Carolina Mountain Cablevision Service Agreement
This Service Agreement (“Agreement”) states the terms and conditions under which subscribers (“You” or “Customer”) agree to purchase and use video programming, high-speed internet, and/or telephone service (individually and collectively the “Services”) from Carolina Mountain Cablevision Inc. (“CBVNOL”). By using any Service, Customer agrees to be bound by the terms of this Agreement and the policies referenced or incorporated herein as may be amended from time to time. If at any time you decide that you do not agree to these terms and conditions, you must contact us immediately to request disconnection of the Services. Customer agrees that CBVNOL MAY AMEND THE TERMS OF THE AGREEMENT PROSPECTIVELY BY POSTING A REVISED VERSION ON ITS WEBSITE THAT WILL BE DEEMED EFFECTIVE IN 30 DAYS. We may also change our rates upon thirty (30) days’ prior notice. If you continue to receive Service(s) after the end of the notice period, you will be considered to have accepted the changes.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH PROVIDES THAT YOU AND CBVNOL AGREE TO RESOLVE CERTAIN DISPUTES THROUGH ARBITRATION AND TO WAIVE CLASS ACTIONS. YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION PROVISION. SEE SECTION 5.
SERVICE AND RATES
Customer agrees to pay all applicable charges for the Services and any equipment provided by CBVNOL (“CBVNOL Equipment”) at the rates posted at http://cbvnol.com/services or as otherwise agreed to in any Service Order, term commitment agreement, or provided to Customer in writing at the time that service is ordered, installed, or changed. These charges may include “Monthly Service Charges” for Services and CBVNOL Equipment, usage charges (such as pay-per-view programming or international telephone calls), and one-time charges that may include, but are not limited to, construction, Service Installation Charge(s) for installation, repair, replacement, or any non-recurring charges. The Service shall only be provided to Customer(s) at the address where CBVNOL’s installation is performed. Customer may not transfer Customer’s rights or obligations to the Service to any successor tenant or occupant or to any other address without CBVNOL’s prior written consent. Service charges will begin to accrue at the earlier of the date a Service is installed or activated, or when Customer receives equipment from CBVNOL to perform a self-installation. The Service and all Service features are subject to availability on an ongoing basis. CBVNOL may without notice rearrange, delete, add, discontinue, modify, decline to provision, preempt or blackout programming, or otherwise change any or all Services or their features, content, technical specifications, packaging, or distribution at any time in its sole discretion.
2 PAYMENT TERMS
(a) Service Fees. CBVNOL reserves the right to require payment of installation fees, deposits, and/or the first month of a Service in advance prior to activation or installation of a Service. Otherwise, Monthly Services Charges will be billed in advance and usage, one-time and other charges will be billed in arrears. Customer agrees to be responsible for any and all charges, damages and costs that Customer or anyone using Customer’s Services incurs. CBVNOL may charge a monthly support maintenance fee or a per-instance support charge, depending on Customer location, for technical support services related to the Service. CBVNOL will identify any support charges to Customer prior to providing any technical support that would result in such charge(s).
(b) Taxes, Fees and Government Charges. Customer agrees to pay any sales, use, property, excise or other taxes, franchise fees, governmental charges (excluding income taxes), contributions to government programs such as the Federal Universal Service Fund, and surcharges that CBVNOL is permitted by applicable law to collect from its customers, as they may change from time to time. These may include but are not limited to surcharges for programming, license, copyright, retransmission of broadcast signals, and to recover CBVNOL’s reasonable costs for complying with applicable government regulations. A copy of the Customer’s tax exemption document, if applicable, must be provided in a format reasonably acceptable to CBVNOL to certify tax-exempt status. Tax-exempt status shall not relieve Customer of its obligation to pay any applicable franchise fees or certain fees and surcharges.
(c) Invoicing Errors. Customer must provide written notice to CBVNOL of any statement errors or disputed charges within thirty (30) days of the statement date on which the errors and/or disputed charges appear or any right to dispute such charges shall be waived. In the case of a billing dispute between the Customer and CBVNOL that cannot be settled to their mutual satisfaction, the undisputed portion and subsequent bills must be paid on a timely basis, or the Service may be subject to disconnection. During the period that the disputed amount is under investigation, CBVNOL shall not pursue any collection procedures with regard to the disputed amount. The Customer shall be required to pay the undisputed part of the bill, and if not paid, CBVNOL may discontinue service. CBVNOL will investigate customer complaints promptly and thoroughly.
(d) Due Date and Late Fees. All payments for Services are due and payable 20 days from the issue date of the bill. Customer cannot settle amounts owed us by writing “paid in full” or any other message on a check or other communication. If Customer fails to pay an invoice by the due date Customer will be charged a late fee on any outstanding past-due balance, and CBVNOL reserves the right to terminate or suspend all Services.
(e) Non-Payment. If Services are terminated because Customer does not pay for Service, CBVNOL may, in its sole discretion, require that Customer pay all past due charges, a reconnect fee, and a minimum of one month’s Monthly Service Fees in advance before CBVNOL will reconnect Services. Customer shall be responsible for all expenses, including reasonable attorneys’ fees and collection costs, incurred by CBVNOL in collecting any unpaid past due amounts due under this Agreement.
(f) Returned Checks, Bankcard or Credit Card Charge-Backs and Collection Fees. CBVNOL may charge a reasonable service fee for all returned checks and bankcard, credit card or other charge card charge-backs. Customer agrees that CBVNOL has the right to present to Customer’s banking institution for payment via electronic funds transfer, any returned check or declined card amount and the applicable NSF Fee.
(g) Payment by Credit or Debit Card. All payments made by credit or debit card will incur an additional charge per transaction.
(h) Payment by Check. By sending your check to us, you authorize us to send the information from your check electronically to your bank for payment or to present an image copy of your check for payment. Your bank account will be debited in the amount of your check as early as the same day we receive your payment, and the transaction will appear on your bank statement. Your original check may be destroyed, and you will not receive your cancelled check back.
(i) Deposits. We may require you to pay a refundable deposit when you activate a Service, if you add CBVNOL Equipment, or if you fail to pay any amounts when they are due. If we disconnect your Service(s) or are otherwise required under applicable law to refund the deposit, we shall within forty-five (45) days or as otherwise specified by applicable law return a sum equal to the deposit(s) you paid (without interest unless otherwise required by law) minus any amounts due on your account (including without limitation, any amounts owed for Services or for any CBVNOL Equipment that is damaged, altered, or not returned).
(j) Prior Accounts. Customer warrants that no monies are owing to CBVNOL from previous Customer accounts with CBVNOL. If CBVNOL finds a prior account with Customer with monies owed to CBVNOL, then CBVNOL may apply any funds received from Customer to that prior account before the funds are applied to the new account. CBVNOL is not required to furnish its service or to continue its service to any applicant who, at the time of application, is indebted under an undisputed bill to CBVNOL for Service previously furnished to such applicant or any other member of the applicant’s household.
3. PREMISES ACCESS AND INSTALLATION
(a) Access. Customer shall provide CBVNOL with reasonable access to Customer’s home and property or other location where a Service has been requested (“Customer Premises”) as deemed necessary by CBVNOL to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Services. If Customer owns and/or controls the Customer Premises, Customer grants to CBVNOL permission to enter the site(s) for the exercise of such right. If Customer is not the owner of the premises upon which the Service is to be installed or serviced, Customer represents and warrants that Customer has obtained the consent of the owner of the premises for CBVNOL personnel and/or its agents to enter the premises for the purposes described above. Customer authorizes any other adult resident or guest at the Customer Premises to grant CBVNOL access to the Customer Premises, if Customer is not present when CBVNOL visits.
(b) Installation Review. CBVNOL may perform an installation review of each Customer Premises prior to installation of Services at that Customer Premises. Customer may be required to provide CBVNOL with accurate site and/or physical network diagrams or maps of a Customer Premises prior to the installation review. CBVNOL may directly or through its agents inspect the Customer Premises before beginning installation. In the event that during the course of installation CBVNOL determines additional work is necessary to enable CBVNOL to deliver the Services to the Customer Premises, CBVNOL will notify Customer of any new or additional one-time charges that may be necessary. In the event the Customer does not agree to pay such one-time charges, CBVNOL shall have the right to terminate the applicable request for Service.
(c) Site Preparation. Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the CBVNOL Equipment and the installation and ongoing provision of Services, including, but not limited to, the relocation of Customer’s equipment, furniture and furnishings as necessary to access the Equipment and/or Services. CBVNOL shall not be liable for any damage, loss or destruction to Customer’s home or Premises or Customer’s computer or other equipment whatsoever during installation or repair, including but not limited to any damage to, or loss or destruction of, any hardware, software, files or data. CBVNOL is also not responsible for returning Customer’s computer or other equipment to its original configuration. If Customer is not the owner of the Premises, Customer shall indemnify and hold CBVNOL harmless from and against any claims of the owner of the Premises arising out of the provision or use of Services or the performance of this Agreement.
(d) Site Visits and Repairs. If Customer’s misuse, abuse or modification of the Services, Equipment or network facilities supplied by CBVNOL necessitates a visit to the Customer site for inspection, correction or repair, Customer is liable to CBVNOL for a site visit fee as well as charges for any Equipment or network repair or replacement necessary to restore Services.
4. EQUIPMENT AND MATERIALS
(a) Responsibilities and Safeguards. Except as otherwise agreed by the Parties herein or in separate writing, neither party shall be responsible for the maintenance or repair of cable, electronics, structures, equipment or materials owned by the other party, provided, however, that subject to the limitations set forth in the indemnification requirements set forth in this Agreement, each party shall be responsible to the other for any physical damage or harm such party causes to the other party’s personal or real property through the damage-causing party’s negligence or willful misconduct. Customer shall: (i) safeguard CBVNOL Equipment; (ii) not modify, disturb, alter, remove, nor otherwise tamper with any portion of the CBVNOL Equipment; (iii) not hire nor permit anyone other than personnel authorized by CBVNOL acting in their official capacity to perform any work on the Equipment; and (iv) not move nor relocate CBVNOL Equipment to another location or use it at an address other than the Service location without the prior written consent of CBVNOL. Any unauthorized connection or other tampering with the Services, CBVNOL Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and/or legal action, and CBVNOL shall be entitled to recover damages, including, but not limited to, the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs and attorneys’ fees. Customer shall be liable for: (i) loss due to theft, fire, flood, or other destruction of CBVNOL Equipment or its facilities on Customer’s Premises; and (ii) reimbursing CBVNOL for damages to CBVNOL’s network, facilities or equipment caused by the negligence or willful acts of the Customer.
(b) Ownership. Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by CBVNOL are and shall always remain the property of CBVNOL, shall not become a fixture to the Customer Premises, and must be returned to CBVNOL at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, or assign the CBVNOL Equipment and shall keep such Equipment free and clear of all liens, encumbrances and security interests.
(c) Equipment Return. Immediately upon termination of a Service, Customer shall return the CBVNOL Equipment that Customer leased from CBVNOL (such as set-top boxes, modems, CableCARDs, remote control devices, and associated cabling), in good condition. Failure of Customer to return, or allow CBVNOL to retrieve, such Equipment within ten (10) days after Services are terminated will result in a charge to Customer’s account equal to the full retail cost of replacement of the unreturned Equipment. CBVNOL shall have the right to leave any Equipment or components of its network in place at the premises, and Customer will permit CBVNOL to retrieve such Equipment during reasonable hours. Customer agrees to pay for the repair or replacement of any damaged CBVNOL Equipment (whether or not caused by Customer’s negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects), together with any costs incurred by CBVNOL in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attorneys’ fees.
(d) Software. Any software provided by CBVNOL is the property of CBVNOL and/or its suppliers and licensors. CBVNOL hereby grants Customer a nonexclusive, nontransferable license to use the software for use solely in connection with the Service. Customer’s license to use any software is contingent upon Customer’s compliance with all use and other restrictions established by this Agreement. It is a material breach for Customer to copy, duplicate, reverse engineer or in any way modify, change, or interfere with any software provided by CBVNOL. Upon any termination of this Agreement or the disconnection of Customer’s Service, this license will terminate and Customer agrees to then destroy or return to CBVNOL all copies of the software that were delivered to Customer We reserve the right to alter software in the CBVNOL equipment, and provide content to DVR products, through periodic downloads. We will use commercially reasonable efforts to schedule these downloads in a manner that result in the least amount of interference with or interruption to your Service.
5. DISPUTE RESOLUTION AND ARBITRATION
(a) Binding Arbitration. YOU AND CBVNOL AGREE THAT ANY DISPUTE (AS DEFINED BELOW) WITH CBVNOL THAT CANNOT BE RESOLVED INFORMALLY WILL BE RESOLVED BY ARBITRATION BY A SINGLE ARBITRATOR BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN THE COUNTY OF YOUR SERVICE ADDRESS, EXCEPT FOR ANY (i) CLAIM FOR INJUNCTIVE RELIEF; OR (ii) CLAIM THAT IS NOT AGGREGATED WITH THE CLAIMS OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A SMALL CLAIMS COURT. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may also result in limited discovery. An arbitration award is subject to limited review by a court. This Arbitration Provision will survive the termination of your Services with CBVNOL and termination of the Agreement.
(b) Dispute. The term “Dispute” means any dispute, claim or controversy between you and CBVNOL regarding any aspect of your relationship with CBVNOL that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory. “Dispute” is to be given the broadest possible meaning that will be enforced.
(c) Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST SEND A WRITTEN REQUEST TO OPT-OUT, INCLUDING YOUR NAME, ADDRESS, CBVNOL ACCOUNT NUMBER, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH CBVNOL THROUGH ARBITRATION, WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT AND DELIVER TO CAROLINA MOUNTAIN CABLEVISION, ARBITRATION OPT-OUT REQUEST, PO BOX 457, BURNSVILLE, NC 28714. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH CBVNOL OR THE DELIVERY OF SERVICES TO YOU BY CBVNOL. IF YOU HAVE PREVIOUSLY NOTIFIED CBVNOL OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
(d) Restrictions. (i) ALL CLAIMS BROUGHT IN ARBITRATION OR OTHERWISE MUST BE FILED WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (OR ANY EARLIER DEADLINE ESTABLISHED BY THIS AGREEMENT OR APPLICABLE LAW), OR THE PARTY WAIVES ITS RIGHT TO PURSUE SUCH CLAIM. (ii) ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.
(e) Arbitration Procedure. The party seeking arbitration must first notify the other party of the Dispute in writing at least 30 days in advance of initiating the arbitration. Such notice must describe the nature of the claim and the relief being sought. If we are unable to informally resolve our Dispute within 30 days, either party may then proceed to file a claim for arbitration. AAA may be contacted at 335 Madison Ave., Floor 10, New York, NY 10017, 1-800-778-7879, www.adr.org. AAA will apply its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“AAA Rules”). The Services provided to you by CBVNOL concern interstate commerce, so the Federal Arbitration Act (“FAA”), not any state arbitration law, shall govern the arbitrability of all Disputes and the application and enforceability of this Arbitration Provision. Applicable federal law or the law of the state where you receive the Services from CBVNOL, however, shall apply to and govern the substance of any Disputes. If there is a conflict between this arbitration provision and the rules of the arbitration organization, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or required by applicable law. An award granted by the arbitrator may be enforced in any court with appropriate jurisdiction over the parties.
(f) Payment of Arbitration Fees and Expenses. Payment of all arbitration fees and expenses will be governed by the AAA Rules. You are responsible for paying your filing fee. CBVNOL will pay its own filing fee, and will pay all administration, and arbitrator fees and arbitrator expenses for the Dispute, unless the arbitrator determines that the Dispute was filed for an improper purpose or is frivolous. You are responsible for paying fees and expenses for your attorneys, witnesses, and experts in arbitration, unless applicable law requires otherwise. If the arbitrator determines that the Dispute was filed for an improper purpose or is frivolous, you agree to reimburse CBVNOL for previous payments it made that are otherwise your obligation to pay under the AAA Rules and applicable law.
(g) Severability. If any clause within this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action and class arbitration waiver is found to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the Dispute will be decided by a court. If this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found to be excluded from the scope of this Arbitration Provision, YOU AND COMPANY EACH HEREBY AGREE TO WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY TRIAL BY JURY.
6. NO THIRD-PARTY HARDWARE OR SOFTWARE SUPPORT
Customer is responsible for the installation, maintenance, repair and use of Customer-supplied third-party hardware and/or software. Any questions concerning third-party hardware or software should be directed to the manufacturer of that product. CBVNOL assumes no liability or responsibility for the installation, maintenance, compatibility, performance, or technical assistance or other support of third party software, any Customer-supplied hardware or software with the Services. If such third-party equipment or software impairs the Services, Customer shall remain liable for payments for Services without recourse for credit or prorated refund for the period of impairment. CBVNOL has no responsibility to resolve the difficulties caused by such third-party equipment or software. If, at Customer’s request, CBVNOL should attempt to resolve difficulties caused by such third-party equipment or software, such efforts shall be performed at CBVNOL discretion and at then-current commercial rates and terms. Should any antenna, or signal amplification system or other third-party device interfere with the Services provided by CBVNOL hereunder, Customer acknowledges and agrees that CBVNOL shall not be obligated to distribute a quality signal to the Premises better than the highest quality which can be furnished as a result of such interference, until such time as the interference is eliminated or corrected by Customer or a third party.
7. CUSTOMER USE
Customer is responsible for all use of the Services provided to their service location whether authorized by Customer or not. Customer agrees not to re-sell or re-distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of CBVNOL. Customer agrees not to use or permit third parties to use the Service(s), including but not limited to the Equipment and software provided by CBVNOL, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material. Customer agrees not to interfere with other customers’ use of the Equipment or Services or disrupt the CBVNOL network, backbone, nodes or other Services.
8. DEFAULT; SUSPENSION OF SERVICE; TERMINATION(a)
(a) Termination of Service by Customer. Customers not subject to any term commitments may terminate Service at any time by calling CBVNOL, effective upon the later of CBVNOL’s termination of the Service or Customer’s return of all CBVNOL Equipment. CBVNOL may be allowed a reasonable period of time after the receipt of Customer’s request to terminate Services and to render a final bill, which Customer agrees to pay. The Monthly Service Charges, plus associated taxes, shall be pro-rated for the actual number of days in which service has been provided, with non-used portion being refunded to the Customer.
(b) Termination or Suspension of Service by CBVNOL. CBVNOL may terminate this Agreement and/or refuse, suspend, or discontinue any Service with or without notice in the event of: a condition determined by CBVNOL to be hazardous or dangerous or that adversely affects CBVNOL or its other customers; any violation by Customer of the terms of this Agreement; use of Service that appears to be unauthorized, unlawful, fraudulent (including unusual or excessive usage), or in violation of this Agreement; Customer files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law; Customer fails to pay a required amount when due or threatens or harasses any CBVNOL employee or contractor. If Customer is disconnected for any reason and/or service is suspended in accordance with this agreement, Customer may be charged (i) a reasonable disconnection and/or a reconnection fee and/or (ii) for service during the period of suspension in accordance with applicable federal and state law. In the event that Customer’s account is suspended, disconnected, and/or terminated, no refund will be credited to Customer, including any fees Customer paid to CBVNOL or to third parties. CBVNOL will not be responsible for the return of data stored on CBVNOL’s servers or CBVNOL Equipment. Customer agrees that CBVNOL has no obligation to visit Customer’s Premises upon termination to reconfigure Customer’s Equipment.
(c) Default by CBVNOL. Customer may terminate this Agreement in the event that CBVNOL fails to comply with the terms of this Agreement and fails to remedy such noncompliance or occurrence within thirty (30) days of receipt of written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance. If Termination is due to CBVNOL’s default, CBVNOL shall reimburse Customer for any pre-paid, unused Monthly Service Fees attributable to such terminated Service plus any installation charge billed to Customer within the preceding thirty days.
9. LIMITATIONS OF WARRANTIES AND LIABILITY
PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. Customer acknowledges and agrees that CBVNOL has priced its Services and entered into this Agreement in reliance upon the limitations of liability set forth herein, and that the same form an essential basis of the bargain between the parties. Customer understands and agrees that the limitations and exclusions of liability and disclaimers in the agreement will survive and apply even if found to have failed of their essential purpose. If any of the exclusions in this Agreement is found invalid, CBVNOL’s liability is limited to the maximum extent permitted by law.
(a) NO WARRANTIES. CUSTOMER AGREES THAT CUSTOMER USES THE SERVICE AND ANY SOFTWARE AND EQUIPMENT SUPPLIED BY CBVNOL AT CUSTOMER’S SOLE RISK. THE SERVICE AND CBVNOL EQUIPMENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, CBVNOL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CBVNOL does not warrant that transmissions sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time. You assume the risk of high-risk activities. The Services are not represented as fail-safe. They are not designed for use in situations where error-free or uninterrupted service is essential. You expressly assume the risk of any damages from high-risk activities involving vital communications in which an error or interruption in the Services could lead to material injury to business, persons, property, or the environment.
(b) Limitations of Liability/Exclusive Remedy. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, CBVNOL’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICE AND EQUIPMENT, OR ANY BREACH BY CBVNOL OF ANY OBLIGATION CBVNOL MAY HAVE UNDER THIS AGREEMENT, SHALL BE CUSTOMER’S ABILITY TO TERMINATE THE SERVICE. CBVNOL SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH, OR THE DEGRADATION OR INTERRUPTION OF, ANY SERVICES, FOR ANY LOST DATA OR CONTENT, IDENTIFY THEFT, FOR ANY DAMAGE TO CUSTOMER EQUIPMENT REGARDLESS OF CAUSE. CBVNOL SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT, SOFTWARE, WIRING OR THE PROVISION OF SERVICES. IN NO EVENT SHALL CBVNOL’S LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO ACCESS AND USE THE SERVICES FOR A PERIOD OF THREE MONTHS. CUSTOMER HEREBY RELEASES CBVNOL FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND/OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Limitations of Liability For Service Failure; Outage Credits. Customer understands and agrees that the Service may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons that may be beyond CBVNOL’s reasonable control. Temporary service interruptions/outages for such reasons, as well as service interruptions/outages caused by the Customer, its agents and employees, or by a Force Majeure Event, shall not constitute a failure by CBVNOL to perform its obligations under this Agreement. Customer’s sole remedy for any outage is a pro-rated credit for monthly recurring service charges for complete failure of a Service of at least twenty-four consecutive hours not caused by Customer or any person Customer permits to enter his property or use a Service, Customer’s Equipment, or by loss of power at Customer’s premises, for 24 consecutive hours or more. TO QUALIFY FOR A CREDIT, YOU MUST REQUEST IT WITHIN 30 DAYS OF THE FAILURE.
(d) No Liability Arising from Content, Communications, or Third Party Services. Customer acknowledges that content, communications, or applications that Customer may access or transmit through any Service is provided by independent content providers, over which CBVNOL does not exercise and disclaims any control. CBVNOL neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any Service; and assumes no responsibility for content or other material received from a third party. CBVNOL specifically disclaims any responsibility for the accuracy or quality of the information obtained using the Service. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. Customer and their authorized users accessing other parties’ content, communications, or applications through the Services do so at Customer’s own risk, and Customer holds harmless CBVNOL from any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content, communications, or applications, and from any damage to or loss or destruction of any of Customer’s hardware, software, files, data or peripherals which may result from Customer’s use of any Service or from the installation, maintenance or removal of any Service, network, or related Equipment or software.
(e) Force Majeure Event. Customer agrees that CBVNOL shall not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of Services or other inability to perform any obligations under this Agreement, directly or indirectly caused by circumstances beyond CBVNOL’s control, including but not limited to denial of use of or damage to poles, cables, or other facilities, labor disputes, acts of war or terrorism, criminal, illegal or unlawful acts, natural causes, acts of God, fire, flood, earthquake, explosion, power blackout, cable cut, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, mechanical or power failures, or any order, law or ordinance in any way restricting the operation of the Services.
(f) Interference. Customer waives all claims against CBVNOL and its service providers, for interference, disruption, or incompatibility between the CBVNOL Equipment or the Services and any other service, systems, or equipment. In the event of such interference, disruption, or incompatibility, your sole remedy shall be to terminate the Services in accordance with the Agreement.
Customer agrees, at its own expense, to indemnify, defend and hold harmless CBVNOL and its directors, employees, representatives, officers and agents (the “Indemnified Parties”) against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Indemnified Parties, including but not limited to, reasonable attorneys and witness fees and court costs incurred by Indemnified Parties under this Agreement, to the full extent that such arise from: Customer’s misrepresentation with regard to or noncompliance with the terms of this Agreement (including but not limited to CBVNOL’s Acceptable Use Policy); Customer’s failure to comply with applicable law; any use of the Services or Equipment provided to Customer whether authorized or not, including but not limited to claims of libel, slander, or the infringement of patent, copyright, unauthorized use of any trademark, trade name, service mark, or any other intellectual property right of any third party, arising from the material transmitted over a Service or the use of a Service or Equipment; for damages to property or injury or death of any person arising from the installation and provision of Service, except to the extent caused by the negligence or willful misconduct of CBVNOL or its authorized employees or agents; and/or Customer’s negligent acts or omissions or willful misconduct. Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customer’s cost and Customer agrees to cooperate with Indemnified Parties in such case.
12. GENERAL CUSTOMER REPRESENTATIONS AND OBLIGATIONS
Customer represents that Customer is at least 18 years of age and has the authority to execute, deliver and carry out the terms of this Agreement. Customer also represents that any person who accesses any Services through Customer’s equipment or through the network facilities in Customer’s Premises will be an authorized user, will use the Service in an appropriate and legal manner, and will be subject to the terms of this Agreement. Customer shall be responsible for ensuring that all such users understand the Agreement and comply with its terms. Customer shall be responsible for all access to and use of the Service, whether or not the Customer has knowledge of or authorizes such access or use. The Customer shall be solely liable and responsible for all charges incurred and all conduct through either authorized or unauthorized use of the Service. CBVNOL expressly prohibits using the Service for the posting or transferring of sexually explicit images, material inappropriate for minors, or other offensive materials. By signing, Customer expressly acknowledges that Customer will not post or transfer or permit others to post or transfer such materials using the Service. Except in the case of Services purchased at our commercial rates, the Services and the CBVNOL Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same address. Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the CBVNOL Equipment and/or Service by means of the Customer Equipment. The identifying information that Customer has provided and will provide to CBVNOL during the term of this Agreement, including without limitation Customer’s legal name, address, telephone number(s), the number of computers on which the Service is being accessed and payment data (including without limitation information provided when authorizing recurring payments) is accurate, complete and current. Customer agrees to promptly notify CBVNOL, in accordance with the terms of this Agreement, upon the occurrence of any change in the status of Customers’ account (e.g., change in individuals authorized to use Customer’s account) or if there is any change in the information that Customer has provided to CBVNOL. Failure to provide and maintain accurate information constitutes a breach of this Agreement.
Any notices to be given under this Agreement to Customer shall be provided in writing by U.S. mail or hand-delivery to their billing or service address. Notices to be given to CBVNOL shall be sent in writing to Contract Notices, 18 East US Hwy. 19E Bypass, PO Box 457, Burnsville, NC 28714.
(a) Entire Agreement. This Agreement, including all CBVNOL policies and rate information referenced herein, constitutes the entire Agreement with respect to the Services and Equipment. This Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.
(b) No Assignment or Transfer. Customer may not assign, transfer, resell or sublicense Customer’s rights (directly or indirectly) this Agreement or their rights or obligations hereunder, or any Service provided hereunder, to any other entity, including but not limited to any successor tenant or occupant, without first obtaining written consent from CBVNOL.
(c) Severability. If any portion of this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law.
(d) Section Headings. The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Agreement.
(e) Governing Law. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of North Carolina, without regard to conflicts of law provisions. Customer agrees that the federal and state courts of North Carolina alone have jurisdiction over all disputes arising under this Agreement (subject to the binding arbitration provisions set forth herein), and Customer consents to personal jurisdiction of those courts with respect to any disputes arising under this Agreement. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND CBVNOL EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY.
(f) No Third Party Beneficiaries. The parties agree that the terms of this Agreement and the parties’ respective performance of obligations as described are not intended to benefit any person or entity not a party to this Agreement, that the consideration provided by each party under this Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Agreement shall have any rights under this Agreement nor the right to require the performance of obligations by either of the parties under this Agreement.
(g) Waiver. Except as otherwise provided herein, the failure of CBVNOL to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
ADDITIONAL TERMS APPLICABLE TO VIDEO AND MUSIC SERVICES
15. USE OF VIDEO SERVICES
Except for Services purchased at our commercial rates, Customer may not make available any Video or Music Services at any commercial establishment or charge any fee to any person to enter the Customer Premises where such Services are available or to view or hear such Services. Commercial Customers shall not exhibit nor assist in the exhibition of any pay-per-view video programming unless explicitly authorized to do so, in advance and in writing, by CBVNOL and the applicable program or event distributor. In requesting such explicit authorization, Customer agrees to identify itself as a commercial establishment. Customer shall not and nor authorize or permit any other person to (i) copy, record, dub, duplicate, alter, make or manufacture any recordings or other reproductions of the Services (or any part thereof); (ii) transmit the Services (or any part thereof) by any television or radio broadcast or by any other means or use the Services (or any part thereof) outside the Customer Premises. Customer acknowledges that such duplication, reproduction or transmission may subject Customer to criminal penalties and/or civil liability and damages under applicable copyright and/or trademark laws. Customer shall not, and shall not authorize or permit any other person to (i) charge a cover charge or admission fee to any Customer Premises at the time the Services (or any part thereof) are being performed or are to be performed; (ii) permit dancing, skating or other similar forms of entertainment or physical activity in conjunction with the performance of the Services (or any part thereof) unless Customer can demonstrate to the reasonable satisfaction of CBVNOL that Customer or a third-party has obtained a then-current music license permitting such activity; or (iii) insert any commercial announcements into the Services or interrupt any performance of the Services for the making of any commercial announcements. Customer is responsible for and must secure any music rights and/or pay applicable fees required by the American Society of Composers, Authors & Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”) and SESAC, Inc. or their respective successors, and any other entity, person or governmental authority from which a license is necessary or appropriate in connection with Customer’s transmission, retransmission, communication, distribution, performance or other use of the Services. Certain Services transmitted by us, including but not limited to some subscription Services, sporting events and broadcast network Services, may be blacked out in your area of reception. If you circumvent or attempt to circumvent any of these blackouts, you may be subject to legal action. You must be at least 18 years of age, or the applicable age of majority where you reside, in order to receive adult-oriented programming services. If Customer fails to abide by these restrictions in this Section, Customer accepts liability for any and all claims made against Customer or CBVNOL due to such violation and Customer agrees to indemnify and hold CBVNOL harmless from any damages, loss, cost, liability, or expense, including reasonable attorneys’ fees, arising from a breach of these restrictions.
16. EQUIPMENT USED WITH VIDEO SERVICES
Video Service is subject to the limitations and conditions set forth in CBVNOL’s Equipment Compatibility Notice in our annual notice to customers posted at http://www.cbvnol.com/policies. As explained therein, you will need to lease a set-top box or use a retail device that uses a CableCARD for each television on which you wish to receive our digital video programming other than our basic service tier. You may purchase or lease a CableCARD from us at the rates posted on our website. You may request a professional installation of the CableCARD at our standard installation rates or elect to self-install your CableCARD. Our HD and DVR leased set-top boxes include an imputed charge of $2.95 for integrated security or for a CableCARD. All Customers using set-top boxes or retail CableCARD devices are responsible for a monthly Includes Integrated Interactive Access charge of $3.00 per device. This charge is included in set-top lease rates but is billed separately for CableCARDs used in retail devices since we offer the option to purchase rather than lease a CableCARD.
ADDITIONAL TERMS APPLICABLE TO INTERNET ACCESS SERVICES
17. NETWORK PERFORMANCE AND MANAGEMENT
Customer understands and agrees that our Internet Services do not guarantee a specific speed or capability and are advertised as providing “up to” a particular speed. CBVNOL may use various tools and techniques in order to efficiently manage and protect its networks and the quality of service available to other customers, and to ensure compliance with this Agreement. CBVNOL may utilize any lawful network management practice, including detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code, and managing network resources through techniques such as limiting the aggregate bandwidth available and such other network management tools as CBVNOL may from time to time determine appropriate in situations where CBVNOL believes, in its sole discretion, that Customer may harm the CBVNOL network or disrupt the performance of the Service for other users or where Customer is transmitting or is otherwise connected with what CBVNOL considers in its sole discretion to be spam. For more information regarding network management and performance, see CBVNOL’s Network Management Practices Policy Disclosure posted at Cable Television, Phone and Internet Services In Waynesville NC - Carolina Mountain Cablevision Inc. (cbvnol.com).
18. ACCESS AND USE
When Customer completes registration for Internet Service, Customer must select a user name and password to be used to access the Service. Customer is responsible for anyone using Customer’s computer system, password or user name in connection with the Service and for ensuring that anyone who does use the Service through Customer’s computer or access to the Service, does so in accordance with the terms and conditions of this Agreement. Customer agrees to take all reasonable measures necessary to ensure that the Service is not used by another without Customer’s consent. Customer is required to assure that all users of its service comply with the terms of this Agreement and the applicable CBVNOL Acceptable Use Policy (“AUP”), found at Cable Television, Phone and Internet Services In Waynesville NC - Carolina Mountain Cablevision Inc. (cbvnol.com) and those policies are incorporated by reference into this Agreement. (The Commercial AUP shall apply to Services purchased at commercial service rates, and the Residential AUP shall apply to all other Internet Services). Customer represents and warrants that Customer has read the applicable AUP and agrees to be bound by its terms. Customer expressly understands and agrees that the AUP may be updated or modified from time to time by CBVNOL, with or without notice to Customer. CBVNOL may discontinue or disconnect Services immediately for any violation of the CBVNOL AUP with or without notice to Customer. Customer shall be responsible for all charges incurred and all conduct, whether authorized or unauthorized, caused by use of Customer’s computers, equipment, service locations, facilities or account using the Internet Services.
19. EQUIPMENT AND SOFTWARE REQUIREMENTS
Customer shall maintain certain minimum equipment and software to receive the Service, including that Customer must have a personal computer or other compatible receiving device, an Ethernet network interface, a cable modem, and operating system software meeting CBVNOL’s then-applicable minimum requirements. Please contact us for the current specifications. The minimum configuration standards may change, and CBVNOL will make reasonable efforts to support previously acceptable configurations; however, CBVNOL is not obligated to continue to provide such support. CBVNOL may supply equipment such as modems, gateways, or routers, for a fee, to operate the Service. Customer acknowledges that such CBVNOL Equipment may require updates and/or changes to the software resident in the equipment and that Customer may be required to perform such updates and/or changes. Customer hereby authorizes CBVNOL to perform updates and/or changes, on-site or remotely from time to time as CBVNOL deems necessary, in CBVNOL’s sole discretion. Customer will not connect any equipment, other than equipment authorized by CBVNOL, to the cable modem outlet. If Customer wishes to purchase a modem, you must contact us for a list of compatible options, and only install such equipment. Customer understands that failure to comply with this restriction may damage the CBVNOL network and subject Customer to liability for damages. If Customer purchases the cable modem, CBVNOL reserves the right to download firmware to meet current requirements. CBVNOL provides a limited one year warranty against any defect in materials or workmanship of the modem purchased directly from CBVNOL. This limited warranty shall supersede any and all manufacturer warranties. In the event there is a problem with the modem that cannot be corrected, CBVNOL will replace the equipment with either a new or refurbished unit at CBVNOL’s option. CBVNOL does not guarantee that the equipment it replaces will be the same make or model as the originally purchased equipment. This warranty expressly excludes defects in the modem caused by acts of nature or for which the Customer is responsible, such as, but not limited to, lightning or water damage or damage from misuse or neglect. To obtain warranty service, please contact CBVNOL.
20. EMAIL AND ADDRESSES
All e-mail addresses, e-mail account names, and IP addresses (“Electronic Addresses”) provided by CBVNOL are and shall remain the property of CBVNOL. Customer may not alter, modify, sell, lease, assign, encumber or otherwise tamper with the Electronic Addresses. CBVNOL reserves the right to change addressing schemes, including e-mail and IP addresses. CBVNOL may also limit the number of new email addresses that can be created. In no event will CBVNOL be responsible for maintaining, and CBVNOL will not guarantee storage of, such electronic mail for any period of time. CBVNOL also reserves the right to enforce email storage limits. To access a CBVNOL e-mail account, Customer must have their browser configured to accept cookies. Customer acknowledges and understands that CBVNOL utilizes anti-spam software that may block incoming and outgoing electronic mail. CBVNOL does not warrant that such feature will block all unwanted mail/spam or that all mail that is blocked constitutes unwanted mail/ spam or that such feature will be error-free. Customer agrees that CBVNOL is entitled to damages if Customer is transmitting or is otherwise connected with spam. Customer agrees CBVNOL is entitled to actual damages, however, if actual damages cannot be reasonably calculated, Customer agrees to pay CBVNOL liquidated damages of five dollars (U.S. $5.00) for each piece of spam transmitted from or otherwise connected with Customer’s account.
21. CUSTOMER SECURITY RESPONSIBILITIES
CBVNOL does not warrant that data or files sent or received by the Customer will not be subject to unauthorized access by others, that other users will not gain access to the Customer’s data, nor that the data or files will be free from computer viruses or other harmful components. CBVNOL has no responsibility and assumes no liability for such acts or occurrences. Customer is solely responsible for taking and should take all appropriate security measures when using the Service, including but not limited to any recommended by CBVNOL. Customer shall be responsible for procuring, installing, configuring and maintaining security software and methods, including but not limited to anti-virus, firewall, software/hardware and operating system updates or supplements that may be necessary for the protection and maximum functionality of Customer’s computer and related equipment and the protection of CBVNOL’s network and other customers.
22. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CBVNOL DOES NOT WARRANT UNINTERRUPTED USE OF SERVICE OR THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS.
CBVNOL does not warrant that any data or files 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 that other users will be unable to gain access to Customer’s computer, other devices, or information. Through use of the Service, Customer may access certain information, products and services of others. The Customer shall be solely liable and responsible for all fees or charges for these online services, products or information. When Customer uses the Service and/or accesses CBVNOL web sites, Customer may encounter links allowing Customer to visit web sites operated or owned by third parties. CBVNOL provides these links as a convenience. The presence of a link to any Third Party Site is not an endorsement by CBVNOL of the third party site, an acknowledgment of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer.
THE FOLLOWING TERMS ARE APPLICABLE TO ANY
CBVNOL CUSTOMER SUBSCRIBING TO CBVNOL TELEPHONE SERVICES
23. LIMITATIONS OF 911/E911 DIALING
(a) Limitations. The Services include 911/Enhanced 911 functions (“911”) that differ from 911/E911 functions furnished by traditional telephone service providers. As such, the 911 Services may have certain limitations. CAREFULLY READ THE INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS ON 911. YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES. If you have any questions about 911, call CBVNOL at (866) 571-8671.
(b) Correct Address. In order for your 911 calls to be properly directed to emergency services, we must have your correct service address. If you move the Services to a different address without our approval (which in any event would be a violation of this Agreement), 911 calls may be directed to the wrong emergency authority, may transmit the wrong address, or the Services (including 911) may fail altogether. Therefore, you must contact us before you move the Services to a new address. You acknowledge that CBVNOL may need several business days to update your service address in the 911 system so that your 911 calls can be properly directed.
(c) Network congestion or failures. Calls, including calls to 911, may not be completed if there is a problem with network facilities, including network congestion, network or network equipment failure, or another technical problem.
(d) Service interruptions. Access to 911 requires that your Phone Service is active and that you have electrical power connected to your MTA. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY LOSE ACCESS TO AND USE OF THE SERVICES, INCLUDING 911, UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE FOLLOWING: (i) IF OUR NETWORK OR FACILITIES ARE NOT OPERATING; (ii) IF ELECTRICAL POWER TO THE MTA IS INTERRUPTED AND THE MTA DOES NOT HAVE A BATTERY BACKUP; (iii) IF THE ELECTRICAL POWER TO THE MTA IS INTERRUPTED AND ANY BATTERY BACKUP IS EXHAUSTED OR FAILS; or (IV) YOUR SERVICE HAS BEEN SUSPENDED OR IS NOT PROPERLY FUNCTIONING. NOTE REGARDING BATTERY BACK-UP: Some but not all of the MTAs we provide have battery backups installed. If no battery is installed, we recommend that you obtain one from a third-party provider. If you have any questions regarding the back-up battery status of your MTA or compatible batteries, please contact us. Battery backup will provide power for only up to several hours, and its performance is not guaranteed. If the battery is exhausted, the Services will not function until normal power is restored.
(e) LIMITATION ON LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT CBVNOL AND ITS SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO COMPLETE A CALL TO 911 OR ANY OTHER PARTY USING THE SERVICES, OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CBVNOL AND ITS SERVICE PROVIDERS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911 SERVICES PROVIDED TO YOU IN CONNECTION WITH THE SERVICES.
24. INCOMPATIBLE EQUIPMENT AND SERVICES
Phone Services may not support or be compatible with (i) certain non-voice communications equipment, including but not limited to alarm or home security systems that make automatic phone calls; medical monitoring devices; certain fax machines; and certain “dial-up” modems; (ii) rotary-dial phone handsets, pulse-dial phone handsets, and models of other voice-related communications equipment such as answering machines and traditional Caller ID units; (iii) dial around (10-10) calling; 976, 900, 700, or 500 number calling; (v) 211, 311, 511, or 811 calling; and (vi) other call types not expressly set forth in our product literature (e.g., shore-to-ship calling and outbound satellite calling).
25. ACCEPTABLE USE OF PHONE SERVICE
Unless you subscribe to a Service purchased at our Commercial rates, you agree to use the Phone Services only for personal and non-commercial purposes; however, you are permitted to use the Phone Services to make business calls that are incidental to your personal and non-commercial use of the Phone Services. You expressly agree not to use the Services for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for any other use that results in excessive usage inconsistent with normal residential calling patterns. If we determine, in our sole discretion, that your Phone Services are being used for any of the aforementioned activities, we reserve the right (i) immediately and without notice to terminate or modify the Services and (ii) to assess additional charges for each month in which excessive usage occurred.
(a) Charges. For billing of monthly charges, service is considered to be established upon the confirmation of third party verification processes. Usage charges will be billed monthly in arrears. Customer will be billed for all usage accrued beginning immediately upon access to the service. The Customer is responsible to pay CBVNOL for all toll calls or other third party charges resulting from the origination of calls and for charges or calls billed to the Customer’s number. The Customer shall be responsible for securing its telephone equipment against being used to place fraudulent calls using the Service. The Customer shall be responsible for payment of all applicable charges for services provided by CBVNOL and charged to the Customer’s accounts, even where those calls are originated by fraudulent means either from Customer’s premises or from remote locations.
(b) Per-call and measured-call charges. Calling plans billed on a flat monthly fee basis may not include certain call types. These call types will instead be charged on a per-call (e.g., directory assistance, operator services) or a measured basis (e.g., international calls). For billing purposes, a measured call begins when the carrier of the receiving party returns Answer Supervision to our network, and it ends when one of the parties disconnects the call. Measured calls are recorded in whole minutes, with partial minutes rounded up to the next whole minute. If the computed charge for a measured call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Please contact us for information on per-call charges.
(c) Third-party charges Phone Services may allow you to access information and other service providers (e.g., services accessible through 800, 888, and 877 numbers), and other third-party providers. You acknowledge that you may incur charges with such providers that are separate and apart from the amounts charged by us. You agree that all charges payable to third parties, including all applicable taxes, are your sole responsibility.
27. EQUIPMENT FOR PHONE SERVICE
In order to use the Phone Services, you are required to provide certain Customer Equipment such as a phone handset or equivalent, phone inside wire and outlets, and a powered electrical outlet. If we cannot get access to your inside phone wiring, you will need a cordless phone to use our Services throughout your dwelling. In addition, to use the Phone Services, you will also need to purchase and have us install a MTA certified by us as compatible with the Services
28. TRANSFERRING YOUR PHONE NUMBER
(a) Switching to CBVNOL from another provider. If you are switching to our Services from another service provider, you may be able to transfer your existing phone number (if any) to our Services, provided that (i) you request the phone number transfer when you place your order for our Services; (ii) your current service provider releases your existing phone number without delay or charge; (iii) transfer of your existing phone number to our Services would not, in our view, violate applicable law or our processes and procedures. If your MTA is set up before the date that the number transfer becomes effective (“Port Effective Date”), you may only be able to make limited outgoing calls over the phone that you have connected to the MTA. In that event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able both to make and to receive calls using our Services. To avoid an interruption in your phone service, it is extremely important that you have the MTA installed on or before the Port Effective Date. Your existing phone service for the number you are transferring will be disconnected on the Port Effective Date; if your MTA is not yet activated, you will not have access to service for that phone number.
(b) Switching to another provider. To transfer your phone number from CBVNOL to another service provider, you must terminate the Services and place the transfer order through your new service provider. We will release your phone number to your new service provider, provided that (i) your new service provider requests the transfer upon termination of your account; (ii) your new service provider is willing to accept transfer of the phone number without delay or charge; and (iii) transfer of your existing phone number to the new service provider would not, in our view, violate applicable law or our processes and procedures.
29. LIMITATIONS ON LIABILITY FOR DIRECTORIES AND DIRECTORY ASSISTANCE
If (i) any phone number for which you have requested unlisted or nonpublished status is included in any directory, any directory assistance database, or is otherwise disclosed to any unauthorized person; (ii) any phone number which you requested be published or listed in any directory or directory assistance database is not so published or listed, or (iii) any published or listed phone number contains errors or omissions, then the total liability of CBVNOL and its service providers in connection with the described error or omission shall not in the aggregate exceed the monthly charges, if any, which you have actually paid to us to list or not to list or to publish or not publish the number for the affected period. You shall hold CBVNOL and its service providers harmless against any and all claims for damages caused or claimed to have been caused, directly or indirectly, by the errors and omissions described above.