TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (the “Agreement”) is made and entered into by and between Greenfield Community Energy & Technology (“GCET”), a Massachusetts municipal light and power plant, and the customer who has agreed to receive services from GCET (the “Customer”).
By using Greenfield Community Energy & Technology’s (GCET) fiber optic and Wi-Fi networks, you agree to be bound by the following terms and conditions which are a binding agreement between you and GCET. You also agree to be bound by the terms and conditions set forth in the Right of Entry and Installation Agreement, which is attached hereto and made a part hereof. Violation of this agreement may result in the suspension or termination of access to GCET's network and services and/or other actions including but not limited to cooperation with law enforcement authorities and/or third parties involved in the investigation of any suspected crime or civil wrongdoing.
THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY TO TERMINATE IT.
You may use the service and technology provided to you by the GCET for the sole purpose of accessing GCET’s network, voice, data and Internet services (“Services”). GCET will give you an IP address each time you access GCET's network and services and it may change. You may not use GCET's network and services for any other reason, including reselling any aspect of the GCET's network and services. Other examples of improper activities include, without limitation:
- Modifying, adapting, translating, or reverse engineering any portion of GCET's network and services
- Attempting to break security, access, tamper with or use any unauthorized areas of GCET's network and services
- Attempting to collect or maintain any information about other users of GCET's network and services (including usernames and/or email addresses) or other third parties for unauthorized purposes
- Creating or transmitting unwanted electronic communications such as "spam," or bulk commercial messages to other users or otherwise interfering with other user's enjoyment of the GCET’s Services
- Engaging in any activity that infringes or misappropriates the intellectual property, privacy or other proprietary rights of others, including patents, copyrights, trademarks, service marks, trade secrets, or any other proprietary right of any third party, or that is defamatory, objectionable, unlawful or promotes or encourages illegal activity
- The transfer of technology, software, or other materials in violation of applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders
- Distribution of any Internet viruses, worms, pinging, flooding, mail bombing, denial of service attacks, defects, Trojan horses or other items of a destructive nature
- Accessing illegally or without authorization computers, accounts, equipment or networks belonging to another party, or attempting to penetrate security measures of another system. This includes any activity that may be used as a precursor to an attempted system penetration, including but not limited to port scans, stealth scans or other information gathering activity; or
- Using GCET's network and services for any unlawful, harassing, abusive, criminal or fraudulent purpose. We have the right to monitor, intercept and disclose any transmissions over or using our facilities, and to provide user information, or use records, and other related information under certain circumstances (for example, in response to lawful process, orders, subpoenas, or warrants, or to protect our rights, users or property)
Changes in GCET Terms of Service Termination
We may modify or terminate GCET's network and services and these GCET Terms of Service and any accompanying policies, for any reason, and without notice, including the right to terminate the service with or without notice. Please review these GCET Terms of Service from time to time so that you will be apprised of any changes. Upon any such termination, any and all rights granted by GCET to you shall terminate.
Payment of Charges
Customer will be billed monthly in advance for Services to be received, plus pro-rata charges, if any, for periods not previously billed. Customer shall pay all monthly charges and all applicable fees and taxes as listed on the GCET monthly bill. Customer shall notify GCET of disputed charges or items within sixty (60) days of invoice receipt, or longer as required by applicable law. Failure to pay charges billed (including checks returned for insufficient funds) may result in discontinuance of Service, the removal of all Equipment (as defined below) and/or imposition of a late payment or service charge. If the Customer has more than one account (business and/or residential) served by GCET, all GCET-provided Services at all locations may be subject to suspension or discontinuance of Service in the event any one account remains unpaid, and GCET may apply any funds received from Customer first to such delinquent account(s). Should Customer wish to resume a Service after any suspension, Customer may be subject to reconnection fees. Should Customer wish to resume a Service after termination of Service, GCET may charge fees for installation, service calls and/or activation. These fees are in addition to all past due charges and other fees. In the event collection activities are required, additional collection charges may be imposed.
Charges may apply for service visits when GCET-owned equipment is not the cause of any service degradation, outage, or other problem with your service. Customer’s first bill may include partial-month charges for Service received. If partial payment is made of any bill and without waiving its right to collect the full balance owed, GCET will apply that payment to any outstanding charges in the amounts and proportions that it determines. Customer agrees and understands that by entering into the financial arrangement described herein, GCET is not extending Customer any credit and therefore that GCET and Customer are not entering into a consumer credit or similar transaction.
Payment by Check; Non-Sufficient Funds/Returned Items; Third Party Processing.
If Customer makes payment by check, Customer authorizes GCET to collect such payment electronically. Customer may not amend or modify these Terms of Service with any restrictive endorsements (such as "paid in full"), releases, or other statements on or accompanying checks or other payments accepted by GCET; any of which notations shall have no legal effect. If Customer’s card issuer or financial institution refuses payment for insufficient funds, closed or unauthorized accounts, or any other reason, Customer will be charged an insufficient fund charge for each instance in which such payment is refused. Customer hereby authorizes GCET to collect any declined amount and the insufficient funds charge(s) electronically from the subject account. In addition, Customer’s Service may be suspended and/or terminated. This fee is in addition to any charges Customer’s financial institution may assess. If initially rejected, GCET may make additional multiple attempts to execute the payment for up to thirty (30) days following the initial refusal. Customer shall be responsible for any payment processing fees incurred when using a third party to process Customer’s payments to GCET.
Customer agrees to pay any local, state or federal taxes and fees imposed or levied on or with respect to the Services, the Equipment or installation or service charges incurred with respect to the same.
All GCET-provided equipment distributed to and/or installed for use in the Customer's service location(s) by or on behalf of GCET ("Equipment") remains the property of GCET. Equipment is intended to service and reside at the specific Service location and is not to be used or relocated off premises without GCET authorization. Customer must return all Equipment upon substitution of use or termination of Service. Failure to do so will result in a charge to be determined in accordance with GCET's then current schedule of charges for non-returned Equipment, which amount shall be due immediately. Customer agrees to pay such charge whether the Equipment is lost (through theft or otherwise), damaged or destroyed.
Disruption of Service
All Services are provided on an "AS IS" and "AS AVAILABLE" basis. In no event shall GCET be liable for any failure or interruption of Service, including without limitation those failures and interruptions resulting in part or entirely from circumstances beyond GCET's reasonable control. Subject to applicable law, GCET may give credit with respect to Customer's recurring monthly subscription fee for qualifying outages of Services.
GCET will repair and/or replace damaged or defective Equipment, if any, as long as such damage or defect was not caused by misuse or other improper operations or handling by Customer. GCET shall have the right to presume misuse or other improper operations or handling by Customer in the event Customer requests repair or replacement more than twice in any twelve (12) month period, or more than three times in any twenty-four (24) month period, and shall have no obligation to fulfill any such repair or replacement. GCET is not responsible for the maintenance or repair of Customer-provided equipment, including but not limited to connected devices, mobile devices, home telephones, computers, modems, televisions, or any other related Customer-provided equipment. A service charge may be imposed upon the dispatch of a technician if there is damage to Equipment due to negligent use or abuse or if no fault is discovered in GCET’s system or Equipment. GCET makes no warranties, with respect to Equipment or Service provided by GCET or with respect to the compatibility of the Service or the Equipment with any Customer-provided equipment. GCET’s sole obligation and Customer’s sole remedy with respect to any liability or damage caused by Customer’s use or deployment of Equipment, shall be a refund of fees paid by Customer for such Equipment for the previous billing month/cycle.
GCET assumes no responsibility and shall have no responsibility for the condition or repair of any Customer-provided equipment and/or software. Customer is responsible for the repair and maintenance of Customer-provided equipment and/or software. GCET is not responsible or liable for any loss or impairment of GCET's Service due in whole or in part to a malfunction, defect or otherwise caused by Customer-provided equipment and/or software.
Care of GCET Property and Service
Customer agrees that neither Customer nor any other person (except GCET's authorized personnel) will: (A) open, tamper with, service, or make any alterations to the Equipment; nor (B) remove or relocate any Equipment from the service address of initial installation. Any alteration, tampering, removal, or the use of Equipment which permits the receipt of Services without authorization or the receipt of Services to an unauthorized number of outlets, or to unauthorized locations, constitutes theft of Service and is prohibited. Notwithstanding the foregoing, upon receipt of a request by Customer, GCET shall relocate the Equipment for Customer within Customer's home at a time mutually agreed to by GCET and Customer. Customer may incur a charge for such relocation and should consult a current GCET schedule of rates and charges prior to requesting such relocation.
Access to Customer Premises
Customer authorizes GCET and its employees, agents, contractors and representatives to access and otherwise enter the Customer's premises to install, inspect, maintain and/or repair the Equipment and, upon the termination of Service, to remove the same from the premises. GCET's failure to remove its Equipment shall not be deemed abandonment thereof. If the installation and maintenance of Service are requested at premises that, in GCET’s sole discretion, are or may become hazardous or dangerous to our employees, the public or property, GCET may refuse to install and maintain such Service.
We will not be liable to you or any other party for any lack of security that may result from your use of GCET's network and services. You agree that you are responsible for providing security measures that are suited for your intended use of GCET's network and services. For example, you shall take full responsibility for taking adequate measures for safeguarding your data from loss. Also, other than the Wi-Fi signal and Customer Premises Equipment provided by GCET, you must provide all equipment, technology and software to use GCET's network and services and All GCET's network and services users should have up-to-date antivirus software installed on their computers.
THE SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE BASIS”, AND YOUR USE THEREOF IS AT YOUR OWN RISK. GCET DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GCET DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL EITHER GCET OR ITS OFFCIALS, REPRESENTATIVES, EMPLOYEES AGENTS OR AFFILIATES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, OR FOR ANY LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS REGARDLESS OF THE CAUSE AND WHETHER OR NOT FORESEEABLE. In addition, GCET and its officials, representatives, employees, agents or affiliates will not be responsible for any damages, losses, expenses or costs that you suffer AS A RESULT OF: (i) any interruption or failure of the Services OR Products; (ii) the downloading or use of any information, data or materials obtained via the Services OR FROM THE Internet; (iii) any failure to complete a transaction on the Internet OR USING THE SERVICES or ANY loss of data due to delays, non-deliveries, mis-deliveries, or Service interruptions; (iv) ANYTHING BEYOND THE REASONABLE CONTROL OF GCET, INCLUDING BUT NOT LIMITED TO any interruption or failure of a third party's services, software, equipment or network; (v) any unauthorized use or modification of Services or Products or combination of Services or Products with other services, products or equipment; (VI) viruses, worms, trojan horses, or other undesirable data or software; or (vii) the attempt by unauthorized users (e.g., hackers) to obtain access to your data, web-site, computers, or networks.
You agree to hold harmless and indemnify the GCET, its officials, representatives, employees, agents or affiliates from and against any third party claim arising from or in any way related to your use of GCET's network and services, including any liability, damages or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
These GCET Terms and Conditions of Service will be governed by and construed in accordance with the laws of the Massachusetts. If for any reason a court of competent jurisdiction finds any provision or portion of the GCET Terms and Conditions of Service to be unenforceable, the remainder of the GCET Terms and Conditions of Service will continue in full force and effect.
These GCET Terms and Conditions of Service constitute the entire agreement between the parties and supersede and replace all prior understandings or agreements, written or oral, regarding GCET. Any waiver of any provision of the GCET Terms and Conditions of Service will be effective only if in writing and signed by the General Manager of GCET.
RIGHT OF ENTRY AND INSTALLATION AGREEMENT
THIS RIGHT OF ENTRY AND INSTALLATION AGREEMENT (the “Agreement”) is made and entered into by and between Greenfield Community Energy & Technology (“GCET”), a Massachusetts municipal light and power plant, and the customer who has agreed to receive services from GCET pursuant to the GCET Terms of Service agreement (the “Customer”).
GCET desires to install and maintain certain fiber, wireless and/or Ethernet cable and associated equipment at the Customer’s property (the “Property”) in order to provide the Customer with certain internet, telecommunication, or entertainment services (the “Services”).
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual promises contained herein the parties agree as follows:
1. GRANT OF LICENSE
Customer hereby grants to GCET, its contractors, subcontractors, agents, employees, assigns, and others acting under its authority a license with authority to enter upon, install, operate, repair, replace, remove, and maintain all fiber optic, wireless and/or Ethernet cables and any other associated equipment (the “System”) on the Property.
2. OWNERSHIP OF SYSTEM
Customer understands and agrees that GCET owns and will continue to own all parts of the System. Owner will not move, disturb, alter, tamper with, or change the System, except with GCET’s prior written consent, which may be withheld by GCET in its sole discretion. The System is not and shall not be deemed to be affixed to or a fixture of the Property.
This Agreement shall commence as of the Effective Date and shall remain in effect unless earlier terminated by either party (the “Term”). In no event shall the Term of this Agreement extend beyond the term of any agreement between GCET and the Customer for the provision of Services.
This Agreement may be terminated by GCET at any time or by Customer upon three (3) days prior written notice to GCET.
5. REMOVAL OF SYSTEM
Within thirty (30) days of the date this Agreement terminates, the Customer shall remove all portions of the System located within any building on the Property and return them to GCET. Customer agrees to pay GCET all costs to replace any altered, damaged, or unreturned portions of the System, including any incidental costs, incurred therewith by GCET.
6. RISK, LIABILITY, INDEMNITY
Customer shall defend, indemnify and save GCET and its officers, shareholders, directors, affiliates, employees and agents harmless, from and against, any and all liability, loss, claim, suit, damage, charge, or expense (including reasonable attorney’s fees and experts) arising out of, or resulting from, or in any way connected with, the construction, presence, existence, repair, maintenance, replacement, operation, use, or removal of the System, or the use of the Property pursuant hereto, except to the extent caused solely by GCET’s gross negligence or willful misconduct. Customer’s duty to indemnify shall survive the expiration and/or termination of this Agreement.
All notices on the part of Customer to GCET shall be given in writing to Attention: General Manger, Greenfield Community Energy & Technology, 324 Main Street 2nd Floor, Greenfield, MA 01301. All notices shall be deemed given when actually received by GCET.
8. NO WARRANTIES
GCET MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SYSTEM OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL GCET BE LIABLE FOR ANY LOST REVENUES OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES.
(a) Waiver. The failure or delay of any party to insist upon the strict or timely performance of a covenant hereunder or any obligation hereunder, shall not be a waiver of such party's right to demand strict compliance therewith in the future.
(b) Severability. If any clause or provision of this Agreement shall be deemed to be invalid or unenforceable under present or future laws, then, in that event it is the intention of the Parties that the remainder of this Agreement shall not be affected thereby.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.
(d) Amendment. All modifications or waivers to this Agreement must be in writing and executed by both parties.
(e) Merger. This Agreement represents the final, complete and exclusive understanding of the Parties of the subject matter hereto. To the extent that the GCET's Terms of Service or any other agreement between GCET and the Customer conflict with this Agreement, then the terms of this Agreement shall prevail and take precedence with respect to the subject matter hereof.
10. AUTHORITY TO ENTER INTO AGREEMENT
Customer, by entering into this Agreement with GCET, represents and warrants that Customer is the owner of the Property or that Customer is the Property owner’s duly authorized agent, and that Customer has full power and authority to grant GCET the rights set forth in this Agreement and to cause it to be fully enforceable against Customer.