office (719)
325-5400
fax (719) 325-5419
toll-free (877) 351-5400
television. telephone. internet. security.
simple. easy. graceful.
AGREEMENT FOR RESIDENTIAL SERVICES
PanOptic, Inc., d/b/a PorchLight Communications, Inc. Services will
be provided to you ("you," "your," or "Customer") on the terms and
conditions set forth in this Agreement for Residential Services (the
"Agreement") by PanOptic. Services
may include, but are not limited to, video television service ("FiboVision"),
Internet service ("FiboNet"), and Voice Service ("FiboVoice") (each
a "Service" and collectively the "Services").
The terms and conditions in the "GENERAL TERMS AND CONDITIONS"
section below are applicable to all Services unless otherwise
indicated. Additional terms and conditions applicable to FIBONET and
FIBOVOICE are included in this Agreement in sections titled
"ADDITIONAL PROVISIONS APPLICABLE TO FIBONET" or "ADDITIONAL
PROVISIONS APPLICABLE TO FIBOVOICE".
We may change our prices, fees, the Services and/or the terms and
conditions of this Agreement in the future. Unless this Agreement or
applicable law specifies otherwise, we will give you thirty (30)
days prior Notice of any significant change to this Agreement. 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 notice period (the "Effective Date") of the change, we
will consider that you have accepted the changes. You may not modify
this Agreement by making any typed, handwritten, or any other
changes to it for any purpose.
Note: This Agreement contains a binding arbitration provision in
Section 13 that affects your rights under this Agreement with
respect to all Services.
GENERAL TERMS AND CONDITIONS
1. ACCEPTANCE OF THIS AGREEMENT
You will have accepted this Agreement and be bound by its terms if
you use the Services or otherwise indicate your affirmative
acceptance of such Services.
2. CH
a.
Charges, Fees, and Taxes That You Must Pay.
You agree to pay all charges associated with the Services,
including, but not limited to, installation charges, monthly service
charges, PanOptic Equipment (as defined below) charges, service call
charges, applicable federal, state, and local taxes (however
designated) and any fees or payment obligations imposed by
governmental or quasi-governmental bodies for the sale,
installation, use, or provision of the Services. You agree to pay
any regulatory recovery fees which PanOptic invoices you for
municipal, state and federal government fees or assessments imposed
on PanOptic, or any programs in which PanOptic participates,
including, but not limited to, public, educational and governmental
access, universal service, telecom relay services for the
visually/hearing impaired, rights-of-way access, and programs
supporting 911/E911 system. YOU WILL BE RESPONSIBLE FOR PAYING
ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE
RETROACTIVELY. We will provide you with notice and an effective
date of any change in our prices or fees, unless the change in price
is related to a change in governmental or quasi-governmental taxes,
fees or assessments, in which case we may elect not to provide
notice except where required by applicable law. Not all fees apply
to all Services. Prices for
all Services are provided to you prior to installation/connection
and online at
www.PorchLightCommunications.com and by telephone at (719)
325-5400.
b.
How We Will Bill You.
Services are provided to you
on a month-to-month basis, unless you have signed a term agreement,
which will state the length of your service term. You will generally
be billed monthly, in advance, for recurring service charges,
equipment charges, and fees. IN ADDITION, YOU MUST PAY, ON OR
BEFORE THE DAY WE INSTALL ANY OR ALL OF THE SERVICES, THE FIRST
MONTH'S SERVICE CH
Your first bill may include pro-rated charges from the date you
first begin receiving Services, as well as monthly recurring charges
for the next month and charges for non-recurring charges for any
nonrecurring services you have received. If you make partial payment
of any bill, we will apply that payment to the outstanding charges
in the amounts and proportions that we determine. However, we do not
waive our rights to collect the full balance owed to us by accepting
partial payment.
o
For FIBOVOICE Customers.
If you pay a flat monthly fee for your calling plan, that fee may
not cover certain types of calls. You will be billed for these
excluded call types on a per-call basis (e.g., operator services) or
a measured basis (e.g., international calls). Generally, for billing
purposes, a measured call begins when the call is answered by the
called party or an automated answering device (such as an answering
machine or fax machine); it ends when one of the parties disconnects
the call. However, some providers (e.g., those involved in calls to
foreign countries) charge for a completed call when the called
party's line rings or after a certain number of rings. If such a
provider charges PanOptic, its affiliates, or suppliers as if your
call were answered by the called party, PanOptic will charge you for
a completed call.
Measured calls are recorded in whole minutes, with partial minutes
rounded up to the next whole minute. If the computed charge for a
measured call or for taxes or surcharges includes a fraction of a
cent, the fraction is rounded up to the nearest whole cent. Consult
the FIBOVOICE pricing information for information on per-call
charges and the timing of measured-call charges. You understand and
agree that our paper bills for FIBOVOICE contain only a summary of
charges, and that detailed information about your calls and charges
will be available only for a limited period at a password-protected
portion of our Website. You may contact us for a paper copy of
outbound toll call records related to your most recent bill. There
may be an additional charge for these outbound toll call records
except as otherwise required by applicable law. PanOptic reserves
the right to limit or block any FIBOVOICE usage as PanOptic deems
necessary to prevent harm to its network, fraud, or other abuse of
FIBOVOICE services.
c.
Third-Party Charges That Are Your Responsibility.
You acknowledge that you may incur charges with third-party service
providers that are separate and apart from the amounts charged by
us. These may include charges resulting from accessing on-line
services, calling parties who charge for their telephone-based
services, purchasing or subscribing to other offerings via the
Internet or Interactive options on your Video Service, if
applicable, or otherwise. You are solely responsible for all charges
payable to third parties, including all applicable taxes. In
addition, you are solely responsible for protecting the security of
credit card and other personal information provided to others in
connection with such transactions.
d.
Alternative Billing Arrangements.
In certain cases, PanOptic may agree to provide billing services on
behalf of third parties, as the agent of the third party. Any such
third-party charges shall be payable pursuant to any contract or
other arrangement between you and the third party. We shall not be
responsible for any dispute regarding these charges between you and
any third party. You must address all such disputes directly with
the third party.
e.
Payment by Credit Card or Check.
If you use a credit card to pay for the Services, that use is
governed by the card issuer agreement for that card, and you must
refer to that agreement for your rights and liabilities as a
cardholder. If PanOptic does not receive payment from your credit
card issuer or its agents, you agree to pay all amounts due upon
demand. If you make payment by check, you authorize PanOptic to
collect your check electronically. You agree that you may not amend
or modify this Agreement with any restrictive endorsements (such as
"paid in full"), releases, or other statements on or accompanying
checks or other payments accepted by PanOptic and that any such
notations shall have no legal effect.
f.
Our Remedies if You Pay Late or Fail to Pay
i.
Late or Non-Payments:
You may be billed fees, charges and assessments related to late
payments or non-payments if for any reason (i) PanOptic does not
receive from you any required payment for the Services by the
payment due date or (ii) you pay less than the full amount due for
the Services.
ii.
Fees Not Considered Interest or Penalties:
PanOptic does not anticipate that you will fail to pay for the
Services on a timely basis, and we do not extend credit to
customers. Any fees, charges, and assessments due to late payment or
nonpayment are not interest, credit service charges, or finance
charges or penalties. Rather, they are liquidated damages intended
to be a reasonable advance estimate of our costs resulting from late
payments and non-payments. These costs will be difficult to
calculate or to predict when we set such fees, charges, and
assessments, because we cannot know in advance: (a) whether you will
pay for the Services on a timely basis, if ever; (b) if you do pay
late, when you will actually pay; and (c) what costs we will incur
because of your late payment or non-payment.
iii.
Collection Costs:
If we are required to use a collection agency or attorney to collect
money owed by you, you agree to pay the reasonable costs of
collection. These costs include but are not limited to any
collection agency's fees, reasonable attorneys' fees, and
arbitration or court costs.
iv.
Suspension/Disconnect:
If you fail to pay the full amount due for any or all of the
Services then PanOptic, at its sole discretion in accordance with
applicable law, may suspend or disconnect any or all the Services
you receive.
g.
Reconnection Fees and Related Charges.
Should you wish to resume a Service after any suspension, we may
require you to pay a reconnection fee. Should you wish to reinstate
any or all Services after disconnection, we may require you to pay
an installation fee and/or service activation fee. These fees are in
addition to all past due charges and other fees. Reconnection of the
Services is subject to our credit policies, this Agreement and
applicable law.
h.
Our Right to Make Credit Inquiries.
IF YOU ORDER MORE THAN FIVE VIDEO SET TOP BOXES, YOU
AUTHORIZE PANOPTIC TO MAKE INQUIRIES AND TO RECEIVE INFORMATION
ABOUT YOUR CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION
IN YOUR FILE, AND TO DISCLOSE THIS INFORMATION CONCERNING YOU TO
APPROPRIATE THIRD P
i.
Your Responsibilities Concerning Billing Questions.
Subject to applicable law, if you intend to dispute a charge or
request a billing credit, you must contact PanOptic within sixty
(180) days of the date on the bill. You waive any disputes or
credits that you do not report within sixty (180) days.
3. REFUNDABLE DEPOSIT
We may require you to pay a refundable deposit when you activate the
Service(s). We may also require you to pay a refundable deposit
after activation of the Service(s) if you add PanOptic Equipment
and/ or Service(s) or if you fail to pay any amounts when they are
due hereunder. If we disconnect your Service(s) or are otherwise
required under applicable law to refund the deposit, 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 Services
or for any PanOptic Equipment that is damaged, altered, or not
returned).
4. CHANGES TO SERVICES
Subject to applicable law, we have the right to change our Services,
PanOptic Equipment and rates or charges, 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 Services,
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, in a newspaper or
other communication permitted under applicable law. If you find a
change in the Service(s) unacceptable, you have the right to cancel
your Service(s). However, if you continue to receive Service(s)
after the change, this will constitute your acceptance of the
change. Please take the time to read any notices of changes to the
Service(s). We are not liable for failure to deliver any
programming, services, features or offerings except as provided in
Section 11e.
5. ACCESS TO YOUR PREMISES
You agree to allow us, our agents and/or contractors the right, to
enter at reasonable times your property upon which the Services
and/or PanOptic Equipment will be provided (the "Premises"), for
purposes of installing, configuring, maintaining, inspecting,
upgrading, replacing and removing the Services and/or PanOptic
Equipment used to receive any of the Services. You warrant that you
are either the owner of the Premises or that you have the authority
to give us access to the Premises. If you are not the owner of the
Premises, you are responsible for obtaining any necessary approval
from the owner to allow us and our agents into the Premises to
perform the activities specified above. In addition, you agree to
supply us or our agent/contractor, 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 Premises.
6. MAINTENANCE AND OWNERSHIP OF EQUIPMENT
a.
PanOptic Equipment.
You agree that except for the wiring installed inside the Premises
("Inside Wiring"), all PanOptic equipment belongs to us or other
third parties and will not be deemed fixtures or in any way part of
the Premises. PanOptic Equipment includes 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,
modems, multimedia terminal adapters ("MTA"), wireless
gateway/routers, any other hardware and all software or "downloads"
to PanOptic Equipment. You agree to use PanOptic Equipment only for
the Services pursuant to this Agreement. We may remove or change the
PanOptic Equipment at our discretion at any time the Services are
active or following the termination of your Service(s). You agree to
allow us access to the Premises for these purposes. You may not
sell, lease, abandon or give away the PanOptic Equipment, or permit
any other provider of video, high speed data or telephone services
to use the PanOptic Equipment. The PanOptic Equipment may only be
used in the Premises. At your request, we may relocate the PanOptic
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 PANOPTIC EQUIPMENT OR SERVICES AT A
LOCATION OTHER THAN THE PREMISES, THE SERVICES MAY FAIL TO FUNCTION
OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone
other than PanOptic employees or agents to service the PanOptic
Equipment. We suggest that the PanOptic 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 PanOptic
Equipment to us in an undamaged condition.
b.
Customer Equipment.
Responsibility: PanOptic has no responsibility for the operation or
support, maintenance or repair of any equipment, software or
services that you elect to use in connection with the Services or
PanOptic Equipment (the "Customer Equipment".)
o
For FIBOVOICE Customers. In order to use FIBOVOICE, you are required
to provide certain equipment such as a phone handset or equivalent,
inside phone wiring and outlets, and an electrical power outlet. If
you live in an apartment or a similar multi-tenant dwelling, you may
have to provide a cordless phone as well. If we do not have access
to the inside phone wiring in your home or if you are installing
FIBOVOICE yourself without the assistance of a PanOptic technician
("self-installation") where we make that option available, you will
need to plug a cordless phone into the MTA in order to use FIBOVOICE
throughout your home. CERTAIN MAKES AND MODELS OF CORDLESS PHONES
USE THE ELECTRICAL POWER IN YOUR HOME. IF THERE IS AN ELECTRICAL
POWER OUTAGE, THE CORDLESS PHONE WILL CEASE TO OPERATE DURING THE
OUTAGE, PREVENTING USE OF FIBOVOICE VIA THE CORDLESS PHONE. DO NOT
ATTEMPT TO CONNECT FIBOVOICE TO INSIDE PHONE WIRING YOURSELF. In
order to use online features of FIBOVOICE, where we make those
features available, you are required to provide certain hardware,
such as a personal computer, software, an Internet browser, and
access to the Internet.
ii.
Non-Recommended Configurations:
Customer Equipment that does not meet PanOptic's minimum technical
or other specifications constitutes a "Non-Recommended
Configuration." NEITHER PANOPTIC NOR ANY OF ITS AFFILIATES,
SUPPLIERS OR AGENTS W
iii.
No Unauthorized Devices or Tampering:
You agree not to attach any unauthorized device to PanOptic
Equipment or the Services. If you make any unauthorized connection
or modification to PanOptic Equipment or the Services or any other
part of our network, we may terminate your Service and recover such
damages as may result from your actions. Unless expressly authorized
by us, you agree not to install anything to intercept or receive any
of the Services offered over our network or to assist any person in
intercepting or receiving any of the Services offered over our
network. You also agree that you will not attach anything to the
Inside Wiring, PanOptic Equipment or Customer Equipment, whether
installed by you or us, which singly or together impairs the
integrity of our network or degrades our network's signal quality or
strength or creates signal leakage.
You hereby agree that we may recover damages from you for unlawful
tampering with any PanOptic Equipment or any other part of our
network or for receiving unauthorized Service(s). You agree that it
would be difficult if not impossible to calculate precisely the lost
revenue resulting from your receipt of unauthorized Service(s) or
the alteration or improper use of PanOptic Equipment. You therefore
agree to pay us as liquidated damages, the sum of $300.00 per device
used to receive the unauthorized Services in addition to our cost to
replace any altered, damaged or unreturned PanOptic Equipment or
other equipment owned by PanOptic, including any incidental costs.
The unauthorized reception of the Services may also result in
criminal fines and/or imprisonment.
§
For FIBOVOICE Customers.
You will be liable for all authorized and unauthorized FIBOVOICE
use. You agree to notify us immediately in writing or by calling our
customer service line during normal business hours if you become
aware at any time that the MTA has been stolen or that your Services
are being stolen or used without your authorization. When you call
or write, you must provide your account number and a detailed
description of the circumstances of the theft of your MTA or
unauthorized use of your FIBOVOICE Services. If you fail to notify
us in a timely manner, your Services may be terminated without
notice, with additional charges to you.
c.
Inside Wiring.
You may install Inside Wiring, such as additional wiring and
outlets, provided it does not interfere with the normal operations
of our network. If you have us install Inside Wiring, we will charge
you for that service. 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 PanOptic 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.) If you have us repair or maintain the
Inside Wiring, we will charge you for that service.
o
For FIBOVOICE Customers.
Except as described below, you may use FIBOVOICE with your telephone
Inside Wiring, as long as we have reasonable access to it and you
have the right to give us access to it. If you wish to have your MTA
connected to your telephone Inside Wiring, you are advised to have a
PanOptic technician perform the installation. To make that
connection, we must first disconnect your telephone Inside Wiring
from the network of your existing telephone provider (such as a
7. USE OF SERVICES
You agree that the Services and the PanOptic Equipment will be used
only by you and the members of your immediate household living with
you at the same address and only for personal, residential,
non-commercial purposes, unless otherwise specifically authorized by
us in writing. You will not use the PanOptic Equipment at any time
at an address other than the Premises without our prior written
authorization. You agree and represent that you will not resell or
permit another to resell the Services in whole or in part. You will
not use or permit another to use the PanOptic Equipment or the
Service(s), directly or indirectly, for any unlawful purpose,
including, but not limited to, in violation of any posted PanOptic
policy applicable to the Services. Use of the PanOptic Equipment or
Services 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 acknowledge that you are accepting this Agreement on behalf of
all persons who use the PanOptic Equipment and/or Services and that
you shall have sole responsibility for ensuring that all other users
understand and comply with the terms and conditions of this
Agreement and any applicable PanOptic policies including, but not
limited to, acceptable use and privacy policies. 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 Services. You agree to indemnify, defend
and hold harmless PanOptic and its affiliates, suppliers, and agents
against all claims and expenses (including reasonable attorney fees)
arising out of the use of the Services, the PanOptic Equipment
and/or the Customer Equipment or the breach of this Agreement or any
of the applicable PanOptic policies by you or any other user.
·
For FIBONET Customers.
a.
Acceptable Use Policy.
The PanOptic Acceptable Use Policy ("AUP") and other policies
concerning FIBONET are posted on the Service's Web site at
www.PorchLightCommunications.com/raup (or an alternative Web
site if we so notify you). You further agree that PanOptic may
modify the AUP or other policies from time to time. Notwithstanding
anything to the contrary in this Agreement, YOU ACKNOWLEDGE AND
AGREE THAT THE TERMS OF THE AUP AND ANY OTHER APPLICABLE PANOPTIC
POLICIES MAY BE PUT INTO EFFECT OR REVISED FROM TIME TO TIME WITHOUT
NOTICE BY POSTING A NEW VERSION OF THE AUP OR POLICY AS SET FORTH
ABOVE. YOU AND OTHER USERS OF THE SERVICE SHOULD CONSULT THE AUP AND
ALL POSTED POLICIES REGUL
b.
Prohibited Uses of FIBONET.
You agree not to use FIBONET for operation as an Internet service
provider, a server site for ftp, telnet, rlogin, e-mail hosting,
"Web hosting" or other similar applications, for any business
enterprise, or as an end-point on a non-PanOptic local area network
or wide area network. You agree to indemnify, defend and hold
harmless PanOptic and its affiliates, suppliers, and agents against
all claims and expenses (including reasonable attorney fees) arising
out of any breach of this Section including, but not limited to, any
claims based on or arising out of any material violation of any
applicable law.
·
For FIBOVOICE Customers.
You agree the MTA and FIBOVOICE will only be used at the Premises,
except that certain online features may be accessible from locations
other than the Premises. You understand and acknowledge that if you
improperly install the PanOptic Equipment or FIBOVOICE at another
location in the Premises, then FIBOVOICE, including but not limited
to 911/E911, may fail to function or may function improperly. If you
move the MTA or FIBOVOICE to another location without notifying us,
you do so in violation of this Agreement and at your own risk. You
expressly agree not to use FIBOVOICE for auto-dialing, continuous or
extensive call forwarding, telemarketing, fax broadcasting or fax
blasting, or for any other use that results in excessive usage
inconsistent with normal residential calling patterns. If we
determine, in our sole discretion, that your use of FIBOVOICE is
excessive or in violation of this Agreement, we reserve the right (i)
immediately and without notice to terminate or modify FIBOVOICE or
(ii) assess additional charges for each month in which any excessive
usage occurred.
8. ASSIGNABILITY
This Agreement and the Services furnished hereunder may not be
assigned by you. You agree to notify us immediately of any changes
of ownership or occupancy of the Premises. We may freely assign our
rights and obligations under this Agreement with or without notice
to you.
9. TERMINATION OF THIS AGREEMENT
a.
Term.
This Agreement will be in effect from the time that charges commence
until (i) it is terminated as provided for by this Agreement or by
any addendum to this Agreement or (ii) it is replaced by a revised
Agreement. If you self-install PanOptic Equipment, Service charges
begin the earliest of (i) the day on which you picked up PanOptic
Equipment at our service center, (ii) the day you install the
Service, or (iii) five (5) days after the date we ship the PanOptic
Equipment to you. If you self-install an MTA, modem or converter
that you obtained from a source other than PanOptic, charges begin
the day that your order for the Services is entered into our system.
The option to self-install an MTA, modem or converter and/or to use
a non-PanOptic-supplied MTA, modem or converter is subject to
availability. Any non-PanOptic supplied MTA,
modem or converter must comply with PanOptic's minimum
requirements.
b.
Termination by You.
Unless you have signed a minimum term addendum, you may terminate
this Agreement for any reason at any time by notifying PanOptic in
one of three ways: (i) send a written notice to the postal address
of your local PanOptic business office; (ii) send an electronic
notice to the e-mail address specified on
www.PorchLightCommunications.com; or (iii) 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 will accrue until this Agreement has
terminated, the Services have been disconnected, and all PanOptic
Equipment has been returned. We will refund all prepaid monthly
service fees charged for Services after the date of termination
(less any outstanding amounts due PanOptic for the Services,
affiliate services, PanOptic Equipment, or other applicable fees and
charges).
c.
Suspension and Termination by PanOptic.
Under the conditions listed below, PanOptic reserves the right,
subject to applicable law, to act immediately and without notice to
terminate or suspend the Services and/or to remove from the Services
any information transmitted by or to any authorized users (e.g.,
email or voicemail). PanOptic may take these actions if it: (i)
determines that such use or information does not conform with the
requirements set forth in this Agreement, (ii) determines that such
use or information interferes with PanOptic's ability to provide the
Services to you or others, (iii) reasonably believes that such use
or information may violate any laws, regulations, or written and
electronic instructions for use, or (iv) reasonably believes that
such use or information interferes with or endangers the health
and/or safety of our personnel or third parties. PanOptic's action
or inaction under this Section shall not constitute review or
approval of your or any other users' use of the Services or
information transmitted by or to you or users.
d.
Your Obligations upon Termination.
You agree that upon termination of this Agreement you will do the
following:
i.
You will immediately cease all use of the Services and all PanOptic
Equipment;
ii.
You will pay in full for your use of the Services up to the date
that this Agreement has been terminated and the Services are
disconnected; and
iii.
Within ten (10) days of the date on which Services are disconnected,
you will return all PanOptic 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 PanOptic Equipment, or the revised
amount for which you receive notice; if no amount has been specified
for the particular model of PanOptic 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 PanOptic Equipment.
Upon our request, you will permit us and our employees, agents,
contractors, and representatives to access the Premises during
regular business hours to remove the PanOptic Equipment and other
material provided by PanOptic. We will conduct this removal at a
time agreed on by you and us, and you will ensure that all PanOptic
Equipment is returned to PanOptic.
10. LIMITED W
THE PANOPTIC EQUIPMENT AND THE SERVICES
11. LIMITATION OF PANOPTIC'S LIABILITY
a.
Application.
The limitations of liability set forth in this Section apply to any
acts, omissions, and negligence of PanOptic and its underlying
third-party service providers, agents and suppliers (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, REPAIR, AND REMOVAL OF PANOPTIC EQUIPMENT AND THE
SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER
PANOPTIC 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 PANOPTIC, SUPPLIERS,
EMPLOYEES, AGENTS OR CONTRACTORS, WE SHALL PAY AT OUR SOLE
DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER
EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND
EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
o
For FIBONET Customers.
YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE
OPENED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AGENTS, IN
CONNECTION WITH THE INSTALLATION OR REPAIR OF FIBONET. THE OPENING,
ACCESSING OR USE OF YOUR COMPUTER OR OTHER DEVICES USED IN
CONNECTION WITH YOUR COMPUTER MAY VOID W
c.
Other Services or Equipment.
BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST PANOPTIC
FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE
PANOPTIC EQUIPMENT OR THE SERVICES AND ANY OTHER SERVICE, SYSTEMS,
OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR
INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES
IN ACCORDANCE WITH SECTION 9.
d.
Software.
When you use certain features of the Services, such as online
features (where available), you may require special software,
applications, and/or access to the Internet, PanOptic makes no
representation or warranty that any software or application
installed on Customer Equipment, downloaded from the Service, or
available through the Internet does not contain a virus or other
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 Services if a
virus or other harmful feature or software is 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 PANOPTIC NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR
CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR
LOSS OF ANY H
In addition, as part of the installation process for the software
and other components of the Service, system files on your Customer
Equipment may be modified. PanOptic 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. PanOptic 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 PANOPTIC NOR ITS AFFILIATES,
SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY
WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTW
e.
Disruption of Service.
The Services are not fail-safe and are not designed or intended for
use in situations requiring fail-safe performance or in which an
error or interruption in the Services could lead to 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 Services, 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, lightening,
earthquake, wind, ice, extreme weather conditions or other acts of
God; failure or reduction of power; or any court order, law, act or
order of government restricting or prohibiting the operation or
delivery of the Services. In all other cases an interruption of the
Services, you shall be entitled upon a request made within sixty
(60) days of such interruption, to a pro rata credit for any Service
interruption exceeding twenty-four consecutive hours after such
interruption is reported to us, or such other period of time as may
be specifically provided by law. Unless specifically otherwise
provided by law, such credit shall not exceed the fixed monthly
charges for the month of such Service interruption and excludes all
nonrecurring charges, one-time charges, per call or measured
charges, regulatory fees and surcharges, taxes and other
governmental and quasi-governmental fees. EXCEPT AND UNLESS
SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND
EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. IN NO EVENT SHALL
COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPL
o
For FIBOVOICE Customers.
You understand and acknowledge that you will not be able to use
FIBOVOICE under certain circumstances, including but not limited to
the following: (i) if our network or facilities are not operating or
(ii) if normal electrical power to the MTA is interrupted and the
MTA does not have a functioning battery backup. You also understand
and acknowledge that the performance of the battery backup is not
guaranteed. If the battery backup does not provide power, FIBOVOICE
will not function until normal power is restored. You also
understand and acknowledge that you will not be able to use online
features of FIBOVOICE, where we make those features available, under
certain circumstances including but not limited to the interruption
of your Internet connection.
f.Directory
Listings.
IF WE MAKE AVAILABLE AN OPTION TO LIST YOUR NAME, ADDRESS, AND/OR
TELEPHONE NUMBER IN A PUBLISHED DIRECTORY OR DIRECTORY ASSISTANCE
DATABASE, AND ONE OR MORE OF THE FOLLOWING CONDITIONS OCCURS: (I)
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; (II) 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 (III) THE PUBLISHED OR LISTED INFORMATION FOR
YOUR ACCOUNT CONTAINS MATERIAL ERRORS OR OMISSIONS, THEN THE
AGGREGATE LIABILITY OF PANOPTIC AND ITS AFFILIATES, SUPPLIERS OR
AGENTS SHALL NOT EXCEED THE MONTHLY CH
a.
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 Services, including without limitation their
services, equipment, infrastructure or content. PanOptic 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 Services. PanOptic shall not be bound
by any undertaking, representation or warranty made by an agent or
employee of PanOptic or of our underlying third-party providers and
suppliers in connection with the installation, maintenance or
provision of the Services, if that undertaking, representation or
warranty is inconsistent with the terms of this Agreement. 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). PanOptic is not responsible
for any services, equipment, infrastructure and content that are not
provided by us (even if they are components of the Service), 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 creators 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 Services.
b.
Damages.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PANOPTIC
NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS
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: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
TREBLE, PUNITIVE, EXEMPL
c.
Customer's Sole Remedies.
Your sole and exclusive remedies under this Agreement are as
expressly set forth in this Agreement. 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 PanOptic and its employee, affiliates,
suppliers, agents and contractors is limited to the maximum extent
permitted by law.
d.
Survival of Limitations.
All representations, warranties, indemnifications, and limitations
of liability contained in this Agreement shall survive the
termination of this Agreement; 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.
12. INDEMNIFICATION AND LIABILITY OF CUSTOMER
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND,
INDEMNIFY, AND HOLD H
13. BINDING
a.
Purpose.
If you have a Dispute (as defined below) with PanOptic that cannot
be resolved through the informal dispute resolution process
described in this Agreement, you or PanOptic may elect to arbitrate
that Dispute in accordance with the terms of this Arbitration
Provision rather than litigate the Dispute in court. Arbitration
means you will have a fair hearing before a neutral arbitrator
instead of in a court by a judge or jury.
b.
Definitions.
As used in this Provision, the term "Dispute" means any dispute,
claim or controversy between you and PanOptic regarding any aspect
of your relationship with PanOptic that has accrued or may hereafter
accrue, whether based in contract, statute, regulation, ordinance,
tort (including, but not limited to, fraud, misrepresentation,
fraudulent inducement, negligence or any other intentional tort), or
any other legal or equitable theory, and includes the validity,
enforceability or scope of this Arbitration Provision (with the
exception of the enforceability of the class action waiver clause
provided in paragraph F(2)). "Dispute" is to be given the broadest
possible meaning that will be enforced. As used in this Provision,
"PanOptic" means its officers, directors, employees and agents, and
all entities using the brand name "PanOptic" or “PorchLight
Communications”, including its employees, authorized agents, and its
parents, subsidiaries and affiliated companies. As used in this
Provision, the term "Arbitration Provision" means all the terms of
this Section 13.
c.
Right to Opt Out.
IF YOU DO NOT WISH TO BE BOUND BY THIS
d.
Initiation of Arbitration Proceeding/Selection of Arbitrator.
If you or PanOptic elect to resolve your Dispute with PanOptic
through arbitration pursuant to this Arbitration Provision, the
party initiating the arbitration proceeding may select from the
following arbitration organizations, which will apply the
appropriate rules for consumer claims to arbitrate the Dispute:
1.
American Arbitration Association ("AAA"),
2.
National Arbitration Forum ("NAF"),
e.
Arbitration Procedures.
Because the service provided to you by PanOptic 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 where you receive the
service from PanOptic may apply to and govern the substance of any
Disputes. Any state statutes pertaining to arbitration, however,
shall not be applicable under this Arbitration Provision.
If there is a conflict between this Arbitration Provision and the
rules of the arbitration organization chosen, this Arbitration
Provision shall govern. If the arbitration organization that you
select will not enforce this Arbitration Provision as written, it
cannot serve as the arbitration organization to resolve your dispute
with PanOptic. 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 a service that will enforce the Provision as
written. If there is a conflict between this Arbitration Provision
and the rest of this Agreement, this Arbitration Provision shall
govern.
A single arbitrator will resolve the Dispute. You should know that
participating in arbitration may result in limited discovery
depending on the rules of the arbitration organization that is
chosen to 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 $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.
f.Restrictions:
1.
YOU MUST CONTACT US WITHIN ONE (1) YE
2.
ALL P
3.
ALL P
g.
Location of Arbitration.
The arbitration will take place at a location, convenient to you, in
the area where you receive the service from us.
h.
Payment of Arbitration Fees and Costs.
PANOPTIC WILL ADVANCE ALL
i.
Severability.
If any clause within this Arbitration Provision (other than the
class action waiver clause identified in paragraph F(2)) is found to
be illegal or unenforceable, that clause will be severed from the
Arbitration Provision, and the remainder of the 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 that 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 PanOptic have each agreed to
waive, to the fullest extent allowed by law, any trial by jury.
j.Exclusions
from Arbitration.
YOU AND PANOPTIC AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO
k.
Continuation.
This Arbitration Provision shall survive the termination of your
service with PanOptic.
14. CUSTOMER PRIVACY NOTICE AND SECURITY
a.
PanOptic will provide you with a copy of our customer privacy notice
at the time we enter into an agreement to provide any Service to
you, and annually afterwards, or as otherwise permitted by law. You
can view the most current version of our privacy notice by going to
www.PorchLightCommunications.com/privacy.htm.
b.
To the extent that PanOptic is expressly required to do so by
applicable law, we will provide notice to you of a breach of the
security of certain personally identifiable information about you.
It is PanOptic's information security policy to provide such notice
to you in the manner set forth in Section 16.
15. GENERAL
a.
Entire Agreement.
This Agreement and any other documents incorporated by reference
constitute the entire agreement and understanding between the
parties with respect to the subject matter of this Agreement, and
they replace any and all prior written or verbal agreements. If any
portion of this Agreement 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. If PanOptic fails to insist upon or
enforce strict performance of any provision of this Agreement, it
shall not thereby waive any provision or right. Neither the course
of conduct between the parties nor trade practice shall act to
modify any provision of this Agreement.
b.
Additional Representations and Warranties.
In addition to representations and warranties you make elsewhere in
this Agreement, you also represent and warrant that:
i.
Age: You are at least 18 years of age.
ii.
Customer Information:
During the term of this Agreement, you have provided and will
provide to PanOptic information that is accurate, complete and
current, including without limitation your legal name, address,
telephone number(s), the number of computers on which the Service is
being accessed and payment data (including without limitation
information provided when authorizing recurring payments). You agree
to notify us promptly, in accordance with the terms of this
Agreement, if there is any change in the information that you have
provided to us. If you fail to provide and maintain accurate
information, you will breach this Agreement.
c.
Information Provided to Third Parties.
PanOptic is not responsible for any information provided by you to
third parties, and this information is not subject to the privacy
provisions of this Agreement or the privacy notice for the Services.
You assume all privacy, security and other risks associated with
providing CPNI or personally identifiable information to third
parties via the Services. For a description of the privacy
protections associated with providing information to third parties,
you should refer to the privacy policies, if any, provided by those
third parties.
d. Revocable License. The Services and PanOptic Equipment, including but not limited to any firmware or software embedded in the PanOptic Equipment or used to provide the Services, 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 this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in the PanOptic Equipment or used to provide the Services. You expressly agree that you will use the PanOptic Equipment exclusively in connection with the Services. You shall not take any action nor allow anyone else to take any action that will reverse compile,