Summit Broadband, Inc. (“Summit Broadband”,” “we,” “us,” or “our”) Service(s) will be provided to you (“you,” “your,” or “Customer”) on the terms and conditions set forth herein for residential Service(s) (the “Residential Terms and Conditions”) and applicable law by the operating company subsidiary of Summit Broadband that owns and/or operates the cable television, telephone, or Internet systems that delivers Service(s) to you. For purposes of these Residential Terms and Conditions, “affiliate” means any entity that controls, is controlled by, or is under common control with Summit Broadband. Service(s) may include, but are not limited to, cable television service (“Cable TV”), Internet service, (“Internet”) and telephone service (“Phone”) (each a “Service” and collectively the “Services”). The Service(s) do not include Summit Broadband owned or controlled websites such as www.summit-broadband.com. The Summit Broadband website has its own terms of service and policies that are accessible directly from the site.
We may change our prices, fees, the Service(s) and/or the terms and conditions of these Residential Terms and Conditions at any time, and further discussed herein. Unless these Residential Terms and Conditions or applicable law specifies otherwise, we will give you thirty (30) days’ prior notice of any significant change to these Residential Terms and Conditions. If you find the change unacceptable, you have the right to cancel your Service(s). However, if you continue to receive Service(s) after the end of the thirty (30) day notice period (the “Effective Date”) of the change, you will be considered to have accepted the changes.
You may not modify these Residential Terms and Conditions by making any typed, handwritten, or any other changes to it for any purpose.
Note: These Residential Terms and Conditions contain a binding arbitration provision in Section 13 that affects your rights under these Residential Terms and Conditions with respect to all Service(s). These terms and conditions are subject to applicable tariffs and service guides.
1. ACCEPTANCE OF THIS AGREEMENT You will have accepted these Residential Terms and Conditions and will be bound thereby if you use the Service(s) or otherwise indicate your affirmative acceptance of such terms. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Summit Broadband Equipment and/or Service(s) at the Premises and that you shall have sole responsibility for ensuring that all other users understand and comply with these Residential Terms and Conditions and any applicable Summit Broadband policies including, but not limited to, acceptable use and privacy policies.2. CHARGES AND BILLINGS
3. DEPOSIT We reserve the right to require you to pay a deposit when you activate the Service(s), if you add Summit Broadband Equipment and/or Service(s), or if you fail to pay any amounts when they are due. If we disconnect your Service(s) or are otherwise required under applicable law to refund the deposit, and if you have provided accurate, current, and truthful information about yourself to set up a customer account with us (including, but not limited to, the representations and warranties in Section 15b), we shall within forty-five (45) days, or as otherwise specified by applicable law, return a sum equal to the deposit(s) you paid (without interest unless otherwise required by law) minus any amounts due on your account (including without limitation, any amounts owed for the Service(s) or for any Summit Broadband Equipment that is damaged, altered, or not returned).
4. CHANGES TO SERVICES AND EQUIPMENT Subject to applicable law, we have the right to change our Service(s) and Summit Broadband Equipment at any time with or without notice. We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Service(s), including, but not limited to, content, functionality, hours of availability, customer equipment requirements, speed, and upstream and downstream rate limitations. If we do give you notice it may be provided on your monthly bill, as a bill insert, email, in a newspaper or other communication permitted under applicable law.5. ACCESS TO YOUR PREMISES AND CUSTOMER EQUIPMENT
a. Premises You agree to allow us and our agents the right to enter your property at which the Service(s) and/or Summit Broadband Equipment will be provided (the “Premises”) at reasonable times, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Service(s) and/or Summit Broadband Equipment used to receive any of the Service(s).
b. Customer Equipment “Customer Equipment” means software, hardware, or services that you elect to use in connection with the Service(s) or Summit Broadband Equipment. You agree to allow us and our agents the rights to insert CableCARDs and other hardware in the Customer Equipment, send software and/or “downloads” to the Customer Equipment and install, configure, maintain, inspect, and upgrade the Customer Equipment and Summit Broadband Equipment.
c. Truck Rolls A “Truck Roll” is defined as the cost of having a technician attend the Premises to determine there has been no fault in the Service(s) provided by us to you at the Premises, but rather an issue not requiring the work of a specialist or that could have been solved remotely without incurring travel costs. We have the right to charge you for a Truck Roll if your issue is not related to our network or to any other Summit Broadband issue. We will not impose a Truck Roll if you have enrolled in the Inside Wiring Maintenance plan, as discussed in Section 6c of these Residential Terms and Conditions. Customers must have active Inside Wiring Maintenance for a consecutive period of ninety (90) days from each last Truck Roll to be exempted from each future Truck Roll charge.
d. Ownership and Access You warrant you are either the owner of the Customer Equipment and/or the Premises or that you have the authority to give us access to the Customer Equipment and/or the Premises. If you are not the owner of the Customer Equipment and/or the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agent’s access to the Customer Equipment and/or the Premises to perform the activities specified above. In addition, you agree to supply us or our agents, if we ask, the owner’s name, address and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Customer Equipment and/or the Premises to perform the activities specified above.
6. MAINTENANCE AND OWNERSHIP OF EQUIPMENT AND SOFTWARE
a. Summit Broadband Equipment You agree that except for the wiring installed inside the Premises (“Inside Wiring”), or equipment purchased by you from Summit Broadband, all Summit Broadband Equipment belongs to us or other third parties and will not be deemed fixtures or in any way part of the Premises. “Summit Broadband Equipment” means all software or “downloads” to Customer Equipment or Summit Broadband Equipment and all new or reconditioned equipment installed, provided, or leased to you by us or our agents, including, but not limited to, cabling or wiring and related electronic devices, cable modems, Phone capable modems, wireless gateway/routers, CableCARDs, and any other hardware excluding equipment purchased by you from Summit Broadband.
We may remove or change the Summit Broadband Equipment at our discretion at any time the Service(s) are active or following the termination of your Service(s). You agree that our addition or removal of or change to the Summit Broadband Equipment may interrupt your Service(s). The Summit Broadband Equipment may only be used in the Premises and only for the Service(s) provided pursuant to these Residential Terms and Conditions, unless we have provided prior written authorization to you otherwise. At your request, we may relocate the Summit Broadband Equipment in the Premises for an additional charge, at a time agreeable to you and us. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE SUMMIT BROADBAND EQUIPMENT OR SERVICE(S) AT A LOCATION OTHER THAN THE PREMISES, THE SERVICE(S) MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY.
You agree that you will not allow anyone other than Summit Broadband or its agents to service the Summit Broadband Equipment. We suggest that the Summit Broadband Equipment in your possession be covered by your homeowners’, renters’, or other insurance. You will be directly responsible for loss, repair, replacement, and other costs, damages, fees and charges if you do not return the Summit Broadband Equipment to us in an undamaged condition.
b. Customer Equipment
c. Inside Wiring Maintenance You may install Inside Wiring, such as additional cable wiring and outlets, provided it does not interfere with the normal operations of our cable network. Regardless of who installed it, we consider the Inside Wiring your property or the property of whomever owns the Premises. Accordingly, you are responsible for the repair and maintenance of the Inside Wiring, unless you and Summit Broadband have agreed otherwise in writing. (If you do not own the Premises, contact your landlord or building manager about the repair or maintenance of Inside Wiring.) You may elect to enroll in Summit Broadband’s Inside Wiring maintenance plan which includes diagnosis, repair, and/or replacement to existing voice, date and fiber wiring and jacks inside the Premises installed by Summit Broadband, and support for any change to connectors or splitters (“Inside Wiring Maintenance”). We will charge you a separate fee for Inside Wiring Maintenance. Summit Broadband will not install or pull new Inside Wiring in the Premises, nor will Summit Broadband provide support or maintenance for Inside Wiring not installed by us. Summit Broadband may provide additional outlets in the Premises at a separate cost from the Inside Wiring Maintenance and other support provisions herein.
d. End User Software Licenses You agree to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed or used in connection with the Service(s) including, without limitation, the Summit Broadband Software License Agreement as these agreements may be amended from time to time. All such agreements are incorporated in these Residential Terms and Conditions by reference. When these Residential Terms and Conditions terminate, all end user licenses also terminate; you agree to destroy at that time all versions and copies of all software received by you in connection with the Service(s).7. USE OF SERVICES Pursuant to the terms of this Section 7 and the other provisions of these Residential Terms and Conditions, You agree that the Service(s) and the Summit Broadband Equipment will be used only for personal, residential, non-commercial purposes, unless otherwise specifically authorized by us in writing. You agree and represent that you will not resell, lease, abandon, or give away or permit another to resell, lease, abandon, or give away the Service(s) and/or the Summit Broadband Equipment, in whole or in part. You will not use or permit another person, user, entity, or other provider of Cable TV, Internet, or Phone Services to use the Summit Broadband Equipment or the Service(s), directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted Summit Broadband Acceptable Use Policy applicable to the Service(s). Use of the Summit Broadband Equipment or Service(s) for transmission, communications, or storage of any information, data, or material in violation of any U.S. federal, state, or local regulation or law is prohibited. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Service(s).
a. Term. These Residential Terms and Conditions will be in effect from the time that the Service(s) are activated until: (i) it is terminated as provided for by these Residential Terms and Conditions or by any addendum thereto; or (ii) it is replaced by revised terms and conditions. If you self-install Summit Broadband Equipment, Service(s) charges begin the earliest of: (a) the day on which you picked up Summit Broadband Equipment at our service center, (b) the day you install the Service(s), or (c) five (5) days after the date we ship the Summit Broadband Equipment to you. If you self-install a Phone capable modem, cable modem, or converter you obtained from a source other than Summit Broadband, charges begin the day your order for the Service(s) is entered into our billing system. The option to self-install a Phone capable modem, cable modem, or converter and/or to use a non-Summit Broadband-supplied Phone capable modem, cable modem, or converter is subject to availability.
b. Termination by You. Unless you have signed a minimum term addendum, you may terminate these Residential Terms and Conditions for any reason at any time by notifying Summit Broadband in one of three (3) ways: (1) send a written notice to the postal address of your local Summit Broadband business office; (2) send an electronic notice to the email address specified on www.summit-broadband.com; or (3) call our customer service line during normal business hours. Subject to applicable law or the terms of any agreements with governmental authorities, all applicable fees and charges for the Service(s) will accrue until these Residential Terms and Conditions have terminated, the Service(s) have been disconnected, and all Summit Broadband Equipment has been returned. We will refund all prepaid monthly service fees charged for Service(s) after the date of termination (less any outstanding amounts due Summit Broadband for the Service(s), affiliate services, Summit Broadband Equipment, or other applicable fees and charges).
c. Suspension and Termination by Summit Broadband. Under the conditions listed below, Summit Broadband reserves the right, subject to applicable law, to act immediately and without notice to terminate or suspend the Service(s) and/or to remove from the Service(s) any information transmitted by or to any authorized users (e.g., email or voicemail). Summit Broadband may take these actions if it: (1) determines that your use of the Service(s) does not conform with the requirements set forth in these Residential Terms and Conditions, (2) determines that your use of the Service(s) interferes with Summit Broadband’s ability to provide the Service(s) to you or others, (3) reasonably believes that your use of the Service(s) may violate any laws, regulations, or written and electronic instructions for use, or (4) reasonably believes that your use of the Service(s) interferes with or endangers the health and/or safety of our personnel or third parties. Summit Broadband’s action or inaction under this Section shall not constitute review or approval of your or any other users’ use of the Service(s) or information transmitted by or to you or users.
d. Your Obligations Upon Termination. You agree that upon termination of these Residential Terms and Conditions you will do the following:
1. You will immediately cease all use of the Service(s) and all Summit Broadband Equipment; and
2. You will pay in full for your use of the Service(s) up to the date that these Residential Terms and Conditions have been terminated and the Service(s) are disconnected; and
3. Within ten (10) days of the date on which Service(s) are disconnected, you will return all Summit Broadband Equipment to us at our local business office or to our designee in working order, normal wear and tear excepted. Otherwise, you will be charged the amount set forth in the current pricing lists for such Summit Broadband Equipment, or the revised amount for which you receive notice; if no amount has been specified for the particular model of Summit Broadband Equipment, you will be charged the retail price for a new replacement. You may also be charged incidental costs that we incur in replacing the Summit Broadband Equipment. Upon our request during regular business hours at a time agreed upon by you and us, you will permit us and our employees, agents, contractors, and representatives to access the Premises to remove all Summit Broadband Equipment and other material provided by Summit Broadband.
e. Mobility Impaired Customers. If you are mobility impaired, upon your request, we will arrange for the pickup or exchange of your cable modem or other Summit Broadband Equipment at the Premises.10. LIMITED WARRANTY. THE SUMMIT BROADBAND EQUIPMENT AND THE SERVICE(S) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WARRANT THAT THE SUMMIT BROADBAND EQUIPMENT OR THE SERVICE(S) WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of Summit Broadband and its underlying third-party service providers, agents,
suppliers, distributors, licensors, and business partners (and their respective officers, employees, agents, contractors, or representatives) which, but for that provision, would
give rise to a cause of action in contract, tort, or under any other legal doctrine.
b. Customer Equipment. CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, UPDATING, REPAIR, AND REMOVAL OF SUMMIT BROADBAND EQUIPMENT, CUSTOMER EQUIPMENT, AND/OR THE SERVICE(S). EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER SUMMIT BROADBAND NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY SUMMIT BROADBAND, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF FIVE HUNDRED DOLLARS ($500). THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
c. Other Services or Equipment.
BY ACCEPTING THESE RESIDENTIAL TERMS AND CONDITIONS, YOU WAIVE ALL CLAIMS AGAINST SUMMIT BROADBAND FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE SUMMIT BROADBAND
EQUIPMENT AND THE SERVICE(S) AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO
TERMINATE THE SERVICE(S) IN ACCORDANCE WITH SECTION 9.
d. Software. When you use certain features of the Service(s), such as online features (where available), you may be required to use special software, applications, and/or access to the Internet. Summit Broadband makes no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through the Internet does not contain a virus or harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Service(s) if a virus or other harmful feature or software is detected or found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your Customer Equipment. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS SHALL HAVE ANY 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.
In addition, as part of the installation process for the software and other components of the Service(s), system files on your Customer Equipment may be modified. Summit Broadband does not represent, warrant, or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation your computer(s), or cause the loss of files. Summit Broadband does not represent, warrant, or covenant that the installation of the special software or applications or access to our web portal(s) will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including, but not limited to, your computer(s). FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
e. Disruption of Service. The Service(s) are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Service(s) could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Service(s), directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles, or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Service(s).
In all other cases of an interruption of the Service(s), you shall be entitled upon a request made within thirty (30) days of such interruption, to a pro rata credit for any Service(s) interruption exceeding twenty-four (24) consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service(s) interruption and excludes all non-recurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE(S). Any credits provided by Summit Broadband are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Summit Broadband.
f. Directory Listings. IF WE MAKE AVAILABLE AN OPTION TO LIST YOUR NAME, ADDRESS, AND/OR TELEPHONE NUMBER IN A PUBLISHED DIRECTORY (WHETHER IN PRINT OR ONLINE) OR DIRECTORY ASSISTANCE DATABASE, AND ONE OR MORE OF THE FOLLOWING CONDITIONS OCCURS: (1) YOU REQUEST THAT YOUR NAME, ADDRESS AND/OR PHONE NUMBER BE OMITTED FROM A DIRECTORY OR DIRECTORY ASSISTANCE DATABASE, BUT THAT INFORMATION IS INCLUDED IN EITHER OR BOTH; (2) YOU REQUEST THAT YOUR NAME, ADDRESS AND/OR PHONE NUMBER BE INCLUDED IN A DIRECTORY OR DIRECTORY ASSISTANCE DATABASE, BUT THAT INFORMATION IS OMITTED FROM EITHER OR BOTH; OR (3) THE PUBLISHED OR LISTED INFORMATION FOR YOUR ACCOUNT CONTAINS MATERIAL ERRORS OR OMISSIONS, THEN THE AGGREGATE LIABILITY OF SUMMIT BROADBAND AND ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL NOT EXCEED THE MONTHLY CHARGES, IF ANY, WHICH YOU HAVE ACTUALLY PAID TO SUMMIT BROADBAND TO LIST, PUBLISH, NOT LIST, OR NOT PUBLISH THE INFORMATION FOR THE AFFECTED PERIOD. YOU SHALL HOLD HARMLESS SUMMIT BROADBAND AND ITS AFFILIATES, SUPPLIERS, OR AGENTS AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE ERRORS AND OMISSIONS REFERENCED ABOVE.
g. Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Service(s), including without limitation, their services, equipment, infrastructure, or content. Summit Broadband is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure, or content, whether or not they constitute components of the Service(s). Summit Broadband shall not be bound by any undertaking, representation, or warranty made by an agent, or employee of Summit Broadband or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Service(s), if that undertaking, representation, or warranty is inconsistent with these Residential Terms and Conditions. In addition, you understand that you will have access to the services and content of third parties through the Service(s), including, without limitation, that of content providers [whether or not accessible directly from the Service(s)]. Summit Broadband is not responsible for any services, equipment, infrastructure, and content that are not provided by us [even if they are components of the Service(s)], and we shall have no liability with respect to such services, equipment, infrastructure, and content. You should address questions or concerns relating to such services, equipment, infrastructure, and content to the providers of such services, equipment, infrastructure, and content. We do not endorse or warrant any third-party products, services, or content that are distributed or advertised over the Service(s).
h. Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THESE RESIDENTIAL TERMS AND CONDITIONS, NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
(1) any direct, indirect, incidental, special, treble, punitive, exemplary, or consequential losses or damages (including, but not limited to, loss of profits, loss of earnings, loss of business opportunities, personal injuries, or death)
that result directly or indirectly from or in connection with: (a) your reliance on or use of the Summit Broadband Equipment or the Service(s); or (b) the installation , self-installation, maintenance, failure, or removal of the Service(s)
(including, but not limited to, any mistakes, omissions, interruptions, computer or other hardware or software breach, failures or malfunctions, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in
transmission, or failure of performance of the Service(s), Summit Broadband Equipment, or the Customer Equipment, or any other mistakes, omissions, loss of call detail, email, voicemail, or other information or date); 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 Summit Broadband Equipment or the Service(s) 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. Customer's Sole Remedies.
Your sole and exclusive remedies under these Residential Terms and Conditions are as expressly set forth herein. Certain of the above limitations may not apply if your state does not allow the exclusion or limitation of implied warranties or does not
allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Summit Broadband and its employees, affiliates, suppliers, agents, contractors, distributors, licensors and business partners is limited to the maximum extent permitted by law.
j. Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained herein shall survive the termination of these Residential Terms and Conditions. Any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
If you have a Dispute with Summit Broadband that cannot be resolved through an informal dispute resolution with Summit Broadband, you or Summit Broadband may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than
litigate the Dispute in court. Proceeding in arbitration may result in limited discovery and may be subject to limited review by courts.
b. Definitions. The term “Dispute” means any dispute, claim, or controversy between you and Summit Broadband regarding any aspect of your relationship with Summit Broadband, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. Dispute is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, “Summit Broadband” means Summit Broadband and its parents, subsidiaries, and affiliated companies and each of their respective officers, directors, employees, and agents.
c. Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY SUMMIT BROADBAND IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST RECEIVE THESE RESIDENTIAL TERMS AND CONDITIONS BY MAIL TO SUMMIT BROADBAND AT 4558 35th STREET, ORLANDO, FLORIDA 32811, ATTENTION: LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO SUMMIT BROADBAND MUST INCLUDE YOUR NAME, ADDRESS, AND SUMMIT BROADBAND ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH SUMMIT BROADBAND THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH SUMMIT BROADBAND OR THE DELIVERY OF SERVICE(S) TO YOU BY SUMMIT BROADBAND. IF YOU HAVE PREVIOUSLY NOTIFIED SUMMIT BROADBAND OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
d. Initiation of Arbitration Proceeding. If you or Summit Broadband elect to resolve your Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, New Jersey 08043, 877-493-4185, www.adr.org under the Commercial Arbitration Rules of the American Arbitration Association "AAA".
e. Arbitration Procedures. Because the Service(s) provided to you by Summit Broadband concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state of Florida may apply to and govern the substance of any Disputes. No state statutes pertaining to arbitration shall be applicable under this Arbitration Provision.
If there is a conflict between this Arbitration Provision and the rules of the arbitration organization, this Arbitration Provision shall govern. If AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with Summit Broadband. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of these Residential Terms and Conditions, this Arbitration Provision shall govern.
A single arbitrator will resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement. If an award granted by the arbitrator exceeds seventy-five thousand dollars ($75,000), either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
1. YOU MUST CONTACT US WITHIN SIXTY (60) DAYS OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES GOVERNED BY SECTION 2 OF THESE RESIDENTIAL TERMS AND CONDITIONS), OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS
g. Location of Arbitration.
The arbitration will take place at a location convenient to you in the area where you receive the Service(s) from us.
h. Payment of Arbitration Fees and Costs. SUMMIT BROADBAND WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, FEES FOR ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN SUMMIT BROADBAND’S FAVOR, YOU SHALL REIMBURSE SUMMIT BROADBAND FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE SUMMIT BROADBAND FOR ANY OF THE FEES AND COSTS ADVANCED BY SUMMIT BROADBAND. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, SUMMIT BROADBAND WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
i. Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court. In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and Summit Broadband have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
j. Exclusions from Arbitration. YOU AND SUMMIT BROADBAND AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY SUMMIT BROADBAND THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE(S); (4) ANY DISPUTE THAT ARISES BETWEEN SUMMIT BROADBAND AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9); AND (5) ANY DISPUTE THAT CAN ONLY BE BROUGHT BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE.
k. Continuation. This Arbitration Provision shall survive the termination of your Service(s) with Summit Broadband.
a. Entire Agreement.
These Residential Terms and Conditions and any other documents incorporated by reference constitute the entire agreement and understanding between you and Summit Broadband with respect to the subject matter herein, and replace any and all prior written or verbal agreements. If any portion of these Residential Terms and Conditions is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. Summit Broadband does not waive any provision or right if it fails to insist upon or enforce strict performance of any provision of these Residential Terms and Conditions. Neither the course of conduct between you and Summit Broadband nor trade practice shall act to modify any provision of these Residential Terms and Conditions.
b. Additional Representations and Warranties. In addition to representations and warranties you make elsewhere in these Residential Terms and Conditions, you also represent and warrant that:
c. Information Provided to Third Parties.
Summit Broadband is not responsible for any information provided by you to third parties, and this information is not subject to the privacy provisions of these Residential Terms and Conditions or the privacy notice for the Service(s). You assume all privacy, security, and other risks associated with providing any information, including customer proprietary network information (“CPNI”) or personally identifiable information, to third parties via the Service(s). 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.
d. Revocable License. The Service(s) and Summit Broadband Equipment, including, but not limited to, any firmware or software embedded in the Summit Broadband Equipment or used to provide the Service(s), are protected by trademark, copyright, patent, and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with these Residential Terms and Conditions. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in the Summit Broadband Equipment or used to provide the Service(s). You expressly agree that you will use the Summit Broadband Equipment exclusively in connection with the Service(s). You shall 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.
e. Protection of Summit Broadband's Information and Marks. All Service(s) information, documents, and materials on our websites are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of Summit Broadband and its affiliates are and shall remain the exclusive property of Summit Broadband. Nothing in this Agreement shall grant you the right or license to use any of the marks.
f. Export Laws. You expressly agree to comply with all applicable export and re-export laws, including, but not limited to, the Export Administration Act, the Arms Export Control Act, and their implementing regulations. You further expressly agree not to use the Service(s) in any way that violates any provision of such laws or their implementing regulations.
g. Retention of Rights. Nothing contained in these Residential Terms and Conditions shall be construed to limit Summit Broadband’s rights and remedies available at law or in equity. Upon termination of these Residential Terms and Conditions for any reason, Summit Broadband and its suppliers reserve the right to delete all your data, files, electronic messages, or other Customer information that is stored on Summit Broadband’s or its suppliers’ servers or systems. In addition, you may forfeit your account user name and all email, IP and web space addresses, and Phone mail. We shall have no liability whatsoever as the result of the loss of any such data, names, addresses, or numbers
a. Ownership of Addresses.
You acknowledge that use of Internet service does not give you any ownership or other rights in any Internet/on-line addresses provided to you, including, but not limited to, Internet Protocol (“IP”) addresses, email addresses, and web addresses. We may modify or change these addresses at any time without notice and shall in no way be required to compensate you for these changes. Upon termination of an Internet service account, we reserve the right to permanently delete or remove any or all addresses associated with the account.
b. Authorization. Summit Broadband does not claim any ownership of any material that you publish, transmit, or distribute using Internet service. By using Internet service to publish, transmit, or distribute material or content, you: (1) warrant that the material or content complies with the provisions of these Residential Terms and Conditions; (2) consent to and authorize Summit Broadband, its agents, suppliers, and affiliates to reproduce, publish, distribute, and display the content worldwide; and (3) warrant that you have the right to provide this authorization. You acknowledge that material posted or transmitted using Internet service may be copied, republished, or distributed by third parties, and you agree to indemnify, defend, and hold harmless Summit Broadband, its agents, suppliers, and affiliates for any harm resulting from these actions.
c. Copyright. Title and intellectual property rights to Internet service are owned by Summit Broadband, its agents, suppliers, or affiliates or their licensors, or otherwise by the owners of such material and are protected by copyright laws and treaties. You may not copy, redistribute, resell, or publish any part of Internet service without any required express prior written consent from Summit Broadband or other owner of such material.
d. Material Downloaded Through Internet Service. In addition to any content that may be provided by us, you may access material through Internet service that is not owned by Summit Broadband. Specific terms and conditions may apply to your use of any content or material made available through Internet service that is not owned by Summit Broadband. You should read those terms and conditions to learn how they apply to you and your use of any non-Summit Broadband content.
a. Responsibility for Content.
You acknowledge that there is some content and material on the Internet or otherwise available through Internet service that may be offensive to some individuals, may be unsuitable for children, may violate federal, state, or local laws, rules or regulations, or may violate your protected rights or those of others. We assume no responsibility for this content or material. Anyone who accesses such content and material does so at his or her own risk. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO ACCESS TO SUCH CONTENT OR MATERIAL BY YOU OR OTHERS. Questions or complaints regarding content or material should be addressed to the content or material provider. You acknowledge that software programs are commercially available that claim to be able to restrict access to sexually explicit or other objectionable material on the Internet. We make no representation or warranty regarding the effectiveness of such programs.
b. Eavesdropping The public Internet is used by numerous persons or entities including, without limitation, other subscribers to Internet service. As is the case with all shared networks like the public Internet, there is a risk that you could be subject to “eavesdropping.” This means that other persons or entities may be able to access and/or monitor your use of Internet service. If you post, store, transmit, or disseminate any sensitive or confidential information, you do so at your sole risk. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO SUCH ACTIONS BY YOU. You acknowledge that software programs are commercially available that claim to be capable of encryption or anonymity. We make no representation or warranty regarding the effectiveness of these programs.
c. FTP/HTTP Service Setup. You acknowledge that when using Internet service there are certain applications such as FTP (File Transfer Protocol) or HTTP (Hyper Text Transfer Protocol) that may be used by other persons or entities to gain access to your Customer Equipment. You are solely responsible for the security of your Customer Equipment or any other equipment you choose to use in connection with the Service(s), including without limitation any data stored on such equipment. NEITHER SUMMIT BROADBAND NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM, ARISING OUT OF, OR OTHERWISE RELATING TO THE USE OF SUCH APPLICATIONS BY YOU, OR THE ACCESS BY OTHERS TO YOUR CUSTOMER EQUIPMENT OR OTHER EQUIPMENT OF YOURS.
d. Facilities Allocation Summit Broadband reserves the right to determine, in its discretion, and on an ongoing basis, the nature and extent of its facilities allocated to support Internet service, including, but not limited to, the amount of bandwidth to be utilized and delivered in conjunction with Internet service.
a. Wireless device lease agreement.
Summit Broadband offers a leasing agreement to customers for wireless routers. Equipment installed as part of the leasing agreement remains the property of Summit Broadband. Customers with current wireless leasing agreements and accounts in good standing, will receive Support Services as well as replacement or repair of a device which is defective, maintenance of the wireless router, and troubleshooting. Additional charges apply for equipment that is not returned to Summit Broadband at cancellation or disconnection of customer’s Service(s).”Support Services” shall be defined as configuration and support of the wireless routers leased to customers by Summit Broadband. Configuration includes login and password unique to device and at Summit Broadband’s discretion. Support includes, remote phone support, confirming device is operational, providing login and password information to customer account holder or authorized user, and resetting login and password information to unique Summit Broadband’s settings.
b. Wireless maintenance plan. Summit Broadband offers maintenance plans for wireless routers leased from Summit Broadband and are an additional charge. Customers with current maintenance plans and accounts in good standing, will receive Support Services and replacement of a device which is defective.
c. Third party routers. Summit Broadband does not support, configure, or install wireless routers or devices purchased by customer through third party vendor.