Applying to all Magnifi Broadband Services

1.EXISTING SERVICE. If the customer is an existing Magnifi Broadband customer, this service agreement shall supersede any and all prior telecommunication service agreements and/or general services agreements. Furthermore, any and all services currently provided pursuant to any addendum(s) are hereby subject to this service agreement and any and all applicable addendum(s) are hereby incorporated by reference.

2.STATE OF SERVICE. Unless otherwise provided for in the service agreement, including any applicable addendum(s), customer’s liability for service charges shall commence upon installation by Magnifi Broadband. Magnifi Broadband shall use commercially reasonable efforts to install services on the firm order commitment date; however, Magnifi Broadband shall have no liability for untimely installation. If Magnifi Broadband fails to make service available within ninety (90) days after receipt of customer’s duly signed service agreement, unless prior arrangements have been made mutually agreed upon by Magnifi Broadband and customer, customer’s sole remedy shall be cancellation, upon written notice to Magnifi Broadband, of the individual service so affected.

3.CHARGES AND PAYMENT. Recurring charges shall be invoiced by Magnifi Broadband on a monthly basis in advance and non-recurring charges shall be invoiced in arrears. Customer shall make all payments due hereunder prior to the 15th day of the month following the date of invoice. In the event that the service start date and/or last day of service for any service falls on other than the first day of any month, the first invoice and the last invoice to customer will be prorated. Partial month’s billing adjustments will not apply to installation charges or to monthly charges for termination ends. In addition to its other rights hereunder, Magnifi Broadband may: (1) impose a late payment charge of 1.5% per month and such late charge shall be payable upon delivery of Magnifi Broadband’s invoice to customer and (2) require the prepayment of up to 2 months of recurring charges for the facilities ordered hereunder as a condition of the continued provision of all such services, which prepayment shall be applied against the last 2 months of recurring charges hereunder. No payment due under this agreement is subject to reduction, set-off, or adjustment of any nature except as specifically provided in outage credit (see below).

Any applicable sales, use, commercial, or other similar taxes or license fees imposed with respect to services provided by Magnifi Broadband, as well as any other imposition by any governmental authority which has the effect of increasing Magnifi Broadband’s cost of providing such services, shall also be payable by customer in addition to the other charges set forth in this agreement. An invoice shall be deemed to be correct and binding upon customer if written notice of any disputed charges is not received by Magnifi Broadband within thirty (30) days of the date of any invoice. Prices for services shall be subject to change during any renewal term upon thirty (30) days written notice by Magnifi Broadband.

4.BILLING. Magnifi Broadband processes billing on the 25th of each month. All bills are due on or before the 15th of the month. Any account not paid in full by then is subject to disruption of service on the 16th, without notice. If an account is suspended, the entire balance must be paid before service is restored and a $25 reconnection fee will be imposed. Checks returned for nonsufficient funds will incur an additional fee of $20.00 and service will be disabled until payment is made to the collection company. In the event the undersigned defaults in payment and your account is turned to a collection agency, I agree to pay collection costs for collection of accounts without resort to legal action is 35%, and collection of accounts which require legal action is 5o%, and reasonable attorney fees. This is without exception.

5.OUTAGE CREDITS. An “outage” is any continuous and interrupted period of time when capacity is “unavailable” as defined herein and which is not a scheduled outage. Customer shall be entitled to an outage credit determined by the following formula in the event of an outage and must be requested by customer within 30 days of the event:

Outage credits = (monthly charge of affected service)/number of days of the month)

An outage shall be deemed to have commenced upon verifiable notification thereof by customer to Magnifi Broadband or when indicated by network control information actually known to Magnifi Broadband personnel, whichever is earlier. Each outage shall be deemed to terminate upon restoration of the affected service as evidenced by appropriate network tests by Magnifi Broadband. Magnifi Broadband shall give notice to customer of any scheduled outage as early as is practicable.

Outage credits shall be granted only for outages resulting from the unavailability of the services provided by Magnifi Broadband to customer, as defined in this agreement and addenda, and shall not be granted if the malfunction of any end-to-end circuit is due to an outage or the defect occurring in the interconnection services described in this agreement or for reasons beyond Magnifi Broadband’s reasonable control.

All outage credits shall be credited on the next monthly invoice for the affected service and the total of all outage credits applicable to or accruing in a given month shall not exceed the amount payable by customer to Magnifi Broadband for that same month for such service. Except as provided in this agreement, the outage credits described in this paragraph of this agreement shall be the sole and exclusive remedy of customer in the event of any outage.

6.DEPOSIT. Customer may be required to pay a deposit prior to the installation of service or at any time during the term of the agreement. Magnifi Broadband reserves the right during the term of this service agreement to review customer’s monthly bills and payment history and if deemed necessary, may require an initial deposit and/or increase in existing deposit. Such deposit will not be interest bearing and will be applied to the last month’s service on the account. Once service has been terminated, if the account is at a zero balance and all equipment has been returned to Magnifi Broadband in good working condition, said deposit will be returned to customer within 30 days of service termination.

7.CHANGE AND/OR CANCELLATION OF SERVICE. If customer cancels or otherwise changes their order of service with Magnifi Broadband, then customer agrees that certain cancellation or change of service/order charges may apply. Magnifi Broadband’s cancellation and change of service/order charges are provided to customer in their initial sign up packet. Such charges may be changed from time to time by Magnifi Broadband. Customer’s continued use of the service after any such policy changes are made constitutes acceptance of any such changes.

8.CANCELLATION/TERMINATION LIABILITY. If prior to the end of the term of the service agreement or any addendum, (a) Magnifi Broadband terminates this service agreement or any addendum because of customer’s breach or default, or (b) if customer terminates the service agreement or an attachment for reasons other than a material breach by Magnifi Broadband, or (c) if customer reduces its services below the original contracted services, then customer will be responsible for paying Magnifi Broadband a termination charge equal to (i) any and all installation charges, reasonable construction costs, or other charges or costs which have been incurred by Magnifi Broadband in directly providing customer with service, plus (ii) one hundred percent (100%) of all monthly charges for the services multiplied by the number of months remaining in the first year of the term of the applicable attachment, if any, plus fifty percent(50%) of all monthly charges for services multiplied by the number of months remaining in the term or any renewal term, as the case may be. Termination charges do not apply to services purchased by customer on a month-to-month basis.

9.CUSTOMER’S OBLIGATION. Customer shall (1) be required to provide adequate electrical power, a suitable router, environment, and space for Magnifi Broadband’s equipment and is responsible for any damages caused to Magnifi Broadband’s equipment by customer’s negligence; (2) shall make Magnifi Broadband’s equipment located on customer’s premises available for maintenance in a timely manner; (3) shall pay Magnifi Broadband’s charges for time and material resulting from problems which were caused by customer or customer’s equipment; and (4) upon reasonable advance notice, customer shall provide Magnifi Broadband with access to Magnifi Broadband’s equipment for the purpose of removing same. Any Magnifi Broadband equipment shall remain the property of Magnifi Broadband and shall not become part of the real estate or customer’s personal property.

10.EQUIPMENT AND INSTALLATION. Customer shall have no right to install equipment in any service without prior approval of Magnifi Broadband which may be withheld in its sole discretion and, if permitted, shall be subject to the execution of Magnifi Broadband’s agreement and the payment of fees for occupancy.

11.FORCE MAJEURE. Except as provided below, Magnifi Broadband shall not be liable for any failure of performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of god, fire, explosion, vandalism, fiber optic cable cut, storm, or other similar catastrophes, any law, order, regulation, direction, action, or request of the united states government, or of any other government, including state and local governments having jurisdiction over either of the parties, or of any department, agency, commission, court, bureau, corporation, or other instrumentality.

Insurrections, riots, wars, or strikes, lockouts, work stoppages, or other labor difficulties.

If any such failure of performance on the part of Magnifi Broadband shall be for (i) 30 days or less, then this agreement shall remain in effect but customer shall be relieved of its obligation to pay for that portion of the services affected for the period of such failure of performance; or(ii) more than thirty (30) days, then customer may terminate the provisions of this agreement only insofar as they relate to the services so affected.

12.LIMITATION OF LIABILITY of Magnifi Broadband; WARRANTIES. Magnifi Broadband hereby disclaims any liability to customer for interruptions affecting the services furnished hereunder which are attributable to customer’s interconnection facilities or equipment failures.

There are no warranties expressed, implied, oral, or written, with respect to the services furnished pursuant to this agreement, including but not limited to any implied warranty of merchantability or fitness for a particular purpose.

In no event shall either party or any of its affiliates be liable to the other party or any of its affiliates for any loss of profit or revenue or for any indirect, consequential, incidental, punitive, or similar or additional damages incurred or suffered as a result of unavailability, performance, non-performance, termination, breach, or other action or inaction under this agreement, even if a party advises the other party of the possibility of such loss or damage except as provided in this agreement. In no event shall Magnifi Broadband or any of its affiliates be liable to customer or to any third party or any of either of its affiliates for any outage or incorrect or defective transmissions, or any direct or indirect consequences thereof, incurred or suffered while using Magnifi Broadband’s networks.

13.INDEMNIFICATION. Each party shall indemnify and hold harmless the other party, its directors, officers, employees, successors, and assigns (where approved), from all damages ,costs, expenses, and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party and arising in connection with the indemnifying party’s negligent performance of, or an omission to perform, its obligations, and duties under this agreement. Magnifi Broadband shall indemnity and hold customer harmless from any loss, damage, liability, or expense on account of any claim(s) and shall defend any suit and dispose of any claim(s) or other proceedings based solely on an allegation that use of Magnifi Broadband network services, excluding any interconnection facilities provided by customer infringes any united states or foreign patent or other proprietary right. The indemnified party shall promptly notify the other party of any such suit or claim.

14.CONFIDENTIALITY. Neither party shall disclose to any third party the terms and conditions of this agreement without the prior written consent of the other party, which will not be unreasonably withheld. In addition, the terms and conditions of this agreement are subject to a separate confidentiality and non-disclosure agreement between customer and Magnifi Broadband. Neither party shall use the other’s name in publicity or press releases without obtaining that party’s prior written approval, which will not reasonably be withheld.

15.ADDITIONAL PROVISIONS. (a) failure to give notice of default or to enforce compliance with any condition of the service agreement, the waiver of any condition or the granting of an extension of time for performance shall not constitute the permanent waiver of any term or condition of this service agreement; (b) Magnifi Broadband shall be entitled to attorneys fees and related expenses in the event suit is brought or an attorney is retained to enforce the terms of this service agreement or to collect any moneys due hereunder or to collect money damages for breach hereof; (c) the service provided by Magnifi Broadband is subject to the condition that it will not be used for any unlawful purposes; (d) any modification to this service agreement must be in writing signed by both parties and customer acknowledges that no representation, promise, inducement, or statement of intention has been made by Magnifi Broadband which is not included herein; (e) this service agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns, provided, however, that customer shall not assign or transfer its rights or obligations under this service agreement without the prior written consent of Magnifi Broadband; (f) if any part of this service agreement shall be held unenforceable the remainder of this service agreement shall remain in full force and effect; (g) descriptive headings in this service agreement are for convenience only and shall not affect the construction of the service agreement; (h) customer grants Magnifi Broadband the right to perform all of its obligation under this agreement.

16.NOTICE. Notices under this service agreement and attachment shall be effective if in writing and delivered in person or by united state first class mail, postage prepaid, to the names and addresses appearing below, and such notice shall be effective three (3) days after the date of mailing. Notwithstanding the above, any notices of breach or termination shall be delivered in person or sent via certified mail, return receipt requested.
To Magnifi Broadband:
710 W Main
Sterling, Co 80751

17.TAXES AND ADDITIONAL CHARGES. Any applicable federal, state, or local use, excise, personal or business property, franchise, sales, or privilege taxes, duties, or similar liabilities, or any subscribed inter-exchange carrier charges, if any, charged to or against Magnifi Broadband or customer because of the services furnished by Magnifi Broadband or another regulatory surcharge (whether mandatory or discretionary) shall be paid by the customer in addition to the regular charges under this service agreement and any addenda thereto. If during the course of any current or future governmental audit/examination, it is determined that the service that customer is purchasing is being used in a manner other than represented to Magnifi Broadband and such representation results in a tax-related assessment against Magnifi Broadband or any of its operating subsidiaries, the customer agrees to reimburse Magnifi Broadband for any taxes, penalties, and interest that may be assessed as a result of this misrepresentation.

18.LAWS AND REGULATIONS. Magnifi Broadband services are subject to all applicable federal, state, and local laws, regulations, rulings, and orders of governmental agencies, obtaining and continuance of any required approval or authorization of the fcc or any governmental body. Either party may terminate its obligations without liability with regard to the service if ordered to do so by a court or other governmental agency. If any court or regulatory order, ruling, or regulation would materially and adversely impact Magnifi Broadband in carrying out its obligations under this service agreement, Magnifi Broadband shall have the right to terminate this agreement and/or any applicable attachments without liability for such termination. In the event of a ruling or enactment by a governmental authority or actions of a necessary third party provider, including but not limited to another local exchange carrier which adversely effects the cost of providing service, Magnifi Broadband reserves the right upon thirty (30) days notice to customer to discontinue the effected service or increase Magnifi Broadband’s pricing, in the event of such a price increase, customer may cancel the effected service without penalty upon sixty (60) days prior to written notice.

19.FRAUD AND NETWORK SECURITY. Magnifi Broadband is not liable for any damages, including without limitation usage and toll charges customer may incur as a result of the unauthorized use of customer’s telephone and/or network facilities. This unauthorized use includes but is not limited to the placement of calls from customer’s premises and the placement of calls through customer provided equipment and/or customer’s network. In no event will Magnifi Broadband be liable for protection of customer’s network, transmission facilities, or equipment from unauthorized access or for any unauthorized access to or alteration, theft, or destruction of customer’s data files, programs, procedures, information, or other network elements or content through fraudulent means or devices. Customer shall remain responsible for any long distance charges or other charges irrespective of any actual or alleged unauthorized or fraudulent use. Magnifi Broadband shall use reasonable efforts to obtain a credit from its long distance carrier for all fraudulent or unauthorized long distance usage, when applicable. Magnifi Broadband shall also have the right, but not the obligation, to immediately deactivate customer’s long distance service or other services in the event Magnifi Broadband reasonably believes such service is the subject of suspected theft or fraud.

20.REMEDIES. Upon the happening of any event of default, the non-defaulting party may, in addition to any other rights it has according to law, (i) suspend its performance under this agreement so long as such default remains uncorrected but only after providing ten (10) days advance written notice of such suspension to the defaulting party; or (ii) terminate this agreement by providing thirty (30) days advance written notice of termination to the defaulting party. If customer is the defaulting party, Magnifi Broadband may collect the total of all charges specified herein throughout the remainder of each service’s minimum term as a single amount, which shall become due and payable upon written notification to the customer of this election by Magnifi Broadband. Customer’s sole remedy for such default shall be cancellation of the agreement.

21.DEFAULT. An event of default shall occur if: (1) either party fails to make any payment required to be made by it under this agreement and any such failure remains uncorrected for ten (10) days after the date such payment was due; (2) either party fails to perform or observe any material term or obligation other than making payment contained in this agreement and any such failure remains uncorrected for thirty (30) days after receipt of a notice from the non-defaulting party informing the defaulting party of such failure; or (3) a voluntary or involuntary proceeding shall be commenced

By or against either party in any jurisdiction seeking liquidation, reorganization or other relief under any bankruptcy or similar law which is not dismissed within 60 days of filing or either party shall make an assignment for the benefit of creditors; or shall generally not agree to pay or not be able to pay its debts as they become due. The parties expressly agree that the failure of any particular circuit or any number of circuits to meet the specifications shall not constitute a material breach of this agreement but shall only obligate Magnifi Broadband to provide outage credits as set forth.

22.DISCONTINUANCE OF SERVICE. In all cases where customer desired to terminate service, including without limitation contracts on a month-to-month basis, customer shall provide Magnifi Broadband with thirty (30) days prior written notice that customer is terminating services. Customer shall be responsible for payment to Magnifi Broadband for the services to be terminated through the month in which Magnifi Broadband receives such notice. Additional termination charges may also apply where customer is not on a month-to-month term. Customer is also responsible for the return of all Magnifi Broadband owned equipment in good working condition. Failure to return equipment or damaged equipment will result in incurring additional charges for repair or replacement, whichever is less.

23.NETWORK MODIFICATIONS. Customer understands that Magnifi Broadband may add or remove switches and/or modify or augment its network in the future which in turn, may limit their ability to retain existing codes on the existing switch and/or necessitate other changes or modification to customer’s services. In this instance, customer agrees to cooperate in good faith with Magnifi Broadband to facilitate said network change or modification to customer’s services. Magnifi Broadband agrees to provide customer with a minimum of sixty (60) days notice, when possible.

24.SERVICE OFFERINGS. Magnifi Broadband reserves the right to edit or delete service offerings during the term hereof and to increase its rates if written notice is provided at least thirty (30) days prior to the effective date of the price increase. If Magnifi Broadband raises its prices for service, customer may terminate such services affected by the price increase, without further liability for those services, by giving written notice at least fifteen (15) days prior to the effective date of the price increase. Customer’s continued use of services will constitute acceptance of the new rates.

25.INTERCONNECTION FACILITIES. As used in this agreement, the term “interconnection facilities” shall mean transmission capacity provided by customer or its third party supplier to extend the facilities from a Magnifi Broadband terminal to any other location as designated by customer. Such interconnection facilities shall connect to the services at the network interface points located at the Magnifi Broadband terminals and defined in this agreement. Magnifi Broadband shall not be obligated to provide to customer or its third party supplier any equipment, conduit, cable or common area chase space to facilitate interconnection to the facilities. Any interconnection facilities installed by or on behalf of customer shall be in accordance with Magnifi Broadband specifications for local access and may not be resold or redistributed.

Magnifi Broadband will, upon written request by customer, use reasonable efforts to facilitate the ordering of interconnection facilities on behalf of customer from customer’s designated supplier provided that customer furnishes Magnifi Broadband with an acceptable letter of agency. Customer shall be billed directly by the supplier of interconnection facilities ordered by Magnifi Broadband pursuant to the letter of agency and customer shall indemnify and hold Magnifi Broadband harmless from any claims, demands, or actions arising as a result of the interconnection facilities ordered by Magnifi Broadband pursuant to the terms of this agreement. In no event will unavailability, delay in installation, or other impairment of interconnection facilities excuse customer’s obligation to pay Magnifi Broadband the charges applicable to the services ordered from Magnifi Broadband, whether or not such services are useable by customer.

ADDITIONAL TERMS AND CONDITIONS.

1.This agreement and each provision hereof may be amended only by an instrument in writing signed by the parties hereto. No failure to delay on the part of either party in exercising any right hereunder and no course of dealing between the parties shall operate as a waiver of any provision hereof.

2.In conjunction with this agreement, each party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations, and orders of any commission or other government body.

3.This agreement shall be governed by the laws of the state of Colorado.

This agreement must be executed on behalf of Magnifi Broadband.