DIRECPATH VIDEO AND BROADBAND SERVICES SUBSCRIBER AGREEMENT
TERMS OF SERVICE
Welcome to DIRECPATH!
BY ACTIVATING OR USING ANY DIRECPATH SERVICE (INCLUDING CABLE/SATELLITE TELEVISION, BROADBAND INTERNET ACCESS OR VOIP TELEPHONE SERVICES) OR ANY DIRECPATH EQUIPMENT, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND POLICIES. PLEASE READ THESE TERMS AND CONDITIONS AND POLICIES CAREFULLY AS THEY, AMONG OTHER THINGS, ESTABLISH YOUR LIABILITY FOR THE EQUIPMENT (Sec. 4), REQUIRE TERM COMMITMENTS (Sec. 23), IMPOSE EARLY CANCELLATION FEES (Sec. 23), AND REQUIRE MANDATORY ARBITRATION OF DISPUTES (Sec. 33).
This is your agreement (this "Agreement") with DIRECPATH, LLC and its affiliates (together "DIRECPATH," "we" or "us") for the provision of Video, Internet access and/or other broadband services, including Voice over Internet Protocol ("VoIP") services (the "Services") in accordance with the order form submitted by you to DIRECPATH (the "Order Form"). In this Agreement, any DIRECPATH Service or Services to which you have subscribed are referred to as the "Service." This Agreement includes the Terms of Service set forth below (the "Terms"), DIRECPATH's Acceptable Use Policy ("AUP") and such other policies as DIRECPATH may adopt (collectively, "Policies"), each as they may be amended from time to time and as may be posted from time to time at www.DIRECPATH.net. Additional terms, restrictions, and limitations may be set forth in authorized service plan descriptions provided to you by DIRECPATH and/or by our partners, such as DIRECTV, (each, a "Service Plan"), and all such terms, restrictions, and limitations are incorporated herein by reference and are binding upon you. If any Services are subject to any tariffs filed by DIRECPATH ("Tariffs"), then you agree that such Services will also be governed by the terms of any such Tariffs. The Order Form, Terms, AUP, Policies, any applicable Tariffs, and the Service Plans collectively constitute your agreement (the "Agreement") with DIRECPATH. In the event of conflict, except as otherwise expressly stated in any of the foregoing, the Terms shall control. By initiating Service, providing a written or electronic signature or otherwise so indicating electronically, you will have accepted this Agreement. You acknowledge that you have read and understood, and you agree to, the terms and conditions of this Agreement, and you represent that you are of legal age to enter the Agreement and become bound by its terms. This Agreement governs both the Service and any Equipment (as defined below) used in conjunction with the Service. The Agreement applies to you and to anyone who uses the Services or Equipment sold or rented to you, including your guests.
1. Service and Invoices. You agree to purchase and pay for any Service(s) that you have selected in the Order Form, which will be binding on you if signed with a written or electronic signature delivered to DIRECPATH or its agent, or if you electronically accept the terms of the Order Form, or by your activation of the Service through equipment provided to you by DIRECPATH (the "Equipment," as defined in Section 4 below). Upon accepting your Order Form (which will occur only upon signature of the Order Form by DIRECPATH, which may include an electronic signature or click-through acceptance of the Order Form by you), DIRECPATH will bill you for Equipment, installation fees, activation fees, and a prorated fee for the first month of Service (if applicable), and will bill you (or notify you of charges to be applied to your Card) in advance thereafter for recurring monthly charges, as specified on the Order Form. You agree to pay all of the fees set forth in the Order Form when due. In addition to the charges for any Service, you will be responsible for all applicable federal, state, and local taxes, surcharges and fees applicable to the Services. Unless otherwise agreed in writing between you and DIRECPATH, DIRECPATH will bill you for all charges relating to the Equipment or the Services by charging the credit, debit or check card ("Card") account you provided to and accepted by DIRECPATH. You will promptly notify DIRECPATH of any changes to any your Card account, or in the event that you decide to terminate or change Card accounts. Charges for Service are contained in the Order Form, and may be modified by DIRECPATH in its sole discretion upon thirty (30) days written notice to you, including notice by electronic mail. Your use of the Services for more than twenty days after notice of any modified charges constitutes your agreement to accept the modified charges. Charges not honored by your Card issuer will be considered delinquent, and you may be charged a late fee on the unpaid balance, based on the amount of the late payment multiplied by the lesser of one and one-half percent (1-1/2%) per month or the highest rate allowed by law. You will remain responsible for all charges not honored by your Card issuer. Delinquent accounts are subject to immediate suspension or termination of Service at the sole discretion of DIRECPATH. In the event of such suspension or termination, all charges (including Early Termination Fees) will become immediately due and owing together with any costs of collection incurred by DIRECPATH, including attorneys' fees, and DIRECPATH will be at liberty to pursue all rights and remedies it may have at law or in equity. DIRECPATH will attempt to notify you in advance of suspension, termination, and collection actions, but is not required to make contact prior to taking such actions. To reestablish Service suspended or terminated for delinquency, you must pay all past due amounts in full and you may be charged an activation fee and may be required to prepay fees.
2. Billing Disputes. You must notify DIRECPATH in writing within seven (7) days after receiving your Card statement if you dispute any DIRECPATH charges on that statement or such dispute will be deemed waived. You may only dispute charges that you believe are a result of a billing error or a problem relating to the Service. DIRECPATH shall resolve all billing disputes in its sole discretion.
3. Payment. DIRECPATH may terminate your Service at any time in its sole discretion, if any charge to your Card on file with DIRECPATH is declined or reversed, your Card expires and you have not provided DIRECPATH with a valid replacement Card or in case of any other non-payment of account charges. If DIRECPATH terminates your Service for declined, canceled or expired Card, reversed charges or non-payment, you are still fully liable to DIRECPATH for all charges accrued before termination, including charges related to the provision of Equipment, and for all costs incurred by DIRECPATH in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
4. Equipment Provided - Purchase. As specified on your Order Form, DIRECPATH will sell to you, and you will purchase from DIRECPATH, a subscriber unit and related cabling (collectively the "Equipment"). DIRECPATH warrants that all Equipment purchased from DIRECPATH will be substantially free from defects in material and workmanship under normal use in compliance with DIRECPATH's instructions for a period of one (1) year from the date you receive the Equipment. All or part of the Equipment may be reconditioned or refurbished, but all Equipment will be warranted as provided in this Agreement. This warranty excludes any damage resulting from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or electrical stress, water, extremes of temperature, other peril or act of God, your failure to comply with any Equipment instructions published by DIRECPATH or available at www.DIRECPATH.net, or actual or attempted alteration of or additions to the Products not approved by DIRECPATH, all as determined in the sole discretion of DIRECPATH. DIRECPATH shall have the sole discretion to determine whether to repair or replace any Equipment. Repair or replacement of the Equipment is DIRECPATH's only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment. This warranty is in lieu of all other warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. You may not sell or otherwise transfer the Equipment to anyone without DIRECPATH's prior written consent. If you sell or otherwise transfer the Equipment, any warranties will automatically and immediately terminate. Any repair, upgrade, or replacement of the Equipment following one (1) year after activation of Service, resulting from defects in the Equipment or from any other cause, will be your responsibility.
5. Equipment Provided - Rental. If you rent any Equipment from DIRECPATH, as specified on your Order Form, DIRECPATH will retain title to and ownership of such Equipment at all times. You must return all rented Equipment in good working order to DIRECPATH upon the termination of the Agreement or upon the request of DIRECPATH. Failure to return the rented Equipment to DIRECPATH in good working order upon request will result in a charge to the Card account that you have provided, for the amount listed on the Order Form, which you acknowledge is a reasonable estimation of the replacement cost of the Equipment. DIRECPATH may periodically replace, upgrade, repoint, or otherwise modify any rented Equipment, and will repair or replace (as DIRECPATH deems appropriate in its sole discretion) any properly maintained rented Equipment that fails to operate as required for the delivery of Services. You may not modify any rented Equipment in any way.
6. Installation. As necessary, DIRECPATH or its authorized contractor may install the Equipment at your location (the "Premises") for the installation charges noted on your Order Form. In addition, the provision of Service to your Premises may require additional antennas, equipment, or installation activities beyond those specified in your Order Form. In the event that such additional equipment or installation activities are required, and you elect to accept Service despite the need for such additional equipment or installation activities, you will be responsible for all applicable additional charges. If you purchase additional Equipment from DIRECPATH, such as additional connection cabling, you may request DIRECPATH or its authorized contractor to install such Equipment at the Premises as specified in the Order Form, or you may provide for your own installation. DIRECPATH warrants that any installations performed by DIRECPATH will be free from defects in material and workmanship for a period of one (1) year from the date of the installation. This warranty excludes any damage resulting from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or electrical stress, water, extremes of temperature, other peril or act of God, your failure to comply with Equipment manuals or other documentation, or actual or attempted alteration of or additions to the Products not approved by DIRECPATH, all as determined in the sole discretion of DIRECPATH. By authorizing installation, you represent and warrant to DIRECPATH that you either own the Premises or have received permission from the owner of the Premises to make any changes to the Premises or outside the Premises necessary to install the Equipment and receive the Service. Further, you represent and warrant that the installation of the Equipment at the Premises will not violate any rules, restrictions or agreements applicable to the Premises. You acknowledge that the installation representative may refuse to perform any custom installation work, or may require inside or external wiring to complete Service delivery at additional hourly or other charges. In the event you fail to keep an installation appointment or the Premises are not prepared to accept installation of the Equipment and Service, DIRECPATH may charge you a fee to recover any costs associated with an additional installation appointment. DIRECPATH will not be liable for any alterations or damage to the Premises that result from the installation, use, or removal of the Equipment, including, but not limited to, holes in walls or ceilings, or cable wiring, and will not be responsible for removing any of the Equipment or any costs related to the removal of the Equipment at the end of the Term for any reason. You agree to indemnify DIRECPATH from any claims or liabilities associated with DIRECPATH's installation and/or removal of Equipment, including, but not limited to, claims by any owner of the Premises.
7. DIRECPATH's Responsibilities. In the event that you request a professional installation from DIRECPATH, DIRECPATH will install the Equipment as provided above, and configure one computer using its Ethernet port. DIRECPATH will not maintain or in any way be responsible for any software, cables, or hardware attached to the Equipment or in any way related or unrelated to the use of Service, including your internal network. DIRECPATH will provide customer care support during its standard business hours for performance and operational issues related to the DIRECPATH network. Please contact DIRECPATH Customer Care as set forth at www.DIRECPATH.net.
8. Your Responsibilities. If needed, you are responsible for providing access to the Premises as scheduled with DIRECPATH for the appropriate preparation and maintenance of the Premises to allow for proper installation, maintenance, and other activities of DIRECPATH in connection with the Equipment and Service. You are responsible for ensuring that your video, computer or telephone equipment has the minimum hardware and operating system requirements necessary to use the Equipment and Service. You are responsible for integrating and troubleshooting your local area network and internal network, as necessary. DIRECPATH will not be responsible for any loss of use of any Service or degradation in performance resulting from your use of incompatible equipment or for any damage to any additional equipment you connect to the Equipment. In accessing the Service, you will utilize the troubleshooting guides and user information provided by DIRECPATH or available at www.DIRECPATH.net prior to contacting DIRECPATH Customer Care. DIRECPATH Customer Care will troubleshoot and support you on Service and Equipment issues pertaining to the DIRECPATH network and Service only, and reserves the right to determine that a problem or issue is your responsibility. In the event that you request a service call to your Premises and DIRECPATH determines that the problem is your responsibility, DIRECPATH reserves the right to charge your Card for the cost of the service call.
9. Credits. No credit or adjustment will be made for interruptions of the Service unless the interruption continues for a period of twenty-four (24) hours or more, measured from the time that you report the interruption to DIRECPATH. In the event of an interruption of the Service that continues for a period of twenty-four (24) hours or more, credit allowance will be made, at your written request, for an amount not to exceed the prorated monthly charges for your Service during the affected period. The credit will be available only where the interruption is in no part due to your acts or omissions whether negligent or otherwise or by interruptions caused by failure of any equipment or service not provided by DIRECPATH. The foregoing credit will be your sole and exclusive remedy for any interruption of the Service or any degradation of performance of the Service. In order to be eligible for any such credit, you must request the credit in writing within sixty (60) days of the commencement of the interruption. No credit will be available if the interruption period results from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or electrical stress, water, extremes of temperature, other peril or act of God, your failure to comply with DIRECPATH instructions or the terms stated at www.DIRECPATH.net, or actual or attempted alteration of or additions to the Equipment or Service (sometimes collectively referred to herein as the "Products") not approved by DIRECPATH, or from any problems with third party network elements that are not within the control of DIRECPATH, all as determined in the sole discretion of DIRECPATH.
10. Intended Use of the Service. You may not reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service without DIRECPATH's prior written consent. You will not use the Service in a manner prohibited by any federal, state, or local law or regulation, and will abide by DIRECPATH's AUP, which sets forth additional rules that govern your activity in connection with DIRECPATH's broadband Services. Without limiting the foregoing, you may not use the Equipment or Service, or allow the Equipment or Service to be used, for any abusive purpose or in any way that damages DIRECPATH's property or interferes with or disrupts DIRECPATH's network or other users.
12. Use of Service and Equipment Outside the United States. DIRECPATH may support the use of its Equipment and Service by customers located in other countries. If your or User's removal of the Equipment from the United States violates any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless DIRECPATH against any and all liability for such violation.
13. Loss of Service Due to Power Failure. You acknowledge that the Service does not function in the event of power failure. A power failure or disruption may require you to reset or reconfigure Equipment prior to utilizing the Service.
14. Copyright / Trademark / Firmware / Software. The Service and Equipment and any firmware or software used to provide the Service, or embedded in the Equipment, or used in connection with the Services, and all Services, information, documents and materials delivered to you by DIRECPATH or located on DIRECPATH's website are protected by trademark, copyright or other intellectual property laws. All names, service marks, trademarks, trade names, logos and domain names (collectively "Marks") of DIRECPATH are and shall remain the exclusive property of DIRECPATH and nothing in the Agreement grants you the right or license to use any of such Marks. You acknowledge that you are not given any license to use any firmware or software under this Agreement. You agree that the Equipment is exclusively for use in connection with the Service. You shall not use the Service except by means of the Equipment. If you decide to use the Service using equipment not provided by DIRECPATH, you represent and warrant that you possess all required rights, including software and/or firmware licenses, to use that equipment with the Service and you agree to indemnify and hold harmless DIRECPATH against any and all liability arising out of your use of such equipment with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
15. Tampering with the Equipment or Service. You agree not to change the electronic serial number or equipment identifier of the Equipment, or to perform a factory reset of the Equipment, without express permission from DIRECPATH in each instance which DIRECPATH may deny in its sole discretion.
16. Theft of Equipment or Service. You agree to notify DIRECPATH immediately, in writing or by calling the DIRECPATH customer support line, if the Equipment is stolen or if you become aware at any time that your Service is being stolen or fraudulently used.
17. Service Distinctions. You acknowledge that the DIRECPATH's VoIP Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by DIRECPATH, which is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before federal, state or local telecommunications regulatory agencies.
18. Back Up. You acknowledge that the installation, use, inspection, maintenance, repair, and removal of the Equipment may result in service outage or potential damage to your computer equipment and/or loss of software, files, data, or peripherals. You acknowledge that you are solely responsible for backing up all existing computer files by copying them to another storage medium prior to installation, maintenance, repair, or removal of the Equipment. Neither DIRECPATH nor its subcontractors or equipment vendors will be liable for any loss of data or damage to hardware, software, or your Premises that occurs during installation of any Equipment or that results from any service performed on your computer in support of your Service.
19. Network Address Ownership. The internet protocol ("IP") addresses that DIRECPATH assigns to you, including static IP addresses, are considered loaned to you, and not transferred or sold to you. You have no ownership or proprietary interest in such IP addresses. Such IP addresses will revert back to DIRECPATH upon the termination of your Service for any reason, or earlier if such change in IP address is reasonably necessary in the conduct of DIRECPATH's business. You shall not assign to any other person the IP address assigned to you. You shall not program any other IP address into the Equipment.
20. Credit Reporting Agencies. You authorize us to ask consumer reporting agencies or trade references to furnish us with employment and credit information, and you consent to our rechecking and reporting personal and/or business payment and credit history. Upon receipt of adverse credit information about you at any time, DIRECPATH reserves the right to suspend or terminate Service to you or require a deposit for Service, at our option.
21. Termination/Early Termination Fee. You shall maintain Service for the duration of any minimum Initial Term (as set forth on the Order Form). After any Initial Term, Service will automatically renew for additional consecutive one-year periods, unless terminated as provided in these Terms. You may terminate the Service at the end of the Initial Term or at the end of any renewal term, by contacting DIRECPATH's Customer Care department as set forth at www.DIRECPATH.net and giving notice of termination at least sixty (60) days in advance of the next scheduled renewal date. If you terminate your Service for any reason or your Service is terminated by DIRECPATH for any violation of the Agreement prior to the end of the Initial Term, you will be liable for an early termination fee of $250, or such other early termination fee as may be specified on your Order Form. Upon termination of this Agreement, unless you purchased the Equipment as provided above, you will be responsible for the costs and risks associated with returning the Equipment to DIRECPATH. You must return the rented Equipment to DIRECPATH in good working order, reasonable wear and tear excepted, in accordance with DIRECPATH's return policy set forth at www.DIRECPATH.net. If you do not immediately return the Equipment in good working order, DIRECPATH may charge your Card account for $300, which you agree is an appropriate charge in light of the value of the Equipment.
22. Termination/Discontinuance of Service. DIRECPATH reserves the right to suspend or discontinue providing any Service generally, or to terminate your Service, at any time in its sole discretion. This includes the right to disconnect Customer's access to our satellite distribution system in the event of default on payment for any Service. If DIRECPATH discontinues providing any Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement or any DIRECPATH Policy (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate the DIRECPATH AUP or the policies of a third party provider to which DIRECPATH is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the early termination fee set forth in these Terms, all of which immediately become due and payable.
23. DISCLAIMER OF LIABILITY. (A) EXCEPT AS SET FORTH IN SECTION 4, THE SERVICE AND EQUIPMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY DIRECPATH EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY DIRECPATH. NEITHER DIRECPATH NOR ITS AFFILIATES OR SUPPLIERS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR FREE FROM SERVICE DEGRADATION, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE ARE FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. WITHOUT LIMITING THE FOREGOING, THE QUALITY OF THE SERVICE MAY BE AFFECTED BY CONDITIONS WITHIN OR BEYOND OUR CONTROL, INCLUDING ATMOSPHERIC, GEOGRAPHIC, OR TOPOGRAPHIC CONDITIONS, OVERALL NETWORK USAGE LEVELS, NETWORK SIGNAL QUALITY, USER AND THIRD PARTY EQUIPMENT PERFORMANCE, INTERNET TRAFFIC LEVELS, AND OTHER FACTORS. DIRECPATH WILL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OUTSIDE DIRECPATH'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION ANY FLOOD, FIRE, ACCIDENT, EMBARGO OR OTHER GOVERNMENTAL ACT OR DIRECTIVE, ABSENCE OF GOVERNMENTAL APPROVAL OR CONSENT, DELAY OR DEFECT IN DELIVERY BY SUPPLIERS, TRANSPORTATION DELAY OR UNAVAILABILITY, RIOT, WAR, ACT OF TERRORISM OR OF THE PUBLIC ENEMY, POWER OUTAGE, LABOR DISPUTE OR SHORTAGE, THIRD PARTY NETWORK PROBLEMS, ACTS OR OMISSIONS OF UNDERLYING CARRIERS OR OTHER THIRD PARTIES, OR ACTS OF GOD. SERVICES ARE ONLY AVAILABLE WITHIN THE COVERAGE AREA OF THE DIRECPATH NETWORK, WHICH IS SUBJECT TO CHANGE. YOU ACKNOWLEDGE THAT SERVICE MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED OR UNSCHEDULED MAINTENANCE, EQUIPMENT MODIFICATIONS OR UPGRADES, AND FOR OTHER REASONS WITHIN AND WITHOUT THE DIRECT CONTROL OF DIRECPATH. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SERVICE FOR THE RECONSTRUCTION OF ANY LOST DATA OR FILES. ALTHOUGH SECURITY MEASURES ARE EMPLOYED, DIRECPATH CANNOT GUARANTEE THE SECURITY OF DATA TRANSMISSION OR STORAGE, OR THAT VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES WILL BE DETECTED OR REMEDIATED BY THE SERVICE.
(B) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER DIRECPATH NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, PRODUCTS, OR RIGHTS, (III) FOR ANY LOSS OR CORRUPTION OF DATA OR DELAYED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET, (IV) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR (V) FOR ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OF YOUR DATA OR ANY END USER'S DATA. THESE LIMITATIONS APPLY WHETHER THE CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, OR ANY OTHER BASIS, AND APPLY WHETHER OR NOT DIRECPATH WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICE OR IF YOU HAVE ANY OTHER DISPUTE WITH DIRECPATH, OR CLAIM AGAINST DIRECPATH, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
25. Place of Primary Use. In order to determine which jurisdiction's taxes and other assessments to collect, federal law may require DIRECPATH to obtain your Place of Primary Use ("PPU"), which must be your residential street address (if the Service is primarily for personal use) or your business street address (if the Service is primarily for business use). This address must be within the coverage area for the Service. You agree that the street address listed on your Service Order is your PPU. You agree to notify DIRECPATH of any change to your PPU.
26. Complaint Resolution/Notices. In order to resolve a complaint regarding the Service or to receive further information regarding the use of the Service, please contact DIRECPATH Customer Care at PO Box 7619, Marietta, GA 30065 (U.S. Mail), (866) 430-7284 (tel.), or email@example.com (email). Written notices to you will be effective three (3) days following the date deposited in the U.S. Mail addressed to your address as kept in our files, or the date on which any DIRECPATH email is sent to your DIRECPATH email account. You are responsible for notifying us of any changes in your address. Written notice to DIRECPATH will be effective when directed to DIRECPATH's Customer Care Department and received at the address set forth at www.DIRECPATH.net. Notices must be in writing to be effective. Notices sent by email to the appropriate email address shall constitute written notice.
27. Amendments. Subject to applicable law, DIRECPATH may in its sole discretion amend any of the Terms, any DIRECPATH Policy, or your Service Plan. DIRECPATH will provide notice to you of any material modification to this Agreement. If you do not agree to a modification that is materially disadvantageous to you, you may terminate the Agreement within twenty (20) days of the date we send our notice, and you will not be charged any Early Termination Fee. If you use the Service or make any payment to us after we mail notice of a material modification, and do not provide termination notice to us within the specified time period, you agree to that change, retroactive to the announced effective date of the modification. DIRECPATH may revise any Policy at any time, and such revisions will be effective immediately upon posting on DIRECPATH's website, or providing written notice to you.
28. Indemnification. You will defend, indemnify, and hold DIRECPATH and its directors, officers, employees, agents, affiliates, and shareholders and any other service provider or supplier (collectively, the "DIRECPATH Parties") harmless against any and all claims, losses, damages, and liabilities sustained by the DIRECPATH Parties resulting from, arising out of the Agreement, the Services, any breach or non-fulfillment of any representation, warranty, or covenant set forth in the Agreement or from your use of the Equipment or the Service. You also agree to pay DIRECPATH's reasonable attorneys' and expert witness fees and costs incurred in enforcing the Agreement, including any such fees incurred in connection with any appeal. This paragraph will survive termination of the Agreement for any reason.
29. Assignment and Successors in Interest. All of the Terms will be binding upon, inure to the benefit of, and be enforceable by your respective successors and permitted assigns. Except as specifically stated herein, neither the Agreement nor any of your or DIRECPATH's rights, interests, or obligations may be assigned or delegated by you without the prior written consent of DIRECPATH. Any unauthorized assignment or delegation will be null and void. Notwithstanding the foregoing, DIRECPATH may assign or otherwise transfer its rights and obligations under the Agreement without restriction.
30. Entire Agreement/Severability. This Agreement, including the Order Form, the Terms, your Service Plan, and the Policies (each as they may be amended from time to time) together contain the entire agreement and understanding concerning the Service and Equipment and supersede all prior negotiations, proposed agreements, and all other agreements, whether electronic, written, or oral. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealable judgment that any provision of the Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect.
31. ARBITRATION. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. ALL DISPUTES ARISING UNDER THIS AGREEMENT (OTHER THAN YOUR FAILURE TO MAKE PAYMENTS IN ACCORDANCE WITH THE AGREEMENT AND ANY ACTION TO COLLECT AMOUNTS DUE TO DIRECPATH UNDER THIS AGREEMENT, WHICH MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION) WILL BE SETTLED BY BINDING ARBITRATION USING THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR ARBITRATION WILL BE DALLAS COUNTY, TEXAS, UNLESS THAT LOCATION IS PROHIBITED BY LAW, IN WHICH CASE THE ARBITRATOR SHALL SELECT THE LOCATION OF THE ARBITRATION. ONE (1) ARBITRATOR SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE IN THE SUBJECT MATTER HEREOF WILL CONDUCT THE ARBITRATION. UNLESS OTHERWISE REQUIRED BY LAW, YOU AND DIRECPATH WILL EACH BEAR YOUR OWN EXPENSES, INCLUDING ATTORNEYS' FEES, EXCEPT THAT PAYMENT OF THE FEES AND EXPENSES OF THE ARBITRATOR SHALL BE GOVERNED BY THE RULES OF THE AAA. THIS DUTY TO ARBITRATE WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. ALL CLAIMS WILL BE ARBITRATED INDIVIDUALLY AND THERE WILL BE NO CONSOLIDATION OR CLASS TREATMENT OF ANY CLAIM UNLESS PREVIOUSLY AGREED TO IN WRITING BY DIRECPATH. THE ARBITRATOR SHALL NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES EXCEPT AS PERMITTED BY THE AGREEMENT. YOU WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE SERVICES. YOU WAIVE ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND DIRECPATH AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THE AGREEMENT MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED.
32. Implied Email Consent. Implied consent is assumed when a potential customer provides an email address for a commercial purpose. At such point, GigaMonster Networks, LLC. reserves the right to send e-mail and marketing promotions given such communications comply with regulations established in the CAN-SPAM Act.
33. Transactional or Relationship Email Consent. GigaMonster Networks, LLC. Reserves the right to distribute any email communication to customers that is transactional or related to the customer's relationship with GigaMonster Networks, LLC. Communications are determined to be transactional or relationship related if they meet any of the following criteria:
If the communication facilitates, completes, or confirms a commercial transaction previously agreed to by the recipient;
If the communication provides warranty, product recall, safety, or security information for a product or service purchased by the recipient;
If the communication provides certain information regarding a membership, subscription, account, loan, or similar ongoing relationship between the recipient and sender (e.g., notification of a change in the terms or features of a membership or subscription, periodic account balance information);
If the communication provides information about an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled;
If the communication delivers goods or services (such as product upgrades or updates) as part of a transaction to which the recipient previously agreed.
VoIP TERMS AND CONDITIONS
Emergency 911 Services
VOIP SERVICE DISCLAIMER
AND CUSTOMER ACKNOWLEDGEMENT
Note: This VOIP Service Disclaimer and Customer Acknowledgement constitutes a part of your Broadband Services Subscriber Agreement with DIRECPATH, LLC and its affiliates* ("DIRECPATH"). By electronically signing this Disclaimer and Acknowledgement below, you ("You") agree to be bound by the terms and conditions set forth herein.
[*Affiliates of DIRECPATH, LLC include PurDigital Media, Inc.; VoIP services are provided by DIRECPATH, LLC as agent for PurDigital Media, Inc.]
Thank you for selecting DIRECPATH as your Voice-Over-Internet Protocol ("VOIP") Telephony provider. However, before You begin using DIRECPATH's VOIP Service, there are a few important things to understand about the Service and, in particular, about its emergency calling (911 and E911) limitations as compared to traditional 911 and E911 service. DIRECPATH will not provide the Service to You until We have received your acknowledgement (see below) that You understand these E911 limitations. This VOIP Service Disclaimer is a part of the Agreement between You and DIRECPATH, including the Terms and Conditions ("Agreement").
IT IS ALSO VERY IMPORTANT THAT YOU CAREFULLY REVIEW AND UNDERSTAND THIS DISCLAIMER AND ACKNOWLEDGEMENT, TOGETHER WITH ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT BETWEEN YOU AND DIRECPATH ("DISCLAIMER"). If You have questions, please call us at 404-961-4787 OR support@DIRECPATH.net
Thank you for your cooperation.
1. BROADBAND ACCESS AND OTHER SUBSCRIBER OBLIGATIONS.
DIRECPATH IS NOT A TELECOMMUNICATIONS CARRIER AND PROVIDES BROADBAND ACCESS AND VOIP TELEPHONY ONLY, NOT TRADITIONAL TELEPHONE SERVICE.
2. EMERGENCY CALLING (911 AND E911) LIMITATIONS; INTERRUPTION OF SERVICE AND LOSS OF EMERGENCY E911 SERVICE.
You may experience interruption of Service (or of certain features of the Service) or degraded service quality at any time and without notice. You will likely experience Service outages in the event of electric power outages affecting your home or the area in which DIRECPATH provides the Service. While DIRECPATH will make commercially reasonable efforts to minimize the disruptive effects of such interruptions, degraded service quality, or outages, it makes absolutely no guarantees or assurances that these will not occur. Except as otherwise provided in the Agreement, such commercially reasonable efforts are DIRECPATH's sole obligation regarding such interruptions.
Such outages or other Service disruption may include loss of emergency 911 Service dialing capabilities for extended periods of time.
It is likely that You currently have access to either basic 911 or Enhanced 911 (E911) service. With E911 service, when You dial 911, your telephone number and registered address is sent to the emergency 911 center (sometimes referred to as a "public-safety answering point" or "PSAP") assigned to your location, thus giving emergency operators access to your telephone and address information and permitting them to immediately respond to your emergency call. If You are located in an area where the emergency center does not support E911 (i.e., is not capable of simultaneously receiving your telephone number and address) You have basic 911 service. With basic 911, the local emergency operator will not have immediate access to your call back number or your exact location when receiving your emergency call. Accordingly, You must be prepared to give the basic 911 operator this information. Until and unless You do so, the basic 911 operator may be unable to call You back or to otherwise assist You in the event of an emergency.
DIRECPATH depends upon its underlying E911 provider to assist DIRECPATH in supporting your 911 and E911 calls. As they upgrade our underlying connections to emergency call centers and as these emergency call centers are upgraded from 911 to E911 answering capabilities to support E911 information, DIRECPATH will automatically upgrade customers from basic 911 to E911 service. You will not receive notice of this upgrade. Accordingly, as a precaution, You should be prepared to give the local operator the basic 911 information described above.
Furthermore, our 911 and E911 Services may not function in the event of an electric power outage until power is restored. Following an electric power outage, You must reset or reconfigure the terminal adapter equipment prior to utilizing the Service, including 911 and E911 Service. WE RECOMMEND THAT YOU HAVE AN ALTERNATIVE TELEPHONE SERVICE, EITHER WIRELESS OR WIRELINE, THAT IS CAPABLE OF SUPPORTING 911 OR E911 CALLING AND IS AVAILABLE AS AN ALTERNATIVE AT ALL TIMES IN CASE OF AN EMERGENCY. PLEASE NOTE THAT SOME FORMS OF WIRELESS SERVICE DO NOT SUPPORT AUTOMATIC LOCATION IDENTIFICATION OR HAVE OTHER E911 CALLING LIMITATIONS.
BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO ASSUME THE RISK OF LOSING EMERGENCY 911 DIALING CAPABILITIES AND CONSENT TO THE DISCLOSURE OF YOUR TELEPHONE NUMBER AND OTHER IDENTIFYING INFORMATION TO EMERGENCY 911 AUTHORITIES AS DIRECPATH DEEMS NECESSARY IN ITS SOLE OPINION AND DISCRETION.
PLEASE NOTE FURTHER THE FOLLOWING LIMITATIONS ON DIRECPATH'S 911 AND E911 SERVICE:
911 and E911 Service may be limited or unavailable in the following circumstances:
A. In certain geographic areas where DIRECPATH's underlying E911 provider has limited access (or no access at all) to the PSAP's facilities;
B. If your DIRECPATH broadband connection, equipment, Services or other broadband access connections are disconnected, suspended, or interrupted;
C. If You modify your equipment or relocate your equipment to a location other than to the location that You registered with us ("Registered Location");
D. If You change your phone number or if You add new phone numbers to your account. (Please note that You must give us your updated Registered Location specifying the location where You will use the Service for each changed or new phone number);
E. If there are delays or disruptions of Service in the network or Services of DIRECPATH's underlying E911 provider;
F. If there are network congestion, disruptions, or other problems associated with DIRECPATH's network;
G. If your Service is interrupted or terminated for any reason, including the suspension or termination of your account with DIRECPATH for non-payment of invoices.
3. LIMITATION OF LIABILITY AND DISCLAIMERS.
YOU SPECIFICALLY AGREE THAT IN NO EVENT WILL DIRECPATH (OR ANY OF ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIONAL DAMAGES ARISING, DIRECTLY OR INDIRECTLY, FROM OR IN CONNECTION WITH ANY USE OF (OR INABILITY TO USE) THE SERVICE OR WITH ANY USE OF (OR INABILITY TO USE) EMERGENCY 911 SERVICES IN CONNECTION THEREWITH. YOU ALSO AGREE TO RELEASE AND DISCHARGE DIRECPATH, ITS AFFILIATES (TOGETHER WITH ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND CONTRACTORS) FROM ANY AND AGAINST ALL ACTIONS, LAWSUITS, CLAIMS, DAMAGES, JUDGEMENTS, LIABILITIES AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES) WHATSOEVER THAT YOU MAY OTHERWISE HAVE IN CONNECTION WITH USE (WHETHER BY YOU OR BY ANY OTHER PERSON) OF THE SERVICES THAT ARE PROVIDED TO YOU UNDER THIS AGREEMENT (COLLECTIVELY, "CLAIMS"). TO THE FULLEST EXTENT PERMITTED BY LAW, YOU WAIVE YOUR RIGHT (AND COVENANT NOT) TO BRING SUIT FOR SAID CLAIMS AGAINST US OR ANY OF THE OTHER PERSONS MENTIONED IN THE PREVIOUS SENTENCE.
DIRECPATH also has no physical control over whether, or the manner in which, calls using our 911 Service are delivered by our underlying 911 provider or whether or if they are properly answered or addressed by any local emergency response center. ACCORDINGLY, DIRECPATH HEREBY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR THE HANDLING OF SUCH CALLS BY ANY THIRD PARTY OR FOR ANY OTHER CONDUCT OF THE LOCAL EMERGENCY RESPONSE CENTER OR OF THE NATIONAL EMERGENCY CALLING CENTER USED BY DIRECPATH'S UNDERLYING 911 PROVIDER.
DIRECPATH also relies on its underlying 911 provider and other third parties to route 911 Emergency calls to the proper emergency response center. DIRECPATH DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY FAILURE OR OMMISSION ON THE PART OF SUCH THIRD PARTY. BY USING THE SERVICES, YOU AGREE THAT NEITHER DIRECPATH, NOR ANY OF ITS AFFILIATES (OR ITS OR THEIR OFFICERS, EMPLOYEES, OR AGENTS) WILL HAVE ANY SUCH LIABILITY OR RESPONSIBILITY AND, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY CLAIM AGAINST DIRECPATH, ITS OFFICERS, EMPLOYEES OR AGENTS, ARISING FROM OR IN CONNECTION WITH THE EMERGENCY 911 SERIVCE, EXCEPT WHERE SUCH CLAIMS RESULT FROM DIRECPATH'S (OR ITS EMPLOYEES' OR AGENTS') GROSS NEGLIGENCE OR RECKLESS OR WILLFULL MISCONDUCT.
FURTHERMORE, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD DIRECPATH, ITS EMPLOYEES, AND AGENTS HARMLESS FROM ANY SUCH CLAIM BROUGHT, ASSERTED OR THREATENED BY ANY THIRD PARTY UNLESS CAUSED BY DIRECPATH'S (OR ITS EMPOLOYEES' OR AGENTS') GROSS NEGLIGENCE OR RECKLESS OR WILLFULL MISCONDUCT.
IF YOU HAVE ANY QUESTIONS ABOUT THESE LIMITATIONS AND DISCLAIMERS, PLEASE CONTACT US BY TELEPHONE AT 404-961-4787 OR EMAIL US AT support@DIRECPATH.net.
YOU SHOULD NOT SIGN UP FOR THE SERVICE UNLESS YOU FULLY UNDERSTAND AND AGREE WITH THESE LIMITATIONS AND DISCLAIMERS.
4. YOUR OBLIGATION TO REGISTER YOUR LOCATION, TO GIVE OTHERS NOTICE OF EMERGENCY 911 LIMITATIONS - INCLUDING PLACING 911 WARNING STICKERS ON YOUR PHONE.
A. Your Obligation to Register the Address of Your Physical Location
For each telephone number that You use for the Service, AT THE TIME THAT YOU SUBSCRIBE TO THE SERVICE You must register with DIRECPATH (at 404-961-4787 or at support@DIRECPATH.net) the address of the physical location where You will be using the Service along with your subscription information below.
Importantly, when and if You move the Service or your equipment to another location, YOU MUST AGAIN REGISTER THAT NEW LOCATION WITH DIRECPATH (at 404-961-4787 or at support@DIRECPATH.net). If You do not register your new location, any calls You make using the 911 Service feature may be sent to an emergency center near your old address.
B. Your Obligation to Give Others Notice of Emergency 911 Limitations
IN ADDITION, YOU AGREE TO BE FULLY RESPONSIBLE AT ALL TIMES DURING THE TERM OF THIS AGREEMENT FOR NOTIFYING ALL MEMBERS OF YOUR HOUSEHOLD AND ALL OTHER PERSONS AT YOUR LOCATION OF INTERRUPTIONS, THE POSSIBLE LOSS OF EMERGENCY 911 DIALING CAPABILITIES, AND OF DIRECPATH'S LIMITATIONS OF LIABILITY AND DISCLAIMERS DESCRIBED IN THE PREVIOUS PARAGRAPHS.
YOU ALSO AGREE (TO THE FULLEST EXTENT PERMITTED BY LAW) TO INDEMNIFY, DEFEND AND HOLD DIRECPATH, ITS SUPPLIERS (INCLUDING ITS UNDERLYING E911 PROVIDER), TOGETHER WITH ITS AND THEIR AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS) FROM OR AGAINST ANY AND ALL ASSERTED OR THREATENED CLAIMS (AS THAT TERM IS DEFINED ABOVE) TO THE EXTENT ARISING FROM OR IN CONNECTION WITH THE USE OF THE SERVICE BY ANY PERSON OR ENTITY OTHER THAN THE PERSON SIGNING BELOW OR WITH YOUR FAILURE TO COMPLY WITH THE E911 NOTIFICATION OBLIGATIONS SET FORTH BELOW.
C. Your Obligation to Place 911 Warning Stickers on your Telephone Handset Used with the Service
IN ADDITION TO YOUR NOTIFICATION OBLIGATIONS IN THE PREVIOUS PARAGRAPH AND AS A CONDITION OF PURCHASING THE SERVICES, YOU MUST PROMINENTLY DISPLAY AT OR NEAR THE TELEPHONE HANDSET TO BE USED WITH THE SERVICES, THE E911 WARNING STICKERS SENT TO YOU IN YOUR WELCOME PACKET. FAILURE TO DO SO IS A MATERIAL BREACH OF THE AGREEMENT BETWEEN YOU AND DIRECPATH AND GIVES DIRECPATH THE RIGHT TO TERMINATE THIS AGREEMENT FOR CAUSE AND OTHER REMEDIES, INCLUDING WITHOUT LIMITATION, THE RIGHT TO RECOVER DAMAGES AND TO INVOKE YOUR INDEMNIFICATION OBLIGATIONS DESCRIBED IN THE PREVIOUS PARAGRAPH.
5. ADDITIONAL RESTRICTIONS AND SERVICE LIMITATIONS.
Home alarm systems, fax machines and other devices that attach to your home computers, local telephone service, cable system or other devices may not work with the Service and DIRECPATH MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WHATSOEVER THAT THE SERVICE WILL WORK WITH THESE DEVICES. Additional Service limitations are or may be set forth elsewhere in the Agreement (including the Terms and Conditions set forth at http://www.DIRECPATH.net/index.php?id=27 ), as amended from time to time in accordance with the provisions thereof. It is your obligation to periodically review DIRECPATH's Website to review these limitations and amendments.