STANDARD TERMS AND CONDITIONS FOR BUSINESS DATA SERVICES

Customer acknowledges that the Services provided by PBT Communications, Inc. d/b/a Comporium (Comporium) under these Terms and Conditions may have been previously provided under Tariff.  Customer understands that, as of the Effective Date of these Terms and Conditions, such Services are no longer under Tariff and are provided pursuant to these Terms and Conditions and any accompanying Customer Agreement, Service Orders, GUIDEBOOKS and SERVICE GUIDES PROVIDED ON COMPORIUM’S WEBSITE (“SERVICE DOCUMENTATION”), AS MODIFIED FROM TIME-TO-TIME.  THE SERVICE DOCUMENTATION ARE INCORPORATED BY REFERENCE HEREIN TO THE EXTENT EACH IS APPLICABLE TO THE SERVICE(S) PROVIDED UNDER THESE TERMS AND CONDITIONS.

These Standard Terms and Conditions for Business Data Services (“BDS”) constitute a legal document that details your rights and obligations as a purchaser of Comporium’s Services. PLEASE READ THESE STANDARD TERMS AND CONDITIONS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. You must accept these Standard Terms and Conditions as a condition of receiving the Services.

These Standard Terms and Conditions may be updated or changed from time to time. You may find the most up to date version of these Standard Terms and Conditions at any time on Comporium’s website.  If Comporium makes changes to these Standard Terms and Conditions and that change has a material impact on the Services, Comporium will provide you with notice of that change consistent with the Notice provisions of these Standard Terms and Conditions.  Your continued use of the Services following such notice constitutes your acceptance of those changes.

1. Services and Facilities
   1. Comporium agrees to provide Customer with a broadband Internet connection, as provided in the accompanying Customer Service Order that is attached to the Customer Master Service Agreement.
2. CUSTOMER RESPONSIBILITIES
   1. Acceptable Use Policy (AUP). With the purchase of Services that connect to the Internet, Customer must conform to Comporium’s Acceptable Use Policy, as reasonably amended from time to time.
   2. Abuse and Fraud. Customer will not use Services: (1) for fraudulent, abusive, unlawful or destructive purposes, including unauthorized or attempted unauthorized access to, or alteration, abuse or destruction of, information; or (2) in any manner that causes interference with Comporium’s or another’s use of the Comporium- provided network. Customer will cooperate promptly with Comporium to prevent third parties from gaining unauthorized access to the Services via Customer’s facilities.
   3. Reseller. Customer represents that it is not a reseller of any telecommunication services provided under these Terms and Conditions as described in the Telecommunications Act of 1996, as amended, or applicable state law and acknowledges it is not entitled to any reseller discounts under any laws.
   4. Security. Comporium has adopted and implemented and will maintain, a corporate information security program designed to protect Customer information, materials, and data accessed and possessed by Comporium from loss, misuse, and unauthorized access or disclosure. Such a program includes formal information security policies and procedures. The Comporium information security program is subject to reasonable changes by Comporium from time to time. Comporium’s standard service offerings do not include managed security services such as encryption, intrusion detection, monitoring, or managed firewall. Customer is responsible for selecting and using the level of security protection needed for all Customer data stored or transmitted via the Service and using reasonable information security practices, including those relating to the encryption of data.
3. PRIVACY AND CONFIDENTIALITY
   1. Privacy. Comporium’s Privacy Policy, as amended from time to time, includes information about Comporium’s customer information practices and applies to the provisioning of
   2. HIPAA. By providing Services, Comporium does not require or intend to access Customer Data, including any confidential health-related information of Customer’s clients, which may include group health plans, that constitutes Protected Health Information (“PHI”), as defined in 45 C.F.R. §160.103 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”).
   3. Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of Neither Party will disclose any Confidential Information (defined below) received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in the Customer Master Service Agreement. This obligation will continue until two years after the Agreement expires or terminates. Confidential Information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party’s technology, business affairs, trade secrets, development and research information, and marketing or sales plans (collectively the “Confidential Information”). The receiving party may disclose Confidential Information to its subsidiaries, affiliates, agents, and consultants with a need to know if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party’s rights as this provision.
   4. The parties will use Confidential Information only for the purpose of performing under the Customer Master Service Agreement or for the provision of other Comporium services. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (A) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or omission of the receiving party; (C) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (D) is developed independently by the receiving party without reference to the Confidential Information, or (E) is required to be disclosed by law, regulation, or court or governmental order. The parties acknowledge that the receiving party’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of the Agreement, the disclosing party may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not limit any other remedies available to either party. The party who breached or threatened to breach its nondisclosure obligation under the Agreement will not raise the defense of an adequate remedy at law. Comporium will not be deemed to have accessed, received, or be in the possession of Customer Confidential Information solely by virtue of the fact that Customer transmits, receives, accesses or stores such information through its use of Comporium’s Services.
4. EQUIPMENT AND FACILITIES
   1. Customer-Provided Equipment. Comporium shall not be responsible for the installation, operation, or maintenance of any Customer-provided communications equipment. Where such equipment is connected to the facilities furnished pursuant to these Terms and Conditions, the responsibility of Comporium shall be limited to the furnishing of facilities offered under these Terms and Conditions and to the maintenance and operation of such facilities. Notwithstanding the above, Comporium shall not be responsible for:
      1. 1. (a) the transmission of signals by Customer-provided equipment or for the quality of, or defects in, such transmission;
         2. (b) the reception of signals by Customer-provided equipment; or
         3. (c) network control signaling where such signaling is performed by Customer-provided network control signaling equipment.
   2. Installation. Customer will reasonably cooperate with Comporium or its agents to install the Services. Customer is responsible for damage to Comporium-owned facilities located on Customer premises, excluding reasonable wear and tear or damage caused by Comporium. Comporium may refuse to install Services or may discontinue and disconnect Services without notice if any condition on Customer’s premises is unsafe or likely to cause injury to any person using Services.
5. PAYMENT AND CHARGES
   1. Rates and Charges. Customer will pay Comporium the rates and charges for the Services as set forth in the Customer Master Service Agreement and any Order under that Agreement, including all charges associated with establishing Customer’s Services or related to Comporium’s installation or provisioning costs.
   2. Rate Adjustments. Comporium may impose additional fees, charges or surcharges on Customer to recover amounts that Comporium is required or permitted to collect, or pay to others in support of, or to comply with, statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs.
   3. Taxes. Comporium’s rates and charges for the Services do not include taxes. Notwithstanding any other provision of these Terms and Conditions, if Customer is required by law to make a deduction or withholding from any amount due to Comporium, Customer must notify Comporium in writing. Comporium will then increase the gross amount of Customer’s invoice so that, after Customer’s deduction or withholding for taxes, the net amount paid to Comporium will not be less than the amount Comporium would have received without the required deduction or withholding.
   4. Invoicing. Unless otherwise set forth in a Service Order, any and all invoicing for Services shall be submitted to Customer for payment within thirty (30) days of the Service being provided. Customer is responsible for all charges, no matter the interval at which they are billed.  Any objection to billed charges must be reported to Comporium within sixty (60) days of the invoice date.
   5. Billing. Unless otherwise set forth in a Service Order, Comporium shall invoice Customer in advance at Customer’s notice address specified in the Customer Master Service Agreement (or at such other address of which Customer may advise Comporium in writing) for all Services and additional services provided during each calendar month or other mutually agreeable billing cycle. Customer shall pay Comporium for all Charges upon receipt of the invoice. Account is/will be considered past due thirty (30) days after invoice date and late fees will be assessed on the last business day of the month at 1.5% per month. Service is subject to interruption if the account remains unpaid for a period of sixty (60) days or more from the date of billing. Customer agrees to reimburse Comporium for all reasonable expenses, including reasonable attorney’s fees, for collection of past due accounts.
   6. Disputed Invoice If Customer disputes a charge in good faith, Customer may withhold payment of that charge if Customer makes timely payment of all undisputed charges within the payment period, as described in Section 2.5, and provides Comporium with a written explanation of the reasons for Customer’s dispute of the charge. Customer must cooperate with Comporium to promptly resolve any disputed charge. If Comporium determines, in good faith, that the disputed charge is invalid, Comporium will notify Customer and, within five business days of receiving notice, Customer must pay the charge.
   7. Minimum Service Periods  Unless otherwise specified elsewhere in this Tariff, the minimum service period for all services offered in this Tariff is one month beginning on and including the day following the establishment of service.  For purposes of administration, each month is considered to have thirty (30) days.  The minimum service period relates to each applicable unit of service, either on the initial or subsequent installations.
6. CREDIT APPROVAL
   1. Comporium’s provision of Services is subject to the credit approval of Customer. As part of the credit approval process, Comporium may require Customer to provide a deposit or other security.  Additionally, during the Agreement Term, if Customer’s financial circumstances or payment history becomes reasonably unacceptable to Comporium, Comporium may require adequate assurances of future payment as a condition of continuing provision of the Services.  Customer’s failure to provide adequate assurances required by Comporium is a material breach of the Agreement.  Comporium may provide Customer’s payment history or other billing information to any credit reporting agency or industry clearinghouse.    
7. ORDERS
   1. Orders are binding only upon acceptance in writing by Comporium. Comporium will notify Customer of rejected orders.
   2. Cancellation. Customer may cancel an Order at any time before Comporium delivers the Services listed in the Order or begins its performance, but Customer must pay any actual costs Comporium incurs do to Customer’s cancellation.
8. WARRANTIES.
   1. THE SERVICES PROVIDED BY Comporium UNDER THESE TERMS AND CONDITIONS ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPATIBILITY OF SOFTWARE OR EQUIPMENT, OR ANY RESULTS TO BE ACHIEVED THEREFROM. Comporium MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY SERVICE OR PRODUCT WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF HACKING OR SIMILAR MALICIOUS ACTIVITY OR ANY ACT OR OMISSION OF THE CUSTOMER.
9. LIABILITY
   1. Direct Damages. Each party’s maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party’s negligent or willful misconduct; and (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in the aggregate, in any 12-month period, an amount equal to Customer’s total net payments for the affected Services purchased in the month preceding the month in which the injury occurred. Customer’s payment obligations, Customer’s liability for early termination charges, and the parties’ indemnification obligations under the Agreement are excluded from this provision.
   2. Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
   3. Unauthorized Access and Hacking. Except for physical damage to Customer’s transmission facilities or Customer premise equipment directly caused by Comporium’s negligence or willful misconduct, Comporium is not responsible for unauthorized access to, or alteration, theft, or destruction of, Customer’s data, programs or other information through accident, wrongful means or any other cause while such information is stored on or transmitted across Comporium-provided network facilities or Customer premise equipment.
10. INDEMNIFICATION
    1. Mutual Indemnification for Personal Injury, Death or Damage to Personal Property. Each party will indemnify and defend the other party, its directors, officers, employees, agents and their successors from and against all third-party claims for damages, losses, liabilities, or expenses, including reasonable attorneys’ fees, arising directly from performance of the Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligence or willful misconduct of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents.
    2. Customer Indemnification. Customer will indemnify and defend Comporium, Comporium’s officers, directors, agents, and employees and their successors, against all third-party claims for damages, losses, liabilities or expenses, including reasonable attorneys’ fees, arising out of:
       1. (A) Customer’s failure to obtain required permits, licenses, or consents necessary to enable Comporium to provide the Services (e.g., landlord permissions or local construction licenses). This provision does not include permits, licenses, or consents related to Comporium’s general qualification to conduct business;
       2. (B) Customer’s transmissions, or transmissions by parties authorized by Customer, of, information, data, or messages over the Comporium-provided network leading directly or indirectly to third-party claims: (1) for libel, slander, invasion of privacy, infringement of copyright, and invasion or alteration of private records or data; (2) for infringement of patents arising from the use of equipment, hardware or software not provided by Comporium; and (3) based on transmission and uploading of information that contains viruses, worms, other destructive media or other unlawful content;
       3. (C) Comporium’s failure to pay any tax to the extent that Comporium relied on Customer’s claimed legitimate exemption under applicable law;
    3. Comporium Indemnification. Comporium will indemnify and defend Customer, Customer’s officers, directors, agents, and employees and their successors against third-party claims enforceable in the United States alleging that Services, as provided, infringe any third-party United States patent or copyright or contain misappropriated third-party trade secrets. But Comporium’s obligations under this Section will not apply if the infringement or violation is caused by Customer’s modification to Comporium-provided software, equipment or Services; a combination of Comporium-provided services or products with other services or products; functional or other specifications that were provided by or requested by Customer; or Customer’s continued use of infringing Services after Comporium provides reasonable notice to Customer of the infringement. For any third-party claim that Comporium receives, or to minimize the potential for a claim, Comporium may, at its sole option, either:
       1. (A) procure the right for Customer to continue using the Services;
       2. (B) replace or modify the Services with comparable Services; or
       3. (C) terminate the Services.
    4. Rights of Indemnified Party. To be indemnified, the party seeking indemnification must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim); give the indemnifying party full and complete authority, information and assistance for the claim’s defense and settlement; and not, by any act, admission, or acknowledgment, materially prejudice the indemnifying party’s ability to satisfactorily defend or settle the claim. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim’s settlement or defense.
    5. Remedies. The foregoing provisions of this Section state the entire liability and obligations of the indemnifying party and any of its Affiliates or licensors, and the exclusive remedy of the indemnified party, with respect to the claims described in this Section.
11. TERM AND TERMINATION
    1. If you signed up for Services for a specified term, you agree that if you cancel your plan before the end of the term, you will pay any applicable Early Termination Fee. At the conclusion of your term, Comporium will automatically begin charging the applicable month-to-month rate. If you purchased Services as part of a discount, your discount may cease and you may be billed the standard monthly rate for the Services. Comporium may, upon notice required by applicable law, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges.
12. FORCE MAJEURE
    1. Neither Party shall be liable to the other, nor shall any remedy be extended, for any failure of performance under the Customer Master Service Agreement proximately due to causes beyond that party’s reasonable control, including but not limited to: acts of God, fire, explosion, flood, earthquake, tornado, storms, any law, order, regulation, action or request of any government or regulatory entity or agency, or any civil or military authority; emergencies; civil unrest, insurrections, riots, wars; power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like. Upon the occurrence of any such events, Comporium and Customer shall use its reasonable efforts to notify the other Party of the nature and extent of any such condition.
13. GOVERNING LAW; ALTERNATE DISPUTE RESOLUTION
    1. Governing Law. These Terms and Conditions and performance hereunder shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to its choice of law provisions.
    2. Waiver of Jury Trial and Class Action. Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to these Terms and Conditions on a class or consolidated basis or in a representative capacity.
    3. Alternate Dispute Resolution.  Any dispute arising out of or relating to these Terms and Conditions, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures:
       1. Negotiation
          1. (A) Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).
       2. Mediation
          1. (A) If the dispute has not been resolved by negotiation in accordance with paragraph A, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then a local mediation service provider shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session. During the course of the mediation, no party can assert the failure to fully comply with paragraph A, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise. All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.
       3. Arbitration
          1. (A) Any Dispute not resolved through negotiation or mediation in accordance with paragraphs A and B shall be resolved by arbitration in accordance with the United States Arbitration Act (and other applicable federal law) and/or Arbitration rules of the State of South Carolina. The arbitration will be held in South Carolina using one arbitrator, unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel. The arbitrators may award costs and/or attorneys’ fees to the prevailing party.
          2. (B) The Parties further agree that the arbitrator shall-have no authority to award non-monetary or equitable relief, and any monetary award shall not include punitive damages. Nothing contained in this section will limit either Party’s ability to seek injunctive relief in any court. The Parties will mediate and arbitrate disputes in confidence. Each Party shall bear its own costs incurred in connection with the arbitration. Other costs will be allocated as the arbitrator directs. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF SUCH CLAIM OR DISPUTE.
14. ASSIGNMENT
    1. Customer may not assign any rights or obligations under these Terms and Conditions or an Order without Comporium’s prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to an Affiliate or an entity that has purchased all or substantially all of Customer’s Following written notice to Customer, Comporium may assign the Agreement or an Order, in whole or in part, without Customer’s prior written consent.
15. NOTICES
    1. Notices required under these Terms and Conditions shall be submitted in accordance with the Notices section of the Master Service Agreement.
16. DEFINITIONS
    1. “Effective Date” of these Terms and Conditions means the later of: a) the date on which the withdrawal of a Tariff governing the Service becomes effective; or b) the date on which the Customer subscribes to or uses the Service.
    2. “Order” means a written, electronic or verbal order, or purchase order governed by these Terms and Conditions, submitted or confirmed by Customer and accepted by Comporium, which identifies specific Services; quantity ordered; Comporium’s Agreement number, title, and execution date; billing address; ship-to address; and/or service/installation address, as Verbal Orders are deemed confirmed upon Customer’s written acknowledgment, or Customer’s use, of Service.
    3. “Services” means wireline or wireless business communications services not governed by Tariffs, including basic or telecommunications services, information or other enhanced services, and non-regulated professional services provided by Comporium to Customer under these Terms and Conditions.