EMERALD BROADBAND, LLC
INTERNET LEVEL SERVICE AND SUBSCRIPTION AGREEMENT
EMERALD BROADBAND SERVICES AGREEMENT
The terms of this agreement (the “Agreement”) apply to your use of any of the Emerald Broadband services described in Section 1 below and the Emerald Broadband Equipment described in Section 7 below (collectively, the “Services”). An operating subsidiary or other affiliate of Emerald Broadband, LLC (collectively, “Emerald,” “we,” “us,” or “our”) provides the Services.
You accept this Agreement and agree to its terms by activating the Services, using the Services, continuing to use the Services after we provide notice of a change to this Agreement, or otherwise indicating your acceptance of the Services. You may not modify this Agreement by making any typed, handwritten, or other changes.
Note: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 13 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES. UNLESS YOU HAVE OPTED OUT IN A TIMELY MANNER, THE ARBITRATION PROVISION REQUIRES THAT ALL DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
TABLE OF CONTENTS:
Covered Emerald Broadband Services
Charges and Billings
Changes to Services, Rates, Charges, and this Agreement
Access to Your Premises
Customer Equipment and Inside Wiring
Emerald Broadband Equipment
Use of the Services
Limitation of Liability
One Year Limitation Period
Binding Arbitration, and Class/Collective/Representative Action/Relief Waiver
Waiver of Jury Trial
Monitoring and Recording
Our Intellectual Property Rights
Your Representations and Warranties
Consent to Communications from Emerald
Information Provided to Third Parties
Retention of Rights
1. COVERED EMERALD BROADBAND SERVICES
The following services are covered by this Agreement: Emerald Broadband Internet services (“Internet”); Emerald Broadband digital phone services (“Voice”).
2. ADDITIONAL TERMS
Tariffs, service guides, and posted policies and procedures may apply to the Services. Additional Service-specific terms may apply to your use of Internet and Voice. These additional terms are available at https://www.Emerald Broadband.com/policies (under “Emerald Broadband Residential Services”) and at https://www.Emerald Broadband.com/Corporate/Customers/Policies/additionalterms. We reserve the right to provide notice of new websites or locations for additional terms. These additional terms are also part of this Agreement. If any additional terms conflict with these terms, the additional terms specific to the particular Service will govern.
3. CHARGES AND BILLINGS
a. You must pay certain charges, fees, and taxes
You agree to pay all amounts due upon demand. You agree to pay any monthly Service charges. We will give you notice of applicable pricing at the time of your order or activation of the Services. If you receive the Services under a minimum term agreement, we will charge you the specified price for the Services subject to the minimum term pricing for the duration of the minimum term agreement. All other pricing is subject to change at any time and from time to time.
You agree to pay all other charges associated with the Services. These may include charges for installation and service calls. These may also include fees identified at the time of your order or imposed after you begin receiving Services. You may incur charges for Emerald Broadband Equipment (as defined in Section 7 below), purchases or rentals, or ancillary services. You may also incur measured and per-call charges. You can find price information for Voice at www.Emerald Broadband.com/corporate/about/phonetermsofservice/Emeralddigitalvoice/cdvresidential.
You agree to pay any applicable taxes and fees. These include applicable federal, state, and local taxes and fees (however designated), fees to recoup governmental or quasi-governmental assessments on us, and cost recovery charges. These include fees for any governmental or public programs in which we participate, such as public, educational, and governmental access, telecom relay services, and programs supporting the 911/E911 system. YOU ARE RESPONSIBLE FOR PAYING ANY SUCH FEES AND TAXES (WHETHER IMPOSED ON YOU OR ON US), INCLUDING THOSE THAT BECOME APPLICABLE RETROACTIVELY.
b. Third-party charges are your responsibility
In addition to the amounts we charge, you may incur charges from third-party services providers. These third parties may charge you for access to online services, telephone-based services, or other offerings. You are solely responsible for these third-party charges, including any applicable taxes. Emerald takes no responsibility for any disputes between you and any third party regarding any such third-party charges, notwithstanding any billing collection services that Emerald may perform for such third parties in conjunction with Emerald’s billing.
c. Changes to pricing, charges, and fees
Certain pricing, charges, and fees may change at any time and from time to time. In general, we will provide you with notice of any change in our standard prices or fees or new prices or fees. However, if there is a change in governmental or quasi-governmental taxes, fees, or assessments, or in any third-party charges billed through us, we may not provide notice unless required by applicable law.
d. How we bill you
We generally bill you monthly, in advance, for recurring monthly Service charges, equipment charges, and fees. UPON REQUEST, YOU MUST PAY THE FIRST MONTH’S SERVICE CHARGES, EMERALD BROADBAND EQUIPMENT CHARGES, DEPOSITS, ACTIVATION FEES AND INSTALLATION CHARGES ON OR BEFORE THE DATE THAT WE INSTALL ANY OR ALL OF THE SERVICES. We may bill you for some Services individually after we provide the Services to you. For example, we may bill you for measured and per-call charges.
The Service charges will begin on one of the following dates, whichever occurs first: (i) the day you pick up Emerald Broadband Equipment at our service center; (ii) the day you or we install the Services; (iii) the day your order for the Services is entered into our billing system, if Emerald Broadband Equipment is not required.
e. Payment methods
You may pay by credit card, debit card, check, and we may change the payment methods we accept from time to time. Certain additional terms may apply depending on your selected payment method. If we do not receive your payment by the due date, you agree to pay any amounts due upon demand, regardless of your selected payment method. If you pay by check, you authorize us to collect your check electronically. You may not make restrictive endorsements (such as “paid in full”) or other statements or releases on or with checks or other payments accepted by us. If you do so, we may disregard the restrictive endorsement or reject the payment.
A $25.00 processing fee will be charged on all returned checks.
f. Our remedies if you pay late or fail to pay
If, for any reason, we do not receive payment for the full amounts billed to you by the due date, you may be billed additional fees, charges, and assessments.
We may accept a partial payment, but we still have the right to collect the full balance. We will apply any partial payment to outstanding charges in amounts and in the order we determine, in our sole discretion.
g. Our fees are not interest or penalties
We expect you to pay amounts due on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or non-payment will be difficult to calculate or predict, and are liquidated damages intended to be a reasonable estimate of our costs resulting from late payments and non-payments.
h. We may charge fees for suspension or disconnection
If you fail to pay the full amount due for any or all charges, we may suspend or disconnect any or all of the Services without reducing fees or charges for the Services, in our sole discretion and subject to applicable law.
i. We may charge fees to reconnect services
If you ask us to resume any Services after a suspension or disconnection, we may charge you additional installation or activation fees. These fees are in addition to all past-due charges and other fees. Reconnection of the Services is subject to this Agreement, and applicable law.
j. We may charge you collection costs
We may use a collection agency or attorney to collect money you owe. If we do so, you agree to pay our reasonable costs of collection, including any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
k. We have the right to make credit inquiries
YOU AUTHORIZE US TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION IN YOUR FILE, AND TO DISCLOSE THIS INFORMATION TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES. We will not discriminate in the application of our credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. We (or third-party credit bureaus) will conduct risk assessments in accordance with all applicable laws.
l. Contact us with billing questions or disputes
You may dispute charges on a bill or request billing credits. You must contact us within 120 days of the date on your bill, or you waive any disputes or credits, subject to applicable law and our binding legal obligations.
m. We may require a refundable deposit
We may require you to pay a refundable deposit when you activate the Services, add Services, or fail to pay any amounts when they are due. Subject to applicable law, your deposit will be credited to your account (without interest) if your account remains in good standing for twelve (12) months. We may refund your deposit sooner if all of the Services are disconnected. We will provide this refund within thirty (30) days of Service disconnection and the return of all Emerald Broadband Equipment, or within the timeline set by applicable law. Refund amounts are equal to the credit balance on your account, if any, minus any amounts due on your account. Amounts due on your account may include amounts owed for the Services, including for any Emerald Broadband Equipment that is damaged, altered, or subject to an Unreturned Equipment Fee (as defined in Section 7(b) below).
4. CHANGES TO SERVICES, RATES, CHARGES, AND THIS AGREEMENT
a. Changes to Services, Rates, and Charges
We reserve the right to change the Services, rates, and charges at any time, with or without notice to you, to the extent permitted by applicable law. For example, we may delete or change functionality, features, rate limitations, available speeds, or Emerald Broadband Equipment. If we provide notice of such a change, it will be in accordance with Section 4(b), below. If any such change is material and negatively affects your Services, you have the right to cancel your Services; but you accept any such change if you continue to use or receive the Services for more than thirty (30) days after the change.
b. Changes to this Agreement
We reserve the right to make changes to this Agreement. We may deliver any notice concerning our relationship with you and any change to our relationship, including notice of any change to this Agreement, in any one or more of the following ways (at our discretion): (a) post notice on www.Emerald Broadband.com b) send notice by mail or hand delivery to your home or other property where the Services will be provided (the “Premises”); (c) send notice by email to the email address we have on file for your account; (d) include information about the change on or with your bill for the Services; or (e) use any other method of notice reasonably determined by us to result in your receipt of such notice. You agree that any one of these methods is sufficient and effective notice. It is your responsibility to check your postal mail, email, service texts, and postings at www.Emerald Broadband.com.
If any material changes to our relationship with you, including any material change to this Agreement, negatively affects your Services, you have the right to cancel your Services; but you accept any such change if you continue to use or receive the Services for more than thirty (30) days after such change.
c. Changes to Service
Subscriber may choose to change their service without violating the terms of this agreement. If additional or new equipment or materials are necessary, a change fee may be required to implement the change. Emerald Broadband reserves the right to charge an installation fee if a location change of service is incurred. Excess cabling and multiple workstation moves can incur normal hourly labor rates beyond the basic equipment move fee.
5. ACCESS TO YOUR PREMISES
To provide you with the Services, we may need to enter your Premises. We may have our agents enter your Premises on our behalf. You agree that we (or our agents) may enter your Premises at reasonable times to install, configure, maintain, inspect, upgrade, replace, and remove the Services.
You represent and warrant that you own the Premises or have obtained the authority to give us access to the Premises. If you do not own the Premises, you agree to supply the owner’s name, address, and phone number, and evidence that the owner has approved our access, upon request.
6. CUSTOMER EQUIPMENT AND INSIDE WIRING
a. You may use your own Customer Equipment
“Customer Equipment” means software, hardware, or services used in connection with the Services that we (or our agents) do not provide or lease. Customer Equipment also includes certain equipment that you may purchase from us (or our agents), under a separate sales agreement. Customer Equipment does not include Emerald Broadband Equipment for which you have paid an Unreturned Equipment Fee (as defined in Section 7(b) below).
You agree that we (or our agents) may access your Customer Equipment in order to configure, maintain, inspect, or upgrade it, set up Services, or install or download software. For example, we may send software, downloads, or updates remotely to modems, gateways, routers. These updates may change, add, or remove features or functionality of your Customer Equipment or the Services.
You represent and warrant that you own your Customer Equipment or have obtained the authority to give us access to your Customer Equipment. If you do not own your Customer Equipment, you agree to supply the owner’s name, address, and phone number, and evidence that the owner has approved our access, upon request.
b. You are solely responsible for your Customer Equipment
We may certify certain Customer Equipment or recommend particular configurations. Any other Customer Equipment or configuration may not meet our minimum technical or other specifications (a “Non-Recommended Configuration”). We reserve the right to deny support for the Services, or terminate the Services, if you use a Non-Recommended Configuration. WE AND THE RELEASED ENTITIES (AS DEFINED IN SECTION 10 BELOW) MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT NON-RECOMMENDED CONFIGURATIONS, WHICH COULD CAUSE CUSTOMER EQUIPMENT TO FAIL OR OTHERWISE CAUSE DAMAGE. WE AND THE RELEASED ENTITIES ARE NOT LIABLE FOR SUCH FAILURE OR DAMAGE.
c. You are solely responsible for Inside Wiring
Wiring inside the Premises, including additional cable wiring, telephone wiring, and outlets, is “Inside Wiring.” Inside Wiring must not interfere with the Services or the normal operations of our network. Upon your request, we can install, repair, or maintain Inside Wiring. If we perform this work, we will charge you for that service. Regardless of who installed it, the Inside Wiring is your property, or the property of whomever owns the Premises. If you do not own the Premises, contact your landlord or building manager about the installation, repair, or maintenance of Inside Wiring. We have no responsibility for the operation, support, maintenance, or repair of Inside Wiring, except as set forth below.
7. EMERALD BROADBAND EQUIPMENT
“Emerald Broadband Equipment” means all new or reconditioned equipment that we or our agent provides or leases to you, including, but not limited to, cabling or wiring (except for Inside Wiring, as defined above) and related electronic devices, modems, routers, and any other hardware and includes all software and programs contained within Emerald Broadband Equipment or downloaded to Customer Equipment by us.
a. We own all Emerald Broadband Equipment
You expressly agree that you will use the Emerald Broadband Equipment exclusively in connection with the Services. You agree that all Emerald Broadband Equipment belongs to us or other third parties and will not be deemed fixtures or in any way part of the Premises. We may remove or change the Emerald Broadband Equipment at our discretion at any time the Services are active or following the termination of your Services. You acknowledge that any addition to, removal of, or change to the Emerald Broadband Equipment may interrupt your Services. You may not sell, lease, abandon, or give away the Emerald Broadband Equipment, or permit any other service provider to use the Emerald Broadband Equipment, including Emerald Broadband Equipment for which an Unreturned Equipment Fee has been paid. The Emerald Broadband Equipment may only be used in the Premises unless expressly permitted by us. At your request, we may relocate the Emerald Broadband Equipment for an additional charge. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE EMERALD BROADBAND EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE PREMISES OR OTHERWISE EXPRESSLY AUTHORIZED BY US, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than us or our agents to service the Emerald Broadband Equipment. You are responsible for loss, repair, replacement, and other costs, damages, fees, and charges if you do not return the Emerald Broadband Equipment to us in an undamaged condition.
b. You do not own Emerald Broadband Equipment, even if you pay an Unreturned Equipment Fee
For avoidance of doubt, Emerald Broadband Equipment remains Emerald-owned equipment, and Emerald retains title to all Emerald Broadband Equipment, at all times, including but not limited to after payment of an Unreturned Equipment Fee. “Unreturned Equipment Fee” refers to a fee charged by Emerald to a subscriber for any unreturned Emerald Broadband Equipment upon termination of the Services provided under this Agreement. The payment of an Unreturned Equipment Fee shall not result in a sale of, or the transfer of title to, any Emerald Broadband Equipment, and such Emerald Broadband Equipment shall remain the property of Emerald, and Emerald retains title to Emerald Broadband Equipment at all times. Emerald in no way relinquishes ownership of (including title to) Emerald Broadband Equipment by the payment of an Unreturned Equipment Fee. Even if an Unreturned Equipment Fee has been paid, Emerald Broadband Equipment shall not be resold, used, or operated in any manner. If you pay an Unreturned Equipment Fee and subsequently return the Emerald Broadband Equipment undamaged (with the exception of normal wear and tear), you will be refunded your Unreturned Equipment Fee in full.
8. USE OF THE SERVICES
The Services are for personal, residential, noncommercial use only, unless otherwise specifically authorized by us in writing.
We prohibit the following activities:
Reselling the Services in whole or in part;
Using the Services, directly or indirectly, for any unlawful purpose or in violation of any applicable policy that we make available to you;
Using the Services to transmit, communicate, or store any information, data, or material in violation of any law, rule, or regulation;
Tampering with, making any unauthorized connection to, or modifying any part of our network or the Services for any purpose;
Attaching any unauthorized device to our network or the Services; or
Attaching anything to the Inside Wiring, the Emerald Broadband Equipment, or Customer Equipment that impairs the integrity of our network, that degrades our network’s signal quality or strength, or that creates signal leakage.
You agree not to engage in these or other similar prohibited activities, or help anyone else do so. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Services at your Premises (or any other locations authorized by us). You are solely responsible for ensuring that all other users of the Services understand and comply with this Agreement and any applicable policies. You are liable for all authorized and unauthorized use of the Services. If the Emerald Broadband Equipment has been stolen or the Services have been used without your authorization or in violation of this Agreement, you agree to notify us immediately in writing, or by calling 541-363-0260 during normal business hours.
If you violate this Agreement, or if you fail to notify us of unauthorized use in a timely manner, we may terminate the Services and recover damages. Since it would be difficult, if not impossible, to precisely calculate our lost revenue from unauthorized Services or tampering, you agree to pay $500.00 per device used to receive unauthorized Services as liquidated damages. These liquidated damages are in addition to our cost to replace any altered, damaged, or unreturned Emerald Broadband Equipment, or other equipment owned by us, including any incidental costs. The unauthorized reception of the Services may also result in criminal fines and/or imprisonment, and we reserve the right to report any illegal activities to law enforcement.
In connection with your use of the Services, if you need to access third-party software or hardware, you will be subject to third-party terms and conditions. Certain components of the Services are also subject to our Software License Agreement, available at https://my.Emerald Broadband.com/terms/license/.
We may amend these policies and agreements from time to time, with or without notice to you. You should consult these policies and agreements regularly to comply with the most recent versions. We incorporate these additional policies and agreements (including any amendments) into this Agreement by reference. WE RESERVE THE RIGHT TO LIMIT OR BLOCK ANY SERVICE USAGE AS WE DEEM NECESSARY TO PREVENT HARM TO OUR NETWORK, FRAUD, OR OTHER ABUSE OF THE SERVICES, OR AS OTHERWISE PROVIDED BY LAW.
This Agreement will remain in effect from Service activation until this Agreement is terminated (by us or by you), as described below. This Agreement may also be terminated if it is replaced by a revised agreement.
a. How you may terminate
If your Services are subject to a minimum term agreement, and you terminate all or any portion of the Services under the minimum term agreement before the end of the minimum term, you may be charged an early termination fee. Review your minimum term agreement for additional details.
If your Services are not subject to a minimum term agreement, you may terminate the Services and this Agreement for any reason two (2) business days before your next invoice is generated. You must notify us that you want to terminate in one of the following ways: (a) mail a written notice to our local business office; (b) send an electronic notice to the email address email@example.com; (c) provide notice in person; or (d) call our customer service number during normal business hours. Applicable fees and charges for the Services may accrue until the Services have been disconnected, all Emerald Broadband Equipment has been returned, and this Agreement has been terminated, subject to applicable law or the terms of any agreements we have with governmental authorities. At our election, and subject to applicable law, we may change our policy to continue all Services (or any part of them) through the end of the billing cycle in which we received your notice, which means those Services will terminate at the end of the applicable billing cycle. We may refund all prepaid monthly service fees charged for the Services after the effective date of termination, and we reserve the right to subtract from your refund any outstanding amounts due to us for the Services, for any affiliate or third-party services, or for other applicable fees and charges. Certain fees and charges are non-refundable and are also excluded.
b. How we may terminate or suspend Services
Subject to applicable law, we reserve the right to immediately terminate or suspend the Services without notice for any reason or no reason. We also reserve the right to remove from the Services any information stored or transmitted by or to any users (e.g., email or voicemail) following such termination or suspension. We may take these actions if we reasonably determine that your use of the Services: (a) violates this Agreement, any applicable policies, or any laws, rules, or regulations; (b) interferes with our ability to provide the Services to you or to others; or (c) interferes with or endangers the health or safety of our personnel or third parties, including if you threaten, harass, or use vulgar or inappropriate language toward our personnel. We have discretion in deciding whether and why to terminate or suspend Services. If we continue providing Services, this does not mean we have reviewed or approved any use of the Services, or any information transmitted through the Services.
c. You have certain obligations upon termination
You must cease all use of the Services as of the effective date of termination. You must pay in full for your use of the Services up to the date that this Agreement is terminated and the Services are disconnected (subject to applicable law).
You must return all Emerald Broadband Equipment to us at our local office or to our designated agent within ten (10) days of the date on which the Services are disconnected. You must return the Emerald Broadband Equipment in working order, with the exception of normal wear and tear. If you fail to return the Emerald Broadband Equipment, we will charge you an Unreturned Equipment Fee. As the owner of the Emerald Broadband Equipment at all times, we have the right to retrieve any equipment you fail to return. We (or our agents) may request access to your Premises to remove all Emerald Broadband Equipment and other material provided by us during regular business hours at a mutually agreed upon time.
10. LIMITED WARRANTY
TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY OF OUR SERVICE PROVIDERS, AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES) (COLLECTIVELY, THE “RELEASED ENTITIES”) WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED, UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
11. LIMITED LIABILITY
a. Application The limitations of liability in this Section 11 apply to our acts, omissions, and negligence, and any acts, omissions, or negligence by a Released Entity which, but for the provisions of this Section 11, could give rise to a cause of action in contract, tort, or under any other legal doctrine.
b. Our liability for Customer Equipment is limited YOU UNDERSTAND THAT OPENING, UPDATING, ACCESSING, OR USING CUSTOMER EQUIPMENT IN CONNECTION WITH THE SERVICES MAY VOID WARRANTIES PROVIDED BY THE MANUFACTURER OR OTHER THIRD PARTIES. NEITHER WE NOR ANY OF THE RELEASED ENTITIES WILL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF (A) THE VOIDING OF ANY SUCH WARRANTIES, OR (B) FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT, EXCEPT DUE TO OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY US OR A RELEASED ENTITY WE WILL PAY, AT OUR SOLE DISCRETION, FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS WILL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
c. Our liability for viruses and bugs is limited Software or applications installed on your Customer Equipment, downloaded to your Customer Equipment, or available through the Internet may contain viruses or other harmful features. It is your sole responsibility to take appropriate precautions to protect your Customer Equipment. We may, but are not required to, terminate all or any portion of the Services if a virus or other harmful feature, bug, or software is present on your Customer Equipment and/or causes harm to the Services. We may, in our sole discretion, install or run software to check for viruses and other harmful features, including on your Customer Equipment. We make no representation or warranty that any virus check software will detect, correct, or resolve any or all viruses. You may incur additional charges for any service call related to a virus or other harmful feature detected on your Customer Equipment. WE AND THE RELEASED ENTITIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.
d. Our liability for certain installations and modifications is limited As part of the installation process for software and other components of the Services, we may need to modify system files on Emerald Broadband Equipment or your Customer Equipment. We may make these modifications in connection with installing software or applications, or allowing access to our online portals. We make no representations, warranties, or covenants as to whether these modifications or this software will disrupt the normal operations of the Services or your Customer Equipment, including causing the loss of files. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. WE AND THE RELEASED ENTITIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA RESULTING FROM OUR MODIFICATIONS TO SYSTEM FILES AND/OR INSTALLATION OF SOFTWARE OR OTHER COMPONENTS OF THE SERVICES.
e. Our liability for other services or equipment is limited BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST US AND THE RELEASED ENTITIES FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY WILL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.
f. Our liability for disruption of Services is limited The Services are not fail-safe, and are not designed or intended for use in situations that qualify as “High Risk Activities.” High Risk Activities include activities requiring fail-safe performance, or where an error or interruption in the Services could lead to severe injury to businesses, persons, property, or the environment. High Risk Activities also include vital business or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risk of any damages resulting from use of the Services in connection with High Risk Activities. We will 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 our immediate control, including (but not limited to) the following: (a) causes attributable to you, your Customer Equipment, your Premises, your property, or third parties, including our inability to access your Premises or any third-party negligence or willful misconduct; (b) failure of any signal, loss of use of poles or other utility facilities, or any failure or reduction of power; (c) labor disputes, riot or insurrection, war, explosion, malicious mischief, fire, flood, lightning, earthquake, weather conditions, or other acts of God; or (d) 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 may request a pro rata credit for any Service interruption exceeding twenty-four (24) consecutive hours after the interruption is reported to us (or another period of time provided by law). You must request a pro rata credit within 120 days of the Service interruption. Unless required by law, your pro rata credit will not exceed your fixed monthly charges for the Services that month. Your pro rata credit will exclude 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, A CREDIT WILL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES. Any additional credits, if any, are provided by us at our sole discretion and will not constitute, or be construed as, a course of conduct.
g. Our liability for third parties is limited Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide the Services. This may include third-party services, equipment, infrastructure, or content. We are not bound by any undertaking, representation, or warranty made by an agent, or employee of ours, or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Services if that undertaking, representation, or warranty is inconsistent with the terms of this Agreement. We are not responsible for and have no liability with respect to any services, equipment, infrastructure, and content that are not provided by us, or the performance (or non-performance) of third-party services, equipment, infrastructure, or content, even if they are components of the Services. You should address questions or concerns relating to third-party services, equipment, infrastructure, and content to the corresponding third-party provider. We do not endorse or warrant any third-party services, equipment, infrastructure, or content that are distributed or advertised over the Services.
h. Our liability for damages is limited EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, WE AND THE RELEASED ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT):
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST DATA, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH CUSTOMER EQUIPMENT OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, OR DELAYS IN TRANSMISSION); OR
(2) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SERVICES OR THE CUSTOMER EQUIPMENT BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
i. These are your sole remedies This Agreement sets forth your sole and exclusive remedies, limited to the maximum extent permitted by law.
j. These limitations survive termination All representations, warranties, indemnifications, and limitations of liability contained in this Agreement will survive termination of this Agreement. Any other obligations hereunder will also survive if they relate to the period before termination or if, by their terms, they would be expected to survive termination.
12. ONE YEAR LIMITATION PERIOD
YOU MUST COMMENCE ANY ACTION 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 ON SUCH EVENTS OR FACTS. FOR BILLING DISPUTES, YOU MUST NOTIFY US WITHIN 120 DAYS AND MUST COMMENCE AN ACTION WITHIN ONE (1) YEAR OF RECEIVING THE CHARGES.
13. BINDING ARBITRATION, AND CLASS/COLLECTIVE/REPRESENTATIVE ACTION/RELIEF WAIVER
Any Dispute involving you and us shall be resolved through individual arbitration as described in this Section 13 (the “Arbitration Provision”). In arbitration, there is no judge or jury, and there is less discovery and appellate review than in court.
a. Definitions This Arbitration Provision shall be interpreted broadly. “Dispute” means any and all claims or controversies arising out of or related to us or our relationship, including, but not limited to, any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims or controversies that arose before this Agreement or any prior agreement; (3) claims or controversies that arise after the expiration or termination of this Agreement; and (4) claims or controversies that are the subject of purported class, collective, or representative action litigation. As used in this Arbitration Provision, “us” and “we” means Emerald Broadband, LLC and any of its parents, subsidiaries, and other affiliates, each of their respective predecessors, successors, and assigns, and each of their respective officers, directors, employees, and agents; and “you” means you and any users or beneficiaries of the Services.
b. Arbitration Procedures Except as otherwise provided herein, any dispute, controversy, or claim arising out of or related to the subject matter of this Agreement will be settled by binding arbitration before a single arbitrator in or near Eugene, Oregon by filing a claim with and pursuant to the rules of the Arbitration Service of Portland, Inc. A party may seek from a court an order to compel arbitration, or any other interim relief or provisional remedies pending an arbitrator’s resolution of any dispute, controversy, or claim. Any such action, suit, or proceeding will be exclusively litigated in the Circuit Court for Lane County, Oregon. For the purposes set forth herein, each party consents and submits to the jurisdiction and venue of the Circuit Court for Lane County, Oregon.
c. Right to Opt Out IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST SERVICE ACTIVATION, IN WRITING BY MAIL TO: EMERALD BROADBAND, 859 WILLAMETTE ST #250, EUGENE, OR 97401. ANY SUCH WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME, SERVICE ADDRESS, AND EMERALD ACCOUNT NUMBER, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE SERVICES PROVIDED BY US. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH RESPECT TO THE ACCOUNT GOVERNED BY THIS AGREEMENT, YOU DO NOT NEED TO DO SO AGAIN. BUT YOU MUST SEPARATELY OPT OUT FOR EACH ACCOUNT UNDER WHICH YOU RECEIVE SERVICES. ANY OPT-OUTS SUBMITTED AFTER THIS 30-DAY PERIOD WILL NOT BE EFFECTIVE AND ALL DISPUTES WITH US WILL BE ARBITRATED.
d. Waiver of Class, Collective, and Representative Actions/Relief THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED (I) ON A CLASS ACTION, COLLECTIVE ACTION, OR OTHER JOINT OR CONSOLIDATED BASIS, OR (II) 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. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM, AND THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST OR ON BEHALF OF ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THIS WAIVER OF CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE ACTIONS AND RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
e. Arbitral Fees and Costs You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs. You may only recover your attorneys’ fees and costs in the arbitration if the arbitration is decided in your favor and to the extent that you could have recovered those fees in court in accordance with the law or statute(s) that apply to the case. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay.
f. Survival This Arbitration Provision shall survive the termination of your Services with us
14. WAIVER OF JURY TRIAL
WHETHER ANY DISPUTE IS RESOLVED IN COURT OR IN ARBITRATION, YOU AND WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY IN RELATION TO THE DISPUTE.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND EACH RELEASED ENTITY HARMLESS FROM AND AGAINST ANY DAMAGES, LOSSES, OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICES OR THE CUSTOMER EQUIPMENT; (b) YOUR ACTUAL OR ALLEGED VIOLATION OF APPLICABLE LAW; (c) YOUR FAILURE TO NOTIFY US OF A CHANGE IN OR THE INACCURACY OF THE INFORMATION YOU PROVIDED (INCLUDING, FOR EXAMPLE, CLAIMS UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND RELATED REGULATIONS); AND (d) YOUR BREACH OF THIS AGREEMENT OR ANY APPLICABLE POLICIES. YOUR INDEMNIFICATION OBLIGATIONS WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
16. MONITORING AND RECORDING
17. OUR INTELLECTUAL PROPERTY RIGHTS
All Services, information, documents, materials, firmware, and software we provide are protected by trademark, copyright, patent, and other intellectual property laws and international treaty provisions. You are granted a revocable license to use our firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement. You have no other license to use firmware or software embedded in or used to provide the Services. You must not take any action nor allow anyone else to take any action that will reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.
All of our and our affiliates’ websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “Marks”) are and will remain our and our affiliates’ exclusive property. Nothing in this Agreement grants you the right or license to use any of the Marks.
18. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that you are at least 18 years of age and that you have provided us with information that is accurate, complete, and current. For example, you must provide us with your accurate, complete, and current legal name, address (including apartment, unit, suite number, etc., where applicable), telephone number(s), the number of devices on which or through which the Services are being used, and payment information. You must also provide accurate information when authorizing recurring payments. You agree to promptly update your contact information to keep it accurate and complete. YOU ARE RESPONSIBLE FOR MAINTAINING THE ACCURACY OF YOUR INFORMATION, EVEN AFTER TERMINATION OF THIS AGREEMENT, UNTIL YOU PAY ALL AMOUNTS DUE AND RETURN ALL EMERALD BROADBAND EQUIPMENT. FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT. THIS OBLIGATION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
You represent and warrant that you will comply with all applicable laws, including export rules.
19. CONSENT TO COMMUNICATIONS FROM EMERALD
You agree that Emerald or third parties acting on Emerald’s behalf may call or text you at any telephone number that you provide to Emerald or that Emerald issues to you, and may do so for any purpose relating to your account and/or the Services to which you subscribe. You expressly consent to receive such calls and texts and agree that these calls and texts are not unsolicited. You understand and acknowledge that these calls and texts may entail the use of an automatic telephone dialing system and/or artificial or prerecorded messages. If you do not wish to receive these communications, you may contact the office to manage your communications preferences. You understand and acknowledge that this is the exclusive means of opting out of such communications. You may not opt-out of receiving certain communications pertaining to your account, including but not limited to communications regarding emergencies, fraud or other violations of law, security issues, and harm caused to the network. Message frequency depends on your activity with your Services. Message and/or data rates may apply.
20. INFORMATION PROVIDED TO THIRD PARTIES
We are not responsible for any information provided by you to third parties including credit/debit card or banking information, and this information is not subject to the privacy provisions of this Agreement or the privacy notice for the Services. You assume all privacy, security, and other risks associated with providing any information, including customer proprietary network equipment or personal information, to third parties via the Services. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.
You may not assign your right to use the Services without our authorization. You may not assign your rights and obligations under this Agreement. We may freely assign this Agreement, any of our rights and obligations, or any debt you owe us, without notifying you.
22. RETENTION OF RIGHTS; NO WAIVER
We may decide not to enforce our rights or exercise a remedy under this Agreement in a specific instance. This will not be a waiver of our rights or remedies. Nothing contained in this Agreement limits our rights and remedies available at law or in equity. If this Agreement terminates, we (and the Released Entities) reserve the right to delete all of your data, files, electronic messages, voicemails, user account names, email addresses, IP addresses, websites, or other information that are stored and/or used with the Services. If you cancel Voice without porting your service or telephone number to another service provider, you will forfeit the telephone number. We and the Released Entities will not be liable for the loss of any data, information, or phone numbers.
23. ENTIRE AGREEMENT
This Agreement, any additional terms related to the Services, and any other documents incorporated into this Agreement by reference, form the entire agreement between you and us. No other written or verbal agreements between us have any legal force or effect. If any part of this Agreement is found invalid or unenforceable, that part will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties. The remainder of the Agreement will remain in effect. Neither the course of conduct between us, nor trade practice, can modify this Agreement.
24. CONTACT US
If you experience a problem with your Services, please contact us first and give us an opportunity to resolve your problem.