zaBYTE’s Terms Of Service Agreement For Internet Service

zaBYTE LLC

TERMS OF SERVICE AGREEMENT FOR INTERNET SERVICE

(Effective March 21, 2021)

Welcome to zaBYTE LLC (“zaBYTE,” “us,” “we,” “our”). Thank you for supporting our local business! zaBYTE provides residential and commercial/business high-speed Internet Service with choice and flexibility to select the broadband service plan that best fits your needs.

This Terms of Service Agreement (“Agreement”) is by and between zaBYTE and any residential or business/commercial customer (“Customer” “you,” and “your”) who subscribes to our high-speed internet service (“Service”). This Agreement takes effect the date when the Customer signs the Service Order. Customer use of the Service, equipment provided by zaBYTE (“zaBYTE Equipment”) or equipment provided by the Customer (“Customer Equipment”) connected to the Service, and any other related services are governed by this Agreement. By using our Service, you understand, acknowledge and agree to the following terms and conditions in this Agreement, in addition to the following documents incorporated by reference herein, including without limitation the zaBYTE Privacy Policy, DMCA Copyright Infringement Policy, Open Internet Transparency Policy, Service Order and Additional Terms (terms and conditions that will govern a new service offering), as each may be amended from time to time. Please read these documents carefully. If there is a conflict between this Agreement and any Additional Terms, the Additional Terms shall govern.

ZaBYTE will regularly update and amend this Agreement and any other document incorporated by reference in this Agreement, when necessary. zaBYTE will communicate any such updates or amendments to Customer in accordance with Section 13(H) herein. Customer may obtain, at no charge, a copy of the current Agreement or any documents incorporated by reference herein by visiting www.zabyte.net (“Website”).

TYPE AND LENGTH OF SERVICE. The length of service (“Term”) for each Customer shall be set forth in the Service Order.

A. Residential Customers.

(i) Residential Service Plans are designated for personal, family and household use within a single home. The term “Single Home” means the Customer’s residence and includes any apartment, condominium, multiple dwelling unit, flat, or other premises that may be used as a residence. Customer understands, acknowledges and agrees that only Customer, co-residents and their visitors at the same premises will use the Service. The Service is provided solely for residential use in the Customer’s home and any unauthorized access by a third party to e-mail, Internet access, or any other function of the Service is in violation of this Policy and the Agreement. Customer is responsible for any misuse of the Service that occurs through Customer’s account, whether by a member of Customer’s household or an authorized or unauthorized third party.

(ii) Residential Service Plans will be month-to-month (“Month-to-Month Service Plan”) unless otherwise indicated. The Term begins with the date installation is completed. This Agreement shall automatically renew on a month-to-month basis until terminated by either the Customer or zaBYTE upon an advance thirty (30) calendar days written notice.

B. Business/Commercial Customers.

(i) Business/Commercial Service Plans are designed for use by a business, governmental, educational, institutional or other commercial entity or by an individual that provides goods or services for sale or lease or that owns or operates a commercial enterprise. Customer understands, acknowledges and agrees that Customer will allow only Customer’s employees, patrons, and vendors to utilize the commercial Services within Customer’s office area(s). Commercial Services are provided solely for Customer’s business operations, and any unauthorized access by a third party to e-mail, Internet access, or any other function of the Service is in violation of this Policy and the Agreement. Customer is responsible for any misuse of the Service that occurs through Customer’s account, whether by Customer’s employees, patrons, vendors, or an authorized or unauthorized third party.

(ii) Business/Commercial Service Plans will be month-to-month (“Month-to-Month Service Plan”) unless otherwise indicated. The Term begins with the date installation is completed. This Agreement shall automatically renew on a month-to-month basis until terminated by either the Customer or zaBYTE upon an advance thirty (30) calendar days written notice.

INSTALLATION AND EQUIPMENT. The customer agrees to subscribe to the specific Service Plan at the rates and speed identified in the Service Order. zaBYTE agrees to provide service to the agreed characteristics and price. The customer will allow us to enter your premises for installation and maintenance to ensure our Service performs properly. Installation may include drilling and attaching equipment securely to the outside of the building or in surrounding structures. If you do not own the premises, we require that you obtain the consent of the owner. zaBYTE’s “Standard Installation Fee” shall be detailed in the Customer’s Service Order and the Customer agrees to pay the Standard Installation Fee when the Service Order is confirmed by the Customer. The customer understands, acknowledges and agrees that until a technician arrives at the Customer’s premises, the technician will not know whether the Customer’s installation will require additional equipment, wiring, connection cable/lines. The customer further acknowledges that zaBYTE’s fees for additional measures to complete the installation process are disclosed in the Service Order and in our Open Internet Transparency Policy.

A. ZaBYTE Equipment. Customers may rent a router or modem equipment from zaBYTE and will be charged a rental fee on a monthly basis (“Equipment Rental Fee”). zaBYTE Equipment made available via a rental agreement is, and shall remain at all times, the exclusive property of zaBYTE. Customer shall acquire no interest in zaBYTE Equipment by virtue of the payments provided for herein or the attachment of any portion of ZaBYTE Equipment to the Customer’s premises or otherwise deemed part of the Customer’s realty. The zaBYTE Equipment is not and shall not be considered a fixture to Customer’s premises. Additionally, Customer further understands, acknowledges and agrees that the zaBYTE Equipment listed on the Service Order was installed with the consent of the owner of the property and/or at a location and in a manner authorized by the Customer.

(i) Electrical Power. Customer understands and agrees that: (a) Customer must provide electrical power and a continuous connection to the power grid to zaBYTE Equipment at all times (including, without limitation, when Customer is not using the Services), and (b) Customer’s failure to provide such power and continuous connection may result in damage to the zaBYTE Equipment or to Customer Equipment, for which damage Customer will be solely responsible.

(ii) Customer shall not attach any electrical or other devices to, or otherwise alter, any zaBYTE Equipment without zaBYTE’s prior written consent. Customer is responsible for preventing the loss or destruction of zaBYTE Equipment and Customer shall notify zaBYTE promptly of any defect in, damage to or accident involving zaBYTE Equipment. All maintenance and repair of such zaBYTE Equipment shall be performed by zaBYTE or zaBYTE’s designee(s). zaBYTE may charge Customer for any repairs or replacements that are necessitated by any damage to, destruction of, or misuse of zaBYTE Equipment.

(iii) Return of Equipment and Equipment Replacement Costs. In the event zaBYTE Equipment is lost, stolen or damaged, the Customer shall be liable for the replacement cost. If zaBYTE Equipment malfunctions at no fault of the Customer, zaBYTE will replace zaBYTE Equipment. Rented zaBYTE Equipment must be returned within thirty (30) calendar days after the cancellation date of the Customer’s Service. If rented equipment is not returned within the timeframe, the Customer is subject to a “Non-Returned Equipment Charge,” which is set forth in the Service Order and on the zaBYTE Website. zaBYTE will provide a pre-paid shipping label or a drop-off location for Customers to return zaBYTE Equipment.

(iv) Customer is not permitted to connect any harmful equipment or devices to the zaBYTE Equipment. Customer understands, acknowledges and agrees that failure to comply with this restriction may cause damage to the zaBYTE Network and subject Customer to liability for damages and/or other liability. Customer agrees to not service, alter, modify or tamper with the zaBYTE Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by zaBYTE.

B. Customer Equipment. To use the Service, the Customer must have a personal computer(s) or other similar device(s) and other equipment such as a modem necessary to connect to the Service. Customer Equipment must meet zaBYTE’s most recent “Customer Equipment Specifications,” which are defined on the zaBYTE Website and may be modified from time to time. Customer understands, acknowledges and agrees that zaBYTE has no responsibility for the operation or support, maintenance or repair of any Customer Equipment, software or services that Customer elects to use in connection with the Service, nor is zaBYTE responsible for any damage that zaBYTE Equipment or Service may or will cause to Customer Equipment.

C. Access to Customer’s Premises. Customer hereby grants zaBYTE and its Affiliates (as defined below), and vendors or service providers that provide internal and operational support to zaBYTE (collectively, “Operational Service Providers”) and their respective employees, contractors and agents the right to enter Customer’s property and premises at any time for the purpose of installing, operating or maintaining the zaBYTE Equipment or the zaBYTE Network, retrieving zaBYTE Equipment or fulfilling its obligations or exercising its rights under this Agreement. Affiliates are companies that are related to zaBYTE by common ownership or control. zaBYTE shall provide Customer with reasonable advance notice of any such planned access, except when, in the reasonable opinion of zaBYTE, an emergency or other exigent circumstance exists that would require zaBYTE to immediately enter Customer’s property and premises.

3. PAYMENT AND BILLING.

A. Customer agrees to pay the Standard Installation Fee in advance. Any additional installation fees as set forth above will be approved by the Customer at the time of installation and billed on the first monthly statement.

B. Payment Process. Both the Residential Month-to-Month Service and Business/Commercial Month-to-Month are billed on a monthly basis including taxes and fees (collectively, “Monthly Service Fee”). The Monthly Service Fee is due by ten (10) calendar days from the date of the Customer’s statement. Customers can set up preauthorized automatic billing or use the zaBYTE Customer portal each month to pay electronically by a check or credit card. Neither cash nor paper checks will be accepted.

C. ZaBYTE has the right to increase any Monthly Service Fee with the advance written notice to the Customer. Customers will have the option to accept the fee increase or to terminate the Service under the same advance notice requirements provided in Section 11 herein.

D. The Service will be suspended if the Customer’s account reaches fifteen (15) calendar days past due and then automatically terminated if the account is past due thirty (30) calendar days or more. A “Late Fee” in the amount of twenty-five dollars ($25.00 US) will be assessed each month the account remains overdue. Customer understands, acknowledges, and agrees that ZaBYTE is not required to provide notice before suspending the Service and/or terminating the Customer’s account or this Agreement. Service may not be restored until the balance due has been paid in full. The customer further understands, acknowledges, and agrees that there will be a “Service Reinstatement Fee” in the amount of twenty-five dollars ($25.00 US) if a terminated account will be reinstated. Service may not be reinstated until the balance due has been paid in full, including but not limited to any Late Fees.

E. Customer will automatically be charged a thirty dollars ($30.00 US) “Non-Payment Fee” for any Automated Clearing House (“ACH”) electronic check payment returned for non-payment or insufficient funds, or for any credit card chargeback.

F. Customer agrees to provide zaBYTE Customer’s legal name, a current email address and telephone number for communications and billing purposes, and payment data (including without limitation information provided when authorizing ACH payments or other recurring payments). Customer understands, acknowledges, and agrees that the Customer’s submission of a mobile telephone number provides his/her prior express consent to zaBYTE to contact the Customer for administrative and billing purposes, even if using an automatic telephone dialing service, pre-recorded or artificial voice.

G. If any billing disputes arise, the Customer is responsible for contacting zaBYTE to resolve at info@zabyte.net.

4. ACCEPTABLE USE OF SERVICE AND PROHIBITED INTERNET SERVICE ACTIVITIES. “Acceptable Use” is defined as the normal activities associated with the use of the internet, including without limitation, usage of the zaBYTE Network and systems and for accessing the World Wide Web, Email, and other internet features. Please see our separate Acceptable Use Policy (“AUP”) for details.

5. SERVICE LEVEL STANDARDS. ZaBYTE strives to provide quality and dependable service. There may be circumstances that are outside of zaBYTE’s control that will affect the delivery and/or quality of the Service.

A. If zaBYTE determines that a Service outage was caused by zaBYTE’s failure to provide said services for reasons within zaBYTE’s reasonable control and not a result of a Force Majeure Event (as defined below in subsection 13E herein), scheduled maintenance of zaBYTE Equipment or Services or as a result of any actions or inactions of Customer or any third parties (including failure of third party equipment), zaBYTE will, upon Customer’s request within twenty-four (24) hours of such service outage, credit Customer’s account the connectivity charges for the length of the outage.

B. ZaBYTE will credit the Customer’s account on a pro-rated basis if there is more than a 48-hour delay in zaBYTE’s response to a Service outage or another performance issue not caused by a Force Majeure event or by the Customer’s own actions or negligence. Customers must notify zaBYTE of a Service or performance issue within 24 hours. Customer credit may not exceed the Monthly Service Fee for any single calendar month.

C. Service may be canceled by Customer without penalty for quality of service issues after the initial installation, subject to zaBYTE’s opportunity to cure any service problem within three (3) business days after Customer’s notification. The customer must first notify zaBYTE of the Service performance issues via email within three (3) calendar days of installation. If Customer is still dissatisfied after the cure period, Customer may request cancellation in full within seven (7) business days of Customer’s installation date. All installation fees will be refunded.

6. DISCLAIMER OF WARRANTIES. THE CUSTOMER EXPRESSLY AGREES THAT THE USE OF THE ZABYTE NETWORK AND THE ZABYTE EQUIPMENT IS AT THE CUSTOMER’S SOLE RISK. THE SERVICE AND ZABYTE EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN “INSTALLATION AND EQUIPMENT” SECTION 2 AND SERVICE LEVEL STANDARDS SECTION 5 HEREIN, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER ZABYTE OR ITS AFFILIATES, OPERATIONAL SERVICE PROVIDERS, AGENTS, REPRESENTATIVES, SHAREHOLDERS, THIRD PARTY LICENSORS AND SUPPLIERS AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND CONTRACTORS, AND EACH OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ZABYTE-RELATED ENTITIES”) WARRANT: (I) TO UNINTERRUPTED, TIMELY OR SECURE USE OF THE SERVICE; (II) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (III) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (IV) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA, FILES, OR CUSTOMER MATERIAL CUSTOMER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THOSE OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO CUSTOMER’S COMPUTER OR DEVICE. THIS INCLUDES WITHOUT LIMITATION INCIDENTS OF FILE SHARING, PRINT SHARING, OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO THE CUSTOMER’S COMPUTER, DEVICE, OR NETWORK OR ZABYTE EQUIPMENT, OR TO MONITOR THE CUSTOMER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER FROM ZABYTE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMERS.

7. LIMITATION OF LIABILITY

A. STATUTE OF LIMITATIONS: CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.

B. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL ZABYTE OR ZABYTE-RELATED ENTITIES BE LIABLE FOR FAILURE TO PERFORM ANY OBLIGATIONS WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS AGREEMENT FROM ANY CAUSE BEYOND ZABYTE’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION (INCLUDING ”LINE-NOISE” INTERFERENCE) AND UNDER A FORCE MAJEURE EVENT (AS DEFINED IN SECTION 13E HEREIN), ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMERS RESIDING IN SUCH STATE. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THE CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE AGGREGATE LIABILITY OF ZABYTE UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US).

8. CUSTOMER REPRESENTATION, WARRANTIES, AND RESPONSIBILITIES.

A. If Customer is an individual, Customer represents and warrants that he or she is at least the age of majority in his/her state of residence and has the legal authority to execute this Agreement. If Customer is a business/commercial entity, the individual executing this Agreement represents and warrants he or she has the legal authority to execute this Agreement on behalf of Customer. All Customers represent and warrant that there are no legal, contractual or similar restrictions on the installation of the zaBYTE Equipment in the location(s) and in the manner authorized by Customer and agree that Customer is responsible for ensuring compliance with and payment of any fees, charges or fines related to applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Service.

B. Residential Customers represent and warrant that the Service and zaBYTE Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same Service address, and their visitors. For business/commercial Customers, Customer represents and warrants that the Service and zaBYTE Equipment shall be utilized only by Customer, and its authorized employees, patrons, and/or vendors at Customer’s business premises identified in the Service Order.

C. Customer represents and warrants: (i) not to assign, transfer, resell or sublicense Customer’s rights under this Agreement unless specifically permitted by the terms of this Agreement; (ii) not to redistribute or share the Service with any others or transmit the Service over a wireless or other networks that is not secured; and (iii) to be solely responsible and liable for any and all breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Agreement, whether such breach results from Customer’s use of the Service or by another using Customer’s Equipment or the zaBYTE Equipment.

D. Customer represents and warrants that Customer will not use the Service in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any applicable local, state or federal, or international statute, rule, ordinance or regulation (collectively “Applicable Law”); (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) accesses, discloses, uses, or disposes of any personal information (“Personal Information”) as defined in zaBYTE’s Privacy Policy without proper authorization or impersonates any person or entity, including without limitation, any employee or representative of zaBYTE or its Affiliates; or (v) transmits any virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.

E. Customer represents and warrants that: Customer remains solely responsible for Customer’s use and any other persons’ use of the Service and any material or content transmitted, downloaded or uploaded, through or via the Service. Customer further represents and warrants that Customer possesses all rights necessary to transmit such material or content and that Customer understands, acknowledges, and agrees that Customer is also subject to zaBYTE’s DMCA Copyright Infringement Policy. Please see https://zabyte.net/policy-DMCA to access our DMCA policy.

9. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless zaBYTE, and zaBYTE-Related Entities from and against all losses, expenses, damages, and costs (including reasonable attorneys’ fees) actions, governmental inquiries and investigations, and other claims brought against any zaBYTE-Related Entities arising out of Customer’s use of the Service or any violation of this Agreement (and all other documents incorporated herein by reference) including without limitation, claims that Customer’s use of the Service infringed on the patent, copyright, trademark or another intellectual property right of any third party, Customer’s violation of any Applicable Law or the rights of another and claims resulting from Customer’s negligence. zaBYTE reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with zaBYTE in asserting any available defenses.

10. PRIVACY AND SECURITY. ZaBYTE’s Privacy Policy governs the collection, use, disclosure, management, and security related to Customer’s Personal Information and Non-Personal Information (collectively, “Customer Information”). Customer agrees that Customer had ready access to the then-in-effect Privacy Policy at the time Customer executed the Service Order. Customer understands, acknowledges, and agrees that we may update or amend the Privacy Policy at any time without Customer’s prior consent and that Customer’s continued use of the Service after notice of any changes or amendments have been provided will indicate Customer’s acceptance of such changes, except where further steps are required by Applicable Law. We will, however, provide notice of any such changes or amendments as stated in the Privacy Policy. All such updates or amendments shall be deemed to be incorporated by reference into this Agreement.

A. Verification of Identity. zaBYTE may require that Customer create and use a username and password combination or other reasonable procedures to confirm Customer’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through authorized Customer service channels.

B. Consent to Contact Via Mobile Device. By completing the zaBYTE Service Order, you have given prior express consent to be contacted via the phone number and/or email address you voluntarily submitted (including wireless number or wireless email address, if provided) for purposes that are important for zaBYTE to actively service your account. Purposes include, but are not limited to appointment reminders, customer check-ins, technical support and billing support, and information about new zaBYTE services or features. The customer understands, acknowledges, and agrees that automated telephone dialing equipment, live voice, pre-recorded or artificial voice, and/or text messages, may be used to reach you. Standard data rates may apply. You may opt-out of any such contact at any time via the process provided in the zaBYTE Privacy Policy, as long as there is another valid means to contact you about your account. Providing this consent does not obligate you to purchase or use any product or service.

11. CHANGES, SUSPENSION, OR CANCELLATION/TERMINATION OF SERVICE

A. A Customer may move the Service to a new home or premises. The Customer is subject to a new installation fee when the move requires an installation of service, assuming zaBYTE’s Service is available at the new home or premises. Customer also has the option to upgrade the Service at any time; there is no separate fee to upgrade the Service. Additionally, a Customer can suspend the Service up to three (3) months with no billing fees during the time the Service is not active. The customer, however, will be subject to the twenty-five dollars ($25.00 US) Service Reinstatement Fee upon the Customer’s request to reactivate the Service.

B. Residential Service. zaBYTE requires at least thirty (30) calendar days advance notice for all residential Customer cancellations of the Month-to-Month Service. The customer must notify zaBYTE by email to this email address info@zabyte.net. Upon cancellation, all zaBYTE Equipment must be returned to zaBYTE within thirty (30) calendar days. If zaBYTE Equipment is not returned in a timely matter, Customer understands, acknowledges and agrees that Customer is subject to the applicable Non-Returned Equipment Fee(s), which are posted on zaBYTE’s website.

C. Business/Commercial Service. zaBYTE requires at least thirty (30) calendar days advance notice for all Customer cancellations of the Month-to-Month Service. Customer must notify zaBYTE by email to this email address info@zabyte.net. Upon cancellation, all zaBYTE Equipment must be returned to zaBYTE within thirty (30) calendar days. If zaBYTE Equipment is not returned in a timely matter, Customer understands, acknowledges, and agrees that Customer is subject to the applicable Non-Returned Equipment Fee(s), which are posted on zaBYTE’s website.

D. ZaBYTE has the right to suspend and/or terminate a Customer’s Service if Customer has violated or there is a reasonable belief that Customer has violated this Agreement, in addition to any civil penalties and/or criminal charges available under the law. Suspension or a warning may occur when the Customer has one initial violation of this Agreement, such as copyright infringement by loading or posting third-party copyrighted material and content. However, if the offense(s) is severe or frequent enough, zaBYTE reserves the right to disable the Service and terminate the account immediately without advance notice to the Customer. Accounts that have been terminated for violation of this Agreement will not be reinstated. Customer understands, acknowledges, and agrees that zaBYTE will not refund Monthly Service Fees or any other fees that have been paid or are due to be paid by Customer when Service has been suspended or terminated outside of the Service Level Standards provision in Section 5 herein.

E. Upon the suspension or termination of Customer’s Service, zaBYTE shall not be responsible for the return of data stored on zaBYTE’s servers, including web and email servers. Customer understands, acknowledges, and agrees that zaBYTE has no obligation to visit Customer’s home or premises upon termination to reconfigure Customer’s computer(s) or for any other reason other than the return of zaBYTE Equipment.

12. REFUND AND CREDIT POLICY. The following is a summary of when zaBYTE will provide a refund or a credit. All refunds and credits will be processed within 7-10 business days. If you have any questions regarding this policy, please contact zaBYTE at info@zabyte.net.

A. Service Performance and Satisfaction. zaBYTE will refund installation fees as part of Section 5 Service Level Standards if the Customer notifies zaBYTE via email within three (3) calendar days after installation and zaBYTE has not cured the problem within three (3) business days after the Customer’s notice. The Customer must request cancellation within seven (7) business days after the date of installation. If the Customer is not satisfied with the Service for any reason immediately after installation, a Customer may request cancellation via e-mail within seven (7) business days after the date of installation. zaBYTE will refund all Installation Fees in full.

B. Delayed Response to Service Outages. zaBYTE will provide a credit to Customer’s account if zaBYTE is delayed more than 48 hours in responding to a Service outage if reported by the Customer using the proper notice requirements under Section 5(B) herein, and if the delay was not caused by a Force Majeure Event, or due to Customer’s own actions or negligence.

C. Internet Outages. zaBYTE will provide a credit to Customer’s account upon notice from Customer within 24 hours of a Service outage, but only if the outage was not due to Force Majeure Event or due to Customer’s own actions or negligence.

D. Electrical Power Failure. Under Section 2(A)(i) herein, a Customer must maintain electrical service at all times to avoid damage to the zaBYTE Network. zaBYTE will only credit a Customer’s account if there is a power outage due to a Force Majeure Event. The Customer must notify zaBYTE within 24 hours of the outage to be eligible for a credit. No refunds or credits will be given for power outages for other reasons.

E. Network/Internet Delays. No credits or refunds will be provided to the Customer unless the zaBYTE Network is slow or delayed due to reasons under zaBYTE’s control. A slow-moving Network or delay is not unusual for reasons outside of zaBYTE’s control, such as the Customer’s own use of the zaBYTE Network or network congestion due to other customer use.

F. Unused Portion of Pre-Paid Service. zaBYTE does not offer a credit or a refund for any unused portion of a Customer’s pre-paid service. Under Section 11 herein, Customers are required to provide notice of cancellation of the Service for Month-to-Month Terms no less than thirty (30) days prior to the start of the next month’s service schedule. This will allow zaBYTE to cancel the Service prior to the start of the next Service period.

13. GENERAL PROVISIONS.

A. Entire Agreement. This Agreement (including all documents incorporated herein by reference) constitutes the entire agreement with respect to the Service. This Agreement supersedes and nullifies all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.

B. Third Party Beneficiaries. The Parties agree that any Affiliates, Operational Service Providers, agents, third-party suppliers and licensors of zaBYTE are intended beneficiaries of this Agreement. Except as set forth in the previous sentence, this Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and zaBYTE.

C. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

D. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of the Agreement, such invalidity, voidability and unenforceability shall not affect the validity of the Agreement nor the remaining provisions herein.

E. Force Majeure Event.Notwithstanding anything to the contrary in this Agreement, neither Party shall be liable to the other Party (and in the case of zaBYTE, this includes zaBYTE’s Affiliates and zaBYTE Related Entities) for any delay, interruption or failure in performance of its obligations under this Agreement to the extent any such delay, interruption or failure is due to or arises out of a “Force Majeure Event.” A Force Majeure Event includes without limitation: (1) act of God; (2) act of local, county, state, federal or other government in its sovereign or contractual capacity; (3) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (4) flood or adverse weather conditions, including solar flare or sun outage; (5) pandemic, epidemic or quarantine; (6) labor strike, lock-out or other labor disturbance; (7) fire, explosion, power failure or blackout; (8) damage, degradation or destruction of equipment, transmission lines or the zaBYTE Network; (9) unavailability of right-of-way, equipment or materials; or (10) any other cause beyond a Party’s reasonable control. Changes in economic, business or competitive conditions shall not be considered a Force Majeure Event. The Party so affected by a Force Majeure Event shall, upon giving prompt notice to the other Party, be excused from such performance and any failure, interruption or delay of performance reasonably deemed to result therefrom shall not be considered a breach of this Agreement.

F. Jurisdiction and Venue. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of California without regard to any conflicts of law provision. Subject to the agreement between Customer and zaBYTE with respect to arbitration of any disputes, Customer understands, acknowledges and agrees that the federal and state courts of competent jurisdiction located in Orange County, CA alone shall have jurisdiction over all disputes arising under this Agreement and Customer consents to the personal jurisdiction of these courts.

G. No Waiver. ZaBYTE’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of this Agreement shall, to any extent, be held invalid, illegal or unenforceable, the remainder of this Agreement shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.

H. Amendments. ZaBYTE may change, amend, alter, or modify this Agreement at any time. zaBYTE may notify Customer of any change either by posting that change on zaBYTE’s Website by sending Customer an email, as a bill insert, via telephone, or by U.S. first-class mail, or by any reasonable means. If Customer continues to use the Service after such notice has been made, Customer understands, acknowledges, and agrees that such continued use shall be deemed to be Customer’s acceptance of those changes unless additional notice or steps are required by law. The current version of this Agreement, as the same may be modified by zaBYTE from time to time, shall supersede any prior version of this Agreement that may have been provided to Customer at any time, unless additional notice or steps are required by law

I. Assignment. Customer may not assign this Agreement, or Customer’s rights or obligations under this Agreement, without zaBYTE’s prior written consent, and any purported assignment by Customer without such consent shall be void. zaBYTE may transfer or assign any portion or all of this Agreement at any time without notice to Customer, and Customer waives any notice that may be required by law.

J. Survival. Sections 1 through 13 herein shall survive any termination, cancellation or expiration of this Agreement for any reason.

K. Execution of Agreement. Customer and zaBYTE (or, the signature of each Party’s authorized person) understand, acknowledge and agree that each has executed this Agreement by their electronic signatures on the Service Order.