Terms of Service
THIS SERVICE AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR USE OF SERVICES PROVIDED BY FIDIUM (“WE”, “US” OR “FIDIUM”). THIS DOCUMENT IS A LEGALLY BINDING AGREEMENT THAT DESCRIBES THE TERMS AND CONDITIONS PURSUANT TO WHICH FIDIUM WILL PROVIDE ITS CUSTOMERS (“YOU” OR “CUSTOMER”) WITH THE SERVICE AND ANY RELATED SOFTWARE AND EQUIPMENT. PLEASE READ THEM CAREFULLY.
This Agreement is entered into between you and Fidium and applies to all services provided to you directly by Fidium or indirectly through resale or agent arrangements that Fidium has made with third parties. The “Service” is defined collectively hereunder to include, but is not limited to high-speed Internet, Voice over IP (VoIP) telephone service, and other products and services provided to you under the Service plan applicable to your Service. The Service also includes (i) any software provided to you for use in connection with the Service which is owned by Fidium or its third party licensors, providers and suppliers (“Software”); (ii) any equipment provided to you by Fidium or its third party providers or suppliers, including without limitation wireless gateways, wireless extenders and other equipment (“Equipment”); (iii) any content provided by Fidium or its third party licensors or suppliers that is accessible on the Service, including without limitation images, photographs, animations, video, audio, music, and text in any format (“Content”); and (iv) any subscription services, technical support services, and other ancillary services provided to you by Fidium or its providers or suppliers. The Service does not include video services.
1. MODIFICATIONS TO THIS AGREEMENT.
From time to time, Fidium will make modifications to this Agreement and the policies relating to the Service. You will be provided notice of material modifications by: a) posting modifications to the Website; and/or b) sending an email to your primary email address on file and/or c) a message on Fidium’s bill to you. Any change will be effective when Fidium posts the changes on the Fidium Website, except where applicable law requires a notice period, in which case the change will become effective at the end of the required notice period. By entering into this Agreement, you agree to visit Fidium’s website periodically to review any such modifications. If you do not agree to the changes, you have the right to cancel Services. By continuing to use the Service after modifications are effective, you accept and agree to abide by all modifications that have been made. The updated, online version of the Agreement shall supersede any prior version of the Agreement that may have been included in any software or related materials provided by Fidium.
2. AUTHORIZED USER, ACCOUNT USE, AND RESPONSIBILITIES.
2.1. Acknowledgement of Authority. You acknowledge that you are eighteen (18) years of age or older and that you have the legal authority to enter into this Agreement. If you are not the owner of the house, apartment or other premises upon which the Fidium Equipment is to be installed, you warrant that you have obtained the consent of the owner of the premises for Fidium personnel and/or its agents to enter the premises for the purposes described in this Agreement. You agree to indemnify and hold Fidium harmless from and against any claims of the owner of the premises arising out of the performance of the Agreement (including costs and reasonable attorneys’ fees).
2.2. Installation of Service and Equipment. You authorize Fidium to make any preparations to the premises necessary for the installation, maintenance or removal of equipment. You authorize Fidium to place equipment and cables on the premises to facilitate the provision of Services to you and other locations in the area. Fidium shall not be liable for any effects of normal Service installation and workmanship, such as holes in walls, which may remain after installation or removal of the Fidium Equipment, except for damage caused by gross negligence or willful misconduct on the part of Fidium. You agree to provide Fidium access to the premises during regular business hours upon reasonable notice to install, connect, inspect, maintain, repair, replace, alter, disconnect or remove the Fidium Equipment or to install Software, to conduct service theft audits or to check for signal leakage. You agree that Fidium may have reasonable access to easements and Fidium Equipment located on the premises.
2.3. Responsibility for Use. You are responsible for all use of your Service and account, whether by you or someone using your account with or without your permission, including all secondary or sub-accounts associated with your primary account, and to pay for all activity associated with your account. You agree to comply with all applicable laws, regulations and rules regarding your use of the Service and to only use the Service within the United States (unless otherwise permitted by this Agreement). You agree promptly to notify Consolidated whenever your personal or billing information changes.
2.4. Restrictions on Use. The Service is a consumer grade service and is not designed for or intended to be used for any commercial purpose. You may not resell the Service, use it for high volume purposes, or engage in similar activities that constitute such use (commercial or non-commercial).
2.5. Permission to Obtain Credit Information. You give us permission to obtain your credit information from consumer credit reporting agencies, and for us to furnish your bill payment information to consumer credit reporting agencies.
3. CHANGES TO SERVICE.
3.1. Changes to Service or Features. We reserve the right to change any of the features, Content or applications of the Service at any time with or without notice to you. This includes the portal services and the home network management mobile application we may make available as part of the Service or for an additional charge.
3.2. Force Majeure. If the performance of any obligation of Fidium or its suppliers or providers hereunder is interfered with by reason of any circumstance beyond our reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, cable cuts, power surges or interruptions or failures of electrical service, changes in laws or regulations or other actions of governmental authorities, or the act or omission of any third party, we shall be excused from such performance to the extent of such interference, provided that Fidium shall use reasonable commercial efforts under the circumstances to avoid or remove such causes of nonperformance.
4. PAYMENT; CHARGES.
4.1. Billing Period. Billing for Service will automatically begin on the date provisioning of your Service is complete (“Service Ready Date”). Charges accrue through a full billing period. We may prorate or adjust a bill if the billing period covers less than or more than a full month (for this purpose, each month is considered to have 30 days). Non-recurring charges such as set up, activation and installation fees and Equipment charges will be included in your first bill, if applicable. Monthly Service recurring charges will be billed one month in advance and any usage charges will be billed in arrears. We will determine the format of the bill and the billing period, and we may change both the format and billing period from time to time.
4.2. Money Back Guarantee. The 30-day money back guarantee (“MBG”) for your Service begins on your Service Ready Date. During this MBG period you may cancel your Service and receive a full refund of all monthly, one-time and Equipment charges paid to us (provided you return all Equipment as required in good working condition and without damage). If you fail to return the Equipment as required or if it is damaged, an Equipment fee will apply. Fees apply for any unreturned or damaged Equipment that we provide to you. The MBG does not apply to existing Fidium customers who change or renew their existing Service. The MBG is limited to one per Customer or per Service address.
4.3. Late Payment Fees. You must pay all bills on or before the due date and in U.S. money. We do not waive our right to collect the full amount due if you pay late or you pay part of the bill, even if you write the words "Paid in full" (or similar words) on any correspondence to us. If any portion of your bill is not paid by the next due date, we may charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. Late payment charges will not exceed the maximum amount allowed under applicable law. No late fee will be assessed upon properly disputed charges (see Section 4.5). You may set up an affordable weekly or monthly payment arrangement by calling 1.844.PAY.FIDIUM (1.844.729.3434). We reserve the right to charge a convenience fee on payments made by phone.
4.4. Discontinuation of Service for Nonpayment. We may discontinue Service without notice if you fail to make payment when due, or if your payment method (i.e., personal check, credit or debit card) is refused for any reason. If your payment is returned for non-sufficient funds, Fidium will resubmit it electronically. A charge may apply for each payment returned. If we use a collection agency or legal action to recover monies due, you agree to reimburse us for all expenses we incur to recover such monies, including attorneys’ fees.
4.5. Resolution of Billing Disputes. Within 30 days of the bill date of a disputed bill, we must receive from you an itemized statement in writing, which identifies the disputed charges and reasonably explains the basis of the dispute. Failure to comply with this requirement shall mean the bill is deemed to be correct and all amounts are due and payable to us. We shall review your statement and shall contact you by phone or issue a written initial determination within 30 days after receipt of your statement to set forth our proposed resolution of the dispute. If you are not satisfied with our proposed resolution, you must advise us in writing within 15 days after your receipt of our initial determination of the specific reasons for the dissatisfaction, and provide any additional information, which you deem pertinent or relevant to the dispute. Within 15 days after we receive additional information, we shall make a final determination and resolution based upon all documentation or information available to us. If you continue to withhold any disputed amount determined to be owed to us, your account shall be deemed to be past due, and subject to termination.
4.6. Monthly and Nonrecurring Charges, Fees and Surcharges. You agree to pay the monthly and nonrecurring charges applicable to your Service, including equipment lease charges and installation fees, as well as applicable federal, state and local taxes, fees and surcharges, until canceled by you or terminated by the Company. The taxes, fees and other charges may vary on a monthly basis. Fidium will not provide advance notice of changes to taxes and surcharges except as required by applicable law. Fidium reserves the right to implement monthly administration fees and surcharges to recover the cost of business operation and expenses incurred due to state and federal mandates. These are not taxes and are not required by law, but are set by us and may change. If this occurs, each required fee will be posted fifteen (15) days in advance on our website.
4.7. Base Rates. We may change the prices and charges for the Services from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Services are effective no sooner than fifteen (15) days after we post them on our website.
5. TERMINATION OR SUSPENSION OF SERVICE.
5.1. Month-to-Month Accounts. Fidium Service is provided on a month-to-month basis. Either you or Fidium may terminate this Agreement at any time by giving notice to the other as set forth in this Agreement.
5.2. Termination by Customer. You are responsible for all monthly charges, taxes, fees and surcharges billed through your Service Termination Date. Activation or set-up fees paid at the initiation of your Service, if any, are not refundable, except during the 30-day MBG period. If you wish to cancel your Service, you may do so by calling Fidium at 1.844.4.FIDIUM (1.844.434.3486).
5.3. Termination and/or Suspension by Fidium. Fidium reserves the right to change, limit, terminate, modify or temporarily or permanently cease providing the Service or any part of it with or without prior notice in accordance with this Agreement, or if you violate any terms of this Agreement. If Fidium terminates your Service, you must immediately stop using the Service and you will be responsible for the applicable fees and/or Equipment charges billed through your Service Termination Date. If your Service is reconnected, a reconnection fee may apply.
5.4. Return of Leased Equipment. If your Service is terminated for any reason and you received leased Equipment, you must return the Equipment to Fidium within ten (10) business days following termination or you will be charged for the Equipment, unless your Service plan provides for a different period of return.
6. WARRANTIES AND LIMITATION OF LIABILITY.
6.1. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY FIDIUM (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT). FIDIUM (AND THEIR OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES) AND THEIR THIRD-PARTY LICENSORS, PROVIDERS AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY CONSOLIDATED OR THEIR REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED.
6.2. FIDIUM DOES NOT WARRANT OR GUARANTEE THAT SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF WE HAVE ACCEPTED YOUR ORDER FOR SERVICE. THE PROVISIONING OF SERVICE IS SUBJECT TO NETWORK AVAILABILITY, CIRCUIT AVAILABILITY, THE CONDITION OF YOUR EQUIPMENT AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR FIDIUM SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY FIDIUM-PROVIDED EQUIPMENT).
6.3. FIDIUM DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT PROVIDED BY FIDIUM WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE. FIDIUM SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.
6.4. IN NO EVENT SHALL FIDIUM OR CONSOLIDATED’S THIRD-PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, OR RELIANCE ON OR PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
6.5. THE LIABILITY OF FIDIUM, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD-PARTY END USER LICENSE OR OTHER AGREEMENTS) THIRD-PARTY LICENSORS, PROVIDERS OR SUPPLIERS, FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO FIDIUM FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.
6.6. ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 6 ALSO APPLY TO FIDIUM’S THIRD-PARTY LICENSORS, PROVIDERS AND SUPPLIERS, AS THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
6.7. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
7.1. You agree to defend, indemnify and hold Fidium harmless from and against all liabilities, costs and expenses, including reasonable attorneys’ and experts’ fees, related to or arising from your use of the Service (or the use of your Service by anyone else), (a) in violation of applicable laws, regulations or this Agreement; (b) to access the Internet or to transmit or post any message, information, software, images or other materials via the Internet; (c) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property; or (d) claims for infringement of any intellectual property rights arising from or in connection with use of the Service.
8. GENERAL PROVISIONS.
8.1. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination.
8.2. Fidium will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
8.3. You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed.
8.4. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the state of Delaware, without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party hereby irrevocably consents to non-exclusive personal jurisdiction and venue in the state and federal courts located in the state in which the Service is provided to you with respect to any claim arising out of or related to this Agreement.
8.5. In any action or proceeding arising in connection with this Agreement, to the fullest extent allowed by law, the parties agree to knowingly, voluntarily, and intentionally waive their right to a jury trial and any right to pursue any claim related to this Agreement on a class or consolidated basis or in a representative capacity, to the extent permitted by law.
8.6. Except as otherwise required by law, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
8.7. Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable, in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, FAR 12.212, DFARS 227.7202, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Fidium or its licensors and suppliers. The use of Software and documentation is further restricted in accordance with the terms of this Agreement.
8.8. Fidium’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
8.9. This Agreement, including all policies referred to herein and posted on the Website, constitutes the entire agreement between you and Fidium with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized representative of Fidium. References to “Fidium,” “we” and “us” and to “you” and “Customer” include both parties’ respective subsidiaries, affiliates, agents, employees, predecessors-in-interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this Agreement or prior agreements between us or our predecessors-in-interest.
9. NOTICES. Notices by you to Fidium required under this Agreement must be provided at the following address and shall be deemed given upon receipt by Fidium:
Attn: Customer Service
2116 S. 17th Street
Mattoon, Illinois 61938
With a copy to:
Attn: Legal Department
350 S. Loop 336 W
Conroe, Texas 77304
If you send us an email, you agree that the User ID and/or alias contained in the email is legally sufficient to verify you as the sender and the authenticity of the communication. Email communications to Fidium, however, do not constitute “notice” as contemplated by this Section 9.
Notices by Fidium to you (including notice of modifications to this Agreement under Section 2) shall be deemed given when: (a) transmitted to your primary email address on file; (b) mailed via the US mail, overnight courier or hand-delivered to your address on file; or (c) when posted to the Website.