IMPORTANT INFORMATION ABOUT YOUR WINDJAMMER COMMUNICATIONS SERVICES:
The account holder(s) referred to on the accompanying Windjammer Communications Work Order or statement ("I," "me" or "my") agrees that the Work Order, this Agreement, the Terms of Use referred to below, and any applicable Tariff(s) on file with the state utility commission or comparable state agency in the jurisdiction in which I live, set forth the terms and conditions that govern my receipt of Services from Windjammer Communications, which may include, among others, video, high-speed data and voice Services. The term "Services" and all other capitalized terms used in this Agreement are defined in Section 15.
In consideration of WINDJAMMER COMMUNICATIONS's 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, the Terms of Use and any effective and applicable Tariff(s), each of which WINDJAMMER COMMUNICATIONS may amend as set forth below, constitute the entire agreement between WINDJAMMER COMMUNICATIONS and me. This Agreement supersedes all previous written or oral agreements between WINDJAMMER COMMUNICATIONS and me. I am not entitled to rely on any oral or written statements by WINDJAMMER COMMUNICATIONS's representatives relating to the subjects covered by these documents, whether made prior to the date of my Work Order or thereafter, and WINDJAMMER 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, the Terms of Use, and any applicable Tariff(s).
(b) WINDJAMMER COMMUNICATIONS has the right to add to, modify, or delete any term of this Agreement, the Terms of Use, the Subscriber Privacy Notice or any applicable Tariff(s) at any time. An online version of this Agreement, the Terms of Use, the Subscriber Privacy Notice and any applicable Tariff(s), as so changed from time to time, can be obtained by calling my local WINDJAMMER COMMUNICATIONS office. The online versions of these documents are always the most current versions.
(c) WINDJAMMER COMMUNICATIONS will notify me of any significant change(s) in this Agreement, the Terms of Use, the Subscriber Privacy Notice or any applicable Tariff(s). Any changes will become effective at such time as we update the on-line version of the relevant document, 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS for (i) all use of my Services (including, if WINDJAMMER 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) WINDJAMMER COMMUNICATIONS Equipment, and (iv) all applicable local, state and federal fees and taxes. Charges for the Services that I receive have been provided o me. Other charges are set forth on a separate price list that I have received and/or can be provided on request. I will be billed monthly in advance for recurring monthly charges. Other charges will be billed in the next practicable monthly billing cycle following use, or as otherwise specified in the price list. WINDJAMMER 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 any early termination fees that were described to me at the commencement of such promotion.
(b) Charges for installation Services and related equipment available from WINDJAMMER COMMUNICATIONS for a standard Services installation may be described in WINDJAMMER COMMUNICATIONS's list of charges and any applicable Tariff(s) and/or can be provided on request. Non-standard installations, if available, may result in additional charges as described in WINDJAMMER COMMUNICATIONS's list of charges. In addition, I agree to pay charges for repair service calls resulting from my misuse of WINDJAMMER COMMUNICATIONS Equipment or for failures in equipment not supplied by WINDJAMMER COMMUNICATIONS.
(c) If my Services account is past due and WINDJAMMER COMMUNICATIONS sends a collector to my premises, a field collection fee may be charged. The current field collection fee 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 WINDJAMMER 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 if my account is 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. WINDJAMMER COMMUNICATIONS reserves the right to change the late fees.
(e) I agree that if my Services account with WINDJAMMER COMMUNICATIONS is past due, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS, I agree that the credit or deposit may be used to offset amounts past due on any other account I may have with WINDJAMMER 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 WINDJAMMER COMMUNICATIONS, to pay reconnect charges or other charges (where applicable) and/or security deposits before reconnection.
(f) WINDJAMMER COMMUNICATIONS may verify my credit standing with credit reporting agencies and require a deposit based on my credit standing or other applicable criteria. WINDJAMMER 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 WINDJAMMER COMMUNICATIONS requires a security deposit, the obligations of WINDJAMMER COMMUNICATIONS regarding such security deposit will be governed by the terms of the deposit receipt provided by WINDJAMMER COMMUNICATIONS to me at the time the deposit is collected. I agree that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS, for any past due amounts payable by me to WINDJAMMER 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 WINDJAMMER COMMUNICATIONS and its agents to collect this item electronically.
(h) WINDJAMMER 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. WINDJAMMER COMMUNICATIONS reserves the right to change return/chargeback fees.
(i) If I subscribe to HSD Service, I acknowledge that, even if WINDJAMMER 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 WINDJAMMER COMMUNICATIONS that are payable under the ISP Terms. I agree that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS. I also agree that responsibility for billing for my HSD Service subscription may be changed between WINDJAMMER 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 movies, merchandise ordered via Internet, international long distance charges, etc.). WINDJAMMER 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, and I authorize you to provide any Services to the person making such communications. 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Parties for all liability for such charges. I agree that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS provides and, consequently, uncertainty about what fees, taxes and surcharges are due from WINDJAMMER COMMUNICATIONS and/or its customers. Accordingly, I agree that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's 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 WINDJAMMER COMMUNICATIONS office currently collects or passes through by writing to WINDJAMMER COMMUNICATIONS at the following address and requesting same: Windjammer Communications, 7800 Crescent Executive Drive, Charlotte, North Carolina, 28217; Attention: Subscriber Tax Inquiries.
(l) I agree that it is my responsibility to report WINDJAMMER 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.
(m) I agree that WINDJAMMER COMMUNICATIONS has no obligation to notify me of, or change my rate to reflect, offers it may make to consumers that contain different prices for Services (or packages of Services) that are the same as, or similar to, the Services I receive.
3. Installation; Equipment and Cabling
(a) If I am not the owner of the house, apartment or other premises upon which WINDJAMMER COMMUNICATIONS Equipment and Software are to be installed, I warrant that I have obtained the consent of the owner of the premises for WINDJAMMER 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS to make any preparations to the premises necessary for the installation, maintenance, or removal of equipment. WINDJAMMER COMMUNICATIONS shall not be liable for any effects of normal Services installation and workmanship, such as holes in walls, etc., which may remain after installation or removal of the WINDJAMMER COMMUNICATIONS Equipment, except for damage caused by negligence on the part of WINDJAMMER COMMUNICATIONS.
(c) The WINDJAMMER COMMUNICATIONS Equipment is and at all times shall remain the sole and exclusive personal property of WINDJAMMER COMMUNICATIONS, and I agree that I do not become an owner of any WINDJAMMER COMMUNICATIONS Equipment by virtue of the payments provided for in this Agreement or the Tariff(s) or the attachment of any portion of the WINDJAMMER COMMUNICATIONS Equipment to my residence or otherwise. Upon termination of any Services, subject to any applicable laws or regulations, WINDJAMMER COMMUNICATIONS may, but shall not be obligated to, retrieve any associated WINDJAMMER COMMUNICATIONS Equipment not returned by me as required under Section 3(f) below. WINDJAMMER COMMUNICATIONS will not be deemed to have "abandoned" the WINDJAMMER COMMUNICATIONS Equipment if it does not retrieve such equipment.
(d) I agree to provide WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment, to install Software, to conduct service theft audits, or to check for signal leakage. I agree that WINDJAMMER COMMUNICATIONS may have reasonable access to easements and WINDJAMMER COMMUNICATIONS Equipment located on my grounds.
(e) WINDJAMMER COMMUNICATIONS shall have the right to upgrade, modify and enhance WINDJAMMER COMMUNICATIONS Equipment and Software from time to time through "downloads" from WINDJAMMER COMMUNICATIONS's network or otherwise. Without limiting the foregoing, WINDJAMMER COMMUNICATIONS may, at any time, employ such means to limit or increase the throughput available through individual cable modems whether or not provided by WINDJAMMER COMMUNICATIONS.
(f) If the Services are terminated, I agree that I have no right to possess or use the WINDJAMMER COMMUNICATIONS Equipment related to the terminated Services. As required under Section 10(b), I agree that I must arrange for the return of WINDJAMMER COMMUNICATIONS Equipment to WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment or schedule with WINDJAMMER COMMUNICATIONS for its disconnection and removal, WINDJAMMER COMMUNICATIONS may enter any premises where the WINDJAMMER COMMUNICATIONS Equipment may be located for the purpose of disconnecting and retrieving the WINDJAMMER COMMUNICATIONS Equipment. I will pay any expense incurred by WINDJAMMER COMMUNICATIONS in any retrieval of the unreturned WINDJAMMER COMMUNICATIONS Equipment. WINDJAMMER COMMUNICATIONS may charge me a continuing monthly fee until any outstanding WINDJAMMER COMMUNICATIONS Equipment is returned, collected by WINDJAMMER 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 WINDJAMMER COMMUNICATIONS liquidated damages in the amount demanded by WINDJAMMER COMMUNICATIONS, but not to exceed that specified in the then-current price list, for the replacement cost of the WINDJAMMER COMMUNICATIONS Equipment without any deduction for depreciation, wear and tear or physical condition of such WINDJAMMER COMMUNICATIONS Equipment if (i) I tamper with, or permit others to tamper with, WINDJAMMER COMMUNICATIONS Equipment, (ii) the WINDJAMMER 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment; the ability of third parties to steal Services with unlawfully obtained WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment. I agree to return any damaged WINDJAMMER COMMUNICATIONS Equipment to WINDJAMMER COMMUNICATIONS.
(h) I agree that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS in writing that I am revoking such license.
4. Use of Services; WINDJAMMER COMMUNICATIONS Equipment and Software
(a) I agree that WINDJAMMER 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). I further agree that my ISP (and, if applicable, OLP) has the right to add to, modify, or delete any aspect, feature or requirement of the HSD Service (including content, price and system requirements). If WINDJAMMER 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, the Terms of Use and the 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 WINDJAMMER 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) If I receive Digital Phone Service, I agree not to use the Services for telemarketing, call center, medical transcription or facsimile broadcasting Services 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 make available my Digital Phone 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.
(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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS from enforcing any rights it has with respect to theft or unauthorized tampering of Services or WINDJAMMER COMMUNICATIONS Equipment under applicable law.
(d) I will not, nor will I allow others to, open, alter, misuse, tamper with or remove the WINDJAMMER COMMUNICATIONS Equipment as and where installed by WINDJAMMER COMMUNICATIONS or use it contrary to this Agreement, the Terms of Use, or the Tariff(s). I will not, nor will I allow others to, remove any markings or labels from the WINDJAMMER COMMUNICATIONS Equipment indicating WINDJAMMER COMMUNICATIONS ownership or serial or identity numbers. I will safeguard the WINDJAMMER 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 WINDJAMMER COMMUNICATIONS to perform any work on the WINDJAMMER COMMUNICATIONS Equipment.
(e) I agree that to the extent any Software is licensed (or sublicensed) to me by WINDJAMMER 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 will return or destroy all Software provided by WINDJAMMER 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 WINDJAMMER COMMUNICATIONS.
(f) I agree that I will use the Services for lawful purposes only, and in accordance with this Agreement, the Terms of Use and the 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 Windjammer Communications. To the extent this information is acquired by any other person (through no fault of WINDJAMMER COMMUNICATIONS), WINDJAMMER COMMUNICATIONS may assume that I have authorized such person's use of the information. I also acknowledge that WINDJAMMER COMMUNICATIONS's Services may from time to time include interactive features, the use of which may result in the transmission to, and use by, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS may be required, under the Federal Communications Act of 1934, to obtain my consent. I agree that WINDJAMMER COMMUNICATIONS may seek such consents (or indications of my election to "opt in" to certain WINDJAMMER COMMUNICATIONS programs) electronically, including through the use of a "click through" screen, and that WINDJAMMER 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 WINDJAMMER COMMUNICATIONS has no liability for the completeness, accuracy or truth of the programs or information it transmits.
(i) Data Storage Services. I agree that any online or physical data storage services provided to me by WINDJAMMER COMMUNICATIONS are used at my sole risk and that WINDJAMMER COMMUNICATIONS will have no liability in the event my data is corrupted or lost as a result of or while using such services. I agree that when I return WINDJAMMER COMMUNICATIONS Equipment to WINDJAMMER COMMUNICATIONS, I am responsible for ensuring that all of my data is removed from such WINDJAMMER COMMUNICATIONS Equipment and acknowledge that WINDJAMMER COMMUNICATIONS has no responsibility for any such data that I do not remove.
5. Special Provisions Regarding Digital Phone Service
(a) I acknowledge that the voice-enabled cable modem used to provide the Digital Phone Service is electrically powered and that the Digital Phone Service, including the ability to access 911 Services and home security and medical monitoring Services, may not operate in the event of an electrical power outage or if my broadband cable connection is disrupted or not operating. I acknowledge that, in the event of a power outage in my home, any battery included in my voice-enabled cable modem may enable back-up service for a limited period of time or not at all, depending on the circumstances, and that inclusion of the battery does not ensure that Digital Phone Service will be available in all circumstances. I also acknowledge that, in the event of a loss of power that disrupts my local WINDJAMMER COMMUNICATIONS cable system, the battery in my voice-enabled cable modem will not provide back-up service and the Digital Phone Service will not be available.
(b) I agree that WINDJAMMER 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 WINDJAMMER 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.
(c) 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 WINDJAMMER COMMUNICATIONS Equipment from the location and address in which it has been installed. Furthermore, if I move my voice-enabled cable modem to an address different than that identified on the Work Order, calls from such modem 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.
(d) I agree to provide WINDJAMMER 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.
(e) I agree that in the event of a material error or omission affecting my directory listing information, regardless of form or fault by WINDJAMMER COMMUNICATIONS, including the erroneous inclusion in published directory listings of any information that I intend not to have published, my sole remedy shall be a service credit in an amount set by WINDJAMMER COMMUNICATIONS's then-current standard policies or an amount prescribed by applicable regulatory requirements, whichever is greater. WINDJAMMER COMMUNICATIONS shall have no other liability for errors, omissions or mistaken inclusions in directory listings.
6. Special Provisions Regarding HSD Service
(a) Description of HSD Service.
(i) I acknowledge that each tier or level of the HSD Service has limits on the Maximum Throughput Rate at which I may send and receive data at any time, as set forth in the price list or Terms of Use, and that the Maximum Throughput Rate may be achieved in bursts, but generally will not be sustained on a consistent basis due to the nature of the Internet, the protocols used to transmit data to and from the Internet, and WINDJAMMER COMMUNICATIONS's facilities. I also understand that the actual Throughput Rate I may experience at any time will vary based on numerous factors, such as the condition of wiring at my location, computer configurations, Internet and WINDJAMMER COMMUNICATIONS network congestion, the time of day at which I use the HSD Service, and the website servers I access, among other factors. Additionally, Throughput Rate may be affected by Network Management Tools, the prioritization of WINDJAMMER COMMUNICATIONS commercial subscriber traffic and network control information, and necessary bandwidth overhead used for protocol and network information.
(ii) I agree that WINDJAMMER COMMUNICATIONS or ISP may change the Maximum Throughput Rate of any tier by amending the price list or Terms of Use. My continued use of the HSD Service following such a change will constitute my acceptance of any new Maximum Throughput Rate. If the level or tier of HSD Service to which I subscribe has a specified limit on the amount of bytes that I can use in a given billing cycle, I also agree that WINDJAMMER COMMUNICATIONS may use technical means, including but not limited to suspending or reducing the speed of my HSD Service, to ensure compliance with these limits, and that WINDJAMMER 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.
(iii) I agree that WINDJAMMER COMMUNICATIONS may use Network Management Tools as it determines appropriate and/or that it may use technical means, including but not limited to suspending or reducing the Throughput Rate of my HSD Service, to ensure compliance with its Terms of Use and to ensure that its service operates efficiently. I further agree that WINDJAMMER COMMUNICATIONS and ISP have the right to monitor my bandwidth usage patterns to facilitate the provision of the HSD Service and to ensure my compliance with the Terms of Use and to efficiently manage their networks and their provision of services. WINDJAMMER COMMUNICATIONS or ISP may take such steps as each may determine appropriate in the event my usage of the HSD Service does not comply with the Terms of Use. I acknowledge that HSD Service does not include other services managed by WINDJAMMER COMMUNICATIONS and delivered over WINDJAMMER COMMUNICATIONS's shared infrastructure, including Video Service and Digital Phone Service.
(b) I may rent a cable modem from WINDJAMMER COMMUNICATIONS or may purchase a DOCSIS-compliant, WINDJAMMER COMMUNICATIONS-approved cable modem from a third party provider. WINDJAMMER COMMUNICATIONS reserves the right to provide service only to users with WINDJAMMER COMMUNICATIONS-approved DOCSIS-compliant modems. Modems not WINDJAMMER COMMUNICATIONS-approved may not function as intended and may not receive WINDJAMMER COMMUNICATIONS advertised services.
(c) 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 WINDJAMMER COMMUNICATIONS Parties will not be responsible for any harm resulting from such actions.
(ii) I grant to WINDJAMMER 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 email, or "spam," is a nuisance and that WINDJAMMER COMMUNICATIONS and my ISP (and, if applicable, my OLP) are entitled to establish limits on the volume of email that I send. Such volume limits may be set by reference to a number of emails per day, week, month or year.
(d) Continuity of Service. In order to provide continuity of service to me, if my choice of ISP is no longer available over my local WINDJAMMER COMMUNICATIONS cable system, I agree that WINDJAMMER COMMUNICATIONS may provide me with an alternative ISP. In such event, WINDJAMMER 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS.
(e) Unfiltered Internet Access. I acknowledge that the ISP Service provides a connection to the Internet that may be unfiltered, and that the WINDJAMMER COMMUNICATIONS Parties neither control nor assume responsibility for any content on the Internet or content that is posted by a subscriber. Although WINDJAMMER 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) Use of ISP and OLP Service. I agree that WINDJAMMER 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 violates the terms of this Agreement, any WINDJAMMER 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, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS and/or ISP and/or OLP may suspend or cancel my account for using all or part of the HSD Service in a manner that violates this Agreement or the Terms of Use.
(g) Responsibility for HSD Service. Each of WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's 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-WINDJAMMER 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.
(h) 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 WINDJAMMER COMMUNICATIONS or my ISP or OLP.
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. WINDJAMMER COMMUNICATIONS will, at its own expense, repair damage to or, at WINDJAMMER COMMUNICATIONS's option, replace WINDJAMMER COMMUNICATIONS Equipment, and otherwise attempt to correct interruptions of the Services, due to reasonable WINDJAMMER COMMUNICATIONS Equipment wear and tear, or technical malfunction of the system or network operated by WINDJAMMER COMMUNICATIONS. The Subscriber Materials contain details on contacting
WINDJAMMER COMMUNICATIONS for this support.
(b) Unless I have obtained a WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment or WINDJAMMER COMMUNICATIONS-licensed Software and WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment or WINDJAMMER COMMUNICATIONS-licensed Software). WINDJAMMER COMMUNICATIONS will not support, repair, replace, or maintain any Network Interface Card, regardless of whether provided and installed by WINDJAMMER COMMUNICATIONS.
(c) I agree that WINDJAMMER COMMUNICATIONS has no responsibility for the operation of any equipment, software or service other than the Services, the WINDJAMMER COMMUNICATIONS Equipment and the WINDJAMMER 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 WINDJAMMER COMMUNICATIONS converter box or other WINDJAMMER COMMUNICATIONS Equipment for which a fee may be charged. I further acknowledge that, even if WINDJAMMER COMMUNICATIONS furnishes other WINDJAMMER COMMUNICATIONS Equipment to me that is compatible with my equipment, my equipment may not receive all Services available to customers using a WINDJAMMER COMMUNICATIONS converter box. If I receive HSD Service, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS determines that non-WINDJAMMER COMMUNICATIONS cabling or equipment connecting my residence to WINDJAMMER COMMUNICATIONS Equipment installed on the side of or adjacent to my residence (i.e., at a ground block) is the cause of a service problem, I agree that WINDJAMMER COMMUNICATIONS may charge me to resolve such service problem. If available from WINDJAMMER COMMUNICATIONS in my area, I may subscribe to a WINDJAMMER COMMUNICATIONS service protection plan that covers service related calls within my residence. If any other support Services are available from WINDJAMMER COMMUNICATIONS, such Services will be at additional charges as described in WINDJAMMER COMMUNICATIONS's price list.
8. Service Interruptions; Force Majeure
(a) I agree that WINDJAMMER COMMUNICATIONS has no liability for delays in or interruption to my Services except that, if for reasons within WINDJAMMER COMMUNICATIONS's 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, WINDJAMMER 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, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS be required to credit me an amount in excess of applicable service fees. WINDJAMMER 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 WINDJAMMER COMMUNICATIONS may conduct maintenance from time to time that may result in interruptions of my Services.
(c) The WINDJAMMER COMMUNICATIONS Parties shall have no liability, except as set forth in Section 8(a), 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) WINDJAMMER COMMUNICATIONS is only obligated to provide the above-referenced credits for loss of Services if WINDJAMMER COMMUNICATIONS is billing me for the relevant Service at the time of the outage. If a third party, including my ISP or OLP, is billing me, I will look solely to such third party for a credit with respect to that Service.
9. Review and Enforcement
(a) WINDJAMMER COMMUNICATIONS may suspend or terminate all or a portion of my Services without prior notification if WINDJAMMER COMMUNICATIONS determines in its discretion that I have violated this Agreement, any of the Terms of Use or any Tariff(s), even if the violation was a one-time event. If all or a portion of my Services are suspended for more than 24 hours, 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 WINDJAMMER COMMUNICATIONS.
(b) If I receive HSD Service, I acknowledge that WINDJAMMER 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 and the Terms of Use.
(c) I agree that WINDJAMMER COMMUNICATIONS shall have the right to take any action that WINDJAMMER COMMUNICATIONS deems appropriate to protect the Services, WINDJAMMER COMMUNICATIONS's facilities or WINDJAMMER COMMUNICATIONS Equipment.
10. Termination of Service
(a) Either WINDJAMMER COMMUNICATIONS or I, each in our sole discretion, may terminate all or any portion of my Services at any time for any or no reason, in its sole discretion, in accordance with applicable law.
(b) If I am moving or wish to terminate all or any portion of my Services for any reason, I will notify WINDJAMMER COMMUNICATIONS by phone or by mail as instructed in the Subscriber Materials in order to set up a disconnect appointment and provide WINDJAMMER COMMUNICATIONS with access to my premises to disconnect the relevant Services and recover the WINDJAMMER COMMUNICATIONS Equipment specified on the Work Order on a DATE PRIOR TO the last day of residency. 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, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's physical recovery of the WINDJAMMER 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 WINDJAMMER COMMUNICATIONS shall have no legal effect.
(d) I acknowledge that notice given by me to WINDJAMMER COMMUNICATIONS of termination of any Services may not be sufficient to terminate billing by any third party for additional or continuing Services, for example, billing by my ISP or OLP for continuing "dial up" access. I agree that I am solely responsible for contacting any such third party in addition to WINDJAMMER COMMUNICATIONS to ensure that all such Services are terminated in accordance with the third party's terms of service, if applicable.
11. Disclaimer of Warranty; Limitation of Liability
(a) I AGREE THAT THE SERVICES ARE PROVIDED BY WINDJAMMER 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. WINDJAMMER COMMUNICATIONS MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE, OR THAT THE WINDJAMMER 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 AND THAT WINDJAMMER COMMUNICATIONS DOES NOT WARRANT THAT THE HSD SERVICE OR EQUIPMENT PROVIDED BY WINDJAMMER COMMUNICATIONS WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. I FURTHER AGREE THAT WINDJAMMER 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 WINDJAMMER COMMUNICATIONS AND/OR ISP AND/OR OLP AND/OR ANY LONG DISTANCE PROVIDER AND/OR OTHER THIRD PARTY TO ME THAT ARE NOT PART OF THE SERVICES AS DEFINED HEREIN ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND THE WINDJAMMER COMMUNICATIONS PARTIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH PRODUCTS OR SERVICES; AND
(ii) NONE OF THE WINDJAMMER COMMUNICATIONS PARTIES MAKES ANY WARRANTIES AS TO THE SECURITY OF MY COMMUNICATIONS VIA WINDJAMMER COMMUNICATIONS'S 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 EQUIPMENT OR COMMUNICATIONS. I AGREE THAT NONE OF THE WINDJAMMER COMMUNICATIONS PARTIES WILL BE LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS. I HAVE THE SOLE RESPONSIBILITY TO SECURE MY EQUIPMENT AND COMMUNICATIONS.
(b) I ACKNOWLEDGE THAT WINDJAMMER COMMUNICATIONS'S OR MY INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICES, WINDJAMMER 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 WINDJAMMER COMMUNICATIONS PARTIES, 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 WINDJAMMER COMMUNICATIONS PARTY 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; FOR ANY ERRORS, OMISSIONS, MISTAKEN INCLUSIONS OR PUBLICATION OF ANY DIRECTORY LISTING INFORMATION, REGARDLESS OF FORM; FOR ANY ACTION TAKEN BY WINDJAMMER COMMUNICATIONS TO PROTECT THE SERVICES; OR THE BREACH BY WINDJAMMER COMMUNICATIONS 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 WINDJAMMER COMMUNICATIONS PARTIES.
12. Privacy
(a) My privacy interests, including my ability to limit disclosure of certain information to third parties, may be 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 WINDJAMMER COMMUNICATIONS on its own behalf and on behalf of its Affiliated ISPs. 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, WINDJAMMER COMMUNICATIONS and its Affiliated ISPs 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 WINDJAMMER COMMUNICATIONS's disclosure of my name, address and/or telephone number to the general public in connection with Caller ID functions, telephone directories and 411 services. If I wish to have WINDJAMMER COMMUNICATIONS remove this information from one or more of these Services, I understand that I may direct WINDJAMMER COMMUNICATIONS to do so, subject to any applicable fees. I also consent to WINDJAMMER COMMUNICATIONS's disclosure of my name, address and/or telephone number in response to 911 and similar public safety requests and to the telephone companies serving those end users to whom I make calls so that the calls can be completed.
13. Consent to Phone and Email Contact
(a) I consent to WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's phone marketing list. I can make this request by calling or writing my local WINDJAMMER COMMUNICATIONS office and asking to be placed on WINDJAMMER COMMUNICATIONS's 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 WINDJAMMER COMMUNICATIONS's phone marketing list.
(c) I consent to WINDJAMMER COMMUNICATIONS emailing me, at any email address, including that of a wireless or mobile device, that I provide to WINDJAMMER COMMUNICATIONS (or that WINDJAMMER COMMUNICATIONS issues to me in connection with the Service), for any purpose, including the marketing of WINDJAMMER COMMUNICATIONS's 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 WINDJAMMER 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, EXCEPT THAT IF THE PROHIBITION AGAINST CONSOLIDATED OR CLASS ACTION ARBITRATIONS SET FORTH ABOVE IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.
15. Definitions
(a) "Affiliated ISP" means Road Runner and any other ISP in which any WINDJAMMER COMMUNICATIONS Party holds an ownership interest.
(b) "Agreement" means this Services Subscription Agreement, as it may be amended from time to time by WINDJAMMER 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 WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's cable systems.
(e) "DVR" means a set-top box or other device enabled with a digital video recorder that is provided to me by WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's 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 WINDJAMMER COMMUNICATIONS for the HSD Service. My ISP is the entity that provides my Internet connectivity.
(i) "Maximum Throughput Rate" means the highest Throughput Rate provided by the level or tier of HSD Service to which I subscribe.
(j) "Me," "My," and "I" mean the account holder identified on the Work Order who is authorized by WINDJAMMER COMMUNICATIONS to access and use the Services.
(k) "Network Management Tools" means tools and techniques that may be used by WINDJAMMER COMMUNICATIONS as it determines appropriate in order to efficiently manage its network, ensure a quality user experience for its subscribers and ensure compliance with the Acceptable Use Policy. Examples of Network Management Tools can be found in the Acceptable Use Policy.
(l) "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.
(m) "Services" means any and all Services provided to me by WINDJAMMER COMMUNICATIONS, which may include Video Service, High Speed Data Service, Digital Phone Service and equipment based Services such as digital video recorder Services.
(n) "Software" means the computer software, if any, licensed by ISP or OLP to me to access the HSD Service, or licensed by WINDJAMMER 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 WINDJAMMER COMMUNICATIONS Equipment.
(o) "Subscriber Materials" means the handbooks, manuals and other guide materials provided by WINDJAMMER COMMUNICATIONS or any third party (including my ISP or OLP) regarding use of the Services.
(p) "Subscriber Privacy Notice" means the Subscriber Privacy Notice described in Section 12(a), as it may be amended from time to time by WINDJAMMER COMMUNICATIONS.
(q) "Tariff(s)" means the materials describing the terms upon which WINDJAMMER COMMUNICATIONS offers Digital Phone Service, which have been filed at the Public Service Commission or comparable state agency serving the jurisdiction in which I live.
(r) "Terms of Use" shall mean all rules, terms and conditions set forth in this Agreement or otherwise established now or hereafter by WINDJAMMER COMMUNICATIONS regarding permissible or impermissible uses of or activities related to, the HSD Service.
(s) "Throughput Rate" refers to the amount of data that can be transferred between my location and the WINDJAMMER COMMUNICATIONS facilities serving my location over a given period of time. Throughput Rates described in all WINDJAMMER COMMUNICATIONS materials, including marketing materials, price lists and Terms of Use refer to Maximum Throughput Rates.
(t) "WINDJAMMER COMMUNICATIONS" means the local Windjammer Communications-affiliated cable operator that is providing the Services over its cable system, or any cable operator to whom WINDJAMMER COMMUNICATIONS assigns this Agreement.
(u) "WINDJAMMER COMMUNICATIONS Equipment" means any equipment provided by WINDJAMMER COMMUNICATIONS to me including, but not limited to, wire, cable, cable conduit, splitters, junction boxes, converter boxes (also known as "set top" boxes), decoders, CableCARDTM, terminals, cable modems, voice-enabled cable modems, remote control units, and any other equipment or materials provided to me by WINDJAMMER COMMUNICATIONS for use in connection with the receipt of Services. WINDJAMMER COMMUNICATIONS Equipment does not include any Network Interface Card ("NIC") installed in my Computer.
(v) "WINDJAMMER COMMUNICATIONS Parties" means WINDJAMMER COMMUNICATIONS and its corporate parents, affiliates and subsidiaries and their respective directors, officers, employees and agents.
(w) "Video Service" means video and/or audio programming Services such as basic, standard, digital and premium Services, Services provided on a per-channel or per-program basis, pay-per-play, pay-per-view or VOD.
(x) "VOD" means video on demand.
(y) "Work Order" means the Windjammer Communications work order provided to me on or after January 1, 2006 in connection with the installation or commencement of my Service(s).
16. Indemnification
I agree to defend, indemnify and hold harmless the WINDJAMMER COMMUNICATIONS Parties 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 WINDJAMMER COMMUNICATIONS products or Services or any ISP's or OLP's 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
Except as explicitly stated in Section 14, 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 WINDJAMMER COMMUNICATIONS by such means as WINDJAMMER COMMUNICATIONS shall determine in its discretion. Without limiting the foregoing, I agree that WINDJAMMER 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, email or online posting). An online version of this Agreement, the Terms of Use, the Subscriber Privacy Notice and any applicable Tariff(s), as so changed from time to time can be obtained by calling my local WINDJAMMER COMMUNICATIONS office.
20. Waiver
I agree that failure by WINDJAMMER 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 WINDJAMMER COMMUNICATIONS's Equipment, to any other person, entity or location, including a new residence. I agree that I may not assign or transfer this Agreement. WINDJAMMER 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 and the Terms of Use are subject to all applicable federal, state or local laws and regulations, including any applicable franchise agreement, in effect in the relevant jurisdiction(s) in which I receive my Services. If any provision of this Agreement, the Work Order or the Terms of Use 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 the Terms of Use, 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 the Terms of Use. 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 the Terms of Use 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 WINDJAMMER COMMUNICATIONS of any rights under applicable laws or regulations pertaining to the installation, operation, maintenance or removal of the Services, facilities or equipment.
23. Parental Control Device
I acknowledge that I have been advised of the availability of WINDJAMMER COMMUNICATIONS's parental control device which can filter or block certain programming. Additional information about the device is available at the WINDJAMMER COMMUNICATIONS contact number in the Subscriber Materials.
24. Conflicting Terms
In the event of a conflict in the terms and conditions between this Residential Services Subscriber Agreement and the accompanying Work Order, then the terms and conditions of this Agreement shall control.
