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ORBITEL COMMUNICATIONS
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.
(d) I will not, nor will I allow
others to, open, alter, misuse, tamper with or remove the ORBITEL
COMMUNICATIONS’ Equipment as and where installed by ORBITEL
COMMUNICATIONS or use it contrary to this Agreement, any terms of
use, or the Tariff(s). I will not, nor will I allow others to,
remove any markings or labels from the ORBITEL COMMUNICATIONS’
Equipment indicating ORBITEL COMMUNICATIONS ownership or serial or
identity numbers. I will safeguard the ORBITEL COMMUNICATIONS’
Equipment from loss or damage of any kind, including accidents,
breakage or house fire, and will not permit anyone other than an
authorized representative of ORBITEL COMMUNICATIONS to perform any
work on the ORBITEL COMMUNICATIONS’ Equipment.
(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
(a) Tiers of Service. I acknowledge
that the HSD Service may be offered on a tiered basis and that each
tier has "throughput" limits (i.e., limits on the maximum rate at
which I may send and receive data at any time), "consumption" limits
(i.e., limits on the amount of data that I may send or receive
during the course of a month or over shorter periods) and other
similar limits, all as set forth in the price list. I agree that
ORBITEL COMMUNICATIONS or ISP may change the throughput, consumption
and other applicable limits of any tier(s) by amending the price
list, product offering or restrictions for use. My continued use of
the HSD Service will constitute my acceptance of any new limits. I
also agree that ORBITEL COMMUNICATIONS may use technical means,
including but not limited to suspending or reducing the speed of my
service, to ensure compliance with these limits and that ORBITEL
COMMUNICATIONS or ISP may move me to a higher tier of HSD service
(which may result in higher monthly charges) or impose other charges
and fees if my use exceeds these limits. I further agree that
ORBITEL COMMUNICATIONS and ISP have the right to monitor my usage
patterns to facilitate the provision of the HSD Service and to
ensure my compliance with its terms of use. ORBITEL COMMUNICATIONS
or ISP may take such steps as it determines appropriate in the event
my usage of the HSD Service does not comply with its terms of use,
including applicable consumption limits.
(b) Republication.
(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.
(e) Use of ISP and OLP Service. I
agree that ORBITEL COMMUNICATIONS and/or my ISP and/or OLP has the
right, but not the obligation, to edit, refuse to post or transmit,
request removal of, or remove or block any material transmitted
through, submitted to or posted on the HSD Service, if it determines
in its discretion that the material is unacceptable or violates the
terms of this Agreement, any ORBITEL COMMUNICATIONS consumption
limits or any other terms of use. Such material might include
personal home pages and links to other sites. In addition, I agree
that, under such circumstances, ORBITEL COMMUNICATIONS may suspend
my account, take other action to prevent me from utilizing certain
account privileges (e.g., home pages) or cancel my account without
prior notification. I also agree that ORBITEL COMMUNICATIONS and/or
ISP and/or OLP may suspend, alter or cancel my account for using all
or part of the HSD Service to post content to the Internet or to
engage in "peer to peer" file exchanges or other forms of file
exchanges that violate this Agreement.
(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.
12. Privacy
(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.
14. Arbitration
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.
15. Definitions
(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.
(s) "Terms of Use" shall mean all
rules, terms and conditions set forth in this Agreement or otherwise
established now or hereafter by ORBITEL COMMUNICATIONS regarding
permissible or impermissible uses of or activities related to its
Services
(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.
16.
Indemnification
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.
17. Term
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 unless otherwise
specified, all notices required or contemplated hereunder will be
provided by ORBITEL COMMUNICATIONS by such means as ORBITEL
COMMUNICATIONS shall determine in its discretion. Without limiting
the foregoing, I agree that ORBITEL COMMUNICATIONS may provide any
notices required or contemplated hereunder or by applicable law,
including notice of changes to this Agreement, the Terms of Use, the
Tariff(s) or the Privacy Notice, by electronic means (for example,
e-mail or online posting). 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.
20. Waiver
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.
21. Assignment
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
This Agreement, the Work Order,
Subscriber Privacy Notice and any terms of use are subject to all
applicable federal, state or local laws and regulations in effect in
the relevant jurisdiction(s) in which I receive my Services. If any
provision of this Agreement, the Work Order or Subscriber Privacy
Notice contravene or are in conflict with any such law or
regulation, or if I am entitled to more favorable rights under any
such law or regulation than are set forth in any provision in this
Agreement, the Work Order or Subscriber Privacy Notice, then the
terms of such law or regulation, or the rights to which I am
entitled under such law or regulation, shall take priority over the
relevant provision of this Agreement, the Work Order or Subscriber
Privacy Notice. If the relevant law or regulation applies to some
but not all of my Service(s), then such law or regulation will take
priority over the relevant provision of this Agreement, the Work
Order or Subscriber Privacy Notice only for purposes of those
Service(s) to which the law or regulation applies. Except as
explicitly stated in this Agreement, nothing contained in this
Agreement shall constitute a waiver by me or ORBITEL COMMUNICATIONS
of any rights under applicable laws or regulations pertaining to the
installation, operation, maintenance or removal of the Services,
facilities or ORBITEL COMMUNICATIONS Equipment.
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.
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