By executing a Service Order Agreement (“SOA”) with Pathfinder, LLC (“Pathfinder”), Customer is requesting, and agrees to pay for the Service(s) identified in the SOA and agrees to be bound by the SOA, these General Terms and Conditions, the Service Level Agreement, and the Acceptable Use Policy (collectively, the “Agreement”).
1. 0 Definitions
“CPE” means Customer Premises Equipment used at the End User location or Customer location in conjunction with a Service, which Pathfinder owns, manages or controls and has maintenance obligations for pursuant to the Service Level Agreement.
“Customer Equipment” means Customer Premises Equipment and/or Customer Equipment used at the End User location or Customer location in conjunction with a Service, excluding CPE.
“Due Date” shall mean ten (10) calendar days from the invoice date.
“End User” means Customer, Customer’s clients or any third party who utilizes or accesses the Services or Pathfinder’s network via the Services provided hereunder.
“Force Majeure” means an unforeseeable event beyond the reasonable control of that Party, including without limitation: act of God, fire, flood, labor strike, sabotage, cable cut not caused by Pathfinder or its underlying carrier, acts of terror, government laws or regulations, war or civil disorder.
“Grand Order Totals” means a final total reached by adding together two or more of the following services: voice, cellular, internet, or television. Grand Order Total is not applicable if Customer is using only one of the four services.
“MRC” means the monthly recurring cost of a Service, as agreed upon by the Parties and documented on a SOA, as applicable.
“NRC” means a one-time, non-recurring cost with respect to a Service agreed upon by the Parties and documented on each SOA, as applicable. This is typically related to the installation cost of the service.
“Outage Credit” means a credit specified and issued in accordance with the terms of Appendices A and B to these General Terms and Conditions that is applied to reduce amounts otherwise due from Customer to Pathfinder for Services.
“Parties” means, collectively, Pathfinder and Customer.
“Past Due Date” shall mean the first day that is ten (10) calendar days from the invoice date.
“Service Level Agreement” means the Service Level Agreements associated with Services as specified on Appendices A and B to these General Terms and Conditions, and as may be modified by Pathfinder from time to time.
“SOA” means Service Order Agreement.
“Start of Service Date” means the date of actual installation and activation by Pathfinder.
“Term” means to the number of months a Customer has agreed to engage Pathfinder internet services, defined in their SOA. The typical term length for Enterprise Fiber and or Enterprise Wireless Customers is a minimum of thirty-six (36) months.
“Termination Liability Charges” means (i) all previously-waived NRC for an applicable SOA, (ii) all MRC through the first twelve (12) months of the remaining term of the then applicable SOA Term, and (iii) fifty percent (50%) of the MRC for the remaining months beyond the first twelve (12) months of the then applicable SOA Term.
“Undisputed Payment” means the amount of an invoice with respect to which Customer has not properly and timely submitted a billing dispute.
2.0 Terms and Conditions
2.1 These General Terms and Conditions and the Service Level Agreement sets forth, in part, the terms and conditions under which Pathfinder shall provide Services to Customer, as further specified on the SOA. The terms of any active SOAs shall supersede any inconsistent terms and conditions contained in these General Terms and Conditions or the Service Level Agreement.
2.2 Customer will be bound by any modifications made by Pathfinder to these General Terms and Conditions or the Service Level Agreement effective upon the passing of the Notice Period. Customer will be provided with at least fifteen (15) calendar days’ prior notice of any modification of the General Terms and Conditions or the Service Level Agreement that might adversely affect Customer (the “Notice Period”). Notice may be furnished by a message included with an invoice. Customer may within the Notice Period elect to discontinue Service and avoid the effects of the modification; provided, Customer notifies Pathfinder in writing of such election during the Notice Period. In such event, Customer will not be liable for the Termination Liability Charges set forth herein.
2.3 Pathfinder will provide the Services or cause the Services to be provided to Customer in accordance with the Agreement. Pathfinder may utilize an affiliate or third party to provide Services to Customer and may present to the Customer consolidated invoices for some or portions of the Services.
2.4 Taxes – All fees owed by Customer to Pathfinder are exclusive of, and to the extent not otherwise exempt, Customer will be responsible for all sales, use, excise, Federal Universal Service Fund and other taxes, including NECA tariff increases where applicable, that may be levied upon either Party (except for taxes based on Pathfinder’s net income) in connection with the Agreement or on activities conducted using the Services.
2.5 – This SOA may be terminated by the Customer upon ninety (90) calendar days’ written notice if Pathfinder:
i. Fails to fulfill three (3) or more outage credit requests per one (1) quarter and/or if Customer has submitted more than three (3) individual outage credit requests per one (1) quarter as stated under this SOA and does not cure such failure(s) within sixty (60) calendar days of receipt of Customer’s notice. If a quarter has passed with no failure to fulfill three (3) or more outage credit requests and/or no outage credit requests have been made by Customer, Customer’s ability to terminate this SOA will not be permitted.
ii. Breaches any material term or condition of this SOA and fails to remedy such breach within sixty (60) calendar days of receipt of Customer’s termination notice.
iii. Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this SOA.
If a termination of the SOA were to occur due to any of the items outlined in 2.5.i, 2.5.ii, or 2.5.iii, Pathfinder will recover all accessible equipment at no cost to the Customer within and no later than thirty (30) calendar days from termination date.
3.1 Procedure – Customer will pay for Service by signing into secure payment portal. Link to portal will be emailed to Customer by PATHFINDER. Once Customer has created their password, Customer can save and use check or credit card payment methods. Customer also may pay by wire transfer sent in accordance with applicable instructions provided by PATHFINDER. All invoices are due within ten (10) calendar days of invoice date. Any invoice not paid in full within said period will be past due and subject to a late payment fee of one point fiver percent (1.5%) per month or the maximum rate permitted by applicable law on all past-due balances.
3.2 Advance Invoice – Pathfinder will invoice Customer in advance for all Services. All amounts other than an amount disputed in writing not received by Pathfinder in full by the Due Date will be considered past due and subject to imposition of interest on the unpaid balance equal to the lesser of one point five percent (1.5%) per month or the maximum rate permitted by law. Customer Services, individually or as a whole, may be terminated, disconnected, and equipment removed upon thirty (30) calendar days’ notice if payment, less any timely and properly submitted billing dispute, is not received by the Due Date. Pathfinder may charge a five hundred dollar ($500) reconnect fee for any individual Service at its sole discretion to restore such Service.
3.3 Dispute of Invoice – Customer shall only be obligated to pay the Undisputed Payment amount on or before the Due Date. In order to properly dispute all or any portion of an invoice, Customer must give written notice to Pathfinder of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) within thirty (30) calendar days following the date of the applicable invoice. The Parties shall use commercially reasonable efforts to resolve the dispute in good faith within a thirty (30) day timeframe following the Customer’s giving the notice of dispute. The Parties shall supply the other Party with additional information or documentation it shall reasonably request in order to determine the resolution of the dispute. If the dispute is resolved against the Customer, the Customer shall pay the disputed amounts plus interest at the rate of one point five percent (1.5%) per month from the date originally due. If Customer is entitled to credits or adjustments for disputed amounts, Pathfinder will credit Customer for the disputed amount plus interest on the disputed amounts paid by Customer at the rate of one point five percent (1.5%) per month from the date originally paid on its invoice issued the next billing cycle.
3.4. Attorney’s Fees – Customer shall also pay all collection costs incurred by Pathfinder (including, without limitation, reasonable attorneys’ fees) for the collection of late payments.
4.1 This Agreement is for the term provided in the SOA.
4.2 Pathfinder will allow Customers of Pathfinder Fiber Optic Internet Service to make a downward change in their speed tier once per quarter without penalty. The minimum speed tier for Fiber Optic Internet Service is 50Mbps down/50Mbps up. Pathfinder will allow Customers of Fiber Optic Internet Service to make upward speed tier changes at any time. Customer’s speed tier change(s) will be updated in Customer’s next applicable invoice. Speed tier upgrades will be prorated, and downgrades in speed tiers will take effect and pricing will be applied on the next billing cycle.
4.3 Customer may terminate or cancel a SOA by providing Pathfinder with written notice of such termination or cancellation in accordance with the terms set forth in the SOA. If Customer terminates or cancels a SOA after its execution but prior to the Start of Service Date Customer shall pay Pathfinder a cancellation fee equal to the NRC outlined on the SOA and all third-party construction, cancellation and/or termination charges incurred by Pathfinder, including any previously-waived NRCs from underlying fiber providers. If Customer terminates or cancels a SOA on or after the Start of Service Date, Customer shall pay to Pathfinder all Termination Liability Charges. Upon termination or cancellation of the SOA under this Section 4.3, the applicable Service covered by the SOA will be considered terminated.
4.4 Pathfinder may pursuant to and in accordance with Section 3.2 of this General Terms and Conditions, immediately terminate the Agreement and all Services for failure by Customer to timely pay undisputed amounts due under the Agreement. If Pathfinder terminates for non-payment, Customer shall pay a lump sum equal to the aggregate Termination Liability Charges due under these General Terms and Conditions within ten (10) calendar days following Pathfinder’s notice to Customer of termination.
4.5 At any time during the Term, if Pathfinder reasonably deems itself insecure with respect to Customer’s ability to pay for any reason, including but not limited to one or more of the following (any of which will be a reasonable basis for Pathfinder to deem itself insecure with respect to Customer’s ability to pay): (a) Customer’s failure to pay invoice(s) by the Due Date on more than two occasions, or (b) Pathfinder’s reasonable belief that a material change in Customer’s financial condition has occurred or is imminent, or (c) Customer fails to comply with any of the material terms outlined in the Agreement, Pathfinder may, at its election, require Customer to provide a deposit not to exceed three (3) months of MRC, calculated as an average of the last three (3) months of MRC for Services under the SOA, within five (5) calendar days.
4.6 Pathfinder shall notify Customer of the Start of Service Date. In the event the Customer is unable or unwilling to accept Service at such time, the subject Service will be held available for a period not to exceed thirty (30) calendar days from the Start of Service Date, during which Service will be considered active, and will be invoiced as an active Service. Following this period, if the Customer has not accepted Service, Pathfinder has the right to terminate Service and invoice Termination Liability Charges.
4.7 Pathfinder shall use commercially reasonable efforts to install Service on or before the requested service date; however, the inability of Pathfinder to deliver the ordered Service within six (6) months of Service approval shall not constitute a default under the Agreement. If weather prohibits/prevents the installation of the connection, Pathfinder will install the new connection as soon as weather permits. If Customer cancels the installation and weather is not the cause for delay, the termination fee outlined in 2.5 above will take effect.
4.8 Service Level Agreement terms are defined in Appendix A and Appendix B of these General Terms and Conditions and are incorporated by reference.
4.9 To receive an Outage Credit, Customer must comply with the procedures and requirements set forth in Appendix B. If Customer fails to comply with the conditions set forth in Appendix B, Customer shall have waived its right to Outage Credits with respect to the Outage (as defined in Appendix B) in question.
4.10 Outage Credits shall not apply if (a) Customer Equipment used in the Service has failed to operate properly and contributed to the Outage, (b) the Outage is due in whole or in part to Customer’s or Customer’s End User’s use of the Service in violation of applicable law or in violation of instructions furnished by Pathfinder, (c) the Outage is related to routine maintenance outside normal business hours as communicated by Pathfinder in writing to the Customer no less than twenty-four (24) hours prior to such maintenance, and (d) to the extent the Outage is attributable to the fault of the Customer including, but not limited to, inadequate response time by the Customer. For avoidance of doubt, normal business hours shall be 7 am to 5 pm Monday through Friday, Mountain Time Zone, excluding United States federal holidays.
4.11 Customer understands that Service can only be changed or altered by and with the consent and approval of Pathfinder, regardless of the type of Service. Changes to the type of Services, assignment of new settings, support and/or programming of routers and any other Service alterations may incur a charge to the Customer at Pathfinder’s then current labor rates or Pathfinder’s contract provider’s non-recurring rates. Customer must provide ample notice and opportunity to Pathfinder to quote and schedule any approved Service changes.
4.12 Customer hereby acknowledges that the Internet is not owned, operated, managed by, or in any way affiliated with Pathfinder or its affiliates; it is a community network independent of Pathfinder. Customer’s use of the Internet related to Internet Bandwidth and IP Solutions as defined in Appendix B is at Customer’s sole risk and is subject to all applicable local, State, Federal, and International laws and regulations. Access to the Internet is dependent on numerous factors, technologies, and systems beyond Pathfinder’s authority and control.
4.13 Access to networks connected to Pathfinder’s network must be established under rules appropriate to those networks. Pathfinder exercises no control whatsoever over the content and information passing through its network.
4.14 Routine maintenance and periodic system repair, upgrades and reconfigurations, public emergency or necessity, Force Majeure, restrictions imposed by law, acts of God, labor disputes, and other situations, including mechanical or electronic breakdowns, may result in temporary impairment or interruption of Service. As a result, Pathfinder does not guarantee continuous or uninterrupted Services and reserves the right from time to time to temporarily reduce or suspend Service without notice. Except as expressly set forth in Section 4.9 with respect to Outage Credits, customer releases Pathfinder and its directors, officer, managers, employees and agents from any and all obligations, charges, claims, liabilities, opportunity costs and fees incurred, whether foreseeable or unforeseeable, as the result of Service interruption, omission or degradation, including the impact resulting to the Customer.
4.15 Use of Pathfinder’s name, trademarks, service marks, copyrights or other intellectual property owned by Pathfinder or its affiliates is strictly prohibited without the express written consent of Pathfinder. Nothing herein constitutes a license authorizing the use of Pathfinder’s name, trademarks, service marks, copyrights or other intellectual property owned by Pathfinder or its affiliates.
4.16 Customer represents that it is not by law or agreement with others, prohibited from entering into the Agreement.
4.17 The terms of the Agreement may only be waived by a written instrument executed by the Party waiving compliance. Except as otherwise provided for herein, neither Party’s failure at any time, to enforce any right or remedy available to it under the Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
4.18 CUSTOMER’S EXCLUSIVE REMEDY FOR CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE LIMITED TO OUTAGE CREDITS AS SET FORTH IN THESE GENERAL TERMS AND CONDITIONS AND THE SERVICE LEVEL AGREEMENT. IN NO CASE WILL PATHFINDER BE LIABLE FOR ANY AMOUNTS EXCEEDING IN THE AGGREGATE THE AMOUNTS PAID BY CUSTOMER TO PATHFINDER UNDER THE AGREEMENT IN THE PRIOR TWELVE (12) MONTHS. PATHFINDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
4.19 Notwithstanding anything else in the Agreement, there are no third-party beneficiaries to the Agreement.
4.20 Customer shall be solely responsible for the following: (a) any costs associated with Customer Equipment; and (b) access-related charges, including any charges for interconnection, cross-connection, installation, wiring and construction and other access-related charges.
5.1 Customer shall indemnify, defend and hold harmless Pathfinder and its affiliates, parents, officers, directors, managers, employees, agents successors and assigns (“Pathfinder Indemnified Parties”), from and against all claims, demands, liabilities, damages and costs including, without limitation, its reasonable attorneys’ fees and other costs of defense, arising from or relating to a third party claim relating to (a) Customer’s breach of any terms of the Agreement; and (b) Pathfinder’s provision of Services under this Agreement.
5.2 In no event shall Customer be held liable to any Pathfinder Indemnified Parties for any damages arising out of the negligence, tortious conduct or intentional conduct of any Pathfinder Indemnified Party.
5.3 Pathfinder shall indemnify, defend and hold harmless Customer from and against all claims, demands, liabilities, damages and costs to include, without limitation, its reasonable attorneys’ fees and other costs of defense, arising from or relating to a third-party claim relating to (a) Pathfinder’s breach of any terms of the Agreement; or (b) Pathfinder’s provision of Services under this Agreement.
Should any provision of the Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be deemed modified to the extent necessary (consistent with the intent of the Parties) to eliminate the illegal, invalid or unenforceable effect or to delete such provision if modification is not feasible, and the remaining terms shall continue in full force and effect.
Appendix A – Service Level Agreement
The Service Level Agreement between Pathfinder and Customer provides the following:
CPE mean time to repair:
No later than seven (7) business days to repair on non-holiday weekdays. Requests for repair filed on a weekend or federally or state recognized holiday shall be repaired seven (7) business days from the first business day following the weekend or holiday.
Network Quality of Service:
Network Availability – the goal for network availability is one hundred percent (100%), with each full hour of downtime qualifying Customer for one hour’s Outage Credit for the Affected Service, applicable to only the Internet Services provided to Customer by Pathfinder. Network Availability is based on the ability to transmit and receive data, measured from the time the trouble ticket is opened to the time the Service is again able to transmit and receive data as documented by Pathfinder.
The monthly Service Availability Percentage for Dedicated Internet Access is calculated as follows:
(Minutes of Outage) x 30/1440 (actual Minutes in any given day) x 30
All relevant components of the Pathfinder IP Network (POPs, routers, CPE and circuits) are subject to this Service Level Agreement. All other services and components relating to the Service, including without limitation the following, are not covered by the Service Level Agreement: all Customer Equipment; and any other services or components not operated by Pathfinder are not a part of the Service Level Agreement. Network unavailability or increased latency or packet loss caused by the foregoing excluded components will not give rise to Outage Credits.
Network Port Availability measures Network Downtime versus Network Uptime. Network Downtime is based on periods when a particular DIA port of Customer is unable to transmit and receive data, and Network Uptime includes all other periods. Network downtime is recorded in the Pathfinder Network trouble ticket system and is measured from the time Customer opens a trouble ticket with Pathfinder to the time the affected Service is again able to transmit and receive data according to Pathfinder’s records.
The average network delay (“Latency”) will be measured via roundtrip pings on an ongoing basis every five minutes to determine an average monthly performance level for Latency at the relevant Point of Presence within the Pathfinder Network. Latency equals the sum of roundtrip delay divided by two to calculate one-way latency results. Packet Delivery will be measured on an ongoing basis every five minutes to determine an average monthly performance level for packets delivered between the relevant POPs.
Jitter measures interpacket delay variance and packet loss in the Pathfinder Network and is measured on an ongoing basis every five minutes by generating synthetic User Datagram Protocol traffic. For purposes of this Appendix A, jitter means average monthly jitter as measured by Pathfinder on an ongoing basis in five-minute intervals.
A Distributed Denial of Service attack (“DDoS”) is characterized by an explicit attempt by attackers to prevent legitimate users of a Service from using that Service. DDoS attacks are not covered by this Service Level Agreement.
The length of each Outage shall be calculated in full minutes for purposes of determining Outage Credits. The existence and end of each Outage and all Latency, jitter and network port availability measurements will be determined by Pathfinder in good faith based on network tests performed by Pathfinder. Under no circumstances will network tests performed by Customer be considered valid measurable criterion for Outage, Latency, jitter or network port availability determinations for the purposes of establishing Outage Credits.
All components (i.e. POPs, Routers, CPE, Circuits) of Pathfinder’s network and the components of certain other carriers or backbone providers used by Pathfinder are covered by this Service Level Agreement. The Service Level Agreement is limited to components of Pathfinder’s network. Service may be affected due to (i) Network Downtime under the Network Availability goal or (ii) the failure of the other goals in this Service Level Agreement. Outage Credits shall be based only on the MRCs for locations in the particular LATA for which Customer is eligible to receive Outage Credits under the applicable Service Level Agreement.
All other services and components relating to the Service, including without limitation the following, are not covered by the Service Level Agreement: all Customer Equipment; and any other services or components not operated by Pathfinder are not a part of the Service. Network unavailability or increased latency, packet loss or jitter caused by the foregoing excluded components will not give rise to Outage Credits.
The length of each Outage shall be calculated in full minutes for the purposes of determining Outage Credits. The existence and end of each Outage and the Latency, packet delivery and jitter will be determined by Pathfinder in good faith based on network tests performed by Pathfinder. Under no circumstances will network tests performed by Customer be considered valid measurable criterion for the purposes of establishing Outage Credits.
Appendix B – Outage Credits
To receive an Outage Credit, Customer must (a) enter a trouble ticket (email@example.com or call 970-808-0000) at the time the failure to meet the Service Level Agreement (the “Outage”) occurs by contacting Pathfinder, unless Pathfinder has itself opened the trouble ticket for such Service unavailability, (b) be current in its payment obligations under the Agreement for all amounts not in dispute by the Customer, and (c) request reimbursement for Outage Credits from Pathfinder as specified hereunder and submit to Pathfinder all necessary supporting documentation within thirty (30) calendar days of the date of invoice for the month in which the applicable Outage occurred. If Customer fails to comply with the conditions for Outage Credits as set forth, Customer shall have waived its right to such Outage Credits for Outages in such month.
An Outage shall not be deemed to have occurred in the event that the Service is unavailable or impaired due to any of the following:
(i) Interruptions on a Service for which the Start of Service Date has not yet commenced;
(ii) Interruptions caused by the negligence, error or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer;
(iii) Interruptions due to power failure at Customer or End User premises, or the failure or poor performance of Customer Equipment;
(iv) Interruptions during any period in which Pathfinder or its agents are not afforded access to the End User premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service;
(v) Interruptions during any period that Pathfinder has communicated to Customer with twenty-four (24) hours’ notice that the Service will be unavailable due to Normal Maintenance, Emergency Maintenance, or grooming purposes, or Customer has released the Service to Pathfinder;
(vi) Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis;
(vii) Interruptions resulting from Force Majeure (including a DDOS);
(viii) Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner;
(ix) Interruptions resulting from incorrect, incomplete or inaccurate SOAs from Customer;
(x) Interruptions due to improper or inaccurate network specifications provided by Customer;
(xi) Interruptions resulting from a failure of an off-net carrier’s loop, the City of Aspen’s network loop, or any other network that has no Service Level Agreement;
(xii) Special configurations of the standard Service that have been mutually agreed to by both parties, unless a separate Service Level Agreement for the special configuration has been established with the SOA.; and
(xiii) Pathfinder’s inability to deliver Service by the requested service date.
Pathfinder will endeavor to perform all non-emergency Scheduled Maintenance during pre- established maintenance hours, or windows. Scheduled Maintenance refers to (a) upgrades of hardware or software, (b) upgrades to increase capacity, and/or (c) other pre-scheduled network activity that may degrade the quality of the Services or cause Service interruptions.
Pathfinder will use reasonable efforts to perform all Scheduled Maintenance weeknights between the hours of 11 pm and 6 am Mountain Time Zone. Notifications for Scheduled Maintenance shall be provided by email at least twenty-four (24) hours in advance of the work. It shall be the responsibility of the Customer to provide Pathfinder in writing with correct and effective contact emails for said notifications.
Emergency Maintenance shall refer to efforts to correct Pathfinder network conditions which require immediate correction. Emergency Maintenance, while being conducted, may degrade the quality of Services and may result in total disruption of Service. Pathfinder may undertake Emergency Maintenance at any time it deems necessary in its sole discretion.
Pathfinder shall endeavor to provide Customer notice of Emergency Maintenance as soon as is reasonably practicable under the circumstances.