MARSHALL MUNICIPAL UTILITIES TERMS AND CONDITIONS OF USE FOR INTERNET SERVICE

Approved by the Board of Public Works 9/12/06

TABLE OF CONTENTS

• Introduction
• A. Application for Service
• B. Class of Service and Rates
• C. Supplying Internet Service
• D. Taking Internet Service
• E. Resale and Redistribution
• F. Distribution Lines
• G. Locations Outside of City Limit
• H. Disclaimer of Warranties and Limitation of Remedies
• I. Definitions
• J. Violation
• K. Appeal
• L. Interpretation and Complaint
• M. Amendment
• N. Severability

INTRODUCTION

Please read these Terms and Conditions of Use before accessing or using Internet services provided by Marshal Municipal Utilities. By accessing or using our Internet services, you agree to be bound by these Terms and Conditions of Use. MMU reserves the right, in its sole discretion, to revise these Terms and Conditions of Use at any time. Customer acknowledges that its use of the Internet service is expressly subject to these Terms and Conditions of Use and to MMU’s Administrative policies and procedures, as the same may be amended. Customer recognizes that it is his duty to check MMU’s website or Business Office from time to time to keep well informed of any changes in these Terms and Conditions of Use and MMU’s Administrative policies and procedures.

A. APPLICATION FOR SERVICE

1.01 Application: Each customer must submit an application for Internet Service. MMU will supply Internet service only after the customer’s application for service has been approved by MMU and MMU finds it practicable to render such service. MMU reserves the right to refuse or discontinue Internet service when (i) wiring or equipment does not comply with the requirements of MMU, (ii) a customer violates these terms, or for any other reason in MMU’s sole discretion.

B. CLASS OF SERVICE AND RATES

2.01 Class of Internet Service: Internet service may be provided through a fiber optic connection or through a wireless system.

Fiber Optic-Three levels of service are available for Internet service through a fiber optic connection. For the most current information on the speed and price of the different levels, see our Internet Rates page.

Wireless (existing customers)-One level of service is available for existing wireless Internet service. Wireless bandwidth is limited to 1.0 megabits/second with two email boxes. The actual speed will depend on the quality of the wireless connection and other factors outside the control of MMU. No new wireless services are to be installed except for unusual situations.

2.02 Determination of Customer Classification: The determination of customer classification shall be selected by the customer subject to availability of services at customer’s premise.

2.03 Bandwidth:

Standard-The standard Internet connection is a shared connection. The maximum bandwidth a customer may achieve will be limited. There is no guarantee the customer will have the maximum bandwidth at any given time.

Dedicated-Fiber customers may purchase dedicated bandwidth. MMU may increase its uplink connection as needed in order to provide dedicated bandwidth. The customer’s maximum bandwidth will increase by the amount of dedicated bandwidth purchased. MMU reserves the right to deny dedicated bandwidth service at any time in its sole discretion.

2.04 IP Addresses: One IP address is provided with Internet service. Additional addresses may be provided at an additional cost to the customer.

2.05 Web Hosting:

There is no setup fee if the customer uses a subdomain to mmuonline, such as www.mmuonline.net/~johnpublic. A setup fee will be charged for use of customer’s own domain. Customer is responsible for acquiring and maintaining rights to customer’s domain.

2.06 Tests and Limitations: MMU shall have the right to limit peer-to-peer traffic to a system-wide total of 1 Mbps from 6 a.m. – 10 p.m.

2.07 Rate Schedules: The rate schedules currently in effect for all types of Internet service rendered by MMU are on file and are available for inspection by any customer during working hours at the MMU business office. Upon request, representatives of MMU will explain rate schedules. Rate schedules are also available at our Internet Services page on this site.

Customer will be billed for monthly access base rate charges and other such charges as may be appropriate.

In the event that customer’s equipment or IP Number(s) is lost, stolen or otherwise absent or misappropriated from customer’s possession and control, customer shall nonetheless be liable for all use and other charges attributable to the customer’s account until such time as MMU is notified of the loss, theft or other occurrence.

Late payments shall be subject to MMU standard late charges then in effect.

C. SUPPLYING INTERNET SERVICE

3.01 Premises Adjacent to MMU Facilities: Except as otherwise provided, Internet service will be supplied by MMU only at such premises as are adjacent to MMU’s existing facilities or access points which are adequate and suitable to meet the requirements of the customer. Only authorized MMU employees shall be permitted to connect customer’s installation with MMU’s facilities.

3.02 Separate Service: Each separate premise will be individually connected. MMU shall furnish, install and maintain only one service connection to the customer’s point of delivery.

3.03 Point of Delivery:

Delivery of Fiber Internet Service: The point of delivery of fiber Internet service shall be at the fiber converter. The customer shall install or have available an electrical receptacle at a location specified by MMU.

Delivery of Wireless Internet Service: MMU’s responsibility stops at the radio unit. The customer shall install or have available an electrical receptacle at a location specified by MMU. Due to the nature of wireless service, MMU has little control of the signal quality or strength beyond it’s base station antennas.

3.04 MMU Responsibility Limited: The responsibility of MMU for the quality of service and the operation of its facilities ends at the point of delivery.

3.05 Disclaimer of Guarantee of Constant Supply: MMU shall provide customer with a unique user name(s), if required, and shall identify Internet protocol addresses (IP) which customer may use to connect with MMU’s Internet service. Customer shall have no proprietary rights to the IP address (s) provided by MMU, which may be dynamic. MMU reserves the right to assign, designate or change access IP addresses if, in its sole discretion, such assignment, designation or change is reasonable or necessary in the conduct of its business. Internet service is subject to transmission limitations caused by weather, atmospheric conditions, topographical limitations, electrical interference, radio interference, and other like conditions. Additionally, service may be temporarily refused, limited, interrupted or curtailed due to governmental regulations, actions or orders, system capacity limitations, limitations imposed by an underlying communications carrier, or because of equipment modifications, upgrades, repairs or reallocations or similar activities necessary or proper for the operation or improvement of MMU’s Internet system.

3.06 Internet Line Construction: Internet distribution lines of MMU may be of overhead or underground construction at the option of MMU.

3.07 Rights-of-way and Easements: The customer shall provide all rights-of-way and easements that MMU may determine necessary for construction of distribution lines to serve the customer. Rights-of-way and easements must be not less than 10′ in width, or such greater width as may be necessary in the specific situation as determined by MMU. Such rights-of-way and easements shall be cleared of trees and other obstructions before MMU will commence construction. The customer shall execute any assignments or documents of title as may be requested by MMU in the future with respect to the establishment and protection of such rights-of-way and easements, and shall appoint MMU its attorney-in-fact with respect to such filings.

3.08 Trimming Trees: MMU reserves the right to trim or remove trees, brush, and other vegetation located under, along, or immediately adjacent to MMU’s distribution system as necessary to assure the safe and efficient operation of such system.

3.09 Conflict with Easement: MMU shall have no responsibility for repair or replacement of any customer’s building, improvement or vegetation located over or upon any utility easement.

3.10 Privacy Policy: See attached policy.

D. TAKING INTERNET SERVICE

4.01 Customer’s Installation: In most cases, all wiring or equipment required beyond the point of delivery to utilize the Internet service supplied by MMU shall be furnished, installed, and maintained by the customer.

4.02 Customer’s Responsibility:

The customer shall be responsible for determining whether the customer’s installation, and all portions thereof, are suitable for operation for the class of service to be supplied by MMU. Customer is responsible for obtaining, providing, and maintaining all hardware and software necessary to connect to the system.

The customer shall be responsible for providing power to required equipment located on the customer’s premises, including any such equipment owned by MMU.

4.03 Use of Service and Equipment: MMU’s Internet service and equipment are furnished for use by customer for lawful purposes only.

Customer agrees not to post on or transmit through the service any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, or hateful material of any kind, including but not limited to any material which encourages conduct or would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law. Further, customer agrees not to use the service in contravention of any applicable local, state, national or international law, rule or regulation, including, without limitation, contravention of copyright, trademark, trade secret or other intellectual property laws in a manner which may infringe the rights of individuals, corporations or other entities and result in civil or criminal liability for the infringer. If MMU receives notification from any third party regarding the suitability of customer’s use of the content of any material transmitted by customer, MMU may at it sole discretion, delete customer’s content from the service. Repeated complaints may result in the termination of this agreement by MMU.

Customer agrees not to use the Internet service for the transmission of any chain letters or pyramid schemes of any kind, dissemination of any e-mail messages in broad based or unsolicited mailing (including, but not limited to any transmissions prohibited by the Federal Can-Spam Act of 2003), forge e-mail headers, or take any action that would disguise the origin of e-mail the customer transmits or any other way interfere with any other person’s use and enjoyment of the service or any online service. Violation of this policy may result in immediate termination of customer’s account, and subject the customer to other damage claims or other legal remedies.

Customer warrants that customer is at least eighteen (18) years of age.

4.04 Limitation of MMU’s Liability:

Customer understands and agrees that:

(1) Alternative and competing Internet communications services are available to customer;

(2) Occasional interruption or irregularities in the service may occur;

(3) Any potential harm from interruptions or irregularities in the service is speculative in nature;

(4) MMU cannot offer the service at rates which reflect its value to each customer; and

(5) MMU assumes no responsibility other than that contained in this agreement.

Accordingly, customer agrees that, except as required by law, MMU’s sole liability for loss or damage regardless of whether arising from a mistake, omission, interruption, delay, error, or any defect in the service or transmission of service provided by MMU or any underlying communications carrier, or for losses or damages arising out of the failure of MMU or any underlying communications carrier to maintain proper standards of maintenance and operation shall be as follows:

(1) A credit allowance, as described in this section, may be made at customer’s request, no later than 10 days after the related outage, in the form of a pro-rata adjustment of the fixed monthly charge billed to customer. Fixed monthly charges are the monthly charges for access and optional features, all as described in the Schedule of Rates and Charges in effect at the time of the event which produced such damage.

(2) Such credit allowance will be based upon the period of time during which the service or its transmission was subjected to a material interruption or material irregularity. Any such period of time during which a material interruption or material irregularity occurs will be measured from the time it is reported to MMU. In the event customer is affected by such interruption or irregularity for a period of less than twenty-four (24) hours, no such adjustment shall be made. When such period exceeds twenty-four (24) hours, the length of the interruption or irregularity will be measured in twenty-four (24) hours days. A fraction of a day consisting of less than twelve (12) hours will not be credited, but a period of twelve (12) hours or more will be considered an additional day.

(3) The credit allowance will be computed by dividing the length of the service interruption or irregularity by a standard thirty (30) day month and then multiplying the result by MMU’s fixed monthly charges for each interrupted account number. In no case will the credit exceed the fixed monthly charges.

(4) A credit allowance will not be given for mistakes, omissions, interruptions, delays, errors or defects, or curtailments in the service caused by (i) the negligence or willful acts of customer or any third party; (ii) the failure of equipment or services not provided by MMU; or (iii) events otherwise outside of the control of MMU.

(5) In addition to the limitations set forth above, liability for claims against MMU is also subject to the following limitations:

(a) The liability of MMU for loss or damages arising out of mistakes, omissions, interruptions, delays, errors or defects in the service, its transmission or failures or defects in facilities of the underlying communication carriers shall in no event exceed an amount equivalent to the proportionate fixed monthly charge to the customer for service during the period of time in which such mistakes, omissions, interruptions, delays, errors or defects in the service, its transmission, or failures or defects in facilities furnished by MMU or the underlying communication carriers occurred.

(b) Any material downloaded or otherwise obtained through the use of the Internet services is done at customer’s own discretion and risk. Customer is solely responsible for any damage to customer’s computer system or loss of data that results from the download of any such material.

(c) Customer expressly understands and agrees that MMU shall not be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if advised of the possibility of such damages), resulting from (i) the cost of procurement of substitute services; (ii) use of or inability to use the Internet services; (iii) unauthorized access to or alteration of transmissions; and (iv) any other matter relating to the site of the services.

MMU in no event shall be liable for service or equipment interruptions or delays in transmissions, errors or defects in service or equipment when caused by acts of God, fire, war, riots, government authorities, default of supplier, or other causes beyond MMU’s or any underlying communication carriers’ control.

Customer acknowledges that Internet systems use public access facilities to transmit voice and data communications and that the service may not be completely private or secure. MMU shall not be liable to any customer for any claim, loss, damage or costs which may result from invasion upon the customer’s privacy in using the system. Because of the global nature of the Internet, information may be sent electronically to servers outside of the country. No transmission over the Internet can be guaranteed to be 100% secure. MMU does not provide data encryption services. Any information posted on the Internet could be collected and used by others. This may result in unsolicited messages from third parties or use of such information for their own purposes, legal or illegal.

Customer acknowledges that MMU is merely a distributor of information content provided by others and that MMU’s services, like most other Internet systems, can carry material which may be considered abusive, profane or sexually offensive. MMU is not in a position to monitor the activity or content of all material in which customer may come into contact through use of MMU’s service. MMU shall not be liable to customer for any claims, loss, damages or costs which may result from exposure to such material.

In accordance with the Communications Decency Act and the Digital Millennium Copyright Act, customer understands that in the event MMU receives a demand, notice or other communication (collectively a “claim”) by a third person related to a claim of infringement or distribution of obscene or defamatory material, MMU may take the following actions: (1) given written, e-mail or fax notice to the customer of the claim; (2) temporarily remove or deny access to such material; (3) at MMU’s discretion, await action by the customer and/or third party to resolve any dispute arising from or related to the claim and pending such action, to continue to remove or deny access to such material; or (4) at MMU’s discretion, seek declaratory interpleader or other judicial relief with respect to the claim. MMU shall exercise the above-described rights in its sole and unfettered discretion.

E. RESALE AND REDISTRIBUTION

5.01 Resale: No customer may resell Internet service to another person or provide access to Internet service under any arrangement whereby the customer makes a specific or separate charge for the Internet service so furnished.

5.02 Redistribution: No customer may furnish Internet service to another building used by the customer for a separate business enterprise or to separate premises occupied by another person except as permitted in multiple occupancy premises.

5.03 Multiple Occupancy Premises: No customer may redistribute Internet service to tenants within a multiple occupancy premises unless (i) it is impractical for MMU, in its judgment, to separately supply Internet service to each occupant as a customer of MMU and (ii) customer has received prior written permission from MMU. Where redistribution is permitted, the customer may charge for the Internet service on a rent inclusion basis; i.e., as an incident of the tenancy and without a specific or separate charge for the Internet service.

F. DISTRIBUTION LINES

6.01 Distribution Extensions

Overhead Distribution Extensions Within City Limits: MMU will extend its existing overhead distribution lines within the limits of the City of Marshall to supply overhead Internet service. A non-refundable contribution-in-aid of construction may be required if it is necessary to extend distribution lines in excess of 250 feet.

Underground Distribution Extensions Within City Limits: Upon application by an owner, builder, or developer for an extension of underground distribution lines, MMU may install such underground lines, provided that the applicant provides and installs the underground conduit necessary for such underground lines. Conduit shall be installed in compliance with the National Electric Code at locations and using materials approved by MMU. If requested by customer, MMU may make arrangements with a contractor for installation of such conduit at customer’s expense. The applicant shall be responsible for maintenance and protection of the conduit until it is placed in service by MMU. In addition, a non-refundable contribution-in-aid of construction may be required if it is necessary to extend distribution lines in excess of 250 feet.

6.02 Conduit for Internet and Electric Service: If conduit for installing underground Internet service is installed at the same time as conduit for converting overhead electric service to underground service, MMU would provide the conduit for both Internet and electric services. Installation would be the customer’s responsibility.

6.03 MMU Property: All line extensions installed under this policy shall be and remain the property of MMU, in consideration of its perpetual upkeep and maintenance.

G. LOCATIONS OUTSIDE OF CITY LIMIT

7.01 Locations Outside of City Limit: Prospective customers that are within MMU’s electric service area and are adjacent to an existing MMU fiber distribution line are eligible for service. Prospective customers that are adjacent to an existing MMU fiber distribution line but are not with MMU’s electric service area may make an application for service. If the proposed service requires attachment to any third-party owned poles, the prospective customer must make arrangements with the third party for pole attachments to the satisfaction of MMU management before such application is accepted.

7.02 Same Rules: Internet service outside the city limits will be governed by the same rules and regulations as Internet service within the city limits.

H. DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES

8.01 Customer acknowledges and agrees that MMU is not the manufacturer of equipment or Internet package software and MMU hereby disclaims all representations and warranties, direct or indirect, express or implied, written or oral, in connection with the equipment or service or Internet package software (whether purchased or leased by customer from MMU or another), including, but not limited to, any and all express and implied warranties of suitability, durability, merchantability, non-infringement, virus protection, and fitness for a particular purpose. MMU, to the extent permitted by law and MMU’s agreements with providers, assigns to customer any and all manufacturer’s warranties relating to equipment or Internet package software purchased by customer and customer acknowledges receipt of any and all such manufacturer’s warranties.

8.02 Customer acknowledges and agrees that its sole and exclusive remedy in connection with any defects in the equipment or software used in connection with the service, including manufacture or design, shall be against the manufacturer of the equipment or software under the manufacturer’s warranties and that MMU shall have no liability to customer in any event for any loss, damage, injury or expense of any kind or nature related to, directly or indirectly, any equipment or software or service provider hereunder. Without limiting any of the above, MMU shall have no liability or obligation to customer, either in contract or tort, for special, incidental or consequential damages of any kind incurred by customer such as, but not limited to, claims or damages for personal injury, wrongful death, loss of use, loss of anticipated profits or other incidental or consequential damages or economic losses of any kind incurred by customer directly or indirectly resulting from or related to any equipment, service or software described herein, whether or not caused by MMU’s negligence to the full extent the same may be disclaimed by law. Any references to equipment or software in this paragraph shall be deemed to apply to all equipment or software purchased by customer or leased by customer from MMU or any third party. In no event shall MMU’s liability for matters related to this Agreement exceed the amount of fees paid by customer hereunder.

I. DEFINITIONS
Unless the context specifically indicates otherwise, the meaning of terms used herein shall be as follows:

9.01 MMU: City of Marshall, Missouri, d.b.a., Marshall Municipal Utilities, any successor or assignee thereof, acting through its duly authorized officers, agents or employees within the scope of their respective duties and authorities.

9.02 Person: Any individual, partnership, co-partnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision, governmental agency or other legal entity recognized by law.

9.03 Customer: Any person applying for, receiving, using, or agreeing to take a class of service supplied by MMU under one rate schedule at a single point of delivery at and for use within the premises either (a) occupied by such persons, or (b) as may, with the consent of MMU, be designated in the service application or by other means acceptable to MMU.

9.04 Internet Service: All Internet or Intranet services provided by MMU.

9.05 Premises: That separate walled portion of a single building undivided by any common area, or that separate portion of a single contiguous tract of land (including all improvements thereon) undivided by any way used by the public, which portion is occupied by the customer, or as may, with the consent of MMU, be designated in the service application or by other means acceptable to MMU. All common areas in any such building and on any such tract of land may be deemed by MMU to be occupied by the owner or lessee of such building or tract of land or his authorized agent, as another customer. A “common area” shall include all halls, lobbies, passageways and other areas of a building or a tract of land used or usable by persons other than the customer.

9.06 Building: A single structure that is unified in its entirety, both physically and in operation. Separate structures on the same tract of land, or separate structures on adjoining tract of land (even though separated by a public or private way), may be considered as a building if such separate structures are physically joined by an enclosed and unobstructed passageway at or above ground level and both are occupied and used by the customer for one single business enterprise.

9.07 Customer’s Installation: All appliances and apparatuses of every kind and nature on the customer’s premises on the customer’s side of the point of delivery used or useful by the customer in connection with the receipt and utilization of service supplied by MMU.

9.08 Month: An interval of approximately thirty (30) days, unless specified or appearing from the context to be a calendar month.

9.09 Service Agreement: The application, agreement or contract, expressed or implied, pursuant to which MMU supplies services to the customer.

9.10 Board: The Marshall, Missouri, Board of Public Works.

J. VIOLATION

10.01 MMU may terminate Internet service to any customer who violates any material provision of this policy, if the customer fails to remedy such violation within ten (10) days after written notice thereof from MMU setting forth the details of such violation.

K. APPEAL

11.01 Procedure: In the event a customer should desire to appeal any management action inconsistent with these policies, an appeal must be made in writing or in person to the General Manager or his representative for resolution of the matter. The customer, after a decision by the General Manager, may appeal such decision to the Board of Public Works in writing, providing with the request a detailed description of the dispute and a statement of the relief requested. The Board will address the appeal as it deems appropriate, which may or may not include a hearing. If a hearing is to be held, the customer is to also provide a list of all documents and witnesses to be presented at the hearing.

L. INTERPRETATION AND COMPLAINT

12.01 The Board of Public Works reserves all rights of interpretation of these Terms and Conditions of Use. No employee or agent of MMU shall have the right or authority to bind it by any promise, agreement or representation contrary to the letter or intent of these Internet Policies or of the ordinances of the City of Marshall, or the laws of the State of Missouri.

12.02 Any complaint against the service or employees of MMU should be made at the office of MMU, in writing.

12.03 These Terms and Conditions of Use shall be governed by the laws of the State of Missouri, without regard to conflict of laws principles.

M. AMENDMENT

13.01 These Terms and Conditions of Use may be amended at any regular meeting of the Board of Public Works or at any special meeting thereof called for such purpose, provided that such amendment must receive not less than three affirmative votes of the members of the Board of Public Works. Any amendment or change to these and Conditions of Use shall be effective on the date such amendment or change is passed by the Board of Public Works.

N. SEVERABILITY

14.01 The sections, subsections, sentences, clauses and all other parts of this policy are severable and are not matters of mutually essential inducement; and that, if any one or more of said sections, subsections, sentences, clauses or other parts of this policy shall for any reason be questioned in any court or shall be adjudged unconstitutional or invalid, and the same shall not impair, invalidate, affect or prejudice in any way the remaining provisions of this policy.