TERMS AND CONDITIONS
TELEMEDIA SOLUTIONS TERMS AND CONDITIONS OF SERVICE
1. GENERAL APPLICATION
a. Agreement. These Terms and Conditions of Service (the “Agreement”) constitutes your agreement with Washington County Rural Telephone Cooperative, Inc. dba Tele-Media Solutions for any Services (as defined below in Section 2) you subscribe to or receive from us, to the extent not governed by any governmentally-regulated tariffs or other written agreement between us, which tariffs or other agreement will supersede this Agreement only concerning provisions that are not consistent with this Agreement. This Agreement is effective now for customers already subscribing to Services, or for customers who subscribe to Services on or after November 1, 2018.
This Agreement incorporates by reference our rates, charges, terms and conditions for Services (“Features and Services”) as posted and amended from time to time, and appear on our Internet website http://www.tele-mediasolutions.coop. If you do not have Internet access to our website, you may request a written copy of these Features and Services by calling 812-967-3171 or writing to us at P.O. Box 9, 105 E Railroad Street, Pekin, IN. b. Any means of identification assigned to Customer by WCRTC (including usernames and e-mail addresses) will remain the property of WCRTC and at WCRTC’s sole discretion may be altered or replaced at any time.
Your subscription to, use of, or payment for Services constitutes your acceptance of this Agreement and our Features and Services. Contact us toll-free at 877-967-3171 immediately to cancel Services if you do not agree to any part of this Agreement. If you cancel Services, you will be responsible for all usage charges and the pro-rata portion of all monthly recurring charges incurred prior to cancellation.
b. Changes to this Agreement. We reserve the right to change the terms and prices of the Services at any time, including this Agreement and the Features and Services incorporated in this Agreement. As required by our bylaws, you will be provided written notice of changes in pricing and other terms and conditions relative to this Agreement. The change will become effective on the date described in the notice. We will not provide notice to you regarding price decreases or the expiration of promotional pricing, offers, and terms. We will not provide notice of changes to applicable taxes or surcharges, unless required by law or regulation, but we may post such changes to the Features and Services page on our website.
Your continued use of the Services after any change constitutes your acceptance of any such changes in the Features and Services. Your sole remedy for any changes made by us is your right to cancel the affected Service or terminate this Agreement.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION AND WAIVES ANY RIGHT TO TRIAL BY JURY TO RESOLVE CERTAIN DISPUTES AND OTHERWISE LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. You should carefully read all terms in this Agreement, including the Mandatory Arbitration of disputes provision.
“Company,” “we,” and “us” means Washington County Rural Telephone Cooperative, Inc. dba Tele-Media Solutions or any successor to or affiliate of the Company to the extent such successor or affiliate provides Services to you under this Agreement.
“Customer”, “you”, or “your” means any person or entity that requests, subscribes to, orders, or uses the Services.
“Features and Services” means the rates and descriptions, charges, or other terms and conditions applicable to Services in addition to the terms described here, incorporated by reference into this Agreement as posted to the Website or by requesting a copy from us by calling 812-967-3171 or conditions of this Agreement and the Features and Services, the terms and conditions of this Agreement shall govern. You agree that it is impractical to list in this document all of the Service descriptions, charges, and other terms applicable to all Services governed by this Agreement and that providing this information on our website is a reasonable method of providing you with notice of the Prices and Rules.
“Service” or “Services” means all telecommunications, internet, and ancillary services we provide to you.
3. SERVICE PROVISION AND USE
a. Provision of Services. In our sole discretion, we may accept or reject your request for Services for any lawful reason. Before activation of any Service, we may check your credit; verify your identity; require a deposit, prepayment or other fee to establish or maintain Services; or require that you execute any authorizations and verifications we believe necessary. You must have and maintain satisfactory credit to receive and continue to receive Services. Customer must be at least 18 years old to register for the Service. By accepting this Agreement, Customer represents that Customer meets this age requirement. Minors who use the Service are assumed to have parental or guardian consent to do so.
b. Installation. If required, you will provide reasonable cooperation to enable us or our agents to install or repair the Services. You are responsible for damage to our equipment and Services located on your premises, excluding reasonable wear and tear or damage caused by us. As a part of its service offering, Company is responsible for providing all necessary provisions and/or repairs on Company’s side of the Network Interface Device. Company is not responsible for any repairs on the customer side of the network interface device. While most troubleshooting and repair work will fall under Company support program, service calls (outside of the scope of the free support program) will incur a labor charge, plus materials. Customer will be advised of said charges before work commences.
c. Use of Services. You agree to: (i) ensure compliance with this Agreement by anyone you authorize to use the Services; (ii) pay all charges for Services provided or used under this Agreement including, but not limited to, unauthorized charges incurred on calls placed from your premises; (iii) ensure that your actions and equipment do not directly or indirectly interfere with our ability to provide Services to others, or the quality of such Services; (iv) comply with all applicable laws and regulations when using our Services and not use our Services in an unlawful, fraudulent, destructive, or abusive manner, or allow others to do so, (v) not use Services in such a manner that causes interference with our or another users of our network, (vi) not resell the Services to a third party, (vii) not subject the Company to liability of any kind or use the Services in contravention of the Company’s Acceptable Use Policy, and (viii) allow us, in our sole discretion and without liability to you, to place restrictions on use of your Services, and immediately (even during a call) disrupt, suspend, or terminate your Services without notice for violations, suspected violations, or to prevent violations of the terms of this Agreement. Please be advised that the Customer of the account is solely responsible for activities conducted through, on or with their Services. If you, or someone to whom you have given access to your account, violates the any terms Company’s Agreement, your account and Services will be canceled.
d. Monitoring. You understand that it may be possible for unauthorized third parties to monitor data traffic. If you wish to secure your usage in connection with any Services, you have the obligation to obtain, at your own cost, encryption software or other transmission security protections. You assume full responsibility for the establishment of appropriate security measures to control or limit access to your information.
e. Internet Access Agreement/Acceptable Use Policy. If you purchase Services that connect to or flow over the Internet, you must conform to our Internet Acceptable Use Policy as detailed below in Section 17.
f. Failure to Comply. If you fail to comply with any provision of this Section 3, you release us from all liabilities or obligations in connection with the affected Service, and you will indemnify us for all costs or damages that we incur as a result of your non-compliance as described in Section 8(c) of this Agreement.
4. CHARGES AND PAYMENT
a. Charges. We will bill you for Services on a monthly basis based on the current Features and Services posted on the website and listed in any written information we send you. You agree to pay these charges, including all applicable connection charges, usage charges, monthly fees, monthly minimums, other fees, surcharges, taxes and federal, state and local government or quasi-government imposed or permitted charges, including, but not limited to, charges related to E-911, state and federal Universal Service, Telephone Relay Service, payphone providers, interexchange carrier charges and federal Subscriber Line Charge. Taxes and government surcharges will be in the amounts that federal, state, and local authorities require or permit us to bill you. You agree to pay all taxes, surcharges, assessments, and other fees that are related to the Services and included on your bill, unless you are exempt from these payments and provide us documentary evidence of the exemption. By accepting this Agreement, Customer agrees to be responsible for all charges posted to Customer’s account until the account is canceled as specified herein. Each Customer is responsible for the use of his/her/its Services account(s) by any person. If any unauthorized charges are made on or through your account, you are responsible for such charges until you notify the Company of a breach of security by calling the Company at 1-812-967-3171 and change your password and/or PIN (as defined below in Section 20).
b. Billing. Customer agrees to provide the Company with accurate and complete billing information including Customer’s legal name, address, and telephone number. All changes to this information must be reported to the Company within 30 days of the change. Any recurring charges for your Services listed in the Features and Services begin accruing when the Service to which the recurring charges are applicable is available for your use. You may be billed a prorated portion of any recurring charges in the initial month of service. Recurring charges may be billed in arrears or in advance, depending on the Service, while monthly usage charges are generally billed in arrears. If your monthly charges net to $0, you may not be billed. Current billing information may be available in your Smarthub account information accessible from our website and is also available by calling our customer service number 812-967-3171. An additional fee may be charged for bill reprints.
c. Payment. Your monthly account charges are payable in advance and are due on your receipt of an invoice/bill. You must pay all charges applicable to your Services, including all applicable taxes, fees, and surcharges, in U.S. currency within 17 days of the date of the bill. Payment of your account charges should be made to Washington County RTC, P.O. Box 9, Pekin, Indiana 47165. If your account is cancelled or interrupted for non-payment, you must pay your monthly account balance before service is resumed. Any mathematical error made by us or any of our representatives does not constitute an offer and may be corrected by us. You are responsible for preventing any unauthorized use of the Services, and you are solely responsible for paying us for any charges resulting from unauthorized use of our Services.
d. Late Fees, Returned Check Fees, and Collection Costs. Your account will be considered to be in default if payment of your account charges is not received within seventeen (17) days after the date of your invoice. We may charge you late payment fees at the rate of 10% of the first $3.00 plus 3% of the remaining unpaid balance or the maximum rate allowed by law for all late payments. Your account will be suspended if your account balance is remains unpaid 30 days past the date of the invoice. Our acceptance of late or partial payment (even those marked “PAID IN FULL”) and late payment charges will not constitute waiver of any of our rights to collect the full amount due under this Agreement. We may charge you an insufficient funds or returned check fee, up to the maximum rate allowed by law, if your check, bank draft, electronic funds transfer, or other order for payment is dishonored or returned for insufficient funds or any other reason. If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. If you change your telephone number or other contact information without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us or our collection agent as a result of any attempt to collect any debt through the telephone number or contact information you provided, including any costs or liabilities associated with misdirected
e. Fees Not Considered Interest or Penalties. We do not anticipate that you will fail to pay on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or nonpayment are liquidated damages intended to be a reasonable estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (a) whether you will pay on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment.
f. Disputed Charges. Except as otherwise provided by applicable law, you must notify us of any disputes concerning any billed charges within 90 days of the date of the bill. You accept all charges not disputed within 90 days. We mutually waive all rights of subrogation against each other in connection with Services. To dispute a charge on your bill, you must follow the procedures in Section 9 of this Agreement.
g. Credit Check; Deposits; Credit Limits. Our provision of Service to you is subject to our approval of your credit. You give us permission to check and verify your credit as needed in our sole discretion. If we determine you are a credit risk at any time during your Service period with us, we may require you to submit a deposit or make an advance payment to us in a reasonable amount that we determine. If you fail to pay for Services when due, we may, without providing notice to you, apply your deposit or advance payment to the amount owed. If you refuse to make a deposit or advance payment or otherwise establish credit, we reserve the right to refuse to provide you Service subject only to applicable federal or state law. As we determine in our sole discretion and to the extent permitted by applicable law, we may set a credit limit on your account at any time. We may restrict the Services to which you have access if you exceed this credit limit. If your Service has been discontinued for nonpayment, we may require a security deposit before service is restored. The fact that a security deposit has been made does not relieve you of the requirement to promptly pay your bill. If your payment or usage patterns change, we may request an additional security deposit. We and /or our billing agents reserve the right to require an advanced payment from you instead of, or in addition to, a security deposit. The advanced payment shall be equal to or less than estimated installation charges plus two months’ estimated billing.
5. TERMINATION OR RESTORATION OF SERVICE
a. Termination of Service by You. Unless your Services are subject to a minimum term agreement, and then subject to payment of any applicable early termination charges, you may cancel the Services for any reason at any time by adhering to the requirements of Section 10(e) below; however, your continued subscription to, use of, or payment for Services after the cancellation date you give us will continue this Agreement for those Services. If you cancel a Service prior to the completed installation of that Service, you agree to pay all reasonable costs incurred by us in implementation of the Service before cancellation notice was received, as if the implementation of the order had been completed. Charges to Customer’s account will stop accruing upon Customer’s return of all Company equipment. The Company will issue pro rata fee refunds for monthly fees paid in advance, subject to the terms of this Agreement. In the event Customer terminates Service prior to expiration of a term of the Services, Customer may be required to pay an early termination charge.
b. Termination or Suspension of Service by the Company. To the extent permitted by the Features and Services and applicable law or regulation, we may terminate or suspend your Service with or without notice, depending on the circumstances, for any reason including for nonpayment of any amount owed to us, including late payment fees or disputed amounts that we determine was validly billed, and your violation of any provisions of this Agreement, including the limitations listed in Section 3 of this Agreement. If an account is terminated by COMPANY because of violations of this Agreement, you will not be entitled to a prorated refund, such payment being agreed to you and the Company as liquidated damages and not as a penalty pursuant to Section 4(e) above.
c. Termination and Payment. It may take up to the next business day to disconnect your Services. Regardless of the reason for disconnection, you must pay all charges incurred before our disconnection of your Service. Subject to payment of any applicable early termination charges, charges to Customer’s account will stop accruing only upon the return of all Company equipment. You will be charged the full recurring charges for your Services for the month in which those Services terminate. Customer acknowledges that a two dollar threshold exists on credit refunds. Credit amounts below the threshold will not be issued, unless specifically requested. Promotional credits or discounts may not be applied to your final bill. If you reinstate Services following cancellation or termination, we may require you to pay a deposit. Upon termination of this Agreement, all rights granted to Customer and Customer’s authorized users under this Agreement shall immediately cease and terminate.
d. Accrued Charges. Termination of this Agreement does not release Customer from the obligation to pay all charges accrued prior to termination or cancellation under this Agreement.
e. Restoration of Service. If your service is stopped for nonpayment or other reasons and you want it restored, we will restore your service at our discretion when the past due amounts and any applicable security deposit and /or advanced payment are paid, or the reason for the Service cancellation is corrected. Reconnection of the Service(s) is subject to our credit policies, this Agreement and applicable law.
6. ACCESS TO YOUR PREMISES AND CUSTOMER EQUIPMENT
a. Premises Access. You agree to allow us and our agents the right to enter your property at which the Service(s) will be provided (the “Premises”) at reasonable times, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Services and/or Company equipment used to receive any of the Services. You warrant that you are either the owner of the Premises or that you have the authority to give us access to the Premises. If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agents into the Premises to perform the activities specified above. In addition, you agree to supply us or our agent, if requested, the owner’s name, address, and phone number and/or evidence that the owner has provided such authorization.
b. Customer Equipment. “Customer Equipment” means software, hardware or services that you elect to use in connection with the Services that is not provided or leased by the Company. You agree to allow us and our agents the rights to insert hardware in the Customer Equipment, send software and/or “downloads” to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You warrant you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment to perform the activities described in this paragraph. In addition, you agree to supply us or our agents, if we ask, the owner’s name, address and phone number and/or evidence that the owner provided such authorization.
7. RIGHT OF WAY
Customer consents to the reasonable use of (and right of way to) their real property to construct, maintain, and repair telecommunications facilities at no cost to the Cooperative. When requested by the Cooperative, the member agrees to execute any easement or right-of-way contract on a form to be furnished by the Cooperative.
8. DISCLAIMER OF WARRANTIES
THE COMPANY’S EQUIPMENT AND SERVICE(S) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WARRANT THAT THE EQUIPMENT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU AGREE THAT YOU WILL NOT RELY ON ANY SUCH STATEMENT.
9. LIMITATION OF LIABILITY
a. Application. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of us and our underlying third-party service providers, agents, suppliers, distributors, licensors and business partners (and their respective officers, employees, agents, contractors or representatives) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
b. One Year Limitation Period. YOU MUST COMMENCE YOUR ACTION WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENTS OR FACTS. AS PROVIDED IN SECTION 4(d), YOU MUST NOTIFY US OF ANY BILLING DISPUTE WITHIN 90 DAYS OF RECEIVING THE CHARGES YOU DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT OR FACTS. IF FOLLOWING SUCH NOTIFICATION THE DISPUTE IS NOT RESOLVED TO YOUR SATISFACTION YOU MAY COMMENCE AN ACTION IN ACCORDANCE WITH THIS AGREEMENT FOR UP TO ONE (1) YEAR FROM RECEIPT OF THE DISPUTED CHARGES.
c. Disruption of Service. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities. The Company shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our immediate control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the your premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles, or other utility facilities; labor disputes; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within 90 days of such interruption, to a pro rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Such credit shall not exceed the fixed monthly charges for the month of such Services and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES. Any additional credits, if any, provided by us are at our sole discretion and in no event shall constitute or be construed as a course of conduct by us.
d. Direct Damages. The Company is not liable for any damages arising out of or in connection with any: (i) act or omission by you, or another person or Company; (ii) provision or failure to provide Services, including deficiencies or problems with any equipment used in connection with the Services (for example, blocked calls, transmission failures, interruptions in Service, etc.); (iii) content or information accessed while using our Services, such as through the Internet; (iv) interruption or failure in accessing or attempting to access emergency services, including through 911 or otherwise, or (v) errors or omissions in any directory or database listings, including listings we provide to public safety answering points. IF, FOR ANY REASON, WE ARE FOUND TO BE RESPONSIBLE TO YOU FOR MONETARY DAMAGES RELATING TO ANY SERVICES OBTAINED THROUGH US AND IF THIS LIMITATION IS FOUND TO BE UNENFORCEABLE FOR ANY REASON, YOU AGREE THAT ANY SUCH DAMAGES WILL NOT EXCEED THE PRO-RATED MONTHLY RECURRING CHARGES PAID BY OR OTHERWISE OWED BY YOU FOR THE AFFECTED SERVICES DURING THE AFFECTED PERIOD.
e. NO CONSEQUENTIAL OR OTHER DAMAGES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, OR STRICT LIABILITY) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
i. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH: (a) YOUR RELIANCE ON OR USE OF THE COMPANY’S EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES; OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE COMPANY’S EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE(S), THE COMPANY’S EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
ii. ANY LOSSES OR DAMAGE CAUSED BY LIGHTNING OR OTHER ELECTRICAL DAMAGE CAUSED BY DIRECT OR INDIRECT CONNECTIVITY TO COMPANY NETWORK; OR
iii. ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE COMPANY’S EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
f. INDEMNIFICATION. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AGENTS, AND THEIR SUCCESSORS AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION RELATED TO OR ARISING FROM: (I) CUSTOMER’S ACCESS AND/OR USE OF ANY OF THE SERVICES OR COMPANY’S EQUIPMENT OR THOSE WHO ACCESS OR USE THE SERVICES OR EQUIPMENT THROUGH CUSTOMER’S ACCOUNT; (II) ANY ACT OR OMISSION BY CUSTOMER OR BY THOSE WHO ACCESS TO THE SERVICES THROUGH CUSTOMER’S ACCOUNT RELATED TO ANY SERVICES; (III) CLAIMS RELATED TO INCORRECT OR MISLEADING INFORMATION, LIBEL, SLANDER, INVASION OF PRIVACY, IDENTITY THEFT, INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING BUT NOT LIMITED TO PATENT, TRADEMARK, TRADE SECRET AND COPYRIGHT; (IV) THE PLACEMENT OR TRANSMISSION OF ANY MESSAGE, INFORMATION, SOFTWARE, OR OTHER MATERIALS ON THE INTERNET; (V) ALL OTHER CLAIMS (INCLUDING CLAIMS FOR DAMAGE TO ANY BUSINESS OR PROPERTY, OR INJURY TO, OR DEATH OF, ANY PERSON) ARISING OUT OF ANY
ACT OR OMISSION BY YOU, OR YOUR AGENTS, END USERS, OR YOUR CUSTOMER, IN CONNECTION WITH THE USE OF ANY OF OUR SERVICES, FACILITIES OR EQUIPMENT; (VI) ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; AND (VII) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
g. Survival. All provisions of this Section 8 will survive and continue to apply after this Agreement is canceled or terminated
10. DISPUTE RESOLUTION
a. Dispute Process. If you have a dispute with the Company relating to any matter, you agree to first notify us at the 812-967-3171 in an attempt to resolve your dispute. You must describe your dispute with specificity and provide us with any supporting documentation. If we have a dispute with you, we will notify you in writing in an attempt to resolve the dispute. If after following this process, either party is unable to resolve its dispute within 90 days of notifying the other party, either party may take the dispute to small claims court, if appropriate under applicable state or local rules or laws. Alternatively, either party may pursue the dispute only as set forth below.
b. MANDATORY ARBITRATION OF DISPUTES. INSTEAD OF SUING IN COURT, YOU AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND (“CLAIMS”) AGAINST US. THIS INCLUDES BUT IS NOT LIMITED TO CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, AS WELL AS CLAIMS ARISING OUT OF OR RELATING TO OUR SERVICES, BILLING OR ADVERTISING, OR ARISING OUT OF OR RELATING TO EQUIPMENT YOU OR WE MAY USE IN CONNECTION WITH SERVICES. THIS REQUIREMENT TO ARBITRATE APPLIES EVEN IF A CLAIM ARISES AFTER YOUR SERVICES HAVE TERMINATED; AND APPLIES TO ALL CLAIMS YOU MAY BRING AGAINST OUR EMPLOYEES, AGENTS, AFFILIATES OR OTHER REPRESENTATIVES; THE FEDERAL ARBITRATION ACT, NOT STATE LAW, APPLIES TO THIS AGREEMENT AND ITS PROVISIONS AND,
GOVERNS ALL QUESTIONS OF WHETHER A CLAIM IS SUBJECT TO ARBITRATION. THIS PROVISION DOES NOT PREVENT EITHER YOU OR US FROM BRINGING APPROPRIATE CLAIMS IN A SMALL CLAIMS COURT HAVING VALID JURISDICTION, OR THE FEDERAL COMMUNICATIONS COMMISSION OR A STATE PUBLIC UTILITIES COMMISSION. YOU FURTHER AGREE THAT YOU WILL NOT JOIN ANY CLAIM WITH A CLAIM OR CLAIMS OF ANY OTHER PERSON(S) OR ENTITY(IES), WHETHER IN A LAWSUIT, ARBITRATION, OR ANY OTHER PROCEEDING. YOU AGREE THAT YOU WILL NOT ASSERT ANY CLAIMS AGAINST US IN ANY REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE, THAT NO CLAIMS WILL BE MADE OR RESOLVED ON A CLASS-WIDE OR COLLECTIVE BASIS, THAT NO ARBITRATOR OR ARBITRATION FORUM WILL HAVE AUTHORITY TO ACCEPT OR DETERMINE ANY CLAIMS ON A CLASS-WIDE OR COLLECTIVE BASIS, AND THAT NO RULES FOR CLASSWIDE OR COLLECTIVE ARBITRATION WILL APPLY. THIS PARAGRAPH AND EACH OF ITS PROVISIONS ARE INTEGRAL TO, AND NOT SEVERABLE FROM, THIS SECTION ON MANDATORY ARBITRATION OF DISPUTES.
A single arbitrator engaged in the practice of law will conduct the arbitration and will be limited solely to the dispute between you and the Company. The arbitration will be filed with and the arbitrator will be selected according to the rules of the National Arbitration Forum (“NAF”), or, alternatively, as we may mutually agree. If the NAF ceases to exist, you and the Company will agree on another arbitration forum.
Except as expressly provided in the preceding paragraph, the arbitration will be conducted by and under the then-applicable rules of NAF unless the parties agree otherwise. NAF rules can be found at http://www.adrforum.com, calling 800-474-2371 or writing P.O. Box 50191, Minneapolis, MN, 55405. All expedited procedures prescribed by the applicable rules will apply. We agree to share the arbitration cost equally unless the arbitrator orders otherwise. NOTWITHSTANDING ANY NAF RULE TO THE CONTRARY, AN ARBITRATION AWARD IS FINAL AND BINDING AND MAY ONLY BE REVIEWED IN ACCORDANCE WITH THE TERMS OF THE FEDERAL ARBITRATION ACT. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT WITH JURISDICTION. IF FOR ANY REASON, THE ABOVE PROVISIONS ON ARBITRATION ARE HELD UNENFORCEABLE OR ARE FOUND NOT TO APPLY TO A CLAIM, YOU AGREE TO WAIVE TRIAL BY JURY. If you file a judicial or administrative action asserting a claim that is subject to arbitration and the Company successfully stays such action or compels arbitration, you agree to pay us costs and expenses incurred in seeking such stay or compelling arbitration, including attorneys’ fees. If you win the arbitration, we will reimburse any fees that you paid to the NAF for the arbitration. We will not pay any other costs or fees that you incur. You are not responsible to pay any of the fees we incur.
Except as expressly provided above, if any portion of this Mandatory Arbitration of Disputes section is determined to be invalid or unenforceable, the remainder of the section remains in full force and effect.
c. WCRTC shall have the right to distribute information to its customers that it believes is informative in nature.
a. No Waiver of Rights. If either you or we fail to enforce or waives any requirement under this Agreement that does not waive that party’s right to later enforce that requirement in the future
b. Limitation on Third Party Beneficiaries. This Agreement does not give any third party a remedy, claim, or right of reimbursement.
c. Severability. If any provision of the Agreement is found to be unenforceable, the Agreement’s unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties’ original intent.
d. Assignment. You may not assign this Agreement to any other person or entity without our prior written approval. We reserve the right to assign or transfer all or part of our rights or duties under this Agreement without notifying you. The Company shall have the right to provide any of the Services on behalf of its affiliated companies.
e. Notices. You must provide notices to us as described in the applicable sections of this Agreement. Customer may change or cancel his/her/its Services by first-class registered or certified mail, return receipt requested addressed to Washington County RTC, P.O. Box 9, Pekin, Indiana 47165 or by calling 1-812-967-3171. When we receive notice from you via telephone, such notice will be effective on the date we received your call, as shown by our records. We may provide you notice as required under this Agreement in at least one of the following ways, postcard or letter mailed to the most recent address on your account, bill messages, bill inserts, email notification to an address provided by you, posting on the website, call to your billed telephone number and speaking to you or leaving a message, or any other reasonable method of notice. All notices or other communications to Customer shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or posting or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service. The Company shall have the right to distribute information to its customers that it believes is informative in nature.
f. Terms of Agreement. This Agreement is effective from Customer’s acceptance thereof upon the initial use of the Services through the Customer account. If Customer currently receives any Services when this Agreement is activated, continued use of the Services shall constitute acceptance of this Agreement by Customer. This Agreement shall continue in effect until either party gives the other party notice of termination as provided herein.
g. Governing Law. This Agreement will be governed by the laws of the state of Indiana, without regard to its conflicts of law provisions, except that the arbitration provisions in Section 9 will be governed by the Federal Arbitration Act to the extent applicable. For any disputes not subject to arbitration as provided in Section 9 above, Customer consents to the personal jurisdiction of the federal and state courts having jurisdiction for Pekin, Indiana with respect to such disputes.
h. Survivability. The terms and conditions of this Agreement that by their sense and context are intended to survive the expiration of this Agreement will survive.
i. Conflicts. If a conflict exists between or among provisions within this Agreement, including all referenced documents and the Prices and Rules at the website, specific terms will control over general provisions.
j. Amendments. No amendment or modification to this Agreement by Customer shall be valid or binding on the Company unless made in writing and signed by an authorized representative of the Company
h. Entire Agreement. This Agreement, including the Features and Services on our website, the Additional Terms for Internet Service and Additional Terms for Long Distance Service below, and all other referenced documents, constitutes the entire Agreement and understanding between you and the Company. No written or oral statement, advertisement, or Service description not expressly contained or referenced and incorporated into this Agreement will be allowed to contradict, vary, explain, or supplement this Agreement.
i. Force Majeure. We will not be responsible for any delay, interruption, or other failure to perform under this Agreement due to acts beyond our control. Force majeure events include, but are not limited to natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or equipment from third party suppliers; cable cuts or other facilities damage by third parties, and acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond our reasonable control.
ADDITIONAL TERMS APPLICABLE TO INTERNET SERVICE
11. USE OF SERVICE
a. Ownership of Addresses. Any means of identification assigned to Customer by the Company (including usernames and e-mail addresses) will remain the property of the Company and at the company’s sole discretion may be altered or replaced at any time. You acknowledge that use of the Internet Service does not give you any ownership or other rights in any Internet/on-line addresses provided to you, including, but not limited to, Internet Protocol (“IP”) addresses, e-mail addresses, and Web addresses. The Company makes no guarantees or warranty as to the continuous availability of the Internet Service or any specific feature of the Internet Service. We may modify or change these addresses at any time without notice and shall in no way be required to compensate you for these changes. Upon termination of an Internet Service account, we reserve the right permanently to delete or remove any or all addresses associated with the account.
b. Customer shall be solely responsible for maintaining the confidentiality of passwords used by Customer and authorized users of the account.
c. Except for software provided by the Company, Customer is responsible for providing and maintaining all Customer Equipment and other software necessary to access and use the Internet Service.
d. The Company reserves the right to deny delivery of any new e-mail transmissions until Customer’s electronic mail address information storage is reduced to below the Customer’s allotted storage amount.
12. MONITORING THE SERVICE, DISCLOSURE OF MEMBER INFORMATION, LICENSE
a. The Company has no obligation to monitor the Service but may do so and may disclose information regarding Customer’s use of the Internet Service and Customer information to satisfy laws, regulations or governmental requests or lawful contractual obligations; to operate the Service properly; and, to protect itself and its customers. The Company shall have the right to use Customer information in any manner for any commercially lawful purpose.
b. THE COMPANY, IN ITS SOLE DISCRETION, MAY REMOVE OR REFUSE TO POST ANY INFORMATION OR MATERIALS, IN WHOLE OR IN PART, WHICH ARE UNACCEPTABLE, UNDESIRABLE OR IN VIOLATION OF THIS AGREEMENT.
c. Authorization. The Company does not claim any ownership of any material that you publish, transmit or distribute using the Internet Service. By using the Internet Service to publish, transmit, or distribute material or content, you (1) warrant that the material or content complies with the provisions of this Agreement, (2) consent to, authorize, and grant to the Company and its agents, suppliers, and affiliates a non-exclusive, royalty free, worldwide, perpetual license, with right to sublicense, to reproduce, publish, distribute, and display the content worldwide and (3) warrant that you have the right to provide this authorization. You acknowledge that material posted or transmitted using the Internet Service may be copied, republished or distributed by third parties, and you agree to indemnify, defend, and hold harmless the Company, its agents, suppliers, and affiliates for any harm resulting from these actions.
13. NO WARRANTIES PROVIDED BY COMPANY
a. CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK FOR USE OF THE INTERNET SERVICE AND THE INTERNET BY CUSTOMER AND CUSTOMER’S AUTHORIZED USERS. THE INTERNET SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY DOES NOT WARRANT THAT THE INTERNET SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE VIA THE INTERNET SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR DAMAGE CAUSED BY ELECTRICAL SURGES, RESULTING FROM STORMS OR OTHER ACTIVITY. THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE INTERNET SERVICE, ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE COMPANY OR ON THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY COMPANY, ITS EMPLOYEES, AFFILIATES OR CONTRACTORS SHALL CREATE A WARRANTY.
b. THE COMPANY SHALL NOT BE LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM USE OF THE INTERNET SERVICE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE INTERNET SERVICE OR ON THE INTERNET GENERALLY.
c. The Internet Service provides access to information, sites, communications, software, photos, video, graphics, music, sounds, and other unedited materials and services located both on the Company’s computer servers and on the Internet (“Content”), some of which are sexually explicit, obscene, improper or may be offensive to Customer or others accessing the service through Customer’s account. Such Content may not be appropriate for you or for any minors who may be accessing the Internet through your account. Access to such materials and permitting others to access such materials through the account is at Customer’s own risk. The Company has no control over and accepts no responsibility or liability for any action or inaction with respect to such materials.
Although the Company retains the right to remove Content from the Company’s computer servers that violates this Agreement and the Acceptable Use Policy, the Internet Service provides access to users who are not a part of the Company. As a matter of policy, the Company does not pre-screen Content placed on the Company’s computer servers by any of its customers. The Company does not have the practical ability to monitor, review, or restrict, prior to its transmission, Content on the Company’s servers which may violate Company rules, nor can the Company ensure prompt editing or removal of actually or potentially violating Content after such Content has been posted on the Company’s servers. You may, therefore, receive offensive and unsolicited Content that the Company cannot control.
THE COMPANY DISCLAIMS ANY LIABILITY TO CUSTOMER OR OTHERS FOR ANY FAILURE TO ENFORCE THE TERMS OF THE ACCEPTABLE USE POLICY. IN ACCORDANCE WITH THE “GOOD SAMARITAN” AND OTHER PROVISIONS OF THE FEDERAL COMMUNICATIONS DECENCY ACT, 47 U.S.C. § 230) COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT OF OR CONTENT OF ANY INFORMATION, PRODUCTS, OR SERVICES PASSING THROUGH ITS NETWORK WHETHER OR NOT THE INFORMATION ORIGINATED FROM ONE OF COMPANY’S CUSTOMERS OR BY ANOTHER THIRD PARTY. The Company suggests that concerned parents consider using one of the commercially available programs capable of restricting access to sexually explicit material on the Internet. The Company makes no warranties or representations as to the accuracy, completeness, or usefulness of any parental control software or service.
14. REMEDIES OF CUSTOMER
If Customer is dissatisfied with the Internet Service or any of its terms, conditions, rules, policies, guidelines, or practices, Customer’s sole and exclusive remedy is to terminate this Agreement and discontinue using the Internet Service by canceling the account by following the procedures described in this Agreement.
15. INSTALLATION & SERVICE
a. The Company is responsible for providing all necessary provisions and/or repairs on the Company’s side of the Network Interface Device and is not responsible for any repairs on the Customer side of the device. Should a service call be requested by Customer and not be part of the Company’s responsibility, a charge for labor and materials (please see pricing section of website) will be applied to Customer’s bill.
b. Customer is responsible for all wiring and cabling beyond the gateway or DSL modem. Additional cable or wiring requested by the customer shall be billed at the Company’s current hourly rate plus material charges.
c. Customer is responsible for equipment and wiring connected to the LAN port on the Company’s DSL modem and any cables connected to the video output(s) of the gateway.
d. Customer agrees that the use of a firewall and antivirus software should always be used to minimize unwarranted intrusion to Customer’s computers and network equipment. Under no circumstance will Company be held responsible for such intrusion.
e. Unless purchased by Customer, DSL modem, fiber routers, gateway, remotes, patch cords, and ancillary equipment is and remains the property of the Company. If Internet Service is terminated by either party for any reason, all Company equipment must be returned by customer to the Company in working condition within 30 days of termination. Customer agrees to return equipment rented or leased by company in good condition (normal wear and tear excepted). If the equipment is lost, stolen, damaged, destroyed or otherwise cannot be promptly recovered by the Company, the customer agrees to pay the supplier’s listed price of the Company equipment, plus recovery cost.
f. The Company provides DSL service for the purpose of direct access to the Internet and/or private networks connected to the Company’s network. The Company is responsible only for the subscribed level of service between the DSL modem and the Company’s Internet POP and is not responsible for the performance of the Internet and/or private networks beyond these points of connection. The Company reserves the right to replace its broadband equipment at Customer’s premise at any time.
16. ACCEPTABLE USE POLICY
The Company’s Acceptable Use Policy for Internet Service, including the following list of Prohibited Conduct (as defined below in subsection (a)), are part of the Agreement. Please review carefully prior to activating the Internet Service. If you restrict or inhibit any other user’s use or enjoyment of the Internet Service by engaging in any of the activities prohibited below, the Company may suspend or terminate your account.
The Internet Service is governed by and subject to all applicable laws and regulations, including all applicable local, state, national, and international laws and regulations. This includes all laws relating to copyright, trademark, obscenity, defamation, the right of privacy, false advertising, and fraud.
In addition to such laws and regulations, when using the Internet Service you must use your best efforts to avoid interfering with any other person’s use and enjoyment of the Internet Service. You must also ensure that your use of the Internet Service is governed by the rules of proper Internet conduct. The Company may turn down or disconnect Customer’s dedicated web hosting server if Company assesses that such server has become infected with a virus, worm, Trojan or other malicious code. The Company will make a good faith effort to contact Customer and correct the problem before shutting down the server; however, Company reserves the right to shut down the server without notice if such problem arises.
The Company does not actively monitor nor does the Company control the content of any web site, electronic mail transmission, mailing list or other material created or accessible over the Internet Service. The Company reserves the right to remove any materials the Company becomes aware of that are, in the Company’s sole and absolute discretion, potentially illegal, improper, could subject the Company to liability, damage the Company’s commercial reputation or goodwill, violates accepted norms of the Internet community, or violates this Acceptable Use Policy. The provisions of this Acceptable Use Policy are intended as guidelines and are not meant to be exhaustive.
a. Prohibited Conduct.
These activities are not proper Internet conduct and are Prohibited Activities on the Internet Service. The term “information” means material of any type capable of being posted or transmitted on or through the Service, including material in print, graphic or pictorial form.
When using the Internet Service:
(i) Violation Law. You agree not to use the Internet Service for any activity that violates any local, state, federal or international law, order or regulation.
(ii) Fraud. You agree not to post or transmit any fraudulent information on or through the Internet Service. This means any information that you know or have reason to know is false, and that you intend for others to rely on.
(iii) False Advertising. You agree not to post or transmit on or through the Internet Service any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations.
(iv) Unsolicited Advertising. You agree not to post or transmit any unsolicited advertising, promotional materials, or other forms of solicitation to other users, individuals, or entities, except in those areas (e.g., the classified areas) that are designated for such a purpose.
(v) Copyright Violations. You agree not to post or transmit on or through the Internet Service any information that infringes or violates another person’s or entity’s copyright, patent or intellectual property right in all or any part of the information.
(vi) Trademark, Service Mark, and Trade Dress Violations. You agree not to post or transmit on or through the Internet Service any information that infringes another person’s rights in its trademark, trade dress, or service mark.
(vii) Trade Secret Violations. You agree not to post or transmit on or through the Internet Service any information that reveals trade secrets belonging to another person, business, service, or other entity.
(viii) Obscenity. You agree not to post or transmit any obscene or sexually explicit images or other content on or through the Internet Service.
(ix) Defamation, Harassment, Threats, and Abuse. You agree not to use the Internet Service to defame, harass, threaten, abuse, embarrass, or cause distress, unwanted attention, or discomfort to any person or entity, by any means, including the use of vulgar, hateful, racially, ethnically, or otherwise objectionable information or to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or is otherwise objectionable or unlawful.
(x) False Pretenses. You agree not to use the Internet Service to impersonate any person, including but not limited to, a Company official or an information provider, guide, or host, or communicate under a false name or a name that you are not entitled or authorized to use in all forms of online communication, including, but not limited to, screen names, customer profiles, chat dialogue, and message posting.
(xi) Chain Letters. You agree not to post or transmit chain letters, or letters or messages that offer a product or service based on the structure of a chain letter, on or through the Internet Service.
(xii) Inappropriate Content. You agree to not post or transmit on or through the Internet Service information that is patently inappropriate material, e.g., information or topics not related to the topics focused on by the participants in a particular newsgroup or mailing list.
(xiii) Scrolling. You agree not to cause the screen to “scroll” faster than other Customers or users are able to type to it, or any action to a similar disruptive effect on or through the Internet Service.
(xiv) Disruptive Activities. You agree to not use the Internet Service to disrupt the normal flow of online dialogue, or otherwise act in a manner that negatively affects other customers, users, individuals, or entities.
(xv) Violations of Service Providers’ Rules. You agree not to use the Internet Service to violate any operating rule, policy, or guideline of any other online service provider or interactive service.
(xvi) Multiple Access. You agree that this Agreement is not transferable. You agree not to simultaneously access the Internet Service for more than one session at any time.
(xvii) Abuse of Company Procedures. You agree not to make false or unverified complaints against any Company customer, or otherwise abuse any of the Company’s complaint response procedures.
(xviii) SPAM. You agree not to engage in any conduct known as “Spamming.” Spamming includes, but is not limited to (1) the bulk sending of unsolicited messages, or the sending of unsolicited e-mails which provoke complaints from the recipients; (2) the sending of junk e-mail; (3) the use of distribution lists that include people who have not given specific permission to be included in such distribution processes; (4) posting commercial ads to USENET newsgroups that do not permit it; (5) posting articles containing binary encoded data to a nonbinary newsgroup; (6) excessive and repeated posting off-topic users, including but not limited to transmitting any threatening, libelous or obscene material, or material of any nature which could be deemed to be offensive; and (7) the e-mailing of age-inappropriate communications or content to anyone under the age of 18.
(xix) Harming Minors. You agree not to use the Internet Service to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
(xx) Systems Abuse. You agree not to abuse the Company’s system by causing any harm to the system so that it inhibits other users ability to effectively use the system, including but not limited to disrupting or interfering with the Internet Service in any way, including through the uploading of files which contain viruses, worms, “Trojan horses,” or other software or programs that may be damaging to the Internet Service or another user’s computer.
(xx) Newsgroup Flooding. You agree not to post or cross post, regardless of content, of the same message to 10 or more newsgroups.
(xxi) Unsolicited Transmissions. You agree not to use the Internet Service to transmit any unsolicited messages. Any messages distributed via a distribution list shall be limited to no more than 100 recipients per e-mail message transmitted per day. A valid return e-mail address and “opt out” option must be included in each distribution list transmission.
c. Privacy of Communications. Customer agrees that the Company has the right, but not the obligation, to monitor or disclose the contents of private communication, if the Company, in its sole discretion, reasonably believes that such action is necessary: (1) to comply with applicable law or valid legal process; or (2) to protect the Company’s rights or property. While the Company will make commercially reasonable efforts to keep the personal information of its Customers private and comply with applicable privacy laws and regulations, Customer should not consider any communications on the public Internet to be fully protected or confidential, due to hackers, malware, and other factors beyond Company’s control. For the same reasons, the Company cannot guarantee to keep material stored by Customer on Company’s Internet Service completely private, and strongly suggests that Customer encrypt Customer’s email and files.
d. Online Goods and Services. The Company does not control, provide, operate, or take responsibility for any Content, goods, or services available on or through the Service. You may receive blind opportunity advertisements, pyramid schemes, and other “get rich quick” schemes on or through the Internet Service. These should be avoided or approached with ample skepticism.
All such Content, goods, and services are made available by independent third parties and are not part of the Company or controlled by the Company. PLEASE REMEMBER THAT THE COMPANY DOES NOT ENDORSE, WARRANT, OR GUARANTEE THE ACCURACY, COMPLETENESS, USEFULNESS, QUALITY, OR AVAILABILITY OF ANY CONTENT, GOODS, OR SERVICES AVAILABLE ON OR THROUGH THE SERVICE, AND YOUR USE THEREOF IS SOLELY AT YOUR OWN RISK.
You should use your best judgment and exercise caution when purchasing a product through the Internet Service. The Company will not be a party to, or in any way be responsible for, monitoring any purchases or other transactions between you and any other persons providing Content, goods, or services on or through the Service. The Company assumes no responsibility for any such transactions and will not mediate disputes relating to such transactions. The Company disclaims any responsibility for any such transactions even where the Service features or displays a link with a particular World Wide Web site.
e. Material Downloaded Through the Internet Service. In addition to any content that may be provided by us, you may access material through the Internet Service that is not owned by the Company. Specific terms and conditions may apply to your use of any content or material made available through the Internet Service that is not owned by us. You should read those terms and conditions to learn how they apply to you and your use of any non-Company content.
f. Company will “black hole” data packets of members who are under DDOS attack. Members whose packets are black-holed will appear to have been disconnected from the Internet. Once the attack has stopped, the black hole will be lifted, and the affected customer will be back on-line. Customers under attack will be initially notified so they can respond appropriately to prevent future attacks. However, after 3 warnings, if the attacks still continue the black hole period will be lengthened to 48 hours. See company website for more detail regarding Company DDOS policy.
17. ADDITIONAL LIMITATIONS ON THE COMPANY’S LIABILITY FOR INTERNET SERVICE
a. NO LIABILITY FOR DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS EMPLOYEES, AGENTS, AFFILIATES OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM ANY: USE OF CUSTOMER’S ACCOUNT OR THE INTERNET SERVICE OR CUSTOMER’S INABILITY TO USE THE INTERNET SERVICE; ACCESS TO THE INTERNET OR ANY PART THEREOF; OR, CUSTOMER’S RELIANCE ON OR USE OF INFORMATION, SERVICES, CONTENT, GOODS OR MERCHANDISE PROVIDED ON OR THROUGH THE INTERNET SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
b. Responsibility for Content. You acknowledge that there is some content and material on the Internet or otherwise available through the Internet that may be offensive to some individuals, may be unsuitable for children, may violate federal, state or local laws, rules or regulations, or may violate your protected rights or those of others. We assume no responsibility for this content or material. Anyone who accesses such content and material does so at his or her own risk. NEITHER THE COMPANY NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO ACCESS TO SUCH CONTENT OR MATERIAL BY YOU OR OTHERS. Questions or complaints regarding content or material should be addressed to the content or material provider. You acknowledge that software programs are commercially available that claim to be able to restrict access to sexually explicit or other objectionable material on the Internet. We make no representation or warranty regarding the effectiveness of such programs.
c. Eavesdropping. The public Internet is used by numerous persons or entities including, without limitation, other subscribers to the Company’s Internet Service. As is the case with all shared networks like the public Internet, there is a risk that you could be subject to “eavesdropping.” This means that other persons or entities may be able to access and/or monitor your use of the Internet Service. If you post, store, transmit, or disseminate any sensitive or confidential information, you do so at your sole risk. NEITHER THE COMPANY NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO SUCH ACTIONS BY YOU. You acknowledge that software programs are commercially available that claim to be capable of encryption or anonymization. We make no representation or warranty regarding the effectiveness of these programs.
d. Opening of or Access to Customer Equipment. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE OPENED, UPDATED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AGENTS, IN CONNECTION WITH THE INSTALLATION, UPDATING OR REPAIR OF THE INTERNET SERVICE. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER, OTHER DEVICES USED IN CONNECTION WITH THE INTERNET SERVICE MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR OTHER DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
e. Software. We make no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a
result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the Service(s) if a virus or other harmful feature or software is present on your Customer Equipment. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call related to a virus or other harmful feature detected on the Customer Equipment. NEITHER THE COMPANY NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT. In addition, as part of the installation process for the software and other components of the Internet Services, system files on the Customer Equipment may be modified. We do not represent, warrant or covenant that these modifications will not disrupt the normal operations of any of the Customer Equipment including the loss of files. We do not represent, warrant, or covenant that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or disrupt the normal operations of any of the Customer Equipment. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM AND YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER THE COMPANY NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
18. NETWORK MANAGEMENT PRACTICES
a. The Company does not participate in any traffic shaping, filtering, or prioritization schemes that would unreasonably discriminate the transmission of lawful network traffic. Likewise, the Company does not block lawful content, ports, applications, services, or non-harmful devices (subject to reasonable network management). Traffic information is not stored, provided to any third parties, or used by the Company for non-network management purposes.
b. The Company currently provides no specialized services that impact the performance of the network.
c. The Company provides technical support only for Company approved DSL Routers in its network. Currently these modems are limited to BEC models 5200, 7800, 8920, and Xyzel models VMG4825, and EMG3425. Customers connecting unsupported devices must provide their own support, are not qualified to receive TeleMedia Pledge support, and may be subject to removing said devices if they are deemed harmful to the network.
d. Users may attach devices behind their Company issued routers for the transmission and receipt of lawful network traffic to include (but not be limited to) voice, video, and other types of data services.
e. Latency on the Company’s network is, on average, between 25-100ms. The Company’s network is suitable for real-time and/or time sensitive applications including (but not limited to) voice and video streaming.
f. For issues regarding service please email firstname.lastname@example.org. or phone Technical Support at 812-967-4357.
g. For questions regarding The Company’s conformance to Net Neutrality rules, please email: email@example.com.
19. DMCA AND COPYRIGHT INFRINGEMENT
The Company subscribes to the safe Harbor clause of the DMCA (Digital Millennium Copyright Act of 1998).
As such, the Company will upon notification of copyright infringement by a copyright owner, the RIAA (Recording Industry of America) or other governing body, notify the accused subscriber of such infringement. The subscriber has 7 days to counter notify the Company that the material has been identified incorrectly as copyrighted material. To be effective under this subsection, a counter notification must be a written communication provided to the Company’s designated agent (firstname.lastname@example.org) that includes the following:
a. A physical signature of the subscriber.
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
c. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
d. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the Company may be found, and that the subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a subscriber’s legitimate counter notification, the Company will promptly provide the complainant with a copy of the counter notification and restore access to the material 10 days following the date that the counter notification was sent to the complainant, unless the Company’s designated agent is served a subpoena by the complainant. Upon receiving a subpoena, the Company will remove access to the material again until otherwise advised by the complainant.
The Company will address initial and repeat copyright infringement complaints following these rules:
(i) First Infringement: Notify alleged infringer.
(ii) Second Infringement: Notify alleged infringer.
(iii) Third Infringement: Notify alleged infringer. Filtered DNS required
(iv) Fourth Infringement: Notify alleged infringer. Internet Service to such
infringer/subscriber/Customer shall be immediately terminated.
Hotels, restaurants, coffee shops, trailer parks, and other business that provide public access to the Internet are not excluded from the Company’s copyright infringement process. Such institutions should encrypt their wireless networks, and deploy a filtering solution to prevent copyright infringement on their network.
ADDITIONAL TERMS APPLICABLE TO LONG DISTANCE SERVICE
These additional terms and conditions apply to Message Telecommunication Services [MTS] furnished by the Company for the provision of Intrastate and Interstate telecommunication services for communications initiated from locations between and among points within the United States and US territories and possessions, and for the provision of International telecommunications services. LD Service is furnished subject to the availability of facilities and subject to transmission, atmospheric and like conditions by wire, cable, radio and/or a combination thereof. By accepting the LD Service, you agree to the terms and conditions set forth herein. When services and facilities are provided in part by the Company and in part by other companies, these terms and conditions apply to that portion of the service or facilities that the Company supplies.
“Aggregator” means any person or entity that, in the ordinary course of its operations, makes telephones available to the public or to transient users for interstate telephone calls using the service of TMS LD. The term “you” or “yours” may also apply to an Aggregator.
“Basic Services” are local services purchased from the local service provider. The charges for Basic Services appear on your monthly local service provider bill as Basic Charges. Also see Non-Basic Services.
“Calling/Travel Card” is a credit/charge card accepted by TMS LD for billing of TMS LD services. An approved local exchange carrier may issue Calling/Travel Cards. You are responsible for charges incurred through the use of your assigned Calling/Travel Card.
“International Calls” are calls originating from and/or terminating to those areas, other than the U. S., Alaska, Hawaii, Saipan, Northern Mariana Island, Guam, Puerto Rico and U.S. Virgin Islands, to or from which the Company elects to provide service.
“Interstate Calls” are state-to-state calls originating from and terminating to any point in the U.S.
“Intrastate Calls” are calls originating and terminating to any point within the same state in the U.S.
“Non-Basic Services” include, without limitation, inside wire maintenance, Internet service, telephone sets, video service and voice mail. The charges for Non-Basic Services appear on your monthly LD Service bill as Non-Basic Charges.
“Personal Identification Numbers (or “PIN”)” are a pre-defined series of numbers that you dial upon accessing our system to validate the caller’s authorization to use the services provided. Personal Identification Numbers may not be sold or distributed without our consent.
“Third Party Billed Calls” are calls made under a billing arrangement that allows charges to be billed to a telephone number that is different from the calling number and the called number.
“United States or U.S.” refers to the 48 contiguous United States.
21. UNDERTAKING OF THE COMPANY’S LONG DISTANCE SERVICE (“LD SERVICE”)
LD Service provides voice interexchange telecommunications services, where authorized and where necessary arrangements exist with other providers, for telecommunications originating and terminating in the United States, or between the United States and international points. Service areas are subject to change. The Company arranges for installation, operation and maintenance of the Service in accordance with these terms and conditions.
22. LIMITATION ON SERVICE.
We offer service where the necessary facilities and equipment are available. We may decline applications for service to or from a location where these facilities or equipment are not available. We are not liable for errors in transmission or for failure to establish connections. We may rely on third parties to provide portions of our service. We select the third party vendors and reserve the right to change the vendors at any time. We reserve the right to:
a. discontinue or limit service when required by conditions beyond our control or when service is used in violation of provisions in this Agreement or the law.
b. refuse to process Third Party Billed calls based on the originating or terminating location of the call or when the billed party and/or standard validation techniques cannot confirm acceptance of the call.
c. refuse to process Calling/Travel Card billed calls based on the originating location or when authorization cannot be validated.
d. limit service, or impose conditions required to meet regulatory or legal rules and standards, when the rules and standards have a material effect on the business or economic feasibility of providing service, as we determine in our sole judgment
e. add, change or discontinue services at any time.
23. LOCATION OF SERVICE
Interstate and international service is available on a presubscribed basis to Customers in the state of Indiana and certain other locations where we may be authorized to provide service. Interstate and international Calling/Travel Card service is available from all points in the United States and many other international points. (Please consult with Customer Service on Calling/Travel Card use and availability from international points.)
24. USE OF SERVICE
You may use our service for any lawful purpose, subject to limitations and conditions imposed by any applicable government authority. You obtain no property right or interest in the use of any specific type of facility, service, equipment, number, process, or code. We retain all right, title and interest to such items at all times. Recording of telephone conversations on our services is prohibited except as authorized by applicable government authority.
25. IF WE CANCEL SERVICE
We may, after providing you written notice, either temporarily withhold service, or terminate service if there remains an unpaid balance 30 days after the date of the invoice. We may bill you after your service ends for charges incurred before termination. We may discontinue or terminate service to you without notice:
a. for any violation of law or the provisions of this Agreement;
b. to comply with any order or request of any government authority having jurisdiction;
c. for unauthorized or unlawful use of Calling/Travel Card numbers and Personal Identification Numbers (PIN).
We may also temporarily withhold or terminate service with or without notice, if there is an unusually high volume of usage (before or after billing) where acceptable arrangements cannot be made to cover the charges. We may block access to overseas points when there is substantial fraudulent or unlawful use.
26. IF YOU CANCEL YOUR SERVICE APPLICATION
No cancellation charge applies if you cancel a service application prior to the start of service installation, or prior to the start of special construction. A charge may apply, however, if you cancel a service application after the start of installation or special construction. Cancellation charges may be specified in your written contract, if one is applicable. Otherwise, the cancellation charge will be equal to the costs we have incurred, but it will not be greater than the charge for the minimum period of service. In addition, applicable installation charges may apply.
27. BILL PAYMENT, LATE PAYMENT CHARGES AND OTHER FEES
All calls may be subject to a minimum billing period based upon the individual service or calling plan, a service charge for operator handled calls and directory assistance calls, and/or a surcharge or alternate carrier charge for Calling/Travel Card calls. Service is provided and billed on a monthly basis. The Company, your local service provider, or another Company affiliate or agent may issue your bill for LD Service.
Any payment made to the Company will first be applied to Basic Charges listed on your telephone bill. The balance will be applied to Non-Basic Charges, including LD Service intrastate, interstate and international long distance calling charges. Failure to pay Non-Basic Charges, including LD Service interstate and international long distance calling charges, will result in termination of all Non-Basic Services.
The security of your Personal Identification Number (PIN) is your responsibility. All calls placed using your PINs will be billed to you and will be your obligation. You will not be responsible for charges in connection with the unauthorized use of your PINs that occur after you notify us of the loss, theft, or other breach of security of your PINs.
28. INSPECTION, TESTING AND ADJUSTMENT
Upon reasonable notice, facilities or equipment provided to you by us will be made available to us for tests and maintenance adjustments. We may interrupt service at any time, without penalty or liability, if you fail to provide access for such tests or due to the departure from, or the reasonable suspicion of the departure from, any of these terms and conditions. No interruption allowance will be granted for such tests and adjustments, unless the interruption exceeds twentyfour hours and you request the allowance.
Our service may be interconnected with services or facilities of other authorized common carriers and with private systems, subject to technical limitations established by us. We do not undertake to provide any special facilities, equipment, or services for such interconnection. Our service is not part of a joint undertaking with such common carriers or systems. Such interconnection will be under the applicable terms and conditions of this Agreement and other common carriers’ agreements. You will ensure that your facilities or equipment are properly interconnected with our facilities or equipment. If you maintain or operate the interconnected facilities or equipment in a manner which results, or may result, in harm to our facilities, equipment, personnel, or the quality of service, we may, upon written notice, terminate your existing service.
30. TAXES AND LOCAL CHARGES
Federal excise tax, state and local sales, use, and similar taxes will be billed as separate line items. In certain instances, you may be subject to local exchange company charges or message unit charges to access our network or to terminate calls. The Company is not responsible for any of these local charges.
31. OBLIGATIONS OF THE AGGREGATOR
When service is provided to the transient public through an Aggregator, the Aggregator must comply with the requirements of 47 U.S.C. § 226 and any access requirements or rules that the
Federal Communications Commission (FCC) sets forth.