NM Fiber Network. If payment is made by check any restrictive endorsements or statements placed on checks will not be binding on NM Fiber Network.
3. Late Payments.
(a) Interest. Except with respect to amounts disputed in good-faith by Customer, compounded interest shall accrue on invoiced charges not paid within the Payment Period as follows: (i) all sums remaining unpaid between one (1) and fifty nine
(59) days after the expiration of the Payment Period shall accrue interest at the rate of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less) from the expiration of the Payment Period until the date payment is made; and (ii) if such sums remain unpaid for sixty (60) or more days after the expiration of the Payment Period, such sums shall accrue interest at the rate of three percent (3%) per month (or the maximum allowed by law, if less) from the expiration of the Payment Period until the date payment is made. Interest due hereunder shall be referred to herein as the “Default Rate of Interest.”
In addition, Customer may be required to reimburse NM Fiber Network for all reasonable costs incurred in connection with collection activities, including attorneys’ fees and court costs.
(b) Default Payments. In addition to the default interest set forth above, if Customer defaults in the payment of any sum due hereunder, Customer shall pay to NM Fiber Network a late charge equal to five percent (5%) of the overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs NM Fiber Network will incur by reason of late payment of Customer. Acceptance of such late charge by NM Fiber Network shall in no event constitute a waiver of Customer’s default with respect to such overdue amount, nor prevent NM Fiber Network from exercising any of the other rights and remedies granted hereunder.
(c) Order of Application of Payments. All payments hereunder shall be applied first to fees, charges, including late charges, attorney's fees and costs, if any, then to interest and then to principal (with the oldest outstanding principal amounts being the first to be paid).
4. Customer Financial Standing. Upon a good faith determination by NM Fiber Network that a change has occurred in Customer’s financial condition, NM Fiber Network may request information from a reporting agency to enable NM Fiber Network to assess Customer’s credit history and current credit standing. Customer hereby consents to all such inquiries. Based on the information acquired, NM Fiber Network may change its billing arrangement with Customer including, without limitation, requiring weekly payments or a deposit of up to two (2) times Customer’s aggregate monthly invoicing for the most recently invoiced monthly billing period.
5. Bill Disputes. To dispute an invoice, Customer must notify NM Fiber Network by submitting its dispute as provided in Section 15.1, which dispute must include billing information, Circuit number(s), and any opened trouble ticket number(s), along with a full explanation of the basis of the disputed charges. Except as provided in an Exhibit, Customer, in good faith, may withhold the disputed amount but, nevertheless, must pay the undisputed remainder of the invoice within the Payment Period. No charge may be disputed more than sixty (60) days after the date of the invoice on which a charge appears. Any Customer payment of a charge timely disputed and in the manner required will not deprive Customer of its right to dispute the charge. NM Fiber Network will investigate Customer’s claim with a view toward resolving the dispute within thirty (30) days of NM Fiber Network’s receipt of Customer’s notice. Following an investigation in which Customer co-operates with NM Fiber Network, NM Fiber Network may in good faith reject Customer’s claim, in whole or in part, and will advise Customer of the reason for its action. If the dispute is not resolved to Customer’s satisfaction, the Parties may further address the dispute pursuant to Article 13.
6. Bill Dispute Consequences. If a disputed amount withheld by Customer is determined to have been a legitimate charge, interest at the Default Rate of Interest may be charged, at NM Fiber Network’s discretion, on the amount not paid within the original Payment Period, and Customer must pay the total amount due and owing within five (5) business days of its receipt of notice of the determination from NM Fiber Network.
ARTICLE 4- TAXES AND GOVERNMENTAL CHARGES
1. Applicability. Unless otherwise expressly set forth on Exhibit A or Access Service Request, the monthly recurring fees do not include any Government Charges and/or Taxes that may be imposed by any Governmental Activity in relation to the Service. Customer is responsible for payment of any Government Charges and/or Taxes except those based on NM Fiber Network’s net income, personal and real property, and assets.
2. Payment and Other Obligations. Customer must pay existing and future Taxes and Governmental Charges and comply with new or revised terms and conditions imposed by NM Fiber Network as a result of Governmental Activity. NM Fiber Network will provide thirty (30) days’ notice to Customer of any new or revised terms and conditions resulting from Governmental Activity and such new or revised terms shall be effective immediately. If NM Fiber Network decides to impose new or revised terms and conditions neither mandated by nor consistent with a Governmental Activity, NM Fiber Network will furnish Customer with at least thirty (30) days notice of the new or revised charge or terms and conditions, and Customer may discontinue the affected Service, without any termination or other payment obligation (except for any charges owed for Service up to the time of termination), by furnishing NM Fiber Network written notice of its intent to discontinue the Service no later than thirty (30) days after receipt of NM Fiber Network’s notice of the new or revised charges, terms or conditions.
3. Exemption Certificate. If Customer believes itself to be exempt from any Taxes or Governmental Charges, it may provide NM Fiber Network with a certificate demonstrating its eligibility for exemption. If the certificate is accepted, NM Fiber Network will cease imposing the applicable Taxes or Governmental Charges and, if such charges previously had been imposed and collected, NM Fiber Network will credit Customer in an amount equal to the charges paid by Customer during the ninety (90) day period immediately preceding the delivery of the accepted certificate, unless otherwise required by law or regulation.
4. Survival. Customer’s obligation to pay Taxes and Governmental Charges under this Article 4 will survive the expiration or early termination of this Agreement.
ARTICLE 5 - TERM AND TERMINATION
1. Term. The term of this Agreement will commence on its Effective Date and remain in effect until the expiration of the latest Service Term for any Service(s) appearing on any Addendum, Exhibit A or Access Service Request (Service Order) and incorporated under these Terms (as appearing at http://www.nmfibernetwork.com/legal). Thereafter, the Service Term will automatically renew on a month-to-month basis unless one Party provides the other with written notice of its intent not to renew it at least sixty (60) days prior to the end of the initial service term or at least thirty (30) days prior to the end of any renewal term.
2. Termination and Discontinuation of Service.
(a) Procedure. If Customer terminates this Agreement (other than as provided in Section 5.1) or discontinues a Service for any reason, Customer must provide NM Fiber Network with written notice in accordance with Article 15. Termination of this Agreement or any Service requires thirty (30) days prior written notice. For discontinuation of Service, the notice must identify the affected Service(s) (e.g., the Circuit ID and its Primary and Secondary locations) and provide the requested termination date for discontinuation, which may not be less than thirty (30) days from the date Customer’s notice is received by NM Fiber Network. A purported termination or discontinuation employing any other form of communication, or which fails to include essential information, will be ineffective, and Customer will remain fully obligated to NM Fiber Network.
(b) Early Termination or Discontinuation. Unless otherwise agreed by the Parties in writing, if Customer terminates any Service ordered under this Agreement after the Start of Service Date but prior to the expiration of the Service Term set forth in any Service Order, Exhibit A or Access Service Request, or for any early termination of Service due to an event of default by Customer for which NM Fiber Network has a right of termination of any Service prior to the expiration of the Service Term, Customer will be liable to NM Fiber Network for the Early Termination Liability as follows:
(i) All unpaid amounts for Service provided through the date of termination, including all monthly recurring charges and non-recurring charges, interest, late fees and charges, and attorney's fees and costs of collection; and
(ii) One hundred percent (100%) of the remaining monthly recurring charges that would have been incurred for Service for all remaining months of the Service Term, plus interest, late fees and charges, and attorney's fees and costs of collection, if applicable.
(c) Termination Before Start of Service. If Customer terminates any Service ordered under this Agreement after the Effective Date indicated on any Service Order, Exhibit A or Access Service Request, but before the Start of Service Date, Customer is responsible for any and all of NM Fiber Network’s past, present, and future expenses associated with establishing Service to Customer.
ARTICLE 6 – RESERVED
ARTICLE 7- WARRANTIES
1. The Parties. Each Party represents and warrants it is, and will remain, duly organized, validly existing, and in good standing under the laws of the place of its origin and possesses all the authority necessary to enter into and perform its obligations under this Agreement.
2. NM Fiber Network. NM Fiber Network represents and warrants that: (a) its On-Net Service is designed, installed, provided, and maintained in compliance with applicable legal requirements; and (b) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its Services to Customer.
3. Customer. Customer represents and warrants that: (a) all Customer traffic handled by NM Fiber Network is compliant with applicable legal requirements and those established in the Terms; and (b) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services.
4. Exclusion of Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 7.1 THROUGH 7.3 ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON- INTERFERENCE, AND NON-INFRINGEMENT.
ARTICLE 8 – DEFAULT AND REMEDIES
1. Default Events. A Party is in default under this Agreement if any of the following occurs (each an “Event of Default”):
(a) a Party becomes insolvent, liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for the relief of debtors or initiates any proceeding seeking protection from its creditors; or
(b) a Party violates any legal requirement relating to the provision or receipt of Service, and the violation is not remedied within thirty (30) days of receipt of written notice of the violation; or
(c) except as may otherwise be provided in an Exhibit, Service Order or Access Service Request, a Party fails to perform a material obligation under this Agreement (other than the payment of money), and the failure is not remedied within thirty (30) days of receipt of written notice of the failure. A failure of Service is not a default entitling Customer to terminate the affected Service or this Agreement; or
(d) Customer fails to pay any amounts due hereunder, and the failure is not remedied within ten (10) days of written notice of the failure; provided, however, NM Fiber Network shall not be required to provide such notice more than two times in any twelve- month period and such failure to pay when due thereafter shall be deemed an Event of Default without notice.
2. Default Remedies. Upon any Event of Default hereunder, the non-defaulting Party shall have the following remedies, to be exercised at its option, in addition to other remedies at law or in equity:
(a) Termination for Non-Monetary Breach. In addition to remedies available at law or in equity, the non-defaulting Party may terminate this Agreement (including its Exhibits, Access Service Requests and Service Orders, both implemented and pending), in whole or in part, for any Event of Default other than the failure to pay any sums due hereunder.
(b) Remedies for Failure to Pay. Upon any Event of Default arising from the failure to pay any sums due hereunder, NM Fiber Network may, at its option, do one or more of the following: (a) refuse to accept additional Service Orders; (b) without further notice, suspend and/or disconnect Service furnished under this Agreement or any Service Order until Customer has paid all past due amounts owed, with interest and late charges as set forth in these Terms;
(c) offset unpaid balances with amounts NM Fiber Network may owe Customer under any other agreement between the Parties; or (d) terminate any and all Services furnished under this Agreement or any Service Order. Following any suspension or disconnection of Service for non- payment, Service will not be restored until Customer pays in full all charges then due, including any late fees, interest, collection costs, and the costs incurred by NM Fiber Network in restoring Service. If Customer fails to make full payment of the charges due within thirty (30) days of such suspension or disconnection, Service will be terminated effective as of the date of suspension.
(d) Early Termination Liability. A payment default or other default by Customer resulting in termination of this Agreement or any Service ordered pursuant to this Agreement will entitle NM Fiber Network to collect from Customer applicable Early Termination Liability as set forth in Section 5.2.
ARTICLE 9 – CONFIDENTIAL INFORMATION
1. Confidential Information. Each Party must protect the other’s confidential information with the same degree of care used to protect its own confidential information, but in no event may less than a reasonable standard of care be used by either Party in connection with the preservation of the other Party’s confidential information. Confidential information shall be used by the recipient only for the purposes of performance under these Terms, any Service Order, and the Schedules comprising this Agreement.
2. Non-Disclosure. Neither Party shall disclose, publish, release, transfer or otherwise make available confidential information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the disclosing Party’s consent. The Parties shall, however, be permitted to disclose relevant aspects of the other’s confidential information to their officers, directors, employees, auditors, attorneys and representatives, to the extent that such disclosure is not restricted under these Terms, any Service Order, or the Schedules comprising this Agreement and only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under these Terms and the Schedules; provided, however, that the recipient shall be responsible for ensuring that such officers, directors, employees, auditors, attorneys and representatives abide by the provisions of this Article 9.
3. Permitted Disclosures. Notwithstanding the foregoing:
(a) To the extent it is required to disclose such information in the context of any administrative or judicial proceeding, recipient may do so to the minimal extent required to comply with such required disclosure, provided that, to the extent permitted by applicable law, prior written notice of such disclosure and an opportunity to oppose or limit disclosure is given to disclosing Party, and such disclosed information shall continue to be safeguarded as confidential unless and until it falls under an exception set forth in Section 9.3(b) below; and
(b) Recipient shall have no obligation under these Terms with respect to any confidential information disclosed to it that (i) recipient can demonstrate was already known to it at the time of its receipt hereunder; (ii) is or becomes generally available to the public other than by means of recipient’s breach of its obligations under these Terms; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of recipient without use of or reliance on any confidential information furnished to it under these Terms.
ARTICLE 10- INDEMNIFICATION
1. NM Fiber Network’s Indemnification of Customer. NM Fiber Network will defend and indemnify Customer, its employees, directors, officers, and agents, from and against any suit, proceeding, or other claim brought by any person or entity (not a party to or an Affiliate of a party to this Agreement) that is caused by, arises from, or relates to: (a) damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of NM Fiber Network in the provision of Service; or (b) NM Fiber Network’s violation of any of its representations and warranties under this Agreement.
2. Customer’s Indemnification of NM Fiber Network. Customer will defend and indemnify NM Fiber Network, its employees, directors, officers and agents, from and against any suit, proceeding, or other claim brought by any person or entity (not a party to or an Affiliate of a party to this Agreement) that is caused by, arises from, or relates to: (a) damage to real or tangible personal property, personal injuries (including death) arising out of the gross negligence or willful act or omission of Customer in the use of the Service; (b) representations regarding the nature of Customer’s traffic; (c) any use or resale of Service by Customer or others; or (d) Customer’s violation of any of its representations and warranties under this Agreement.
3. Intellectual Property. If Service, by itself as provided by NM Fiber Network, becomes, or if NM Fiber Network reasonably believes it may become, the subject of a suit, proceeding or other claim by any person or entity (not a party to or an Affiliate of a party to this Agreement) that the Service directly infringes U.S. patent, trademark or copyright rights of such person or entity, NM Fiber Network at its own expense and option will: (a) procure the right to continue to provide Service; (b) modify or replace Service with a different one having substantially similar functionality; or (c) discontinue the Service and, as appropriate, refund to Customer a pro- rata portion of charges paid by Customer through the date of Service discontinuance.
4. Procedure. If a claim is made against NM Fiber Network or Customer, the Party in receipt of the claim (“Indemnified Party”) will notify the other Party (“Indemnifying Party”) in writing no later than sixty (60) days after learning of a potential claim. The Indemnifying Party will be entitled to assume sole control of the defense of the claim and all related settlement negotiations. The Indemnified Party will provide assistance, information and authority reasonably necessary to assist the Indemnifying Party. A Party may not settle a claim without the other’s consent if the settlement would impose an obligation on, or require any admission by, the other Party. Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent the delay prejudices the Indemnifying Party.
5. Limitation. Sections 10.1 and 10.3 set forth the entire liability of NM Fiber Network, and Customer’s sole and exclusive remedies, with respect to any claim subject to indemnification under this Agreement.
6. Survival. These indemnification obligations will survive termination of this Agreement.
ARTICLE 11 - LIMITATION OF LIABILITY
1. Consequential Damages. Neither Party is liable to the other for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever including, without limitation, any lost profits, lost revenues, lost savings or any other business loss including goodwill, loss of use of property, loss of data, cost of substitute performance equipment or services, downtime costs, and claims for damages or harm to business regardless of foreseeability or whether damages are caused by the negligence, willful misconduct, or wrongful act arising from or related to these Terms. A Party’s out-of- pocket costs for damages of the kinds specified in the preceding sentence that are recovered by a third party are indirect damages to such Party, and each Party releases the other Party and its Affiliates, as well as their respective officers, directors, managers, employees, and agents, from damages from such claim(s), except to the extent they constitute claims for which indemnification is due under Sections 10.1 and 10.2.
2. Liability Limits. NM FIBER NETWORK’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT IS LIMITED TO THE LESSER OF THE DIRECT DAMAGES ALLEGED AND PROVED BY CUSTOMER OR THE TOTAL AMOUNT PAID BY CUSTOMER FOR SERVICE DURING THE THREE (3) MONTHLY BILLING PERIODS IMMEDIATELY PRECEDING A CLAIM. The foregoing limitations apply to all causes of action and claims irrespective of their nature, including breach of contract, breach of warranty, strict liability, negligence, misrepresentation, or any other tort.
ARTICLE 12 - FORCE MAJEURE
With the exception of payment of fees and charges due under this Agreement and except as otherwise expressly provided in this Agreement, neither Party shall be liable to the other Party under this Agreement for any delay or failure of performance resulting from any cause beyond such Party’s reasonable control and without its fault or negligence, including without limitation, unusually severe weather conditions; earthquakes; floods; nuclear accidents; acts of God; epidemics; war, terrorist acts, riots, insurrections and civil disturbances; government regulations; acts of civil or military authorities or the public enemy; and fuel or energy shortages (collectively “Force Majeure”). The Parties agree that no labor dispute concerning the personnel and subcontractors of either Party will be considered a Force Majeure event.
ARTICLE 13 - DISPUTE RESOLUTION
The undersigned Parties acknowledge and understand that they are transacting business in the state of New Mexico and that this Agreement was negotiated, accepted and shall be performed in New Mexico.
1. Applicable Law and Venue. This Agreement will be governed by the laws of the State of New Mexico without regard to choice of law principles. The Parties agree any action arising out of or relating to this Agreement not otherwise resolved through subsection 13.3 of this Article, may be brought in state courts located in Eddy County, New Mexico, or in the United States District Court for the District of New Mexico, and each Party hereby irrevocably and unconditionally submits to such jurisdiction and venue. The Parties agree and acknowledge that the transaction contemplated herein is initiated in New Mexico, this Agreement was formed in New Mexico, and performance of this Agreement shall be in New Mexico. Each Party agrees to personal jurisdiction in Eddy County and waives any objection to jurisdiction or venue there.
2. Litigation Election. Either Party may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief; (b) a suit to compel compliance with this dispute resolution process; or (c) non-compliance with a Party’s publicity obligations. NM Fiber Network may elect to litigate billing or payment disputes or collections matters.
3. Mediation. The Parties may elect to engage in non-binding mediation as a first alternative to litigation. Such an election must be mutual and reflected in a writing signed by both Parties. Each Party will bear its own costs in mediation and all third party mediation costs will be shared equally between the Parties, unless otherwise agreed.
ARTICLE 14 - ASSIGNMENT
1. Assignability. Upon at least thirty (30) days written notice, either Party may assign this Agreement to an Affiliate without the prior written consent of the other Party. In connection with any assignment by Customer to an Affiliate, or a merger, reorganization or sale of all or substantially all Customer assets to a third party, the assignee must: (a) assume, in writing, all responsibilities and obligations under this Agreement; (b) be at least as creditworthy as Customer (as determined by NM Fiber Network in its reasonable discretion) as of the Effective Date of this Agreement; and (c) deliver to NM Fiber Network executed documents that are acceptable to NM Fiber Network and establish the terms of the Assignment.
2. Prior Agreement. If this Agreement is assigned to an entity that, prior to the assignment, had an agreement with NM Fiber Network, the service being provided will continue to be governed by that prior agreement, and the Service provided under this Agreement will be governed by these Terms, each without reference to the other.
ARTICLE 15 - NOTICES
1. Bill Disputes. Customer must submit a dispute of any invoiced charge(s) electronically to ar@nmfibernetwork.com or such other address as NM Fiber Network may specify from time to time.
2. Service Discontinuation. Customer must submit a request to discontinue a Service to sales@nmfibernetwork.com or such other address as NM Fiber Network may specify from time to time. A request to discontinue Service will be effective no sooner than thirty (30) days after receipt thereof.
3. Other Matters. All other notices under this Agreement, including any notice pertaining to termination of this Agreement, must be in writing and delivered by overnight courier (e.g., Federal Express, DHL) or certified mail, return receipt requested, or via electronic mail to the persons whose names and business addresses appear below. A notice will take effect on the date of its receipt by the receiving Party:
If to NM Fiber Network: NM Fiber Network, LLC.
4011 W Main St.
Artesia, NM 88210
Attn: CEO
Email: info@nmfibernetwork.com
If to Customer: To the address on file at the time Customer submits
a Service Order
NM Fiber Network may change its address and point(s)-of-contact by notifying Customer by bill message insert, email or in accordance with the requirements established in this Article.
ARTICLE 16 - MISCELLANEOUS
1. Interpretation. This Agreement may not be construed or interpreted against either Customer or NM Fiber Network because that Party drafted, or caused its legal representative to draft, any of its provisions.
2. Order of Precedence. If there is an express inconsistency between a Term set forth herein, by itself, and a term in any Exhibit, Service Order or Access Service Request, or other contract document (including any Non- disclosure Agreement), the order of precedence, from the most to the least controlling, is the term contained in:
(a) the Exhibit or other contract document (including any Non-disclosure Agreement); then
(b) these Terms.
3. NM Fiber NetworkFacilities, Equipment and Software. NM Fiber Network facilities, including equipment and software, used to provide any Service will remain the exclusive property of NM Fiber Network or its assignee, and nothing contained in these Terms can be interpreted to convey to Customer any right, title or interest in the facilities, equipment or software, which will remain personal property even if attached to or embedded in realty. Customer may not remove or conceal any identifying plates, tags, or labels affixed to NM Fiber Network facilities or equipment, nor may Customer alter, or attempt to alter, software furnished as part of Service. NM Fiber Network may substitute or rearrange the facilities or equipment, or modify the software, so long as the quality of Service is not impaired by the changes. Upon termination of Service for any reason, NM Fiber Network will retrieve its facilities and equipment from Customer Premises or Customer, at its expense, will return to NM Fiber Network, within thirty (30) days of Service termination, all NM Fiber Network-provided facilities and equipment, along with any software and other information or materials provided by NM Fiber Network in connection with the furnishing of Service. The facilities, equipment, software or other materials retrieved or returned will be in the same condition as when initially delivered to Customer, normal wear and tear excepted. If Customer fails to return NM Fiber Network’s property or allow for its retrieval, Customer must reimburse NM Fiber Network, upon demand, for the replacement cost of the facilities, equipment, software, and other information or materials provided, as well as any costs incurred by NM Fiber Network resulting from the Customer’s failure to return NM Fiber Network’s property.
4. Agency; Partnership; and Third Parties. Neither Party becomes the agent or legal representative of the other Party as a result of this Agreement, nor does it create a partnership or joint venture between the Parties. In addition, this Agreement confers no rights, benefits, or remedies of any kind on third parties.
5. Waiver. No waiver of any provision in this Agreement will be binding unless in writing and signed by both Parties. The failure of a Party to insist on the strict enforcement of any provision of this Agreement will not constitute a waiver of the provision and all terms of this Agreement will remain in full force and effect.
6. Subsequent Agreement; Signatures; and Communication Methods.
(a) Subsequent Agreement. No subsequent agreement between the Parties concerning Service will take effect or be binding unless made in writing and signed by both Parties.
(b) Signatures. Any requirement for a signature in any document relating to this Agreement (other than these Terms) may be satisfied by a facsimile transmission of an original signature or by delivery of electronic mail in PDF or similar scanned format, or by an electronic symbol or process (“e-signature”) attached to or logically associated with this Agreement, including any component hereof, and executed or adopted by a person having the intent to sign the document. Any person completing, submitting or executing any such document on behalf of Customer by way of the Internet or other electronic or online means represents that he/she possesses the authority to act on Customer’s behalf and any such documents so delivered to, and accepted by, NM Fiber Network will be binding on Customer.
(c) Communication Methods. Neither electronic mail nor instant messaging (IM) will be a “writing” sufficient to modify the terms of these Terms, although those methods of communication may be used otherwise in the performance of the Parties’ obligations under this Agreement.
7. Entire Agreement. This Agreement sets forth the entire understanding of the Parties and supersedes prior or contemporaneous agreements, arrangements, or understandings, both written and oral, with regard to Service. The Addenda, Exhibits, Access Service Requests and other documents to which reference has been made are integrated parts of these Terms.
8. Severability. If any provision of this Agreement is found to be invalid or unenforceable under applicable law, it will be ineffective only to the extent of its invalidity and will not affect the remaining provisions in this Agreement.
9. Non-Exclusivity. This Agreement is non-exclusive. Either Party may enter into similar arrangements with others.
10. Publicity. Neither Party may issue a news release, public announcement, advertisement or other form of publicity relating to these Terms or Service without the prior written approval of the other Party.
11. Survival. The terms of this Agreement which, by their usage and context, are intended to survive this Agreement including, without limitation, the obligation to make payments for Service, will survive its expiration or termination.
12. Headings and Internal References.
(a) Headings. The Article and Section headings in this Agreement, including all its incorporated documents, are for convenience only and may not be considered in interpreting the provisions in which they appear.
(b) Internal References. Any plainly erroneous references or citations to Articles and Sections in this Agreement, including all its incorporated documents, will allow either Party to demonstrate to the reasonable satisfaction of the other Party the intended reference or citation based on logic, context and previous versions of contractual documents.
13. Electronic Documents. This document and any related agreements may be converted to, and retained solely in, electronic format. A party may provide this Agreement in electronic form and may provide a reproduction of this Agreement from its electronic copy in the event of any dispute regarding the rights and obligations of the parties under this Agreement and such document shall not be denied legal effect, validity, or enforceability and shall meet any requirement to provide an original or hard copy.
14. Attorneys' Fees. If any action or proceeding relating to this Agreement or its enforcement is brought against any party to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements in addition to any other relief to which the prevailing party may be entitled.