Terms and Conditions
Updated September 2022
This MidSouth Fiber Internet Terms and Conditions (“Agreement”) sets forth the terms and conditions under which Subscriber agrees to use and MidSouth Fiber agrees to provide the Service(s), as hereinafter defined.
The Agreement consists of the terms and conditions provided herein, and the following, which are incorporated herein by reference:
1. MidSouth Fiber Acceptable Use Policy (“AUP”);
3. Disclaimer of Emergency 911 Services;
4. MidSouth Fiber Internet Battery Backup Notice;
5. Terms and Conditions of Voice Telephony Lifeline.
MIDSOUTH FIBER REQUESTS SUBSCRIBER TO PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND CONTACT MIDSOUTH FIBER IMMEDIATELY FOR TERMINATION OF SERVICE(S) IF SUBSCRIBER DOES NOT AGREE TO THESE TERMS AND CONDITIONS.
1. “MidSouth Fiber” means MSEC Communications, LLC, d/b/a MidSouth Fiber Internet, and/or by any or all other assumed names.
2. “MidSouth Fiber Parties” means Midsouth Fiber (and its officers, employees, members, customers, parent corporation, subsidiaries, affiliates, third party licensors, providers, suppliers, agents and representatives)
3. “Subscriber” or “Customer” means the person, individual, or entity, entering into this Agreement for use of the Service(s), as well as, anyone authorized by said person entering into this Agreement to use the Service(s).
4. “Parties” when used alone means Subscriber and MidSouth Fiber.
5. “Broadband Service” means internet services provided by MidSouth Fiber.
6. “Television Service” means any Internet Protocol video services provided by MidSouth Fiber.
7. “Telephone Service” (a/r/a “Phone Service”) means any Voice Over Internet Protocol (“VOIP”) service provided by MidSouth Fiber.
8. “Service(s)” means one or any combination of Broadband Service, Television Service, Telephone Service, and/or any other offering by MidSouth Fiber.
9. “Equipment” means the optical network terminal (“ONT”), router, digital video recorder (“DVR”), remote control, streaming device, WiFi extender (“Mesh Unit”), battery backup, or any other devices provided by MidSouth Fiber.
10. “Area Of Service” means the geographic region in which MidSouth Fiber operates its fiber optic network.
3. Term of Agreement and Survival
The term of this Agreement shall be month-to-month, unless the Agreement is amended by the Parties in writing. The term and effectiveness of this Agreement begins on the Effective Date or upon the date of installation of Equipment on Subscriber’s premises, whichever date is earlier. The term shall end upon cancellation or termination of this Agreement, as set forth in Section 14 herein, by either Subscriber or MidSouth Fiber. Notwithstanding the termination of this Agreement for any reason, provisions of this Agreement on representations, warranties, indemnification, limitation of liability, termination, payment of taxes, notice, force majeure, confidentiality, and severability, and any and all other provisions which by its nature or effect is required to be observed, kept or performed after termination, shall survive termination for the applicable statute of limitations. Notwithstanding any provisions to the contrary, all rights, remedies, or obligations which arose or accrued prior to the termination or expiration of the terms hereof shall survive and be fully enforceable for the applicable statute of limitations.
4. Changes to this Agreement
MidSouth Fiber will give notice of these Revisions through one or more of the following:
1. Postings on the website, midsouthfiber.com/legal;
2. Written to last known Subscriber email address;
3. Written and sent by mail to Subscriber’s service address; or
4. Written and handed to Subscriber in person.
5. Pricing and Payment Obligation
Subscriber shall purchase a level of Service(s) with a minimum price of Sixty-Four and 95/100 Dollars ($64.95) per month, excluding taxes, fees, and surcharges. Subscriber is responsible for all charges associated with the Service(s), including taxes, fees, surcharges, and assessments imposed from time to time in connection with the Service(s).
Pricing for the Service(s) is available on www.midsouthfiber.com. Payment is due on the Subscriber’s due date every month. Service(s) is billed and invoiced in advance. For example, a bill cycle that starts on the 15th of the month will end on the 14th of the following month. In this example, a payment would be due by the 14th of the following month. Service(s) will be suspended by MidSouth Fiber if the new bill is not paid by the start of next billing cycle.
Installation fees will be assessed on a per Subscriber basis. MidSouth Fiber will notify Subscriber of these fees before the installation date. Subscriber can either accept the installation fee or cancel Subscriber’s Service(s) request before the installation date. Failure to cancel the Service(s) request before the installation date shall be an automatic acceptance of the installation fee and MidSouth Fiber will proceed with installation of the Service(s).
MidSouth Fiber will provide Equipment for use of the Service(s), which shall at all times remain the sole property of MidSouth Fiber. The Equipment shall not be tampered with, modified, and/or damaged and shall be returned upon cancellation of the Service(s) in the same condition as originally delivered. Some reasonable wear and tear will be acceptable. The Equipment shall be returned within ten (10) days of cancellation of the Service(s) and must be returned in person to a MidSouth Fiber customer facing location, which can be found at www.midsouthfiber.com, and checked in by a customer service representative, or Subscriber may mail the Equipment to MidSouth Fiber C/O Equipment Returns 9409 Hwy 6 Loop, Navasota, TX 77868. Subscriber may be assessed a fee for failure to properly return Equipment to MidSouth Fiber or if Equipment has been tampered with, modified, or damaged.
Power and battery backup for Equipment
The MidSouth Fiber Equipment may require electrical power from Subscriber premises to operate, which Subscriber is responsible for providing. If there is a MidSouth Fiber router, Mesh unit, or ONT, MidSouth Fiber will not provide a battery backup unit. Any backup battery solution is Subscriber’s responsibility. Subscriber may choose to purchase battery backup for MidSouth Fiber Equipment from third party manufacturers or retailers. For more information and minimum specifications visit midsouthfiber.com/batterybackup.
Subscriber also agrees to be solely responsible for determining when backup batteries for any MidSouth Fiber Equipment requires replacement and for replacing and recycling used batteries. Subscriber agrees to read and follow all manufacturer or vendor directions for the replacement and recycling of backup batteries. For more information and minimum specifications visit midsouthfiber.com/batterybackup.
7. Availability of and Changes to Service(s)
1. Service(s) Availability and Bandwidth. Bandwidth is provided on a per line basis and not a per device basis. The Service(s) is provisioned at the selected rate and speed selected by Subscriber. The bandwidth provided to each device will vary depending on the capabilities of the device, number of concurrent devices using the Service(s), the type of use, and other factors. The speed of the Service(s) may vary based on network or Internet congestion, among other outside factors such as quality of the wireless signal inside the premises. MidSouth Fiber Broadband Service, Television Service, and Telephone Service share bandwidth on the fiber optic connection to the Subscriber premises.
2. Service Plans. Subscriber can view different service plans at www.midsouthfiber.com and request changes to Service(s) by logging into Subscriber’s account online, by calling 936-825-5100 or visiting a MidSouth Fiber location and requesting a change to Service(s). Changes in Service(s) may incur additional fees and expenses.
3. Changes. MidSouth Fiber reserves the right to change its Service(s) offerings, features, content, and Equipment authorized for use on the MidSouth Fiber network, with or without notice to Subscriber.
8. Voice 911/e911 service limitations and limitation of liability
Subscriber understands and acknowledges that access to MidSouth Fiber VOIP service may be lost or the service may not function properly, including the ability to call for 911/E911 service, under certain circumstances, including but not limited to, the following: (i) MIDSOUTH FIBER NETWORK OR FACILITIES ARE NOT OPERATING (ii) BROADBAND CONNECTION IS LOST; (iii) SUBSCRIBER IS EXPERIENCING A POWER OUTAGE; (iv) ELECTRICAL POWER TO THE ONT IS INTERRUPTED; (v) SUBSCRIBER FAILURE TO PROVIDE A PROPER SERVICE ADDRESS OR MOVING THE SERVICE TO A DIFFERENT ADDRESS. Subscriber understands and acknowledges that in order for 911/E911 calls to be properly directed, MidSouth Fiber must have current service address and if Service is moved to a different address without MidSouth Fiber’s approval, 911/E911 calls may be directed to the wrong emergency authority and/or may transmit the incorrect location address for responding.
1. MidSouth Fiber VOIP service (including 911/E911) may fail altogether. Subscriber is required to notify MidSouth Fiber of any change of address of the voice enabled advanced equipment for 911/E911 calling service to work properly.
2. Subscriber agrees that, to the maximum extent permitted by law, MidSouth Fiber shall have no liability for any damages caused, directly or indirectly, by Subscriber’s inability to access the Services, including the MidSouth Fiber VOIP and 911/E911 services.
3. Customer agrees to defend, indemnify, and hold harmless MidSouth Fiber, its officers, directors, employees, affiliates and agents and any others who furnish services in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, Subscriber or any third party or user of account relating to the absence, failure, or outage of the Service, including 911 dialing and/or inability of Subscriber or any third person or party or user of the Service to be able to dial 911 or to access emergency service personnel.
9. Authorized User and Use of the Service(s)
Subscriber or Subscriber’s representative hereby acknowledges that Subscriber is 18 years of age or older and has the legal authority to enter into this Agreement and bind the Subscriber. Subscriber agrees to promptly notify MidSouth Fiber when Subscriber’s personal or billing information changes. Subscriber is responsible for all use of the Service(s), including, but not limited to, use by someone else, a third party, using Subscriber’s account or Service(s) with or without Subscriber’s permission. Subscriber agrees to pay for all activity associated with the Subscriber account and to comply with all applicable laws, regulations, and rules regarding Subscriber’s use of the Service(s). Subscriber shall not sell, transfer, lease, encumber or assign all or part of the Service(s).
Installation of the Service(s) means the Service(s) has been made available to the Subscriber. MidSouth Fiber does not guarantee that Service(s) will be available to every location within the Area Of Service. MidSouth Fiber, at its sole discretion, may accept or reject any potential Subscriber. It is truly MidSouth Fiber’s goal to provide the Service(s) to everyone it can reach, but due to the complex nature of the Service(s), it may not be possible for MidSouth Fiber to deliver Service(s) to everyone in the Area Of Service. Where, after installation has begun for a potential Subscriber, it is learned that Service(s) is not reasonably possible, MidSouth Fiber, in its sole discretion, will cancel the installation process and refund any money Subscriber paid for installation.
When installing the Service(s), MidSouth Fiber will send a representative to discuss installation and the location for installing fiber to Subscriber’s premises. MidSouth Fiber will install the fiber along the same path as the electric line to the premises. MidSouth Fiber will utilize 811 to locate underground utilities on Subscriber’s property (“811 Locate”). Subscriber must inform MidSouth Fiber of any fixtures (ie. sprinkler systems, gas lines, etc.) that are unable to be located by 811 Locates. MidSouth Fiber Parties will NOT be liable for any damage caused to Customer premises, property, fixture, structure, or installation (1) if Subscriber fails to inform MidSouth Fiber of any fixture, structure, or installation in the path or close to the path of the electric line that were not included in the 811 Locate or (2) if MidSouth Fiber is required to install the fiber outside the path of the electric line.
When ordering the Service(s), Subscriber will be responsible for providing any Inside Wiring (“IW”) in the form of copper wire or fiber optic cable between the MidSouth Fiber ONT at Subscriber’s location and the router equipment that will be located at Subscriber’s premises. In most cases, the IW will already be present in Subscriber’s existing locations, however Subscriber will be responsible for providing any additional IW which may be required. If additional IW is required, Subscriber may have the option of ordering IW from MidSouth Fiber or installing Subscriber’s own IW. If Subscriber elects to install Subscriber’s own IW, the IW must be installed and available for use by MidSouth Fiber before Subscriber orders Service(s). If IW service is ordered from MidSouth Fiber, it is Subscriber’s sole responsibility to obtain landlord permission or approvals for such IW.
11. Access to Subscriber’s Premises
Subscriber shall allow MidSouth Fiber and its agents the right to enter Subscriber’s real property and premises, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Service(s) and Equipment.
12. Easement on Subscriber’s Property
In consideration for receiving the Service(s), Subscriber grants, will grant, or will secure from property owner, at Subscriber’s sole expense, all necessary easements and right-of-way on property owned or controlled by Subscriber. Subscriber will provide suitable space on such premises for installation of facilities where such rights-of-way and space are necessary to provide Service(s) to Subscriber. MidSouth Fiber representatives, employees, and assigns are hereby granted right of ingress and egress to Subscriber’s premises at all reasonable times for the purpose of inspecting facilities, providing Service(s), and carrying out the provisions hereof.
13. Software Licenses and Third-Party Services
MidSouth Fiber may provide Subscriber, free of charge or for a fee, software for use in connection with the Service(s) which is owned by MidSouth Fiber, or a third party. Subscriber agrees to accept any end user license agreements (“EULA”) before the use of software connected with the Service(s). For software not accompanied by a EULA, Subscriber is granted a revocable, non-exclusive, non-transferable license by MidSouth Fiber, or its applicable third party licensor(s) to use the software. Subscriber’s license to use the software will remain in effect until terminated by MidSouth Fiber, or its third party licensor or suppliers, or until Subscriber Service(s) is terminated. Violation of any license or EULAs may result in the termination of Subscriber’s Service(s).
All title and intellectual property rights, including, but not limited to, copyrights, trademarks, patents, trade secrets, and know how, are the property of MidSouth Fiber, or its third party affiliates or licensors. All intellectual property rights are the property of the respective owner and may be protected by applicable law or treaties.
14. Management of Subscriber Data
Subscriber is solely responsible for obtaining, maintaining, and updating all Equipment and software necessary to use the Service(s), and for the management of Subscriber’s own information, including backing up and restoring Subscriber’s data. MIDSOUTH FIBER IS NOT RESPONSIBLE FOR THE LOSS OF SUBSCRIBER DATA OR FOR THE BACK UP OR RESTORATION OF SUBSCRIBER DATA.
15. Customer Proprietary Network Information (“CPNI”)
Notwithstanding anything else in this Agreement, the following list shall not be CPNI:
1. Customer’s directory listing information (i.e., Customer’s name, address, and telephone number);
2. Aggregated, deidentified and/or compiled information that does not contain individual customer characteristics, even if CPNI was used as a basis for such information.
Disclosure and use of CPNI:
1. MidSouth Fiber may use and disclose CPNI when required by applicable law.
2. Under federal law, Subscriber has the right, and MidSouth Fiber has a duty, to protect the confidentiality of information about the amount, type, and destination of Subscriber’s VOIP Services usage. Subscriber hereby consents to the sharing of Subscriber’s CPNI or other personal information with MidSouth Fiber and its affiliates, agents and contractors, solely for the purpose of developing or bringing to Subscriber’s attention any products and services, or in the event of any merger, sale of some or all of the Midsouth Fiber’s assets, as well as in any insolvency, bankruptcy or receivership proceeding in which CPNI or other personal information would be transferred as one of the business assets of Midsouth Fiber. This consent survives the termination of Subscriber’s Service and is valid until revoked by Subscriber. To remove this consent at any time, Subscriber must notify Midsouth Fiber in writing at PO Box 970, Navasota, TX 77868, Attn: Customer Service and provide the following information: (1) Subscriber name, (2) Service billing address, (3) telephone number including area code, and (4) service account number. Removing consent will not affect the Subscriber’s current Services.
3. MidSouth Fiber may use CPNI and share (including via email) CPNI with MidSouth Fiber Parties, as well as with Subscriber’s employees and representatives, without Subscriber consent: (i) to provide services and bills to Subscriber;; (ii) to protect the rights or interests of MidSouth Fiber and Subscriber in preventing fraud, theft of services, abuse, harassment and misuse of telecommunications services; (iii) to protect the security and integrity of MidSouth Fiber networks; and (iv) to market additional MidSouth Fiber services to Subscriber that are of the same category as the Services that Subscriber purchases from MidSouth Fiber.
4. Subscriber consents to MidSouth Fiber’s use of Subscriber’s CPNI to market to Subscriber MidSouth Fiber Services that are not within the categories of Services that Customer purchases from MidSouth Fiber. Subscriber agrees that MidSouth Fiber will not be liable for any losses or damages arising as a result of disclosure of CPNI in accordance with the terms of this Agreement. To remove this consent, Subscriber may follow the steps as laid out in paragraph 2 above.
5. MidSouth Fiber will respond to Subscriber requests for CPNI, including call detail records, only in compliance with MidSouth Fiber’s then-current authentication requirements and applicable law.
6. MidSouth Fiber may use any one of the authentication methods specified below to confirm that a person seeking Subscriber CPNI (including, without restriction, call detail records) is authorized to receive it. MidSouth Fiber reserves the right to add, remove, or alter the authentication methods below in its sole discretion. MidSouth Fiber will not be liable to Subscriber for any disclosure of CPNI (including call detail records) that occurs if MidSouth Fiber has complied with one or more of these authentication methods.
a. Present a photo ID that matches an authorized user on the account.
Customer initiated telephone calls:
a. Present account passcode/pin and be an authorized user on the account;
b. Subscriber presents specific call detail record.
MidSouth Fiber initiated phone call:
a. MidSouth representative calls to telephone number of record.
b. Subscriber must be able to login with username and password and authenticate with a shared secret established at account creation.
Subscriber consents to receive notices, documents, disclosures and other communications from MidSouth Fiber about Subscriber’s account or Service(s) (collectively, “Communications”) in an electronic format to Subscriber’s contact email address and agrees that the Communications provided to Subscriber by MidSouth Fiber electronically will be deemed a writing. Subscriber agrees to regularly check Subscriber’s email account for Communications. If Subscriber does not want to receive Communications from MidSouth Fiber electronically or if Subscriber withdraws Subscriber’s consent to receive such Communications electronically, then Subscriber shall stop using the Service(s). The withdrawal of Subscriber’s consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between MidSouth Fiber and Subscriber prior to the time Subscriber withdraws Subscriber’s consent.
Phone Calling and Texting. In addition, Subscriber hereby agrees that Subscriber’s execution of the Agreement or use of the Service(s) constitutes Subscriber’s express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that Subscriber provides MidSouth Fiber in connection with the Service(s). Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from MidSouth Fiber is not required to purchase products or Service(s) from MidSouth Fiber.
Changing Subscriber Contact Preferences. Subscriber may exercise Subscriber’s option to not receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from MidSouth Fiber by going to www.midsouthfiber.com, or calling MidSouth Fiber’s Customer Care Center at 936-825-5100. Subscriber may also text STOP
in response to any text message from MidSouth Fiber to stop receiving text messages from MidSouth Fiber.
Subscriber may cancel Service(s) by calling MidSouth Fiber at 936-825-5100 or by visiting a customer facing MidSouth Fiber location and requesting cancellation with a customer service representative. These are the only methods available for cancellation of Service(s) and any other attempts to cancel Service(s) will be invalid. Pro-rated refunds will not be issued for any partial months of Service(s).
MidSouth Fiber reserves the right to change, limit, terminate, modify, or temporarily or permanently cease providing the Service(s) if Subscriber is found to be in violation of any portion of this Agreement or incorporated agreements. If MidSouth Fiber cancels Subscriber’s Service(s) under this Section 15, Subscriber shall cease using the Service(s) and return all Equipment. Subscriber shall also be responsible for any applicable fees and/or Equipment charges.
18. Warranties and Limitation of Liability
SUBSCRIBER AGREES AND ACKNOWLEDGES THAT THE SERVICE(S) SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFIED SPECIFICALLY IN THIS AGREEMENT OR AS OTHERWISE SPECIFICALLY SET FORTH IN A MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY MIDSOUTH FIBER, MIDSOUTH FIBER (AND ITS OFFICERS, EMPLOYEES, MEMBERS, CUSTOMERS, PARENT CORPORATION, SUBSIDIARIES, AFFILIATES, THIRD PARTY LICENSORS, PROVIDERS, SUPPLIERS, AGENTS AND REPRESENTATIVES) (COLLECTIVELY “MIDSOUTH FIBER PARTIES”) DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE(S), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE.
THE MIDSOUTH FIBER PARTIES DISCLAIM ANY AND ALL WARRANTIES THAT ANY OF THE SERVICE(S), EQUIPMENT, OR OTHER EQUIPMENT AUTHORIZED BY MIDSOUTH FIBER, FOR USE IN CONNECTION WITH THE SERVICE(S) WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE.
MIDSOUTH FIBER PARTIES SHALL NOT BE LIABLE FOR LOSS OF SUBSCRIBER DATA; SECURITY BREACHES; EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE(S); SUBSCRIBER’S RELIANCE ON OR USE OF THE SERVICE(S); INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER SUBSCRIBER’S DATA IS MAINTAINED ON THE MIDSOUTH FIBER INTERNET SERVERS OR SUBSCRIBER DEVICE(S); DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE(S); USE OF THE SERVICE(S) BY SUBSCRIBER OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICE(S) OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE MIDSOUTH FIBER WEB SITES).
IN NO EVENT SHALL THE MIDSOUTH FIBER PARTIES BE LIABLE FOR: (1) ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE(S), OR RELIANCE ON OR PERFORMANCE OF THE SERVICE(S), REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF MIDSOUTH FIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES; OR (2) ANY CLAIM(S) AGAINST SUBSCRIBER BY ANY OTHER PARTY.
THE MIDSOUTH FIBER PARTIES SHALL HAVE NO LIABILITY WHATSOEVER FOR: (1) SUBSCRIBER’S FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EQUIPMENT; OR (2) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF SUBSCRIBER’S DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO SUBSCRIBER’S INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EQUIPMENT.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE MIDSOUTH FIBER PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY MIDSOUTH FIBER PARTIES IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. SUBSCRIBER’S EXCLUSIVE AND ONLY REMEDIES UNDER THE AGREEMENT ARE AS EXPRESSLY SET FORTH IN THE AGREEMENT.
THE LIABILITY OF THE MIDSOUTH FIBER PARTIES, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD PARTY END USER LICENSE OR OTHER AGREEMENTS), FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) SUBSCRIBER HAS PAID TO MIDSOUTH FIBER FOR THE SERVICE(S) DURING THE THREE (3) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.
UNLESS OTHERWISE EXCEPTED AS EXPRESSLY PROVIDED HEREIN, ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 16 ALSO APPLY TO MIDSOUTH FIBER PARTIES, AS THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES. SUBSCRIBER MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, THE EXCLUSIONS OR LIMITATIONS PROVIDED HEREIN MAY NOT APPLY TO SUBCRIBER.
Subscriber agrees to defend, indemnify and hold harmless MidSouth Fiber Parties from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages, including, but not limited to, direct, indirect and consequential damages, attorney(s)’ fees and expenses that one or more of the MidSouth Fiber Parties may sustain or incur by reason of Subscriber’s use or misuse of the Service(s) or the Equipment provided by MidSouth Fiber, for use of the Service(s), or such use or misuse by any third party through Subscriber’s account including, but not limited to, by such use or misuse: (i) in violation of applicable laws or regulations or the terms of the Agreement; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data); or (iv) any claims of the owner of Subscriber’s premises in connection with the installation of the Service(s).
20. Dispute Resolution
It is the goal of MidSouth Fiber to make the Subscriber a happy customer, but if there is an issue that needs to be resolved, this Section 18 outlines Subscriber’s exclusive action for resolving a dispute.
a. Mediation: If disputes cannot be resolved informally between MidSouth Fiber and Subscriber, MidSouth Fiber will attempt to resolve all disputes through mediation. Mediation is completely voluntary and does not preclude Subscriber from the rights outlined in Section 18(b). Notice of the desire to resolve a dispute through mediation shall be given to the other Party by the Party requesting the same, in accordance with the instructions set forth in Section 19. In a mediation between Subscriber and MidSouth Fiber, MidSouth Fiber will assign a mediator that is not directly involved in the dispute to help both Parties reach an agreement. Such person has all the rights and protections of a mediator and the process has all the protections associated with mediation as provided by applicable law.
b. Arbitration: If disputes are not resolved informally or by mediation, Subscriber and MidSouth Fiber both agree to only resolve disputes by arbitration. SUBSCRIBER UNDERSTANDS BY ACCEPTING THIS AGREEMENT SUBSCRIBER RELINQUISHES THE RIGHT TO BRING ANY AND ALL CLAIMS BEFORE A COURT OR JURY AND WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION AS A PLAINTIFF OR MEMBER. An Arbitrator can award the same relief, damages, and fee that a court could and must honor the same terms of this Agreement as a court would.
The Federal Arbitration Act applies to this Agreement and the American Arbitration Association (“AAA”) rules will apply. Arbitration shall take place in Grimes County, Texas. This agreement to arbitrate is intended to be broadly interpreted. Such agreement includes, but is not limited to: (i) all claims or disputes arising out of or relating to any aspect of the relationship between MidSouth Fiber and Subscriber, whether based in contract, tort, statute, fraud, misrepresentation and/or any other legal theory; (ii) all claims and disputes that arose before this or any prior agreement; (iii) claims that are currently the subject of purported class action litigation in which Subscriber is not a member of a certified class; and (iv) claims that may arise after the termination or cancellation of this Agreement.
THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARIBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.
Notwithstanding the foregoing agreement, MidSouth Fiber is not bound to use arbitration to initiate debt collection against Subscriber except in response to claims Subscriber may have made in arbitration.
a. Notices for dispute resolution: If either Party intends to seek mediation or arbitration under this Agreement, the Party seeking the mediation or arbitration must first notify the other Party of the dispute in writing with a minimum of thirty (30) days’ notice. Written notices can be sent by electronic mail. Notices sent to MidSouth Fiber should be sent to: firstname.lastname@example.org or you can send a written notice to PO Box 970, Navasota, TX 77868.
b. Notices from Subscriber: Notices by Subscriber must be sent to Attn: Customer Service, P.O. Box 970, Navasota, TX 77868.
c. Notices from MidSouth Fiber: Notice by MidSouth Fiber (including notices of changes to this Agreement) shall be deemed given when: (i) posted to the Notices page on www.midsouthfiber.com; (ii) transmitted to Subscriber’s last known email address on file; (iii) when mailed or hand-delivered to the Service(s) address on file; or (iv) when hand delivered to Subscriber in person. Mail notices may also be included in Subscriber’s billing statement.
22. Waiver and Performance
MidSouth Fiber’s failure to require strict performance of any term of the Agreement will not be a waiver of MidSouth Fiber’s right to require performance of any term or condition of the Agreement.
The Agreement is governed by the laws of the State of Texas without regard to conflict of law principles. To the extent any suit is filed related to this Agreement, the state courts located in Grimes County, Texas alone have jurisdiction over all disputes arising out of or related to the Agreement and the Service(s). Subscriber consents to the personal jurisdiction of such courts sitting in Grimes County, Texas with respect to such matters, and waives Subscriber’s rights to removal.
24. Third Party Rights
The Agreement is made solely for the benefit of the Subscriber and MidSouth Fiber, and does not, and shall not, be construed to grant any rights or remedies to any other person or entity other than expressly provided for in the Agreement.
Subscriber shall not assign or otherwise transfer this Agreement, or Subscriber’s rights or obligations under this Agreement, in whole or in part, to any other person. Any attempt to do so shall be void. MidSouth Fiber may freely assign all or any part of this Agreement with or without notice and Subscriber agrees to make all subsequent payments as directed.
26. Force Majeure
MidSouth Fiber shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, pandemics, fires, floods, strikes, work slowdowns or other labor-related activity, or an inability to obtain necessary equipment or services.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
28. Entire Agreement
This Agreement and the incorporated agreements hereto constitute the entire agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, discussions, representations, warranties and covenants are merged herein. There are no warranties, representations, covenants or agreements, expressed or implied, between the Parties except those expressly set forth in this Agreement. Unless otherwise provided herein, any amendments or modifications of this Agreement shall be in writing.
In the event of a conflict as between this Agreement and any other agreement between Subscriber and MidSouth Fiber related to Services provided by MidSouth Fiber, the terms and conditions of this Agreement shall control.