Residential Services Agreement
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH PROVIDES THAT YOU AND METROCAST AGREE TO RESOLVE CERTAIN DISPUTES THROUGH ARBITRATION AND TO WAIVE CLASS ACTIONS.YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION PROVISION. SEE SECTION 17.
This Service Agreement for Residential Services, including any policies or documents incorporated herein by reference (collectively, the “Agreement”), together with any Work Orders relating to Service provided hereunder, constitutes the sole and entire Agreement between you (“you”, “your” or “Customer”) and the MetroCast company providing service to you (“MetroCast”) relating to all residential video, digital phone, Internet and/or other services (the “Services”) provided by MetroCast. No other terms, warranties or representations (implied or expressed) shall be binding on or imputed to MetroCast except as expressly included herein. The parties agree as follows:
TERMS APPLICABLE TO ALL SERVICES
1. Acceptance of the Agreement. You will have accepted this Agreement and agree to be bound by its terms if you or any person at your service address uses any of the Services or you otherwise indicate your affirmative acceptance of such terms.
2. General. You shall pay MetroCast for the Services received, including all fees, rates and charges established by MetroCast, by the payment due date stated on the invoice. You acknowledge and agree that you shall be solely responsible for any use of the Services provided to you, whether by you or another person, including, without limitation, purchases made through or in connection with the Service(s).
3. Right to Install. MetroCast shall have the right to install, maintain, repair and replace any and all components of the system for the purpose of this Agreement on the premises to be serviced. If you are not the owner of such premises, you shall indemnify and hold MetroCast harmless from any and all claims of the premises’ owner or any other interested parties that arise out of the performance of this Agreement. You represent that as either owner or tenant of the premises, you are fully authorized to enter into and perform this Agreement and to authorize MetroCast to enter said premises.
4. Changes to Services. Subject to applicable law, MetroCast may change its Services, programming, features, equipment, rates or charges, and Rate Schedule at any time with or without notice, including changes to content, functionality, user interfaces, service packages, channel lineup, hours of availability, customer equipment requirements, storage capacity, network management, or speed. If you find a change in the Service unacceptable, you have the right to cancel your Service, subject to the terms of this Agreement and any other agreement you have with MetroCast. However, if you continue to receive Service after the change, this will constitute your acceptance of the change. If you receive a Service under a promotion, after the promotional period ends, regular charges for the Service will apply automatically.
5. Access to Customer Premises. You agree to allow representatives of MetroCast access to your premises at all reasonable times to inspect, repair and maintain the equipment and, upon the termination of this Agreement, to remove the equipment from the premises, provided however that failure of MetroCast to remove its equipment shall not be deemed as abandonment thereof.
6. MetroCast Equipment and Software. The equipment MetroCast provides at any time, including, but not limited to, cable modems, voice-capable modems (eMTAs), digital converters, digital terminal adapters (DTAs), digital video recorders (DVRs), remote controls and any other equipment (collectively, “MetroCast Equipment”) shall at all times remain the property of MetroCast, except when purchased separately by you. MetroCast may at its sole discretion supply new or reconditioned equipment. MetroCast may remove or change the MetroCast Equipment at its discretion at any time. You acknowledge and agree that MetroCast’s change to the MetroCast Equipment may interrupt Service and may not be compatible with your Customer Equipment. “Customer Equipment” means software, hardware or services that you elect to use in connection with the Services. YOU AGREE THAT YOU SHALL BE LIABLE TO METROCAST FOR METROCAST’S FULL UNIT REPLACEMENT VALUE IF ANY SUCH EQUIPMENT OR OTHER ITEM IS NOT RETURNED, IS ONLY PARTIALLY RETURNED, OR IS RETURNED DAMAGED (ORDINARY WEAR AND TEAR OR MANUFACTURER DEFECT EXCLUDED) AT THE END OF YOUR SUBSCRIPTION TO THE APPLICABLE SERVICE OR THE USE OF SUCH EQUIPMENT, TOGETHER WITH ANY INCIDENTAL COSTS INCURRED BY METROCAST RELATING TO ITS RECOVERY OR REPLACEMENT. YOU AUTHORIZE METROCAST TO CHARGE YOUR CREDIT OR DEBIT CARD ON FILE WITH METROCAST (IF APPLICABLE) FOR ANY SUCH CHARGES. YOU SHALL CONTINUE TO BE LIABLE FOR CONTINUING MONTHLY CHARGES UNTIL ALL EQUIPMENT IS RETURNED. MetroCast Equipment shall only be used for the Services at your service address. You shall not, and shall not permit any third party, to sell, lease, encumber or transfer any MetroCast Equipment or the right to use any MetroCast Equipment. You agree that you will not allow the MetroCast Equipment to be serviced by anyone other than our employees or agents. You may not permit any attachments to, alteration of, or tampering with the MetroCast Equipment. You agree not to disturb or tamper with, re-route or in any way interfere with any component of MetroCast’s system. Any unauthorized connection or modification of said installation will be considered a breach of the Agreement and thus cause for termination of your Service(s), and MetroCast shall be entitled to recover for such tampering including, but not limited to the value of Services obtained without payment, the cost of repair or service, plus reasonable collection costs. Any unauthorized tampering or interfering with cable system property is a criminal violation. The Services and MetroCast, including any firmware or software that may be embedded in the MetroCast Equipment or used to provide the Services, are protected by trademark, copyright, and/or other intellectual property laws and international treaty provisions. You agree not to (i) modify use of such firmware and software or (ii) use them in a manner not in accordance with this Agreement. You shall not reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the firmware or software.
7. Customer Equipment. You agree to allow us and our agents the rights to insert CableCARDs and other hardware in the Customer Equipment, send software and/or downloads to the Customer Equipment and install, configure, maintain, inspect and upgrade software and/or downloads for the Customer Equipment. You warrant you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. We reserve the right to disallow the use of Customer Equipment that we determine is not compatible with our network. Certain third party applications and services may not be compatible with our Service(s). You are responsible for contacting providers of third party applications and services to determine compatibility, and for the cost of any testing necessary to establish that those applications and services are compatible. You acknowledge that use of any such third party applications and services is at your own risk, and waive any claim against MetroCast for interference with or disruption of any such applications and services. We shall have no obligation to provide, maintain, or service Customer Equipment, including, but not limited to, Customer Equipment to which MetroCast or a third party has sent software or downloads. METROCAST DOES NOT WARRANT THAT CUSTOMER EQUIPMENT WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICES. YOU ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT. METROCAST SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
8. Taxes, Fees and Surcharges. You agree to pay all federal, state and local taxes and fees, and any surcharges that MetroCast is permitted by applicable law to invoice you to recover MetroCast’s costs that result from local, state and federal taxes, fees and regulation imposed by governmental or quasi-governmental bodies in connection with any Service, as they may change from time to time.
9. Breach of Agreement. In the event of any breach of this Agreement by you, whether deemed material or immaterial or in the event of your failure to abide by the rules and regulations of or to pay the charges of MetroCast, the Services may be suspended or disconnected at any time without notice and, at MetroCast’s option, MetroCast Equipment, if applicable, removed. Failure to remove any MetroCast Equipment shall not be deemed as abandonment thereof. You shall do all things reasonably necessary to facilitate MetroCast’s removal and retrieval of the MetroCast Equipment. If MetroCast is prevented from recovering any MetroCast Equipment because of your act or failure to act, you hereby agree to pay the amounts due under this Agreement. If MetroCast suspends any part of the Services it provides to you due to non-payment or a breach of this Agreement, MetroCast may require that you pay a fee for restoring your Service in addition to charging you the charges for such Services during the suspension. If Services are discontinued by reason of your breach of the payment provisions of this Agreement, MetroCast shall reconnect only upon your payment of all delinquent fees and charges, reasonable collection expenses, reconnection charges and, at MetroCast’s option, a deposit to be determined by MetroCast. If Services are discontinued for reasons other than non-payment, the reconnection shall be at the option of MetroCast.
10. Indemnification. You agree to be responsible for and to indemnify, defend and hold harmless MetroCast and its affiliates, employees, officers, directors, suppliers, and agents against all claims, suits, judgments, and causes of action, and any expenses (including reasonable attorneys’ fees and costs) arising out of: (a) the use of the Service(s) or MetroCast Equipment or the breach of this Agreement or any of the applicable MetroCast policies by you or any other user of the Service(s) provided to you or to your service address; (b) violation or infringement of contractual rights, privacy, confidentiality, copyright, patent, trademark, trade secret, or other intellectual property and proprietary rights arising from your use of the Service(s); (c) any claims or damages arising out of the unavailability or performance of the Services, any third-party services or applications that may use the Services, such as a home security, home detention, or medical monitoring system; and (d) any act by or omission of you, including but not limited to breach of this Agreement. You agree to pay reasonable costs and attorneys’ fees arising out of any course of action to collect any monies due by you to MetroCast as a result of a breach of this Agreement.
11. Late or Non-Payments and Collection Costs. You may be billed fees, charges and assessments related to late payments or non-payments if for any reason (i) MetroCast does not receive from you any required payment for the Services provided by MetroCast by the payment due date or (ii) you pay less than the full amount due for the Services. If MetroCast is required to use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection. These costs include but are not limited to any collection agency’s fees, reasonable attorneys’ fees and arbitration or court costs. Services for which charges have not been paid may be suspended or disconnected. You agree that any partial payments shall be applied first to any digital phone Services you purchase.
12. Complaint Procedure. MetroCast urges you to bring any concerns or complaints about your Services to MetroCast’s attention promptly.
13. Assignment. This Agreement is not assignable by you. Any attempt by you to sublet, assign or transfer any of your rights, duties, or obligations under this Agreement without written approval of MetroCast is prohibited.
15. Use of Service. The use of any Services under this Agreement shall be governed by MetroCast’s acceptable use policies, which are available at http://www.MetroCast.com/policies or upon request, which may be changed at any time without notice to you.
17. Binding Arbitration, Waiver of Class Action & Jury Trial.
(a) Except as expressly permitted by this Agreement, any Dispute (as defined below) involving you and MetroCast that cannot be mutually resolved shall be resolved through individual arbitration rather than through litigation of the Dispute in court. By agreeing to this binding arbitration provision, you may be waiving constitutional or statutory rights. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may also result in limited discovery. An arbitration award is subject to limited review by a court.
(b) As used in herein, the term “Dispute” means any dispute, claim or controversy between you and MetroCast, its affiliates, and/or each of their respective officers, directors, employees and agents regarding any aspect of your relationship with such parties that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced.
(c) Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY METROCAST IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY WRITTEN NOTICE TO METROCAST COMMUNICATIONS, 70 E. LANCASTER AVENUE, FRAZER, PA 19355, ATTN: GENERAL COUNSEL. YOUR WRITTEN NOTIFICATION TO METROCAST MUST INCLUDE YOUR NAME, ADDRESS AND METROCAST ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH METROCAST THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH METROCAST OR THE DELIVERY OF SERVICES TO YOU BY METROCAST. IF YOU HAVE PREVIOUSLY NOTIFIED METROCAST OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
1. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF ANY STATUTE OR OTHER LAW TO THE CONTRARY, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.
3. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH METROCAST UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
(e) Selection of Arbitrator, and Applicable Rules and Law. The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes that are in effect when the arbitration is initiated (collectively, “AAA Rules”). The AAA Rules are available at www.adr.org or by calling 800-778-7879.
The Services provided to you by MetroCast concern interstate commerce, so the Federal Arbitration Act (“FAA”), not any state arbitration law, shall govern the arbitrability of all Disputes and the application and enforceability of this Arbitration Provision. Applicable federal law or the law of the state where you receive the Services from MetroCast, however, shall apply to and govern the substance of any Disputes. No state arbitration statute shall apply to the arbitration proceeding. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization, this Arbitration Provision shall govern. If the AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your Dispute with MetroCast. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.
(f) Arbitration Procedures. The party initiating the arbitration proceeding may open a case with the American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. An explanation of the procedures for initiating an arbitration proceeding are available at www.adr.org or by calling 877-493-4185. A single arbitrator will resolve the Dispute. The arbitrator will honor claims of privilege recognized by applicable law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or required by applicable law. An award granted by the arbitrator may be enforced in any court with appropriate jurisdiction over the parties. If an award granted by the arbitrator exceeds $75,000, either party may appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right that exists under the FAA.
(g) Arbitration Hearing and Location. If the Dispute is for $10,000 or less, you may choose whether to conduct the arbitration solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the Dispute exceeds $10,000, the AAA Rules will determine the right to a hearing. Any in-person hearing will take place at a location convenient to you in the area where you receive the Services from MetroCast, unless you and MetroCast agree or the arbitrator orders otherwise under the AAA Rules.
(h) Payment of Arbitration Fees and Expenses. Payment of all arbitration fees and expenses will be governed by AAA Rules. If you provide MetroCast with 30 days’ prior explicit written notice of your intent to seek arbitration, addressed to MetroCast Communications, 70 E. Lancaster Avenue, Frazer, PA 19355, Attn: General Counsel, and if we are unable to resolve the dispute within that time period notwithstanding your good faith cooperation in seeking to resolve the dispute, if you thereafter initiate an arbitration proceeding regarding the Dispute described in your prior notice, MetroCast will promptly reimburse you for payment of your filing fee and MetroCast will pay all filing, administration, and arbitrator fees and arbitrator expenses for the Dispute, unless the arbitrator determines that the Dispute is frivolous. You are responsible for paying fees and expenses for your attorneys, witnesses, and experts in arbitration, unless applicable law requires otherwise. MetroCast will not seek attorneys’ fees and expenses in arbitration, unless the arbitrator determines the Dispute is frivolous. If the arbitrator determines that the Dispute is frivolous, you agree to reimburse MetroCast for previous payments it made that are otherwise your obligation to pay under the AAA Rules and applicable law.
(i) Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action and class arbitration waiver in subsection (d) of this section is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the Dispute will be decided by a court. If this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found to be excluded from the scope of this Arbitration Provision, YOU AND METROCAST EACH HEREBY AGREE TO WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY TRIAL BY JURY.
(j) Survival. This Arbitration Provision will survive the termination of your Services with MetroCast.
(k) Small Claims Exclusion from Arbitration. YOU AND METROCAST AGREE THAT ANY CLAIM FILED BY YOU OR BY METROCAST THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A SMALL CLAIMS COURT WILL NOT BE SUBJECT TO ARBITRATION.
18. Limited Warranty; Limitation of Liability; Disruption of Services.
(a) THE METROCAST EQUIPMENT AND THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER METROCAST NOR ITS AFFILIATES OR UNDERLYING SERVICE PROVIDERS WARRANT THAT THE METROCAST EQUIPMENT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, INTERFACE AND OPERATE WITH THE CUSTOMER EQUIPMENT, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER METROCAST NOR ITS AFFILIATES OR UNDERLYING SERVICE PROVIDERS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
(b) IN NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY (INCLUDING WITHOUT LIMITATION TORT, CONTRACT, AND OTHERWISE) WILL METROCAST OR ITS AFFILIATES AND UNDERLYING SERVICE PROVIDERS HAVE ANY LIABILITY TO YOU OR TO ANY PERSON OR ENTITY FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES AND PERSONAL INJURIES (INCLUDING DEATH), RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE OF THE SERVICE OR REQUIRED EQUIPMENT OR YOUR RELIANCE ON OR USE OF THE REQUIRED EQUIPMENT OR THE SERVICE, INCLUDING E911 DIALING, INCLUDING WITHOUT LIMITATION ANY MISTAKES, OMISSIONS, INTERRUPTIONS, TELEPHONE OR OTHER HARDWARE OR SOFTWARE FAILURE OR MALFUNCTION, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE REQUIRED EQUIPMENT OR THE SERVICE; OR (II) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE REQUIRED EQUIPMENT OR THE SERVICE BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY. IN ADDITION TO, AND WITHOUT LIMITING ANY OTHER LIMITATION OF LIABILITY CONTAINED HEREIN, METROCAST WILL HAVE NO LIABILITY WHATSOEVER AS THE RESULT OF THE LOSS OF ANY OF YOUR FILES, MESSAGES, NAMES OR ADDRESSES OR OTHER DATA OF ANY NATURE RESULTING FROM THE DELETION OF SUCH DATA.
(c) MetroCast shall have no liability or responsibility whatsoever for the performance (or non-performance) of any services, equipment, content and other components licensed from or otherwise provided by independent third parties that you may access using the Services. All questions concerning the foregoing must be addressed to its providers. MetroCast does not endorse or warranty any third-party products, services or content that are distributed or advertised via the Services.
(d) You understand and agree that the Services may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons, and that therefore the Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to significant injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities.
(e) MetroCast shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond its control, including, but not limited to, causes attributable to you or your property; inability to obtain access to your premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles, or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within thirty (30) days of such interruption, to a pro rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to MetroCast, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Services interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OR OTHER IMPAIRMENT OF SERVICES. Any credits provided by MetroCast are at our sole discretion and in no event shall constitute or be construed as a course of conduct by MetroCast. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Some states do not allow the exclusion or limitation of implied warranties, and some states do not allow the limitations or exclusion of incidental or consequential damages, so certain of the above exclusions may not apply. In such states, the liability of MetroCast and its affiliates and underlying service providers is limited to the maximum extent permitted by law.
(f) MetroCast shall not be liable for any deletion or loss of voice mail, e-mail, call detail records, files, recorded programs or other communications or other content maintained or transmitted by using the Services.
19. Regulatory Requirements. Nothing in this Agreement shall be deemed or construed to conflict with any regulatory requirements applicable to any service provided to you by MetroCast.
20. Notice Method for Changes to this Agreement. MetroCast will provide you notice of changes to this Agreement consistent with applicable law. The notice may be provided on your monthly bill, as a bill insert, a posting on MetroCast’s website, by email, or by other permitted communication. If you find the change unacceptable, you have the right to cancel your Services. However, if you continue to receive the Services after the change, or otherwise use the Service, such continued use shall constitute your acceptance of the change.
21. Suspension and Termination by MetroCast. Under the conditions listed below and in addition to the remedies that MetroCast is entitled to take pursuant to the terms of this Agreement, MetroCast reserves the right, subject to applicable law, to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to any authorized users (e.g., email or voicemail). MetroCast may take these actions if it: (i) determines that your use of the Services does not conform with the requirements set forth in this Agreement, (ii) determines that your use of the Services interferes with MetroCast’s ability to provide the Services to you or others, (iii) reasonably believes that your use of the Services may violate any laws, regulations, or written and electronic instructions for use, or (iv) reasonably believes that your use of the Services interferes with or endangers the health and/or safety of MetroCast’s personnel or third parties. MetroCast’s action or inaction under this Section shall not constitute review or approval of your or any other users’ use of the Services or information transmitted by or to you or other users.
22. Governing Law. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the state where you receive the Services, without regard to its conflicts of law provisions.
ADDITIONAL TERMS APPLICABLE TO VIDEO SERVICES
23. No Redistribution or Public Performances. You may not rebroadcast, transmit, record, perform, or charge admission to view or listen to any of the programming made available by the Service.
ADDITIONAL TERMS APPLICABLE TO INTERNET SERVICES
24. Speeds Not Guaranteed. You agree that actual upload or download speeds that are experienced at any given time will vary based on many factors, including the capabilities of your equipment, Internet congestion, the performance of network equipment, the technical capabilities of the content provider, environmental factors, and any network management tools and techniques employed by MetroCast. MetroCast reserves the right to protect the integrity of its network and resources by any means it deems appropriate, including, but not limited to: port blocking, e-mail scanning, and bandwidth and e-mail usage limitations. You agree that your Internet Service is subject to MetroCast’s network management practices as posted on its website, including any provisions related to bandwidth and data usage and storage.
ADDITIONAL TERMS APPLICABLE TO DIGITAL PHONE SERVICES
25. Your Authorization to MetroCast. If you are transferring existing phone service from a carrier other than MetroCast for local, local toll and/or long distance telecommunications services, to MetroCast, you hereby authorize MetroCast to process your order for the Service, to notify your current telephone company of your decision to switch your local, local toll, and long distance services to MetroCast, and represent that you are authorized to take this action. You also authorize MetroCast to have access to your records held by the other carrier.
26. Limitations on 911/E911 Service and Other Digital Phone Services.
(a) Limitations. 911/Enhanced 911 functions (“911/E911”) may have limitations and differ from 911/E911 functions furnished by other telephone service providers. CAREFULLY READ THE INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS ON 911/E911. YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES. If you have any questions about 911/E911, call customer service at the toll-free number listed on MetroCast’s website.
(b) Correct Address. In order for your 911/E911 calls to be properly directed to emergency services, we must have your correct service address. While under this Agreement our Services cannot be moved to other locations without our permission, we are required by law to inform you that if you did by some means move the Services to a different address without our approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, or the Services (including 911/E911) may fail altogether.
(c) Network congestion or failures. Calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network or network equipment failure, or another technical problem.
(d) Service interruptions. Access to 911/E911 requires that your Phone Service is active and that you have electrical power connected to your eMTA. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY LOSE ACCESS TO AND USE OF THE SERVICES, INCLUDING 911/E911, UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE FOLLOWING: (i) IF OUR NETWORK OR FACILITIES ARE NOT OPERATING; (ii) IF ELECTRICAL POWER TO THE eMTA IS INTERRUPTED AND THE eMTA DOES NOT HAVE A WORKING BATTERY BACKUP; or (iii) YOUR SERVICE HAS BEEN SUSPENDED OR IS NOT PROPERLY FUNCTIONING. You also understand and acknowledge that any battery backup may provide power for only a limited time, that the performance of any battery backup that we may have provided is not guaranteed, and that if a battery is exhausted, the Services will not function until normal power is restored. You understand and acknowledge that your eMTA may not have battery backup or another power source of its own.
(e) LIMITATION ON LIABILITY: YOU ACKNOWLEDGE AND AGREE THAT METROCAST AND ITS SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911, OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS METROCAST AND ITS SERVICE PROVIDERS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911/E911 SERVICES PROVIDED TO YOU.
(f) MetroCast’s digital phone Services, including 911 calls and E911 service, will be unavailable if the lines between your home and the network switch are disabled due to a catastrophic condition, such as a storm or another event that severs fiber optic lines. In addition, E911 service may be unavailable due to problems at the government’s call center that are outside MetroCast’s control. IF THE eMTA LOSES POWER, YOUR DIGITAL PHONE SERVICES WILL NOT WORK, INCLUDING 911 AND ANY HOME, SECURITY OR MEDICAL MONITORING THAT RELIES ON OUR DIGITAL PHONE SERVICES. In the past, MetroCast often included a backup battery in many of the eMTAs that it provided to its customers. However, MetroCast does not represent that such complimentary batteries were, or in the future will be, included with its eMTAs, that such batteries were, or in the future will be, provisioned new or that such batteries can be expected to supply backup power for continued use of telephone service during a power outage for any length of time. Information on how you can obtain and monitor backup power sources for your eMTA is posted on our website. The eMTA is set up to provide service to the address you provided when you signed up for service, and will not work if you move it outside the local MetroCast network. Do not move this equipment to another location without first contacting MetroCast customer service at its toll free number listed on MetroCast’s website, http://www.metrocast.com, so that the registered service address can be changed to reflect the new location, thus ensuring that the right information is provided if you have to call 911. If you move the eMTA without informing MetroCast, you may still be able to call 911 but E911 service will not work properly. By agreeing to this authorization you indicate that you are at least 18 years old, are the MetroCast account holder, and understand the above information about E911 and your MetroCast digital phone Services. By delivery of a copy of this Agreement and installation of the equipment, you and MetroCast agree to the terms and condition of this Agreement.
(g) Certain third party applications and services may not be compatible with MetroCast’s phone Services. You are responsible for contacting providers of third party applications and services to determine compatibility, and for the cost of any testing necessary to establish that those applications and services are compatible. You acknowledge that use of any such third party applications and services is at your own risk, and waive any claim against MetroCast for interference with or disruption of any such applications and services. MetroCast’s digital phone Services cannot be used to make or accept third party calls, make certain collect calls or place calls to pay-per-call services (e.g., 976 or 900 numbers).
27. Directory Listings. MetroCast may make available an option to list your name, address, and/or telephone number in a published directory (whether in print or online) or directory assistance database. MetroCast may offer the option to have a non-published phone number for an additional fee. In such event, MetroCast will make reasonable efforts to prevent the disclosure of non-published numbers, but in no case will it be liable should such number be divulged. The aggregate liability of MetroCast and its suppliers and agents related to or arising out of any errors in or omissions from directory listings shall not exceed the monthly charges, if any, which you have actually paid to MetroCast to list, publish, not list, or not publish the information for the affected period. You shall hold harmless MetroCast and its suppliers and agents against any and all claims for damages caused or claimed to have been caused, directly or indirectly, by any errors and omissions related to directory listings.