Smart City Telecom DSL Business Grade High Speed Internet Service Agreement This DSL Business Grade High Speed Internet Service Agreement is comprised of the Service Period Commit- ment, the Service Agreement, the Acceptable Use Policy (“AUP”), and the Service Level Assurance Policy (“SLAP”) (collectively, the “Agreement”), all of which are made a part hereof and incorporated herein by refer- ence, and together constitute the entire agreement between the Customer and Smart City Telecommunica- tions LLC d/b/a Smart City Telecom (“Company”) pursuant to which Company will provide the Customer with High Speed Internet Access Service (the “Service”). This Agreement is binding and effective upon acceptance and execution by Company. 1. CUSTOMER COMPUTER EQUIPMENT RECOMMENDATIONS. • Windows 98, Millennium, Windows 2000, or XP operating system, MAC OS 7.61 or higher • 500 MHz processor (or greater) • Minimum of 128 Mb RAM • Availability of a minimum of 50 Mb hard disk space • Equipped with a NIC card Please note: • A basic equipment requirement is any device that supports a direct 10mb Ethernet network connection running TCP/IP using static or dynamic IP addressing. • If you require more than four computers to be attached to the DSL router, an additional Ethernet switch or Ethernet hub will be required. • Cabling between the router and this equipment is to be provided by the customer. 2. PREMISE EQUIPMENT. For all Smart City DSL service offerings, the modem is considered Customer Premise Equipment (CPE) and therefore is the property of the customer. 3. ACCESS TO CUSTOMER’S PREMISES. Unless otherwise agreed upon between Company and Customer, Customer Service will be installed four- teen (14) business days from the date of Customer’s completed order for Service. Expedited installation of Service requested by Customer will incur a one-time expedite charge of $225.00. Customer authorizes and agrees to provide Company, its subcontractors, and their respective employees and agents with access (including access to associated equipment) to enter Customer’s Premises (identified above) where any Service is provided as necessary for Company, its subcontractors, and their respective employees and agents to in- stall, maintain, inspect, repair, perform, and remove Company equipment and/or the Service. Customer hereby acknowledges that it has the requisite authority of the owner of the Premises to grant Company access to the Premises as well as consent from the owner of the Premises that Company equipment and/or the Ser- vice can be installed, maintained, inspected, repaired, and removed at or from the Premises. 4. PAYMENT TERMS. Customer agrees to pay Company for Service, including any early termination charges, according to the terms of the Agreement. Amounts not paid within fifteen (15) days of the date of invoice shall be considered past due. All amounts due for Service shall be billed and paid in United States dollars. Customer agrees to pay to Company the lesser of an annual interest rate of 18% (or a monthly rate of 1.5%) or the maximum amount allowed by law on all accounts which are not paid on or before fifteen (15) days from the billing date found on the invoice. Failure of the Customer to make payment hereunder when due may result in termina- tion of Customer’s Service and this Agreement by Company. Page 1 5. CUSTOMER SERVICE AND SUPPORT. At no additional charge to Customer, Company will provide 24 x 7 proactive monitoring (SNMP Manage- ment) and Tier 1 and Tier 2 Help Desk support. Tier 3 Help Desk support will be provided during Company’s normal business hours of Monday through Friday, 7:00 a.m. through 7:00 p.m., E.S.T. Extended hours sup- port seven days a week from 7:00 a.m. through 11:00 p.m., E.S.T. is also available at the additional monthly rate of $45.00. Company’s call out response time shall be within two (2) hours during Company’s normal busi- ness hours. Customer requested call outs after Company’s normal business hours will be billed to Customer on a time and materials basis at Company’s then current rates and charges for same, with a three (3) hour mini- mum. 6. SERVICE PERFORMANCE LEVELS. Customer should refer to the SLA for the various specific performance levels for Service. Company pro- vides a limited guarantee of Service availability. Stated Company Service performance parameters in the SLA are based on the assumption that Customer’s network is appropriately engineered. 7. SECURITY. COMPANY WILL NOT BE RESPONSIBLE FOR ANY CORRUPTED FILES OR VIRUSES THAT AFFECT CUSTOMER OR ANY OTHER USER OF THE SERVICE. It is Customer’s responsibility to safeguard Customer’s system and equipment, through appropriate means (e.g. using passwords, commercially available hardware/software), from theft, unauthorized use or system corruption. Due to the “always on” nature of the Service technology, any detriment caused to Customer’s computer system as a result of Customer’s failure to properly secure Cus- tomer’s system will be Customer’s responsibility. Any detriment caused to the Company’s Network as a result of Customer’s failure to properly secure Customer’s system may result in the immediate suspension of Cus- tomer’s Service by Company. 8. COMPANY’S CONTENT RIGHTS. Company has neither liability nor obligation to: (a) monitor the content on the Service and expressly disclaims any responsibility for any offense or injury arising out of the Customer’s access to dissemination of such content. However, Customer acknowledges and agrees that Company has the right to monitor content electroni- cally from time to time and to disclose any information as necessary to satisfy any law, regula- tion, or other governmental request to operate the Service properly, or to protect itself or its subscribers. Company reserves the right to refuse to post or to remove any information or materials that, in it sole discretion, are unacceptable, undesirable, or in violation of this Agree- ment; (b) assume responsibility for the content contained on the Internet or otherwise available through the Service. There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals, or which may not be in compliance with all local laws, regulations, and other rules. All content accessed by Customer through the Ser- vice is accessed and used by Customer at Customer’s own risk, and neither Company, nor any of its affiliates, nor any of their respective subcontractors, employees and agents, shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to access to such content by Customer. Company specifically dis- claims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service. 9. NO COMPANY LIABILITY. The Company shall have no liability for: (a) Eavesdropping. Other Service subscribers may be able to access and/or monitor Customer’s use of the Service. Any sensitive or confidential information (such as credit card numbers or Page 2 sent at Customer’s sole risk, and neither Company, nor its affiliates, nor any of their respec- tive subcontractors, employees, or agents, shall have any liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to such ac- tions by Customer; (b) FTP/HTTP/Proxy/Gateway Server Setup. Customer should be aware that when using the Ser- vice to access the Internet or any other online service, there are certain applications, such as FTP, HTTP, proxy, or gateway server applications, which may be used to allow other Service users and Internet users to gain access to Customer’s computer. Neither Company, nor its affiliates, nor any of their respective subcontractors, employees, or agents, shall have any li- ability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from, arising out of or otherwise relating to the use of such applications by Customer, includ- ing, without limitation, damages resulting from others accessing Customer’s computer or from any loss of data maintained on the Network. 10. LIMITATION OF LIABILITY. Unless otherwise specifically provided in this Agreement, neither Company nor its affiliates, nor any of their respective subcontractors, employees or agents, will be liable to Customer or to any third party for: (a) any direct, indirect, incidental, special, punitive, or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly from, or otherwise arising in connection with, the use of the Service by Customer or any use of Company’s equipment or network, including, without limitation, any damage resulting from or arising out of Customer’ reliance on or use of Com- pany equipment, network, or Service, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, non-deliveries, misdeliveries, transmission, or any failure of performance of Company’s equipment, network, or the Service; (b) any direct, indirect, incidental, special, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly from, or otherwise arising in connection with, the termi- nation or reclassification of Customer’s account by Company pursuant to this Agreement; and (c) any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting di- rectly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit, or other proceeding based upon a contention that the use of Company’s equipment, network, or Service by Customer or a third part infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party Customer agrees that any credit for service outage in the SLA will be Customer’s exclu- sive remedy for any interruption of or defects in the Service, regardless of cause. Customer’s sole and exclusive remedies under this Agreement are as expressly set out in this Agreement. 11. TERMINATION OF SERVICE. As used herein, “cause” shall mean a failure of either party to perform a material obligation under this Agreement which failure is not remedied by the defaulting party within thirty (30) days of receipt of written notice thereof from the other party. Customer shall not use Company’s equipment, network, or the Service directly or indirectly to resell the Service or otherwise charge others to use the Service. The Service is for the personal use of Customer only and Customer agrees not to use the Service for operation as an Internet Service Provider (“ISP”) or for any other business enterprise. The Company may immediately terminate Customer’s Service and/or the Agreement for any violation of any of the terms and conditions contained in the Agreement including nonpayment. In the event that all or any part of the Service provided hereunder is terminated for cause by Company or disconnected at Customer’s request prior to expiration of the selected Service Commit- ment Period, the Customer will be required to pay Company, in addition to all accrued but unpaid charges through the date of such early termination, early termination charges for cancellation of service. The early termination charges are determined by multiplying the number of months remaining in the Service Commit- ment Period by the contracted monthly rate, and then by sixty five percent (65%.) Page 3 12. MULTIPLE USERS. Customer acknowledges that Customer is executing this Agreement on behalf of Customer and all per- sons who use Company’s equipment, network, or Service through Customer’s computer and is responsible for the activities of anyone using Customer’s service. By signing this Agreement and accepting Service from Company, Customer shall have sole responsibility for ensuring that anyone using Customer’s Service under- stands, will comply with and abide by the terms and conditions of this section and the Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of the Agreement, whether such breach is the result of use of the Service, Company’s network, and/or Company equipment by Customer or by any other user of Customer’s computer or Cus- tomer’s Service. Customer agrees to indemnify and hold harmless Company, and its respective affiliates, subcontractors, employees, and agents, from any claims arising from Customer’s use of the Service; this in- cludes, but is not limited to, use of network, or the Service in any manner prohibited under this section and/or the Agreement. 13. GENERAL. This Agreement shall be governed by Florida law. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable Florida law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall re- main in full force and effect. Company’s failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. This Agreement may not be assigned or transferred by Customer. This Agreement is freely assignable by the Company to third parties. This Service Agreement together with the Service Period Commitment, SLAP, and the AUP con- stitute the entire Agreement and understanding between the parties with respect to the subject matter hereof and supersedes and replaces any and all prior written or verbal agreements. Page 4
"Service Smart Agreement"