Commercial Customer Terms & Conditions of Service

Mashell, Inc. & All Affiliates
DBA Lightcurve

Terms and Conditions of Service

1. AGREEMENT AND SERVICES: By using Services provided by Mashell, Inc and its Affiliates dba Lightcurve (collectively, “Lightcurve”), you agree to comply with these Terms and Conditions of Service (“Terms”).

   In these Terms, “Service(s)” refers to, but is not limited to, any internet access, dial-up Internet access, Digital Subscriber Line Internet access (“DSL”), web hosting, co-location, satellite Internet access, wireless Internet access, leased line Internet access, such as frame relay, T-1, Fiber (Ethernet) technical support received, data services, voice or video services, or other services that you may have purchased from Lightcurve. Your use of these Services is subject to the guidelines set forth in the Acceptable Use Policy (“AUP”) located at https://getlightcurve.com/company-policies/

2. PROVISION OF SERVICE AND PRICES: The Services shall be provided in accordance with these Terms, applicable state and federal laws and regulations, and Lightcurve’s tariffs or price lists (“Tariffs”), as amended from time to time, which are incorporated into the Telecommunications Service Agreement (“Service Agreement” and together with these Terms the “Agreement”). All terms and conditions linked within the Agreement shall be construed as incorporated into the Agreement including, but not limited to, the Acceptable Use Policy (“AUP”). Pricing for our Equipment and Services varies based upon the technology and equipment used to provide the Service and where Customer is receiving the Service. Pricing for cable TV Service may change during the Term due to various reasons including increases in programming fees.

3. TERM AND COMMENCEMENT OF SERVICE: The Initial Term for each Service [is set forth in the Service Agreement. A Service shall commence on the date on which Lightcurve’s network and associated facilities are ready to provide the Service, including all facilities, elements and services necessary to provide the Service, which Lightcurve obtains from third parties (“Service Date”). Provision of all Services is subject to the availability of facilities, elements and underlying services. Upon expiration of the Initial Term of each Service, or any extension thereof, the Service shall continue in effect on a month-to-month basis (each an “Additional Term” and collectively with the Initial Term, the “Term”) unless terminated by either party upon thirty (30) days prior written notice. This Agreement shall terminate on the expiration or termination of all of the Services.

4. PAYMENT: For each Service, Customer shall pay the monthly service charge, and other applicable charges and surcharges, upon receipt of an invoice by Lightcurve. On the Service Date for each Service, Customer will incur a prorated monthly service charge for the portion of the first month of the Service during which the Service is provided to Customer, plus applicable installation charges. On each anniversary of the Service Date for a Service, Customer will incur a monthly service charge for such Service as set forth in the Service Agreement. Services are billed in advance except for those based on actual usage which will be billed in arrears. If Lightcurve does not receive any payment from Customer within thirty (30) days of the invoice date, Lightcurve may charge Customer a late charge of the maximum amount allowed by applicable law. Customer will be responsible for payment of any federal, state, or local use, excise, sales or gross receipts tax, or franchise fees, or similar charges, or any regulatory surcharge applicable to the Services or Equipment provided to Customer.

5. CANCELLATION OR SUSPENSION OF SERVICE: (A) Customer may cancel a Service, without liability except for payment of charges incurred prior to the cancellation date, by written notice, if a Service is not available on the ninetieth day following the agreed upon Service Date for that Service (B) If Customer cancels a Service for reasons other than those permitted by Section 5(A) hereof, or if Lightcurve terminates the Service or the Agreement for any reason, including non-payment of charges by Customer, then Customer shall immediately pay to Lightcurve all charges for Services provided up to the date of termination plus an amount equal to one hundred percent (100%) of the remaining monthly charges for the Term of the cancelled or terminated Service. (C) Lightcurve may terminate the Agreement for any Service at any time if Lightcurve is prohibited from providing the Service by a government agency or court, or is prevented from providing the Service due to the unavailability of facilities or equipment necessary to provide the Service. (D) if Customer terminates inbound/outbound long distance Service prior to completion of its term commitment, Customer shall pay an early termination penalty calculated by multiplying the number of months remaining on the Term by one hundred percent (100%) of the Customer’s average monthly long distance usage during the Term of the Agreement. (E) Lightcurve may suspend or terminate the provision of a Service if Customer breaches the Agreement.

6. FORCE MAJEURE: Lightcurve shall not be responsible for providing any Service or portion thereof, arising in whole or in part from any cause which is beyond Lightcurve’s sole and reasonable control including, without limitation, acts of God, earthquakes, labor disputes, shortages of supplies or facilities, equipment failure, cable cuts, rioting, insurrections, war, fires, explosions, epidemics, delays of common and private carriers, computer failures and partial or total loss of electrical power or heating or cooling. Lightcurve will recommence performance as soon as reasonably possible after the causes are removed or cease. If the period of non-performance continues for less than sixty (60) days, then the Services affected will be continued, with credit allowances as provided in the Agreement. If the period of non-performance continues for more than sixty (60) days, Customer may terminate the affected Services without further liability.

7. LIMITATION OF ASSIGNMENT, SERVICE, and REPRESENTATIONS: (A) The Agreement may not be assigned without the express written consent of Lightcurve in its sole discretion. Customer shall be responsible for any costs or expenses incurred if Lightcurve agrees to such assignment. (B) Whenever transmission capacity provided by Lightcurve under the Agreement is connected to facilities provided by another entity, the regulations, terms and charges of such other entity shall apply to the services or facilities between those locations. (C) The Agreement and the Services provided by Lightcurve do not constitute a partnership or joint venture of any kind and Customer shall not represent that a partnership or joint venture of any kind exists between Customer and Lightcurve. (D) Customer is not authorized to sell or re-sell or broker any of Lightcurve’s Services to other parties. (E) Customer is not Lightcurve’s agent and has no authority to bind Lightcurve to any obligation or undertaking, nor to make any representations on Lightcurve’s behalf.

8. CREDIT ALLOWANCES: Credit allowances for interruption of service will be made as provided and subject to the limitations of the Tariffs, which are incorporated in the Agreement by reference. Copies of those provisions are available on request from Lightcurve’s Tariff Administrator. For services for which no Tariff exists, a prorated credit of monthly service charges will apply, pro-rated for the portion of the month during which such Service was not available for use by the Customer.

9. BILLING ERRORS. Customer must notify Lightcurve of any billing error within thirty (30) days of the billing date of the applicable invoice. Lightcurve’s liability to fix an error raised by Customer shall not extend beyond the 12-month period (or as provided in applicable Tarriff) preceding Customer’s initial notice to Lightcurve.

10. EQUIPMENT. If Lightcurve provides Customer with equipment (“Equipment”) at Customer’s premises to provide a Service under the Agreement, such Equipment shall remain the property of Lightcurve and shall be returned to Lightcurve immediately upon the termination of the Service for which the Equipment was provided. Customer shall be liable for all loss, theft or damage of such Equipment, except for normal wear and tear.

11. INSTALLATION SERVICES. Lightcurve may provide certain installation services (“Installation Services”) to allow it to provide the Services. Customer acknowledges and agrees that Lightcurve must have reasonable access to the location where the Services will be provided (“Location”) to perform the Installation Services. IN THE UNLIKELY EVENT THAT THE INSTALLATION SERVICES RESULT IN DAMAGE TO THE LOCATION, LIGHTCURVE’S LIABILITY WITH RESPECT TO SUCH DAMAGES SHALL BE LIMITED TO THE LIABILITY LIMITATION SET FORTH IN SECTION 14.

12. ADDITIONAL PROVISIONS: (A) The representative executing the Agreement on behalf of Customer has the full power and authority to enter into the Agreement and to bind Customer to all of the terms and conditions of the Agreement. (B) To the extent permitted by law, Customer authorizes Lightcurve to obtain credit reports regarding Customer at any time to assure Lightcurve of Customer’s ability to pay for the Services. Lightcurve may refuse to provide service if Customer’s credit report is unacceptable. (C) The Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements, promises, covenants, representations or warranties, whether oral or written, by either party to the Agreement. Except as set forth in Section 17, no modification, amendment, supplement to or waiver of the Agreement shall be binding upon the parties unless made in writing and signed by both parties. (D) The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. (E) Any notice required or permitted by the Agreement will be in writing and will be delivered as follows, with notice deemed given as indicated: (i) by personal delivery, when actually delivered; (ii) by overnight courier, upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. Notice will be sent to the addresses set forth in the Service Agreement or to such other address as either party may provide in writing. (F) The Services provided by Lightcurve under the Agreement are severable, and upon expiration or termination of any Service, the remaining Services shall continue under the terms of the Agreement. (G) No delay or omission by either party to exercise any right hereunder shall impair such right or power or be considered a waiver thereof. A waiver by either party of any performance in the other party or breach of the Agreement shall not be construed as the waiver of a subsequent breach or of any other provision of the Agreement. (H) If any part or provision of the Agreement is found by a court, arbitrator, or governmental agency of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of the Agreement will remain in full force and effect.

13. DISPUTES AND GOVERNING LAW. Any dispute arising out of or relating to the Agreement, or the breach thereof, with the exception of any dispute relating to Customer’s failure to pay all amounts invoiced by Lightcurve, shall be settled through binding and final arbitration by a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration hearing shall be held in the city or town where Lightcurve’s business office nearest to Customer’s principal place of business is located. In any dispute or action to enforce the Agreement between the parties, the substantially prevailing party shall be entitled to an award of its costs and attorney’s fees. The Agreement is made under and shall be construed and enforced in accordance with the laws of the State of Washington, except for: those matters within the exclusive jurisdiction of the Federal Communications Commission or matters subject to applicable state regulatory requirements; and arbitration, which shall be governed by the Federal Arbitration Act. Except for disputes between the parties and required regulatory reporting by Lightcurve, the terms and conditions of the Agreement are confidential and shall not be disclosed to any person who is not a party to the Agreement. If a court or other government agency of competent jurisdiction orders the public disclosure of confidential information (“Order”), the party subject to the Order shall notify the other party of the Order in such time and manner as to permit the other party a reasonable opportunity to challenge the Order or obtain other relief.

14. NO WARRANTIES, LIMITED LIABILITY: LIGHTCURVE PROVIDES THE SERVICES, INSTALLATION SERVICES, AND EQUIPMENT ON AN “AS IS” BASIS. LIGHTCURVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. LIGHTCURVE MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND IN CONNECTION WITH THE AGREEMENT OR THE SERVICES, INSTALLATION SERVICES OR EQUIPMENT PROVIDED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LIGHTCURVE’S AGGREGATE LIABILITY FOR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO LIGHTCURVE DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL LIGHTCURVE OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR PROFITS), WHETHER OR NOT FORESEEABLE OR IF THIS PROVISION FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER SPECIFICALLY AUTHORIZES LIGHTCURVE TO RELEASE CUSTOMER RECORDS OR INFORMATION IN SUBSTANTIAL COMPLIANCE WITH ANY COURT ORDER, SUBPOENA, OR LAW AUTHORIZING SUCH DISCLOSURE AND RELEASES LIGHTCURVE FROM ANY LIABILITY ARISING THEREFROM. THE PRICES FOR THE SERVICES AND EQUIPMENT ARE SET IN EXPRESS RELIANCE ON THE ENFORCEABILITY OF THE SECTION, WHICH CONSTITUTES A SIGNIFICANT PORTION OF THE BENEFIT OF THE BARGAIN OF THE AGREEMENT.

15. INDEMNITY. Customer shall indemnify, defend, and hold Lightcurve and its affiliates and each of their officers, directors, employees, agents, and successors and assigns harmless from and against any claim, suit, action or proceeding that is brought and all related losses, damages, and expenses (including reasonable attorneys’ fees) that are incurred, arising out of or related to (a) Customer’s negligence or willful misconduct, (b) Customer’s non-compliance or breach of the Agreement or (c) Customer’s failure to comply with applicable law.

16. PRIVACY: Lightcurve’s Privacy Policyhttps://getlightcurve.com/privacy-policy/, governs the processing of all personal data collected from Customer in connection with the purchase or use of the Equipment and Services.

17. CONFLICTS AND REVISIONS TO TERMS AND CONDITIONS OF SERVICE: Lightcurve may revise these Terms, the AUP, the Service Agreement or any other policies and agreements at any time. Revisions, amendment, or modification will be posted on our website at https://getlightcurve.com/company-policies/. Such changes shall take effect at the earlier of when notice is mailed/emailed to Customer or posted on Lightcurve’s website (which Customer hereby agrees to review periodically for such changes). If there is a conflict between the terms of the Tariffs, Service Agreement, Terms, and AUP, the order of precedence shall be as follows: Tariffs, Service Agreement, Terms and AUP.