SUBSCRIPTION SERVICES AGREEMENT
IMPORTANT INFORMATION ABOUT YOUR ORBITEL COMMUNICATIONS’ SERVICES
The account holder(s) referred to on the accompanying ORBITEL COMMUNICATIONS Work Order or statement (“I,” “me” or “my”) agrees that the Work Order and this Agreement set forth the terms and conditions that govern my receipt of Services from ORBITEL COMMUNICATIONS, which may include, among others, Video, High-Speed Data and Digital Phone Services. The term “Services” and all other capitalized terms used in this Agreement are defined in Section 15.
I represent and warrant that I am at least 18 years of age and that I am legally able to enter into this Subscription Agreement with ORBITEL COMMUNICATIONS
In consideration of ORBITEL COMMUNICATIONS’ provision of the Services that I have requested, subject to applicable law, I AGREE AS FOLLOWS:
1. Important Information About This Agreement
(a) This Agreement, the Work Order and any effective and applicable Tariff(s), each of which ORBITEL COMMUNICATIONS may amend as set forth below, constitute the entire agreement between ORBITEL COMMUNICATIONS and me. This Agreement supersedes all previous written or oral agreements between ORBITEL COMMUNICATIONS and me. I am not entitled to rely on any oral or written statements by ORBITEL COMMUNICATIONS’ representatives relating to the subjects covered by these documents, whether made prior to the date of my Work Order or thereafter, and ORBITEL COMMUNICATIONS will have no liability to me except in respect of its obligations as described in this Agreement and the other documents referred to above. The use of my Services by any person other than me is also subject to the terms of this Agreement and any applicable Tariff(s).
(b) ORBITEL COMMUNICATIONS has the right to add to, modify, or delete any term of this Agreement, the Subscriber Privacy Notice or any applicable Tariff(s) at any time. An online version of this Agreement, the Subscriber Privacy Notice and any applicable Tariff(s), as so changed from time to time, will be accessible at www.OrbitelCom.com or another online location designated by ORBITEL COMMUNICATIONS, or can be obtained by calling my local ORBITEL COMMUNICATIONS’ office. This Services Agreement supersedes all previous agreements.
(c) ORBITEL COMMUNICATIONS will notify me of any significant change(s) in this Agreement, the Subscriber Privacy Notice or any applicable Tariff(s). Any such changes shall become effective immediately except where applicable law requires a notice period, in which case the change will become effective at the end of the requisite notice period. Upon effectiveness of any change to any of these documents, my continued use of the Services will constitute my consent to such change and my agreement to be bound by the terms of the document as so changed. If I do not agree to any such change, I will immediately stop using the Services and notify ORBITEL COMMUNICATIONS that I am terminating my Services account.
(d) My acceptance of Services constitutes my acceptance of the terms and conditions contained in this Agreement. In the event that a portion of my Services is terminated, or any aspect of it is changed, any remaining service or replacement service will continue to be governed by this Agreement.
2. Payment; Charges
(a) I agree to pay ORBITEL COMMUNICATIONS for (i) all use of my Services (including, if ORBITEL COMMUNICATIONS is the party billing me for ISP or OLP Service, for my subscription to my choice of ISP or OLP, as applicable), (ii) installation and applicable service charges, (iii) ORBITEL COMMUNICATIONS Equipment, and (iv) all applicable local, state and federal fees and taxes and all applicable franchise fees or charges. Charges for the Services are set forth on a separate price list that I have received. Prices for Services are also available online at www.OrbitelCom.com or by contacting my local ORBITEL COMMUNICATIONS’ offices. I will be billed monthly in advance for recurring monthly charges. Other charges will be billed in the next practical monthly billing cycle following use, or as otherwise specified in the price list. ORBITEL COMMUNICATIONS may change both the fees and the types of charges (e.g., periodic, time-based, use-based) for my Services. If I participate in a promotional offer that requires a minimum time commitment and I terminate early, I agree that I am responsible for early termination fees associated with such promotion.
(b) Charges for installation Services and related equipment available from ORBITEL COMMUNICATIONS for a standard Services installation are as described in ORBITEL COMMUNICATIONS’ list of charges and any applicable Tariff(s). Non-standard installations, if available, may result in additional charges as described in ORBITEL COMMUNICATIONS’ list of charges. In addition, I agree to pay charges for repair service calls resulting from my misuse of ORBITEL COMMUNICATIONS’ Equipment or for failures in equipment not supplied by ORBITEL COMMUNICATIONS.
(c) If my Services account is past due and ORBITEL COMMUNICATIONS sends a collector to my premises, a field collection fee may be charged. The current field collection fee, if levied, is on the price list or can be provided on request. I will also be responsible for all other expenses (including reasonable attorneys’ fees and costs) incurred by ORBITEL COMMUNICATIONS in collecting any amounts due under this Agreement and not paid by me.
(d) All charges are payable on the due date specified, or as otherwise indicated, on my bill. I agree that late charges may be assessed, subject to applicable law, on amounts that are past due. My failure to deliver payment by the due date is a breach of this Agreement. The current late fees are on the price list or can be provided upon request and, if applicable, will not exceed the maximum late fees as set forth by applicable law. ORBITEL COMMUNICATIONS reserves the right to change the late fees.
(e) I agree that if my Services account with ORBITEL COMMUNICATIONS is past due, ORBITEL COMMUNICATIONS may terminate any of my Services or accounts, including Digital Phone Service, in accordance with applicable law. If I have a credit due to me or a deposit is being held on any account with ORBITEL COMMUNICATIONS, I agree that the credit or deposit may be used to offset amounts past due on any other account I may have with ORBITEL COMMUNICATIONS without notice to me. To reconnect any terminated Services, I may be required, in addition to payment of all outstanding balances on all accounts with ORBITEL COMMUNICATIONS, to pay reconnect charges or trip charges (where applicable) and/or security deposits before reconnection.
(f) ORBITEL COMMUNICATIONS may verify my credit standing with credit reporting agencies and require a deposit based on my credit standing or other applicable criteria. ORBITEL COMMUNICATIONS may require a security deposit, or a bank or credit card or account debit authorization from me as a condition of providing or continuing to provide Services. If ORBITEL COMMUNICATIONS requires a security deposit, the obligations of ORBITEL COMMUNICATIONS regarding such security deposit will be governed by the terms of the deposit receipt provided by ORBITEL COMMUNICATIONS to me at the time the deposit is collected. I agree that ORBITEL COMMUNICATIONS may deduct amounts from my security deposit, bill any bank or credit card submitted by me, or utilize any other means of payment available to ORBITEL COMMUNICATIONS, for any past due amounts payable by me to ORBITEL COMMUNICATIONS, including in respect of damaged or unreturned Equipment.
(g) If I have elected to be billed by credit card, debit card or ACH transfer, I agree that I will automatically be billed each month for any amounts due under this Agreement. If I make payment by check, I authorize ORBITEL COMMUNICATIONS and its agents to collect this item electronically.
(h) ORBITEL COMMUNICATIONS may charge fees for all returned checks and account debit, bank card or charge card chargebacks. The current return/chargeback fees are listed in the list of charges on the price list or can be provided on request. ORBITEL COMMUNICATIONS reserves the right to change return/chargeback fees.
(i) If I subscribe to High Speed Data (HSD) Service, I acknowledge that, even if ORBITEL COMMUNICATIONS is billing for the HSD Service, my ISP or OLP may require a bank or credit card or account debit authorization or other assurance of payment from me, including for charges for additional or continuing Services outside the HSD Service billed by ORBITEL COMMUNICATIONS that are payable under the ISP Terms. I agree that ORBITEL COMMUNICATIONS or ISP (and, if applicable, OLP) may bill any bank or credit card submitted by me to ISP or OLP, or utilize any other means of payment available to ISP or OLP for any past due amounts payable by me to ORBITEL COMMUNICATIONS. I also agree that responsibility for billing for my HSD Service subscription may be changed between ORBITEL COMMUNICATIONS and ISP or OLP upon notice to me.
(j) All use of my Services, whether or not authorized by me, will be deemed my use and I will be responsible in all respects for all such use, including for payment of all charges attributable to my account (e.g., for VOD, pay per view programming, merchandise ordered via Internet, international long distance charges, etc.). ORBITEL COMMUNICATIONS is entitled to assume that any communications made through my Services or from the location at which I receive the Services are my communications or have been authorized by me. My Services may contain or make available information, content, merchandise, products and Services provided by third parties and for which there may be charges payable to third parties (which may include my choice of ISP or OLP and/or entities affiliated with ORBITEL COMMUNICATIONS). I agree that all such charges incurred by me or attributed to my account will be my sole and exclusive responsibility and agree to pay the same when due, and shall indemnify and hold harmless the ORBITEL COMMUNICATIONS’ Parties for all liability for such charges. I agree that ORBITEL COMMUNICATIONS is not responsible or liable for the quality of any content, merchandise, products or Services (or the price thereof) made available to me via the Services, for the representations or warranties made by the seller or manufacturer of any such item, or for damage to or injury, if any, resulting from the use of such item.
(k) I acknowledge that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services ORBITEL COMMUNICATIONS provides and, consequently, uncertainty about what fees, taxes and surcharges are due from ORBITEL COMMUNICATIONS and/or its customers. Accordingly, I agree that ORBITEL COMMUNICATIONS has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to me. I further agree to waive any claims I may have regarding ORBITEL COMMUNICATIONS’ collection or remittance of such fees, taxes and surcharges. I further understand that I may obtain a list of the fees, taxes and surcharges that my local ORBITEL COMMUNICATIONS’ office currently collects or passes through by writing to ORBITEL COMMUNICATIONS at the following address and requesting same: ORBITEL COMMUNICATIONS 21116 N. John Wayne Parkway Suite B-9 Maricopa, AZ 85239 Attention: General Manager
(l) I agree that it is my responsibility to report ORBITEL COMMUNICATIONS billing errors within 30 days from receipt of the bill so that service levels and all payments can be verified. If not reported within 30 days, the errors are waived.
3. Installation; Equipment and Cabling
(a) If I am not the owner of the house, apartment or other premises upon which ORBITEL COMMUNICATIONS’ Equipment and Software are to be installed, I warrant that I have obtained the consent of the owner of the premises for ORBITEL COMMUNICATIONS’ personnel and/or its agents to enter the premises for the purposes described in Section 3(d). I agree to indemnify and hold the ORBITEL COMMUNICATIONS Parties harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement (including costs and reasonable attorneys’ fees).
(b) I authorize ORBITEL COMMUNICATIONS to make any preparations to the premises necessary for the installation, maintenance, or removal of equipment. ORBITEL COMMUNICATIONS shall not be liable for any effects of normal Services installation and workmanlike matter in accordance with reasonable industry standards and applicable regulations, such as holes in walls, etc., which may remain after installation or removal of the ORBITEL COMMUNICATIONS’ Equipment, except for damage caused by negligence on the part of ORBITEL COMMUNICATIONS.
(c) The ORBITEL COMMUNICATIONS’ Equipment is and at all times shall remain the sole and exclusive personal property of ORBITEL COMMUNICATIONS, and I agree that I do not become an owner of any ORBITEL COMMUNICATIONS’ Equipment by virtue of the payments provided for in this Agreement or the attachment of any portion of the ORBITEL COMMUNICATIONS’ Equipment to my residence or otherwise. Upon termination of any Services, subject to any applicable laws or regulations, ORBITEL COMMUNICATIONS may, but shall not be obligated to, retrieve any associated ORBITEL COMMUNICATIONS’ Equipment not returned by me as required under Section 3(f) below. ORBITEL COMMUNICATIONS will not be deemed to have “abandoned” the ORBITEL COMMUNICATIONS’ Equipment if it does not retrieve such equipment.
(d) I agree to provide ORBITEL COMMUNICATIONS and its authorized agents access to my premises during regular business hours upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace, alter or disconnect or remove the ORBITEL COMMUNICATIONS’ Equipment, to install Software, to conduct service theft audits, or to check for signal leakage. I agree that ORBITEL COMMUNICATIONS may have reasonable access to easements and ORBITEL COMMUNICATIONS’ Equipment located on my grounds.
(e) ORBITEL COMMUNICATIONS shall have the right to upgrade, modify and enhance ORBITEL COMMUNICATIONS Equipment and Software from time to time through “downloads” from ORBITEL COMMUNICATIONS’ network or otherwise. Without limiting the foregoing, ORBITEL COMMUNICATIONS may, at any time, employ such means to limit or increase the throughput available through individual cable modems whether or not provided by ORBITEL COMMUNICATIONS.
(f) If the Services are terminated for any reason, I agree that I have no right to possess or use the ORBITEL COMMUNICATIONS’ Equipment related to the terminated Services. As required under Section 10(b), I agree that I must arrange for the return of ORBITEL COMMUNICATIONS’ Equipment to ORBITEL COMMUNICATIONS, in the same condition as when received (excepting ordinary wear and tear), upon termination of the Services. If I do not promptly return the ORBITEL COMMUNICATIONS’ Equipment or schedule with ORBITEL COMMUNICATIONS for its disconnection and removal, ORBITEL COMMUNICATIONS may enter any premises where the ORBITEL COMMUNICATIONS’ Equipment may be located for the purpose of disconnecting and retrieving the ORBITEL COMMUNICATIONS’ Equipment. I will pay any expense incurred by ORBITEL COMMUNICATIONS in any retrieval of the unreturned ORBITEL COMMUNICATIONS’ Equipment. ORBITEL COMMUNICATIONS may charge me a continuing monthly fee until any outstanding ORBITEL COMMUNICATIONS’ Equipment is returned, collected by ORBITEL COMMUNICATIONS or fully paid for by me in accordance with Section 3(g). The current fee is listed in the list of charges on the price list or can be provided on request.
(g) I agree to pay ORBITEL COMMUNICATIONS liquidated damages in the amount demanded by ORBITEL COMMUNICATIONS, but not to exceed that specified in the then-current price list, for the replacement cost of the ORBITEL COMMUNICATIONS’ Equipment without any deduction for depreciation, wear and tear or physical condition of such ORBITEL COMMUNICATIONS’ Equipment if (i) I tamper with, or permit others to tamper with, ORBITEL COMMUNICATIONS’ Equipment, (ii) the ORBITEL COMMUNICATIONS’ Equipment is destroyed, lost, or stolen, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such destruction, loss, or theft, or (iii) the ORBITEL COMMUNICATIONS’ Equipment is damaged (excluding equipment malfunction through no fault of my own) while in my possession, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such damage. I agree that these liquidated damages are reasonable in light of the problem of theft of cable Services; the existence of a “black market” in ORBITEL COMMUNICATIONS’ Equipment; the ability of third parties to steal Services with unlawfully obtained ORBITEL COMMUNICATIONS’ Equipment, causing loss of revenues for installation and service fees; and the difficulty in determining the actual damages that arise from the unauthorized tampering with, loss, destruction, or theft of ORBITEL COMMUNICATIONS’ Equipment. I agree to return any damaged ORBITEL COMMUNICATIONS’ Equipment to ORBITEL COMMUNICATIONS.
(h) I agree that ORBITEL COMMUNICATIONS may place equipment and cables on my premises to facilitate the provision of Services to me and to other locations in my area. The license granted under this Section 3(h) will survive the termination of this Agreement until the date that is one year from the date on which I first notify ORBITEL COMMUNICATIONS in writing that I am revoking such license.
4. Use of Services; ORBITEL COMMUNICATIONS’ Equipment and Software
(a) I agree that ORBITEL COMMUNICATIONS has the right to add to, modify, or delete any aspect, feature or requirement of the Services (including content, price, equipment and system requirements). If ORBITEL COMMUNICATIONS changes its equipment requirements with respect to any Services, I acknowledge that I may not be able to receive such Services utilizing my then-current equipment. Upon any such change, my continued use of Services will constitute my consent to such change and my agreement to continue to receive the relevant Services, as so changed, pursuant to this Agreement and applicable Tariff(s). If I participate in a promotional offer for any Service(s) that covers a specified period of time, I agree that I am assured only that I will be charged the promotional price for such Service(s) during the time specified. I agree that ORBITEL COMMUNICATIONS shall have the right to add to, modify, or delete any aspect, feature or requirement of the relevant Service(s), other than the price I am charged, during such promotional period.
(b) I agree that the Services I have requested are residential Services, offered for reasonable personal, non-commercial use only. I will not resell or redistribute (whether for a fee or otherwise) the Services, or any portion thereof, or charge others to use the Services, or any portion thereof. Among other things:
(i) If I receive Video Service, I agree not to use the Services for the redistribution or retransmission of programming or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of the Services to transmit or distribute the Video Service, or any portion thereof, to (or to provide or permit access by) persons outside the location identified in the Work Order (even if to a limited group of people or to other residences that I own or have the right to use), will constitute an enterprise purpose. I acknowledge that programs and other materials that I receive as part of the Video Service remain part of the Video Service even if I record or capture all or a portion of any such program or material in a data file or on a hard drive, DVR or similar device.
(ii) The Digital Phone Service as offered and provided under this Agreement is a residential service offered for reasonable personal, non-commercial use only. I will not resell or redistribute (whether for a fee or otherwise) the Digital Phone Service, or any portion thereof, or otherwise charge others to use the Digital Phone Service, or any portion thereof. I agree not to use the Digital Phone Service for any enterprise purpose whether or not the enterprise is directed toward making a profit, including but not limited to, telemarketing, call center services, medical transcription, or facsimile broadcasting. ORBITEL COMMUNICATIONS reserves the right to disconnect upon notice as required by applicable law any prohibited transmissions or uses and to terminate the Digital Phone Service in the event of a violation of the foregoing use restrictions or in the event of an excessive number of calls during a fixed period, heavy usage during business hours, heavy usage concentrated over consecutive dates, or usage that may be deemed to be business use or enterprise use. Prohibited activities include, without limitation, autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcasting, fax blasting, telemarketing, automatic dialing, call centers or internet cafes. ORBITEL COMMUNICATIONS reserves the right to immediately suspend, terminate or modify the Digital Phone Service of any subscriber using any unlimited calling package, if ORBITEL COMMUNICATIONS determines, in its reasonable discretion, that such such subscriber is not using the package for its own personal, residential use. Usage in excess of 3,000 minutes per month shall be deemed to constitute a prohibited use for purposes of this paragraph.
(iii) If I receive HSD Service, I agree not to use the HSD Service for operation as an Internet service provider, for the hosting of websites (other than as expressly permitted as part of the HSD Service) or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of any form of transmitter or wide area network that enables persons or entities outside the location identified in the Work Order to use my Services, whether or not a fee is sought, will constitute an enterprise purpose. Furthermore, if I use a wireless network within my residence, I will limit wireless access to the HSD Service (by establishing and using a secure password or similar means) to the members of my household.
(c) Theft or willful damage, alteration, or destruction of ORBITEL COMMUNICATIONS’ Equipment, or unauthorized reception, theft or diversion of Services, or assisting such theft, diversion, or unauthorized reception is a breach of this Agreement and potentially punishable under law (including by way of statutory damages, fine and/or imprisonment). Nothing in this Agreement, including, Section 3(g) above, shall prevent ORBITEL COMMUNICATIONS from enforcing any rights it has with respect to theft or unauthorized tampering of Services or ORBITEL COMMUNICATIONS Equipment under applicable law.
(e) I agree that to the extent any Software is licensed (or sublicensed) to me by ORBITEL COMMUNICATIONS, such Software is provided for the limited purpose of facilitating my use of the Services as described in this Agreement. I will not engage in, or permit, any additional copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited. I agree that my right to use any software licensed or sublicensed to me terminates upon termination of this agreement. I will return or destroy all Software provided by ORBITEL COMMUNICATIONS and any related written materials promptly upon termination of the associated Services to me for any reason. Software licensed to me by my ISP or OLP, for instance my ISP’s or OLP’s client or browser software, is licensed under the ISP Terms or OLP Terms, as applicable, and is not the responsibility of ORBITEL COMMUNICATIONS.
(f) I agree that I will use the Services for lawful purposes only, and in accordance with this Agreement and applicable Tariff(s).
(g) I agree to be responsible for protecting the confidentiality of my screen names, passwords, personal identification numbers (PINs), parental control passwords or codes, and any other security measures made available, recommended or required by ORBITEL COMMUNICATIONS. I also acknowledge that ORBITEL COMMUNICATIONS’ Services may from time to time include interactive features, the use of which may result in the transmission to, and use by, ORBITEL COMMUNICATIONS or certain third parties of information that may constitute personally identifiable information (as such term is used in the Federal Communications Act of 1934) about me and for which ORBITEL COMMUNICATIONS may be required, under the Federal Communications Act of 1934, to obtain my consent. I agree that ORBITEL COMMUNICATIONS may seek such consents (or indications of my election to “opt in” to certain ORBITEL COMMUNICATIONS’ programs) electronically, including through the use of a “click through” screen, and that ORBITEL COMMUNICATIONS is entitled to assume that any such consent or opt-in election communicated through my Services or from the location at which I receive the Services is my consent or opt-in election or has been authorized by me.
(h) I agree that ORBITEL COMMUNICATIONS has no liability for the completeness, accuracy or truth of the programs or information it transmits.
(i) The Services and Equipment and any Firmware or Software used to provide the Services or provided to me in conjunction with providing the Services, or embedded in the Equipment, and all Services, information, documents and materials on ORBITEL COMMUNICATIONS’ and/or Affiliated Providers’ website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) of ORBITEL COMMUNICATIONS and/or Affiliated Providers are and shall remain the exclusive property of those entities and nothing in this Agreement shall grant me the right or license to use any of such Marks. I acknowledge that I am not given any license to use the Firmware or Software used to provide the Services or provided to me in conjunction with providing the Services, or embedded in the ORBITEL COMMUNICATIONS’ Equipment, other than a nontransferable, revocable license to use such Firmware or Software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. I shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code of the Firmware or Software. I expressly agree that the Equipment is exclusively for use in connection with the Services and that ORBITEL COMMUNICATIONS and Affiliated Providers will not provide any passwords, codes or other information or assistance that would enable me to use the Equipment for any other purpose. ORBITEL COMMUNICATIONS prohibits my use of the Services through an interface device not provided by ORBITEL COMMUNICATIONS without ORBITEL COMMUNICATIONS’ express written consent, and I will indemnify and hold harmless ORBITEL COMMUNICAITONS and Affiliated Providers against any and all liability arising out of my use of such interface Equipment with the Services. I agree not to change the electronic serial number or equipment identifier of the Equipment, or to perform a factory reset of the Equipment, without express permission from ORBITEL COMMUNICATIONS or Affiliated Providers. ORBITEL COMMUNICATIONS reserves the right to terminate my Service should I tamper with ORBITEL COMMUNICATIONS’ Equipment. I agree not to hack or disrupt the Services or to make any use of the Services that is inconsistent with its intended purpose or to attempt to do so.
5. Special Provisions Regarding Digital Phone Service
(a) The Digital Phone Service as offered and provided under this Agreement is available only to residential customers of ORBITEL COMMUNICATIONS Services.
(b) In order to receive the Digital Phone Service offered and provided under this Agreement, all of my accounts with ORBITEL COMMUNICATIONS must be paid to current. I understand and acknowledge that the nonpayment of any charges associated with any of my ORBITEL COMMUNICATIONS’ Services may result in disconnection of the Digital Phone Service with notice as required by applicable law.
(c) I expressly acknowledge that the Digital Phone Service does not have its own power source and will not be available without an independent power supply and that, under certain circumstances, including if the electrical power and/or ORBITEL COMMUNICATIONS’ cable network or facilities are not operating, the Digital Phone Service, including the ability to access emergency 911 services, will not be available.
(d) I agree that ORBITEL COMMUNICATIONS will not be responsible for any losses or damages arising as a result of the unavailability of the Digital Phone Service, including the inability to reach 911 or other emergency Services, or the inability to contact my home security system or remote medical monitoring service provider. I acknowledge that ORBITEL COMMUNICATIONS does not guarantee that the Digital Phone Service will operate with my home security and/or medical monitoring systems, and that I must contact my home security or medical monitoring provider in order to test my system’s operation with the Digital Phone Service. I agree that I am responsible for the cost of any such testing or any fees for configuring my home security or medical monitoring system to work with the Digital Phone Service.
(e) The location and address associated with my Digital Phone Service will be the address identified on the Work Order. I acknowledge that, under Section 4(d) of this Agreement, I am not permitted to move ORBITEL COMMUNICATIONS’ Equipment from the location and address in which it has been installed. Furthermore, if I move my Equipment an address different than that identified on the Work Order, calls from such Equipment to 911 will appear to 911 emergency service operators to be coming from the address identified on the Work Order and not the new address.
(f) I acknowledge that the existing telephone wiring inside my home may not support both Digital Phone Service and digital subscriber line (DSL) service. Therefore, if I intend to use Digital Phone Service on all of my phone jacks, I may be required to maintain separate wiring, not provided by ORBITEL COMMUNICATIONS, within my home specifically for DSL service or to disconnect my DSL service prior to receiving the Digital Phone Service over my existing in-home wiring.
(g) I agree to provide ORBITEL COMMUNICATIONS and its authorized agents with access to my telephone inside wiring at the Network Interface Device or at some other minimum point of entry in order to provide the Digital Phone Service over my existing in-home wiring.
(h) I acknowledge that the Digital Phone Service may not be compatible with certain data transmission Services, including but not limited to fax transmissions and dial-up Internet access and that I may be required to maintain a separate telephone line, not provided by ORBITEL COMMUNICATIONS, in order to access such Services.
(i) ORBITEL COMMUNICATIONS shall have the right at any time to add to, modify, or delete any aspect, feature or requirement of the Digital Phone Service, including but not limited to Equipment, system requirements, features provided and pricing for Services.
6. Special Provisions Regarding HSD Service
(i) I acknowledge that material posted or transmitted through the HSD Service may be copied, republished or distributed by third parties, and that the ORBITEL COMMUNICATIONS’ Parties will not be responsible for any harm resulting from or damages I may incur because of such actions.
(ii) I grant to ORBITEL COMMUNICATIONS, and I represent, warrant and covenant that I have all necessary rights to so grant, the non-exclusive, worldwide, royalty-free, perpetual, irrevocable, right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display in any media all material posted on the public areas of the HSD Service via my account and/or to incorporate the same in other works, but only for purposes consistent with operation and promotion of the HSD Service.
(iii) I agree that unsolicited e-mail, or “spam,” is a nuisance and that ORBITEL COMMUNICATIONS and my ISP (and, if applicable, my OLP) are entitled to establish limits on the volume of e-mail that I send. Such volume limits may be set by reference to a number of e-mails per day, week, month or year. ORBITEL COMMUNICATIONS may immediately terminate any account holder’s account that it determines, in its discretion, is transmitting or is otherwise connected with any “spam” or other unsolicited bulk e-mail.
(c) Continuity of Service. In order to provide continuity of service to me, if my choice of ISP is no longer available over my local ORBITEL COMMUNICATIONS’ cable system, I agree that ORBITEL COMMUNICATIONS may provide me with an alternative ISP. In such event, ORBITEL COMMUNICATIONS will notify me of the date as of which I will begin receiving service from the alternative ISP, the provision of which shall also be governed by this Agreement, and ORBITEL COMMUNICATIONS will provide to me a price list for such alternative ISP service. I will have the right at any time to terminate the alternative ISP or to change my subscription to any other ISP then offered by ORBITEL COMMUNICATIONS.
(d) Unfiltered Internet Access. I acknowledge that the ISP Service provides a connection to the Internet that may be unfiltered, and that the ORBITEL COMMUNICATIONS’ Parties neither control nor assume responsibility for any content on the Internet or content that is posted by a subscriber. Although ORBITEL COMMUNICATIONS or my ISP or OLP may make available certain parental control features, I acknowledge that such parental control features may not be entirely effective or foolproof and that, notwithstanding such features, I or members of my household may be exposed to unfiltered content.
(f) Responsibility for HSD Service. Each of ORBITEL COMMUNICATIONS and my ISP (and, if applicable, my OLP) has responsibilities for the HSD Service. I acknowledge that each of my ISP and OLP may have one or more separate agreements, policies or other terms covering my rights and obligations with regard to the HSD Service (“ISP Terms” or “OLP Terms,” as applicable) that are also binding on me. This Agreement does not cover any ISP or OLP features or Services that are not dependent upon distribution over ORBITEL COMMUNICATIONS’ cable systems (for example, dial up access or my use of ISP or OLP software that enables access to ISP or OLP features or Services through non-ORBITEL COMMUNICATIONS access means) or that may otherwise be provided to me by ISP or OLP separately from the HSD Service under the ISP Terms or OLP Terms, as applicable. In the event of termination of the HSD Service, I must also contact my ISP (and, if applicable, my OLP) to ensure that these other features or Services (such as dial-up access) are properly continued or discontinued.
(g) Computer Requirements. I agree that each Computer will need to meet certain minimum hardware and software requirements that will be specified for the HSD Service, and that such requirements may be changed from time to time by ORBITEL COMMUNICATIONS or my ISP or OLP.
(h) Unless I have specifically subscribed for commercial grade service, ORBITEL COMMUNICATIONS HSD and the ISP Service are provided to me for personal, non-commercial use only. The service cannot be used for any enterprise purpose whatsoever whether or not the enterprise is directed toward making a profit. If I intend to use this service for these purposes, I understand that I must contact ORBITEL COMMUNICATIONS to inquire whether commercial grade service programs are available.
(i) ORBITEL COMMUNICATIONS HSD Service may not be used to engage in any conduct that interferes with ORBITEL COMMUNICATIONS’ ability to provide service to other subscriber, including the use of excessive bandwidth. E-Mail accounts exceeding 25MB in size may, at ORBITEL COMMUNICATIONS’ Affiliated Providers’ discretion, be transferred to a compressed temporary file or storage. The temporary file may be deleted from the server 60 days after notifying me. Any Web Site of mine exceeding 10MB of disk space will be billed for excess storage. I also agree that I will not download more than 50,000 MB of data transfer in any 30 day period. If I engage in any activity that results in excessive usage as defined by ORBITEL COMMUNICATIONS at its sole discretion, I will be subject to additional charges or restrictions upon my bandwidth usage. I also agree that the limits set forth in this paragraph are set at the discretion of ORBITEL COMMUNICATIONS and/or Affiliated Providers and as such are subject to change without prior notification to me.
(j) The ORBITEL COMMUNICATIONS’ HSD may not be used to breach or attempt to breach the security, the computer, the software or the data of any person or entity, including ORBITEL COMMUNICATIONS and its Affiliated Providers, to circumvent the user authentication features or security of any host, network or account, to use or distribute tools designed to compromise security, or to interfere with another’s use of the HSD or ISP Services through the posting or transmitting of a virus or other harmful item to deliberately overload or flood that entity’s system.
(k) In using the ORBITEL COMMUNICATIONS’ HSD, I agree that I may not use an IP address or client ID not assigned to me, forge any TCP/IP packet header or any part of the header information in an e-mail or newsgroup posting or probe, scan or test the vulnerability of any system or network by the use of sniffers, SNMP tools or any other method.
(l) The ORBITEL COMMUNICATIONS’ HSD or its Affiliated Provider Services may not be used to harm or attempt to harm a minor, including but not limited to, posting or transmitting content that is unlawful, including child pornography or other graphic visual depictions of sexual acts or sexually explicit conduct involving children, or other depictions of children, the primary appeal of which is prurient.
(m) The ORBITEL COMMUNICATIONS’ HSD or its Affiliated Provider Services may not be used in any manner, including uploading, posting, transmitting or otherwise making available any materials or content, that violates this Agreement or any applicable local, state, federal, or international law, order, or regulation. Prohibited uses include, but are not limited to:
(i). Infringing or compromising intellectual property rights or the ability to maintain trade secrets and other personal information as private;
(ii). Invading another person’s privacy, stalking, harassing, or otherwise violating the rights of others;
(iii). Posting, transmitting, or otherwise making available content that is threatening, abusive, libelous, slanderous, defamatory, terroristic, or that violates hate crime laws, incites hatred, or is otherwise offensive or objectionable;
(iv). Posting, transmitting, or otherwise making available sexually oriented content that is offensive or inappropriate;
(v). Interfering with ORBITEL COMMUNICATIONS’ ability to provide access to others.
(n) The ORBITEL COMMUNICATIONS HSD or its Affiliated Provider Services may not be used to engage in or foster any consumer fraud including impersonating any person or entity or forging anyone else’s digital or manual signature, illegal gambling, “Make Money Fast” schemes, chain letters, Pyramid, or other investment schemes, or to make or encourage people to accept fraudulent offers by e-mail, USENET or other means, of products, items or services, originating from my account, or through a third party which implicates my account or to post or transmit off-topic or commercial messages on bulletin boards.
(o) I may not engage in any of the above activities using the service of another ISP, while channeling such activities through the ORBITEL COMMUNICATIONS HSD service or its Affiliated ISP Service account or using this account as a mail drop for responses
7. Support; Service and Repairs
(a) My Services include the right to request reasonable service and maintenance calls to check and correct problems with the Services. ORBITEL COMMUNICATIONS will, at its own expense, repair damage to or, at ORBITEL COMMUNICATIONS’ option, replace ORBITEL COMMUNICATIONS’ Equipment, and otherwise attempt to correct interruptions of the Services, due to reasonable ORBITEL COMMUNICATIONS’ Equipment wear and tear, or technical malfunction of the system or network operated by ORBITEL COMMUNICATIONS. The Subscriber Materials contain details on contacting ORBITEL COMMUNICATIONS for this support.
(b) Unless I have obtained an ORBITEL COMMUNICATIONS’ service protection plan (if available in my area), I agree that I am responsible for all wiring, equipment and related software installed in my residence that is not ORBITEL COMMUNICATIONS’ Equipment or ORBITEL COMMUNICATIONS’ licensed Software and ORBITEL COMMUNICATIONS will have no obligation to install, connect, support, maintain, repair or replace any Computer, television, telephone or telephone answering device, audiovisual recording or playback device (e.g., VCR, DVR, DVD), audio equipment, any software, or any cable modem, cabling or other equipment (other than ORBITEL COMMUNICATIONS’ Equipment or ORBITEL COMMUNICATIONS’ licensed Software). ORBITEL COMMUNICATIONS will not support, repair, replace, or maintain any Network Interface Card, regardless of whether provided and installed by ORBITEL COMMUNICATIONS.
(c) I agree that ORBITEL COMMUNICATIONS has no responsibility for the operation of any equipment, software or service other than the ORBITEL COMMUNICATIONS’ Services, the ORBITEL COMMUNICATIONS’ Equipment and the ORBITEL COMMUNICATIONS’ licensed Software. For instance, I acknowledge that certain commercially available televisions, converter boxes and recording devices, which may be identified by their manufacturers as “cable ready” or “digital cable ready,” may not be able to receive or utilize all available Services without the addition of a ORBITEL COMMUNICATIONS’ converter box or other ORBITEL COMMUNICATIONS’ Equipment for which a fee may be charged. If I receive HSD Service, ORBITEL COMMUNICATIONS has no responsibility to support, maintain or repair any equipment, software or service that I elect to use in connection with the HSD Service, whether provided by my ISP, my OLP or a third party. For assistance with technical problems arising from such equipment, software or Services, I should refer to the Subscriber Materials for information regarding the technical support provided by my ISP or OLP or to the support area of the ISP or OLP or to the relevant third party’s material.
(d) If ORBITEL COMMUNICATIONS determines that non-ORBITEL COMMUNICATIONS’ cabling or equipment connecting my residence to ORBITEL COMMUNICATIONS’ Equipment installed on the side of, adjacent to or within my residence (i.e., at a ground block) is the cause of a service problem, I agree that ORBITEL COMMUNICATIONS may charge me to resolve such service problem. If available from ORBITEL COMMUNICATIONS in my area, I may subscribe to an ORBITEL COMMUNICATIONS’ service protection plan that covers service related calls within my residence. If any other support Services are available from ORBITEL COMMUNICATIONS, such Services will be at additional charges as described in ORBITEL COMMUNICATIONS’ price list.
8. Service Interruptions; Force Majeure
(a) I agree that ORBITEL COMMUNICATIONS has no liability for delays in or interruption to my Services, except that if for reasons within ORBITEL COMMUNICATIONS’ reasonable control, for more than twenty-four (24) consecutive hours, (i) service on all cable channels is interrupted, (ii) there is a complete failure of the HSD Service or (iii) there is a complete failure of the Digital Phone Service, ORBITEL COMMUNICATIONS will give me a prorated credit for the period of such interruption or failure if I request one within 30 days of the interruption or failure. Notwithstanding the above, ORBITEL COMMUNICATIONS will issue credits for VOD, pay-per-view and pay-per-play events for service problems where a credit request is made within 30 days of the interruption or failure. In no event shall ORBITEL COMMUNICATIONS be required to credit me an amount in excess of applicable service fees. ORBITEL COMMUNICATIONS will make any such credit on the next practicable bill for my Services. State and local law or regulation may impose other outage credit requirements with respect to some or all of my Services. In such event, the relevant law or regulation will control.
(b) I acknowledge that ORBITEL COMMUNICATIONS may conduct maintenance from time to time that may result in interruptions of my Services.
(c) The ORBITEL COMMUNICATIONS Parties shall have no liability for interruption of the Services due to circumstances beyond its reasonable control, including acts of God, flood, natural disaster, vandalism, terrorism, regulation or governmental acts, fire, civil disturbance, electrical power outage, computer viruses or worms, strike or weather.
(d) ORBITEL COMMUNICATIONS is only obligated to provide the credits referenced in Section 8(a) for loss of HSD Service if ORBITEL COMMUNICATIONS is billing me for the HSD Service at the time of the outage. If my ISP or OLP is billing me, I will look solely to my ISP or OLP, as applicable, for a credit with respect to the HSD Service.
9. Review and Enforcement
(a) ORBITEL COMMUNICATIONS may suspend or terminate all or a portion of my Services without prior notification if ORBITEL COMMUNICATIONS determines in its discretion that I have violated this Agreement or any applicable Tariff(s), even if the violation was a one-time event. If all or a portion of my Services are suspended, I will not be charged for the relevant Services during the suspension. If my account is terminated, I will be refunded any pre-paid fees minus any amounts due ORBITEL COMMUNICATIONS.
(b) If I receive HSD Service, I acknowledge that ORBITEL COMMUNICATIONS has the right, but not the obligation, to review content on public areas of the HSD Service, including chat rooms, bulletin boards and forums, in order to determine compliance with this Agreement.
(c) I agree that ORBITEL COMMUNICATIONS shall have the right to take any action that ORBITEL COMMUNICATIONS deems appropriate to protect the Services, ORBITEL COMMUNICATIONS’ facilities or ORBITEL COMMUNICATIONS’ Equipment.
10. Termination of Service
(a) Either ORBITEL COMMUNICATIONS or I may terminate all or any portion of my Services at any time for any or no reason, in ORBITEL COMMUNICATIONS’ sole discretion, in accordance with applicable law. Terminations made by account holders are subject to any penalties, such as early termination fees.
(b) If I am moving or wish to terminate all or any portion of my Services for any reason, I will notify ORBITEL COMMUNICATIONS by phone or by mail as instructed in the Subscriber Materials in order to set up a disconnect appointment and provide ORBITEL COMMUNICATIONS with access to my premises to disconnect the relevant Services and recover the ORBITEL COMMUNICATIONS’ Equipment specified on the Work Order on a DATE PRIOR TO the last day of residency or to termination. This also applies if I am receiving a period of free or discounted Services. In other words, at the end of the free or discounted period, ORBITEL COMMUNICATIONS is entitled to begin billing me for the usual charges associated with the relevant Services unless I take the appropriate steps to terminate the Services as described in this paragraph.
(c) I cannot terminate my Services by writing “Canceled” (or any other messages) on my bill or check, or by making a disconnect appointment that does not result in ORBITEL COMMUNICATIONS’ physical recovery of the ORBITEL COMMUNICATIONS’ Equipment. In addition, I agree that any restrictive endorsements (such as “paid in full”), releases or other statements on or accompanying checks or other payments accepted by ORBITEL COMMUNICATIONS shall have no legal effect.
(d) If I subscribe to HSD Service, I acknowledge that notice given by me to ORBITEL COMMUNICATIONS of termination of my HSD Service may not be sufficient to terminate billing by my ISP or OLP for additional or continuing Services under the ISP Terms or OLP Terms (for example, “dial up” access). I agree that I am solely responsible for contacting my ISP or OLP in addition to ORBITEL COMMUNICATIONS to ensure that all such Services are terminated in accordance with the ISP Terms or OLP Terms, as applicable.
11. Disclaimer of Warranty; Limitation of Liability
(a) I AGREE THAT THE SERVICES ARE PROVIDED BY ORBITEL COMMUNICATIONS ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. ORBITEL COMMUNICATIONS MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE ORBITEL COMMUNICATIONS’ EQUIPMENT WILL OPERATE AS INTENDED. IN PARTICULAR, I AGREE THAT MY USE OF THE HSD SERVICE (INCLUDING THE CONTENT, INFORMATION, SERVICES, EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO ME AND THE DOWNLOADING OF COMPUTER FILES) IS AT MY SOLE RISK. I FURTHER AGREE THAT ORBITEL COMMUNICATIONS IS NOT RESPONSIBLE FOR THE RECORDING OF OR FAILURE TO RECORD ANY PROGRAM OR PORTION THEREOF, OR FOR THE CONTENT OF ANY PROGRAM OR CONTENT ON MY DVR, WITHOUT LIMITING THE FOREGOING:
(i) ANY AND ALL PRODUCTS AND SERVICES PROVIDED BY ORBITEL COMMUNICATIONS AND/OR ISP AND/OR OLP AND/OR ANY LONG DISTANCE PROVIDER TO ME THAT ARE NOT PART OF THE SERVICES AS DEFINED HEREIN ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND THE ORBITEL COMMUNICATIONS’ PARTIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH PRODUCTS OR SERVICES; AND
(ii) NONE OF THE ORBITEL COMMUNICATIONS’ PARTIES MAKE ANY WARRANTIES AS TO THE SECURITY OF MY COMMUNICATIONS VIA ORBITEL COMMUNICATIONS’ FACILITIES OR THE SERVICES (WHETHER SUCH COMMUNICATIONS ARE DIRECTED WITHIN THE SERVICES, OR OUTSIDE THE SERVICE TO OR THROUGH THE INTERNET), OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR MY COMPUTERS(S) OR ONLINE (INCLUDING VOICE) COMMUNICATIONS. I AGREE THAT NONE OF THE ORBITEL COMMUNICATIONS’ PARTIES WILL BE LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS. I HAVE THE SOLE RESPONSIBILITY TO SECURE MY COMPUTER AND ONLINE (INCLUDING VOICE) COMMUNICATIONS.
(b) I ACKNOWLEDGE THAT ORBITEL COMMUNICATIONS’ OR MY INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICES, ORBITEL COMMUNICATIONS’ EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO MY COMPUTER(S), TELEPHONES AND TELEPHONE ANSWERING DEVICES, TELEVISIONS, RECORDING AND PLAYBACK DEVICES, AUDIO EQUIPMENT, OR ANY CABLE MODEM, CABLING OR OTHER EQUIPMENT OR HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. I SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER OR OTHER SOFTWARE OR DATA FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF THE ORBITEL COMMUNICATIONS’ PARTIES, AFFILIATED PROVIDERS OR THEIR VENDORS, LICENSEES OR PROGRAMMERS, SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, SOFTWARE, HARDWARE, DATA OR FILES.
(c) EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN SECTIONS 9(a) AND 8(a) RESPECTIVELY, IN NO EVENT (INCLUDING NEGLIGENCE) WILL ANY ORBITEL COMMUNICATIONS’ PARTY, AFFILIATED PROVIDER OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES (INCLUDING THE CONTENT INCLUDED THEREIN OR THE SERVICES ACCESSED THEREBY) OR EQUIPMENT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE USE OF OR INABILITY TO USE EMERGENCY 911 SERVICES, OR FOR ANY ACTION TAKEN BY ORBITEL COMMUNICATIONS OR AN AFFILIATED PROVIDER TO PROTECT THE SERVICES OR THE BREACH BY ORBITEL COMMUNICATIONS OR AFFILIATED PROVIDER OF ANY WARRANTY.
(d) I AGREE THAT THE PROVISIONS OF THIS SECTION 11 SHALL APPLY TO ALL CONTENT OR SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICES, AND ARE FOR THE BENEFIT OF, AND MAY BE ENFORCED BY, ALL OF THE ORBITEL COMMUNICATIONS’ PARTIES AND/OR AFFILIATED PROVIDERS.
(a) My privacy interests, including my ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Federal Communications Act of 1934, as amended, and the Electronic Communications Privacy Act. Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws is described in the Subscriber Privacy Notice delivered to me by ORBITEL COMMUNICATIONS on its own behalf and on behalf of its Affiliated Providers. I acknowledge receipt of the Subscriber Privacy Notice, which is deemed to form a part of this Agreement, and expressly consent to the collection, use and disclosure of personally identifiable and other information as described in the Subscriber Privacy Notice, as it may be amended from time to time.
(b) I agree that, in addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, ORBITEL COMMUNICATIONS and its Affiliated Providers shall each have the right (except where prohibited by law notwithstanding my consent), but not the obligation, to disclose any information to protect their respective rights, property and/or operations, or where circumstances suggest that individual or public safety is in peril. I consent to such actions or disclosures.
(c) If I am a Digital Phone customer, I consent to ORBITEL COMMUNICATIONS’ disclosure of my name, address and/or telephone number to the general public in connection with Caller ID functions, telephone directories, and 411 and 911 Services. I also consent to ORBITEL COMMUNICATIONS’ disclosure of personally identifiable information to the telephone companies serving those end users to whom I make calls so that the calls can be completed. If I wish to have ORBITEL COMMUNICATIONS remove this information from one or more of these Services, I understand that I may notify ORBITEL COMMUNICATIONS to do so, subject to any applicable fees.
13. Consent to Phone and E-Mail Contact
(a) I consent to ORBITEL COMMUNICATIONS calling the phone numbers I supply to it for any purpose, including the marketing of its current and future Services. I agree that these phone calls may be made using any method, including an automatic dialing system or an artificial or recorded voice. Upon my request, the phone numbers I have previously provided will be removed from ORBITEL COMMUNICATIONS’ phone marketing list. I can make this request by calling or writing my local ORBITEL COMMUNICATIONS’ office and asking to be placed on ORBITEL COMMUNICATIONS’ Do Not Call List.
(b) I acknowledge that being included in any state or federal “do not call” registry will not be sufficient to remove me from ORBITEL COMMUNICATIONS’ phone marketing list because I have an established business relationship with ORBITEL COMMUNICATIONS as a customer.
(c) I consent to ORBITEL COMMUNICATIONS e-mailing me, at any e-mail address, including that of a wireless or mobile device, that I provide to ORBITEL COMMUNICATIONS (or that ORBITEL COMMUNICATIONS issues to me in connection with the HSD Service), for any purpose, including the marketing of ORBITEL COMMUNICATIONS’ current and future Services. If my wireless or mobile provider charges me for receipt of such messages, I acknowledge and agree that I am responsible for paying such charges. I may revoke this authorization insofar as it relates to marketing messages at any time by calling or writing my local ORBITEL COMMUNICATIONS’ office.
EXCEPT FOR CLAIMS FOR INJUNCTIVE RELIEF, AS DESCRIBED BELOW, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES. CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED. THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT HAVE THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAY BE SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW. NO CLAIM SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW. THE ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION. IF ANY PORTION OF THIS SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL CONTINUE TO BE ENFORCEABLE.
(a) “Affiliated Provider(s)” means any Vendor, ISP or provider of Services through the ORBITEL COMMUNICATIONS’ cable system that ORBITEL COMMUNICATIONS may enter into an affiliation or contractual agreement now or anytime in the future or in which ORBITEL COMMUNICATIONS holds or may in the future hold an ownership interest.
(b) “Agreement” means this Services Subscription Agreement, as it may be amended from time to time by ORBITEL COMMUNICATIONS.
(c) “Computer” means the personal computer(s) located at my residence that will be used to access the HSD Service, as specified on the accompanying Work Order.
(d) “Digital Phone Service” means the ORBITEL COMMUNICATIONS’ phone service that provides users with the ability to send and receive local and/or long distance calls and to access additional related features and functions through ORBITEL COMMUNICATIONS’ cable systems.
(e) “DVR” means a set-top box or other device enabled with a digital video recorder that is provided to me by ORBITEL COMMUNICATIONS.
(f) “HSD Service” and “High Speed Data Service” mean the online content, features, functions and Services (which may include Internet access) of the ISP or OLP selected by me, as provided over ORBITEL COMMUNICATIONS’ cable systems.
(g) “including” or “include” shall mean inclusion, without limitation.
(h) “ISP” means the Internet service provider selected by me from among those offered now or in the future by ORBITEL COMMUNICATIONS for the HSD Service. My ISP is the entity that provides my Internet connectivity.
(i) “Me,” “My,” and “I” mean the account holder identified on the Work Order who is authorized by ORBITEL COMMUNICATIONS to access and use the Services.
(j) “OLP” or “On-line Provider” means a provider of on-line content, features, functions and Services that are used in conjunction with my ISP Service (and whose service may be purchased with an ISP Service as part of a combined offering) but that does not itself provide Internet connectivity.
(k) “ORBITEL COMMUNICATIONS” means the local ORBITEL COMMUNICATIONS-affiliated cable operator that is providing the Services over its cable system, or any cable operator to whom ORBITEL COMMUNICATIONS assigns this Agreement.
(l) “ORBITEL COMMUNICATIONS’ Equipment” means any equipment provided by ORBITEL COMMUNICATIONS to me including, but not limited to, wire, cable, cable conduit, splitters, junction boxes, converter boxes (also known as “set top” boxes), decoders, CableCARD™, terminals, cable modems, voice-enabled cable modems, remote control units, multimedia terminal adaptors (MTAs) and any other equipment or materials provided to me by ORBITEL COMMUNICATIONS for use in connection with the receipt of Services. ORBITEL COMMUNICATIONS’ Equipment does not include any Network Interface Card (“NIC”) installed in my Computer.
(m) “ORBITEL COMMUNICATIONS’ Parties” means ORBITEL COMMUNICATIONS and its corporate parents, affiliates and subsidiaries and their respective directors, officers, employees and agents.
(n) “Services” means any and all Services provided to me by ORBITEL COMMUNICATIONS, which may include, but not limited too, Video Services, High Speed Data Services, Digital Phone Services and equipment based Services.
(o) “Software and/or Firmware” means the computer software, if any, licensed by ISP or OLP to me to access the HSD Service, or licensed by ORBITEL COMMUNICATIONS to me to facilitate installation or use of my ISP’s or OLP’s service or any other Services. Software also refers to any executable code that may be included in, downloaded to, or utilized by, any ORBITEL COMMUNICATIONS’ Equipment.
(p) “Subscriber Materials” means the handbooks, manuals and other guide materials provided by ORBITEL COMMUNICATIONS or any third party (including my ISP or OLP) regarding use of the Services.
(q) “Subscriber Privacy Notice” means the Subscriber Privacy Notice described in Section 12(a), as it may be amended from time to time by ORBITEL COMMUNICATIONS.
(r) “Tariff(s)” means the materials describing the terms upon which ORBITEL COMMUNICATIONS offers Services, which have been filed at the Public Service Commission or comparable state agency serving the jurisdiction in which I live if applicable or required. Absent of a required or filed Tariff, the term Tariff(s) will refer to ORBITEL COMMUNICATIONS’ pricing for Services as established and subject to change at the discretion of ORBITEL COMMUNICATIONS.
(t) “Video Service” means video and/or audio programming Services packaged in tiers or levels such as basic, standard, expanded, analog, digital, High Definition and movie or premium Services, Services provided on a per-channel or per-program basis, pay-per-play, pay-per-view or VOD.
(u) “VOD” means video on demand.
(v) “Work Order” means the ORBITEL COMMUNICATIONS’ work order provided to me on or after January 1, 2002 in connection with the installation or commencement of my Service(s), and including any maintenance, modifications, additions or deletions of Services, repairs or termination.
I agree to defend, indemnify and hold harmless the ORBITEL COMMUNICATIONS’ Parties and Affiliated Providers from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of or related in any way to my use of the Services or otherwise arising out of the use of my account or any Equipment or facilities in connection therewith, or my use of any other ORBITEL COMMUNICATIONS’ products or Services or any Affiliated Providers products or Services.
This Agreement will remain in effect until terminated by either party or superseded by a revised Subscription Agreement.
18. Interpretation; Severability
This Agreement is, and shall be interpreted as, subject to applicable law and regulation and to any applicable franchise agreement between a governmental authority and ORBITEL COMMUNICATIONS. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties as set forth herein, and the remainder of this Agreement shall remain in full force and effect.
19. Consent to Electronic Notice
I agree that failure by ORBITEL COMMUNICATIONS to enforce any of its rights hereunder shall not constitute a waiver of any such rights. No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default.
I understand that my Services are being provided only to the location identified on my Work Order and that I am not allowed to transfer all or any portion of the Services, or ORBITEL COMMUNICATIONS’ Equipment, to any other person, entity or location, including a new residence. I agree that I may not assign or transfer this Agreement. ORBITEL COMMUNICATIONS may transfer or assign any portion or all of this Agreement at any time without notice to me, and I waive any such notice which may be required.
22. Effect of Applicable Law; Reservation of Rights
23. Parental Control Device
I acknowledge that I have been advised of the availability of ORBITEL COMMUNICATIONS’ parental control device which can filter or block certain programming. Additional information about the device is available at the ORBITEL COMMUNICATIONS’ contact number in the Subscriber Materials or on-line at www.OrbitelCom.com.
24. Conflicting Terms
In the event of a conflict in the terms and conditions between this Subscription Agreement and the accompanying Work Order, then the terms and conditions of this Agreement shall control.