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MILLRY CUSTOMER SERVICE AGREEMENT
These
Terms and Conditions, along with your Service Application, the Millry Price
List, and, if applicable to the service you have ordered, the Millry
Communications Acceptable Use Policy, describes the terms and conditions under
which Millry Communications provides
telecommunications, information and other services (“Service” or “Services”),
as well as any related equipment (“Equipment”) and constitutes the Agreement
between you and Millry Communications (“Agreement”). For purposes of this Agreement, “Millry
Communications”, “We”, “Our”, or “Us” means such of Millry Corporation, Millry
Communication, Inc., Millry Telephone Company, Inc., and those of its
subsidiaries, affiliates and any other person or entity doing business as
Millry Communications and providing Services and/or Equipment to You (and any
agents of the aforementioned entities, including any billing agents). As a
condition of using such Services and/or Equipment, you (“You” or “Your”) agree
to accept and comply with the terms of service set out in this Agreement. The terms of this Agreement will apply to
all Service(s) and/or Equipment you purchase from Us now, or in the future,
unless such terms are superseded by tariff or the terms of a separate written
agreement.
YOUR
SERVICE
1. Description. We will provide the Services that
You have requested, as those Services are described in the Service Application
or, as applicable, the Millry Price List.
2.
Service Commitment
2.1. Minimum Service Term. If You
terminate Service prior to the expiration of the Minimum Service Term
associated with the Service option you have selected, You will owe any
Termination Fees as described in your Service Application or, as applicable,the
Millry Price List, unless waived by Us in writing as part of a new Service
Application, in addition to such other fees due and payable under this
Agreement and any fees for the non-return of equipment.
2.2. Initial Term; Renewal Term. The initial Service Term is specified on the Service
Application or, as applicable, in the Millry Price List and, unless otherwise
stated therein, begins on the date that we initialize Your service through Our
Central Office. Thereafter, this Agreement shall renew automatically for
successive periods of one month until terminated by You or Us.
3.
Equipment. For the duration of Your
Agreement, We will provide You any Equipment offered by Us and requested by
You, at the prices and under any terms and conditions provided in the Service
Application or, as applicable, the Millry Price List. You may either lease said Equipment, in which
event the Equipment shall remain Our property, or You may purchase the
Equipment. In the event that You lease
Equipment from Us and said Equipment is defective, we will replace the
Equipment without charge if your account is in good standing with Us and there
is no evidence that You have impermissibly modified, broken, or damaged the
Equipment. In the event that you lease
Equipment from us, You agree that We may upgrade or replace such Equipment at
any time, at which time you agree to return the original Equipment. You are
responsible for having a compatible computer system with a Network Interface
Card prior to obtaining DSL Services. Unless otherwise prescribed in writing, Our
only responsibility for installation of the Service is described in Millry
Communications’ Standard Professional Installation Procedures Guide, which is
available to You upon request. Any
deviation from the Standard Professional Installation Procedures will result in
the installation being classified as a Non-Standard Installation, in which
event additional charges will apply. We
may waive certain installation fees upon Your agreement to retain Services for
a stated term, and in such event, We reserve the right to charge the waived
installation fees if You discontinue the Services prior to the end of that
term. WE DO NOT REPRESENT, WARRANT OR
COVENANT THAT INSTALLATION BY YOU OR A THIRD PARTY CHOSEN BY YOU WILL ENABLE
YOU TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICES, OR THAT SUCH
INSTALLATION WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES,
TELEVISION, STEREO OR PERIPHERALS. You
expressly permit Us to enter the premises for the purpose of installing,
inspecting, maintaining, repairing, or (except for Equipment You own) removing
any Equipment we provide to you. We do
not offer computer and/or computer peripheral device service or maintenance.
YOUR
RESPONSIBILITIES
4.
Use of the Service
4.1. Minimum System Requirements. Your computer(s)
or other premises equipment connected must meet certain minimum requirements in
order to utilize the Service. It may also be necessary to install inside wiring
or other facilities to complete installation of the Service. Any fees for such wiring and/or equipment
will be billed to You based on the rate(s) or price(s) set forth in Our Price
List for technicians or for such equipment.
You agree that We, and our employees, agents, contractors and
representatives shall have no liability whatsoever for any damage, loss or
destruction occurring as a result of the installation of any inside wiring
and/or equipment at Your premises. You acknowledge that DSL requires a working
telephone line and that You are solely responsible for the costs associated, directly
or indirectly, with said line. OUR
LIABILITY, IF ANY, FOR FAILURES IN WIRING AND/OR EQUIPMENT, WHETHER CAUSED BY
OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS, CONTRACTORS AND/OR
REPRESENTATIVES OR OTHERWISE, IS EXPRESSLY LIMITED TO A CREDIT FOR THE CHARGES
BILLED TO YOU FOR INSTALLATION OF THE SERVICE.
You are obligated to notify Us immediately of any alleged failures in
wiring and/or equipment installed by Us for which a credit allowance is desired. Before giving such notice, You are responsible
for ascertaining that the trouble is not being caused by any act or omission in
Your control, or is not in the wiring or equipment that You have furnished.
4.2
Responsibility for Use.
You are responsible for Your own end users and their compliance with
these Terms and Conditions. You acknowledge that the
Internet may contain material or information that is unsuitable for minors and
agree to supervise usage of the Service by minors.
4.3. Compliance with Laws and
Millry Communications Policies. You
agree to comply with all applicable federal, state and local laws, rules and
regulations in connection with Your use of the Service. If you have purchased broadband services, You
agree to adhere to Millry Communications’ Acceptable Use Policy and Fair Access
Policies, as the same may be amended from time to time. A copy of such policies
may be viewed at www.millry.net/usage.htm and www.milly.net/fair.htm, respectively.
4.4 Multiple
Use of Account. Unless otherwise authorized by Us, you agree
not to permit more than one high-speed Internet log-on session to be active at
one time. A log-on session represents an
active connection to your Internet access provider. The active session may be
shared to connect multiple computers/devices within a single home or office
location or within a single unit within a multiple dwelling unit (e.g., single
apartment or office within an apartment or office complex) to your modem and/or
router to access the Service (including the establishment of a “WiFi” hotspot),
but the Service may only be used at (depending on the class of service ordered)
the single home, office or commercial location (e.g., restaurant or coffee
shop) or single unit within a multiple dwelling unit for which Service is
provisioned by Us, unless otherwise authorized by Us. You may not use a WiFi hotspot in violation
of this Agreement or in a way that circumvents our ability to provide Service
to another customer (e.g., you cannot use a WiFi hotspot to provide Service
outside your single home or commercial location or outside your single unit
within a multiple dwelling unit and you cannot resell Service provided over a
WiFi hotspot unless approved by Us in writing). You may not use more than one
IP address for each log on session unless an advanced service allocating you
more than one IP address has been purchased. Service may be used to host a
server, personal or commercial, as long as such server is used pursuant to the
terms and conditions of this Agreement applicable to Service and not for any
malicious purposes. You may not use the
Service for resale or license of any nature whatsoever without Our prior consent which
may be given or withheld in its sole discretion. You are responsible for: (1) all access to
and use or misuse of the Service, even if the inappropriate activity was
committed by a friend, family member, guest, customer, employee or any other
person with access to your account or password(s), regardless of whether You
authorized the use of the Services; (2) ensuring that all end users,
including WiFi users, comply with all terms of the Millry Communications
Acceptable Use Policy. You are solely responsible for obtaining sufficient
identification of users of your WiFi network. You are
responsible for any fees incurred for the Service, or for software or other
merchandise purchased through the Service, or any other expenses incurred in
accordance with the terms and conditions contained in the Agreement. Any use of
the Service other than as specified above constitutes a material breach of this
Agreement, regardless of whether you receive any compensation for such use, and
may result in the immediate termination of the Service and the imposition of
any Termination Fees, without prejudice to any other rights and remedies
available to Millry Communications under this Agreement, at law and at equity.
4.5. Security. You are solely responsible for the security
of any device You choose to connect to the Service, including any data stored
on that device. You assume any and all
risks relating to the security of Your communications, data and network and its
potential access by others, including, but not limited to the transmission of
any computer virus or similar software which alters, disables or destroys, in
whole or in part, the hardware, communications, data and/or network. You
acknowledge Your responsibility to take reasonable measures to protect the
security of any equipment connected to the Service, including maintaining at
Your cost an up-to-date version of anti-virus and/or firewall software to
protect Your computers from malicious programs.
We may suspend your Service
until the problem is resolved in the event of a malicious program infecting
your computer that causes a violation of Millry Communications’ Acceptable Use
Policy. You will be fully liable for all
monthly fees and other charges under this Agreement during any period of
suspension.
4.6. E-Mail Privacy. Electronic mail passes through multiple mail
servers on the Internet as it passes from source to destination and total
privacy cannot be guaranteed. You agree
that We may examine mail on Our own mail servers when allowed under law or as
part of system maintenance or troubleshooting, for example, when investigating
e-mail delivery problems or pursuant to a valid state or federal civil or
investigative demand.
5. Fees and Payment
5.1. Fees; Taxes; Charges;
Payment Terms; Other Charges. Our bills are
subject to payment in accordance with Our existing schedule of prices (“the
Millry Price List”), subject to any pricing commitments contained in the Service
Application, without deduction or setoff of any kind. Recurring monthly fees are
due and payable in advance of each monthly billing period for which You have
purchased Service. Monthly fees are
non-refundable. The initial invoice may
include the fee for installation, and may include other applicable
non-recurring installation charges including, but not limited to, charges for
Equipment and inside wiring.
(a) Statement. Should we offer
electronic statements, you must choose to receive, either an electronic or
paper bill for Services.
(b) Payment. You agree to remit a
check, money order, credit card or debit card payment, or electronic funds
transfer to the address We provide in your monthly statement, to any of our local
business offices or to any electronic payment system We may utilize. We will
apply your payments first to any unpaid interest charges and then to each
unpaid invoice, beginning with the most recent. If
Your check, draft or similar instrument (collectively “check”) is returned
unpaid by a bank or other financial institution to Us for any reason, we will
bill you a bad check charge of twenty dollars ($20.00). In addition, You are
responsible for replacing the returned check with a payment in cash or
equivalent to cash, such as a cashier’s check, certified check or money order
prior to the payment due date. In such case, the bill is not considered paid
until We receive full payment in immediately available funds.
(c) Late Payment. Interest will accrue on any charges not paid when
due at the lesser of one and one half percent per month (1.5%) or the maximum
rate permitted by applicable law. If We do not receive payment by the due date We may suspend your
Service or terminate this Agreement without notice. Such suspension or
termination will not relieve You of your obligation for all billed and accrued
charges, plus any Termination Fees. We
reserve the right to correct and charge under-billed amounts for a period of
ninety (90) days after the incorrect statement was issued.
5.2. Payment Authorization. If you arrange to
participate in any electronic or draft payment system We may offer, We may
charge Your credit card or debit card (a “Card Payment”) or initiate an electronic
funds transfer out of Your bank account (“EFT Payment”) for payment
of all Service fees, any Termination Fees or any other amounts payable under
the Agreement. You must provide current,
complete, and accurate information for Your billing account and promptly update
any changes (such as a change in billing address, credit card number, credit
card expiration date, bank account number).
If We are unable to process and receive payment via Your credit or debit
card, Your account may be immediately suspended or terminated, and You will
remain responsible for all amounts owed Us under this Agreement. Your card
issuer agreement governs use of Your credit or debit card payment in connection
with the Service, your rights and liabilities as a cardholder, or for any
charges related to your use of your charge over your credit limit or similar
violations of your card issuer agreement.
5.3. Disputes and Partial Payments. We will make available to You a statement for
each billing cycle showing payments, credit purchases and other charges. If You dispute the validity of a charge or
need additional information regarding a charge, you must contact Us within
forty (45) days of receiving the statement containing the charge. Such a
dispute will not relieve you of your obligation to pay your full bill on
time. We may, but are not required to,
accept partial payments from You. If
partial payments are accepted, they will be applied first to the oldest
outstanding charges. If You send us
checks or money orders marked "payment in full" or otherwise labeled
with a similar restrictive endorsement, We may, but are not required to, accept
them, without losing any of our rights to collect all amounts owed by You under
this Agreement.
5.4. Reactivation.
If Your Service is suspended or terminated due to Your default or violation
of this Agreement, We may require before reactivating service: (a) an additional
deposit or advance payment; (b) a reactivation fee; (c) all outstanding amounts
owed for service rendered; and (d) if installation or new Equipment is required,
appropriate installation or Equipment charges. Advance payments will appear
on your statement as a credit, and service charges and other fees will be
invoiced as described above. If You fail to pay any amount on a subsequent
bill, the unpaid amount will be deducted each billing cycle from the credit
amount. Such credit amounts shall not
earn or accrue interest.
5.5. Credit Inquiries and Deposits .. You authorize Us to make inquiries and to
receive information about Your credit experience from others, including credit
reporting agencies, enter this information in Your file and disclose this
information concerning You to appropriate third parties for reasonable business
purposes. If it is determined that you
may be a credit risk based on (1) an unsatisfactory credit rating or lack of
credit history; (2) a record of late payments for either present or past bills
(including Our bills); or (3) prior fraudulent, illegal, or abusive use of any
Our services; then as a condition of service we may require that you place a
deposit with us or make an advance payment to secure payment for the Services
we provide to you. Your deposit and/or advance payment will not
exceed the amount of any non-recurring charges to initiate service, plus the estimated
recurring monthly charges for one (1) month of Services billed in advance, plus
the estimated usage charges for two (2) months of Services billed in arrears,
such as long-distance service, plus any applicable equipment deposit. You will not receive interest on any advance
payment, which will be applied to all subsequent bills until exhausted. You
will receive interest on any deposit at the rate of seven percent (7%), which
shall be added to and considered part of your deposit. If you fail to pay for the Services when due,
or if you cancel or otherwise terminate the Services and thereby incur any
termination fees or other expenses, we may, without providing you notice, apply
the deposit to offset the amount you owe us. If you pay your bills by the due
date for twelve (12) consecutive billing months, we will credit your account
with the deposit. If there is a credit balance on your account after the
deposit is applied, we will refund or credit that amount to you. Please allow up to four (4) weeks for the
processing of a refunded deposit.
5.6 Credit Limits. Based on your payment history or your credit
score obtained from credit reporting agencies, We may set a credit limit on
your account at any time. If you exceed your credit limit, we may restrict your
access to the Services we provide, such as direct-dialed and operator-assisted
long-distance services and calls requiring a 900 or 976 prefix. In the case of telephone service, this
restriction on your access to the Services will not affect your access to or
use of 911 emergency services.
REVISING,
CANCELLING OR SUSPENDING YOUR SERVICE
6. Modifications and Terminations
6.1. Modification of the Agreement, Including Price Changes. From time to time, We may
revise the prices and charges for Our Services as follows: (1) Price decreases
or changes in the collection of taxes or government imposed fees or surcharges
will be made with no prior notice to you; (2) Promotional pricing and terms, or
other pricing commitments, will expire in accordance with the terms applicable
to each promotion or commitment, without further notice to you. Upon the
expiration of any such promotion or commitment, prices may be revised in
accordance with the provisions of this paragraph; (3) All other price
increases, or changes in non-pricing terms and conditions will be effective no
sooner than thirty (30) days after we provide written notice to you. Such
written notice under this paragraph may be provided in a bill insert, as a
message printed in or on the Our bill, in a separate mailing, by email, or by
any other reasonable method at Our discretion.
If you do not accept the modified rates, charges, or terms and
conditions of the Agreement, or the modified operation of the Service, you must
terminate the Service and this Agreement in writing within thirty (30) days of
the date of the notice. Use
of the Service after the effective date of such changes or additions
constitutes Your acceptance of such changes. YOUR SOLE REMEDY FOR ANY CHANGE MADE BY US
IS THE RIGHT TO TERMINATE THIS AGREEMENT BY THIS DEADLINE.
6.2. Modification of the Service. We may discontinue, add to or revise
any or all aspects of the Service in Our sole discretion and without notice,
including access to support services, publications and any other products or
services ancillary to the Service. Without limiting the foregoing, We reserve
the right at Our sole discretion to modify, supplement, delete, discontinue or
remove any software, file, publications, information, or other content provided
to You by Us in connection with the Service.
We may, but are not required, to notify You by e-mail, online via one of more of the websites within
the Service or by other electronic notice at least fifteen (15) days before any
material change in the Service if within Our control or as early as practical
if caused by a third party. If You do not agree to such changes, then You must
cancel Your subscription and stop using the Service prior to the effective date
of such changes. Use of the Service
after the effective date of such changes or additions constitutes Your
acceptance of such changes. In
addition, for Broadband customers We may take any action consistent with
our Acceptable Use and Fair Access Policies, including actions to (a) prevent
bulk e-mailing from entering or leaving any e-mail account or the network
e-mail system, (b) delete e-mail messages if Your e-mail account has not been
accessed by You within a time We may establish from time to time, (c) instruct Our system not to process e-mail
or instant messages due to space limitations, (d) make available to third
parties information relating to Us or our subscribers, subject to the
provisions contained in Section 8 of this Agreement, (e) withdraw, change,
suspend or discontinue any functionality or feature of the Service, (f) delete
attachments to e-mail due to potentially harmful materials included within such
attachment, and (g) limit access to the Service to prevent abusive consumption
and ensure fair access for all subscribers.
6.3.
Termination by You. You may you cancel your order before the first of the ordered Services
is installed, without charge. Service will be considered installed when such
service is activated and ready for use, regardless of whether you are actually
using such Service or have connected it to any equipment inside your
premises. If you cancel your order after
installation, you will be responsible for all installation and connection
charges, any billed or accrued, but unpaid, service charges through the date of
cancellation (including for service paid in advance), any charges for damaged
or unreturned Equipment and any Termination Fees. Any termination notice may be by
telephone or in person during normal business hours or by email, and must be
acknowledged in writing. Termination of service after installation shall be
effective upon five (5) business days’ notice.
6.4. Termination or Suspension by Us. We may modify or terminate service as provided
in Section 6.2. In addition to exercising any
other rights under law, We may also terminate all Service upon: (a) Your breach
or violation of any term or provision of the Agreement (including, if applicable, the Acceptable Use Policy and/or
Fair Access Policy); (b) Your use of the Service in such a way as to cause
damage to or degradation of Our Equipment or system; or (c) Your insolvency,
appointment of a receiver or trustee for You, Your execution of an arrangement
for the benefit of creditors or similar proceeding, or initiation by any party
of any other proceeding involving You as debtor under Bankruptcy Code.
6.5. Post-Termination or Suspension Obligations. Except as provided herein, should your
Service, or any portion, be terminated or suspended, all amounts owed for prior
Service will become immediately due and payable, in addition to any Termination
Fees, and all of Our Equipment relating to such Service must be returned
immediately. You acknowledge that the
Equipment has an actual value greater than its purchase price because it is a
means to receive programming not otherwise available to non-subscribers, and upon
termination you agree to pay us $50.00 for each modem not returned to Us and
$25.00 for each surge protector not returned to Us. Charges for the non-return
of other equipment shall be based on a schedule maintained by the Company.
Should you fail to return the Equipment, We may automatically add charges for
payment of the Equipment and draft the credit card or checking account that You
have left on file with Us for payment. The failure to return any Equipment at the
termination of the Service for which the Equipment was required will also
result in Us withholding any deposit still in our possession, and the amount of
that deposit will be credited towards the purchase price of the Equipment as
those prices are set forth above. We retain sole discretion as to
whether to allow Service to be reconnected after termination due to a breach or
violation of the Agreement. You will remain responsible for all payment and
other obligations under this Agreement, including the obligation to pay any
Termination Fees and other charges that may be due as a result of or in
connection with such cancellation, termination or suspension. You will not,
however, be responsible for any Termination Fees in the event of cancellation
by Us under Section 6.2 unrelated to a breach or cancellation of this Agreement
on your part or Your Termination under Section 6.1 or 6.2 due to a price or
term modification that has the effect of increasing the cost of our service to
you (other than a tax increase) or materially changing the Service , although
you will remain liable for all other accrued, but unbilled charges through the
termination date (including any charges paid in advance).Your payment and other
obligations under this Agreement are not suspended or affected by a suspension
of access to or use of the Service, in whole or in part, due to a violation
(actual, threatened, or alleged) of this Agreement or of any law or legal
obligation by You or any user of your account. You agree to pay the reasonable
costs of any action We take to collect amounts not paid when due under this
Agreement, including, but not limited to, the costs of a collection agency,
reasonable attorney's fees, and court costs.
IMPROPER AND
PROPER USE OF YOUR SERVICE
7. Permitted Use and Restrictions on Use.
7.1 Responsibility for Use of the Service. In addition to your other responsibilities
under this Agreement, You agree: (i)
upon request, to take all actions necessary in order to install and activate
the Services; (ii) to provide adequate facilities to house and operate Our
equipment; (iii) to not resell the Services to any third party except as
provided in 4.4; (iv) to comply with all federal, state, and local laws, rules,
regulations and tariffs that apply to the Services or this Agreement; (v) to be
solely responsible to establish and maintain security measures (including,
without limitation, codes, passwords or other features) necessary to restrict
access to your computers, services or other equipment through the Services; (vi)
to be solely responsible for all fraudulent, unauthorized, illegal or improper
use of the Services by persons accessing those Services through your
facilities, equipment or Service Address; (vii) if a business, partnership or
joint account authorize and identify to us at least one individual who is
authorized to represent you on any aspect of the Services and your account
(including, all requests for moves, additions, deletions or changes to the
Services) and to notify us of any changes to the billing address; and (viii) to
notify us immediately of any loss of service or other problems with any of the
Services.
7.2. Software License.
Subject to the terms of this Agreement, We grant You a personal,
non-exclusive, non-assignable and nontransferable license to use and display
the software provided to You in connection with the Service (including any
updates) only for the purpose of accessing the Service ("Software")
on any machine(s) which You are authorized to use. Unauthorized copying or reverse engineering
of the Software, including software that has been modified, merged or included
with the Software, or the written materials associated therewith, is expressly
forbidden. You may not sublicense,
assign, or transfer this license or the Software except as We permit in
writing. Any attempt to sublicense,
assign or transfer any of the rights, duties or obligations under this license
is void and may result in termination of this Agreement and the license.
7.3. Restrictions on Use of the Service. We may immediately suspend the Service if You
engage in any prohibited activity under this Agreement. You must strictly adhere to any policy set forth
by another service provider accessed through the Service. You agree to comply with Our Acceptable Use
and Fair Access Policies located at
www.millry.net/usage.htm and www.millry.net/fair.htm respectfully, both of which are incorporated
into and made a part of this Agreement and you are responsible for compliance
with such policies by others that use your service. You do not own, nor have any rights, other than those expressly
granted to You, to a particular IP address, even if You have ordered a static
IP address.
7.4. Fair Access Policy. (Broadband Customers Only) If Your usage exceeds the limits set forth in the
Fair Access Policy, Service Application, or Millry Price List, We may reduce
the bandwidth available to You on a temporary basis or require You to upgrade
to a Service offering providing for more usage.
Continued violation of the Fair Access Policy is a breach of this
Agreement by You and will result in the termination of this Agreement. For specific limitations please see the
description of the service plan selected on
Your Broadband Services Application.
7.5. No Unauthorized Use of
Millry Communications Equipment or Software. You are strictly prohibited from altering,
modifying, or tampering with the Our Equipment, Software or Service or
permitting any other person to do the same without Our authorization. You may
not copy, distribute, sublicense, decompile or reverse engineer any of the
Software.
OTHER
8. Use and Control of
Information; Service Provider Communication; Ads. We may, without obligation, liability or notice, except to
the extent prohibited by applicable law, distribute, loan, sell or otherwise
share with other persons or entities user lists, (Your account information that
does not identify customer by name, address or similar personally-identifiable
information), as well as aggregate information.
Aggregate information includes information constituting or descriptive
of demographic information, habits, usage patterns, preferences, survey data or
other descriptive or related data which do not rely on providing to recipients
the identity of any particular user of the Service. This shall not be construed to limit Our use
of other information not addressed in this Section. You agree that We, in Our reasonable good
faith discretion, and without notice, to provide Subscriber and user
information and records to (i) the courts, (ii) law enforcement agencies, (iii)
government agencies, or (iv) authorized persons or entities involved in
enforcing compliance with the law or prosecuting claims or investigations for
conduct or conditions alleged or believed to be illegal or to violate or threaten
the rights of any person or entity. In
addition, We may maintain and use internally such information and records. Information generated by or in connection
with our administration of the Service shall be and remain Our exclusive
property. You acknowledge that
communications with Us, our representatives and our contractors may be
monitored or reviewed for quality control and other reasonable business
purposes. You also acknowledge that
advertising and promotion may occur on the Service and also that neither You
nor any user shall have any claim with respect to any proceeds from such
activities. Millry Telephone Company, Inc.’s Customer Proprietary Network
Information (“CPNI”) policy can be found at www.millry.net/cpni.htm.
9. Limited
Warranty; Disclaimer of Warranties; Limitation on Damages. THE SERVICES AND EQUIPMENT
ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS WITHOUT WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE,
NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. BROADBAND SPEEDS,
VIDEO AND TELECOMMUNICATION TRANSMISSION QUALITY, AND ACCURACY OF ANY DIRECTORY
LISTINGS OR INFORMATION ARE NOT GUARANTEED.
NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY OUR EMPLOYEES, AGENTS
OR CONTRACTORS SHALL CREATE A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH
INFORMATION OR ADVICE. WE MAKE NO
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, CONTENT,
ACCURACY OR VALIDITY OF THE INFORMATION, VIDEO AND/OR DATA RESIDING ON OR
PASSING THROUGH AND/OR OVER THE NETWORK.
WITH RESPECT TO CLAIMS ARISING OUT OF
PROVISION OF THE SERVICES SET OUT IN THIS AGREEMENT, OUR LIABILITY OF AND THAT OF OUR EMPLOYEES, AFFILIATES,
SUBSIDIARIES, ASSIGNEES, OR AGENTS, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE
GREATER OF TOTAL CHARGES APPLICABLE TO THE SERVICE FOR ONE YEAR OR THE THEN
CURRENT TERM OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL WE OR OUR EMPLOYEES, AFFILIATES, SUBSIDIARIES,
ASSIGNEES, OR AGENTS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
OR SPECIAL DAMAGES, NOTWITHSTANDING THEIR FORESEEABILITY OR DISCLOSURE BY YOU
TO US, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM DELAY, LOSS OF DATA,
PROFITS, OR GOODWILL. SHOULD WE PROVIDE ADVICE, MAKE RECOMMENDATIONS, OR SUPPLY
OTHER ANALYSIS RELATED TO THE SERVICES, THIS LIMITATION OF LIABILITY SHALL
APPLY TO PROVISION OF SUCH WORK. WITHOUT LIMITING THE FOREGOING, YOU
SPECIFICALLY AGREE THAT WE SHALL NOT BE LIABLE FOR ANY ACCIDENT OR INJURY
CAUSED BY THE SERVICES. YOU ACKNOWLEDGE
THAT THE PRICING OF SERVICES UNDER THIS AGREEMENT REFLECTS THE INTENT OF THE
PARTIES TO LIMIT OUR LIABILITY AS PROVIDED HEREIN.
UNLESS
OTHERWISE PROVIDED IN THE SERVICE ORDER OR PRICE LIST, IF THERE IS AN
INTERRUPTION OR FAILURE OF SERVICES IN EXCESS OF TWO (2) HOURS, CAUSED SOLELY
BY US AND NOT BY YOU, A THIRD PARTY, OR OTHER CAUSES BEYOND OUR REASONABLE
CONTROL, YOU MAY BE ENTITLED TO A SERVICE CREDIT, THE AMOUNT OF WHICH SHALL
ACCRUE FROM THE TIME THAT WE ARE NOTIFIED OF AN INTERRUPTION OR FAILURE OF
SERVICES UNTIL WE HAVE RESTORED YOUR SERVICES OR OTHERWISE REMEDIED THE
REPORTED PROBLEM. SUCH CREDIT SHALL BE
CALCULATED AS ONE SEVEN-HUNDRED-AND-TWENTIETH (1/720) OF THE APPLICABLE FIXED
MONTHLY CHARGES FOR EACH HOUR THEREOF.
YOU SHALL FORFEIT ANY ENTITLEMENT TO SUCH CREDIT IF YOU EITHER DENY US,
OR FAIL TO PROVIDE US WITH, LAWFUL ACCESS TO ANY PART OF YOUR PREMISES TO WHICH
ACCESS IS NECESSARY IN ORDER TO REPAIR THE PROBLEM. NOTWITHSTANDING THE PROVISIONS CONTAINED
WITHIN THIS SECTION, WE SHALL NOT BE LIABLE FOR ANY REFUND IF THE INTERRUPTION
OR FAILURE OF SERVICES IS CAUSED BY ANY OF THE EVENTS DESCRIBED OR REFERRED TO
IN SECTION 15 BELOW OR IF THE INTERRUPTION OR FAILURE OF SERVICES IS CAUSED BY
ANY MAINTENANCE, SERVICE REARRANGEMENT, OR CHANGE TO YOUR ORDER OR SERVICES
WHICH WAS SCHEDULED OR NEGOTIATED PRIOR TO THE INTERRUPTION OR FAILURE OF SUCH
SERVICES.
THIS SECTION 9 SURVIVES AND
WILL CONTINUE TO APPLY AFTER THIS AGREEMENT ENDS.
10. Dispute Resolution. The Alabama Public
Service Commission (“APSC”) has jurisdiction over the following complaints
arising from Alabama intrastate residential telecommunications (telephone)
services: inaccurate billing, billing of telecommunications services not ordered
on your behalf and the establishment or disruption of telecommunications service.
You may contact the APSC to file a complaint through its web page at http://www.psc.state.al.us
or by telephone
at 1-800-392-8050.
IT IS IMPORTANT THAT YOU READ THIS
PARAGRAPH CAREFULLY. IT PROVIDES FOR RESOLUTION OF DISPUTES (WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD,
MISREPRESENTATION OR ANY OTHER LEGAL OR EQUITABLE THEORY), THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR INSTEAD
OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. ALL DISPUTES ARISING OUT OF OR RELATING TO THIS
AGREEMENT (OTHER THAN ACTIONS FOR THE COLLECTION OF DEBTS YOU OWE US),
INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BASED ON ANY SERVICE OR ADVERTISING OF THE
SERVICE RELATED THERETO, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION,
WHICH SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”), 9 U.S.C.
§1-16. ANY QUESTION REGARDING WHETHER A
PARTICULAR CONTROVERSY, OR THE PROCEDURES THEREIN, IS SUBJECT TO ARBITRATION
SHALL BE DECIDED BY THE ARBITRATOR. YOU HAVE THE RIGHT TO BE REPRESENTED BY
COUNSEL IN THE ARBITRATION. THE ARBITRATOR SHALL BE BOUND BY AND STRICTLY ENFORCE
THE TERMS OF THIS AGREEMENT AND MAY NOT LIMIT, EXPAND OR OTHERWISE MODIFY THE
TERMS OF THIS AGREEMENT IN CONDUCTING THE ARBITRATION AND MAKING ANY
AWARD. THE ARBITRATION WILL BE BASED
SOLELY ON THE WRITTEN SUBMISSIONS OF THE PARTIES AND THE DOCUMENTS SUBMITTED
RELATING TO THE DISPUTE, UNLESS EITHER PARTY REQUESTS THAT THE ARBITRATION BE
CONDUCTED USING THE AAA’S TELEPHONIC, ON-LINE, OR IN-PERSON PROCEDURES, FOR
WHICH ADDITIONAL CHARGES MAY APPLY. ANY
IN-PERSON ARBITRATION WILL BE CONDUCTED AT A LOCATION THAT THE AAA SELECTS IN
THE STATE OF YOUR PRIMARY RESIDENCE. ARBITRATIONS UNDER THIS AGREEMENT SHALL BE
KEPT CONFIDENTIAL TO THE EXTENT PERMITTED BY LAW.
THE ARBITRATION OF ANY
DISPUTE UNDER THIS AGREEMENT SHALL BE CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL
OR CONSUMER, AS APPLICABLE, ARBITRATION RULES AND FEE SCHEDULE OF THE AAA, AS MODIFIED BY THIS
AGREEMENT. THE APPLICABLE AAA RULES SHALL BE THOSE RULES WHICH GOVERN THE
AMOUNT AND TYPE OF DISPUTE INVOLVED AND WHICH ARE IN EFFECT ON THE DATE A
DISPUTE IS SUBMITTED TO THE AAA. A COPY OF THE AAA’S ARBITRATION RULES IS
AVAILABLE BY WRITING TO US AT P.O. BOX 45, MILLRY, ALABAMA 36558.
DISPUTES UNDER THIS AGREEMENT MAY NOT BE JOINED WITH ANOTHER
PROCEEDING, INCLUDING ANY INDIVIDUAL OR CLASS LAWSUIT. THE ARBITRATOR MAY NOT
AWARD, AND YOU AND WE WAIVE ANY CLAIMS FOR AWARDS FOR PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ATTORNEYS’ FEES OR ANY DAMAGES THAT ARE BARRED BY THIS AGREEMENT,
UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A RELEVANT STATUTE. ANY CLAIM
OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN
TWO YEARS (2) AFTER THE DATE THE BASIS FOR THE DISPUTE OR CLAIM FIRST ARISES, OR WITHIN SUCH OTHER
TIME PERIOD AS MAY BE PRESCRIBED BY RELEVANT STATUTE. BEFORE EITHER PARTY TAKES
A DISPUTE TO ARBITRATION, SUCH PARTY MUST FIRST ATTEMPT TO RESOLVE THE DISPUTE
BY CONTACTING THE OTHER PARTY. TO DO THIS YOU SHOULD CONTACT THE CUSTOMER
SERVICE NUMBER ON YOUR BILL, OR WRITE TO US AT THE ABOVE ADDRESS OR CONTACT US
THROUGH THE WEB AT WWW.MILLRY.NET. IF WE ARE NOT ABLE TO SATISFACTORILY RESOLVE
THE DISPUTE WITHIN SIXTY (60) CALENDAR
DAYS FROM THE DATE OF THE INITIAL NOTIFICATION OF THE DISPUTE, EITHER PARTY MAY
CONTACT THE AAA IN WRITING AT AAA SERVICE CENTER, 2200 CENTURY PARKWAY, SUITE
300,ATLANTA, GA 30345-3203 (TEL 404-325-0101; FAX:
404-325-8034)
AND REQUEST ARBITRATION.
THE AAA’S FILING FEE AND ADMINISTRATIVE EXPENSES FOR DOCUMENT
ARBITRATION WILL BE ALLOCATED ACCORDING TO THE RULES OF THE AAA, EXCEPT, AS
STATED HEREIN, FOR CLAIMS OF LESS THAN $10,000, MILLRY COMMUNICATIONS WILL PAY
ALL OF THE AAA’S COSTS AND FEES OTHER THAN A FILING FEE OF $20, WHICH YOU MUST
PAY. FOR CLAIMS BETWEEN $10,000 AND $75,000, WE WILL PAY ALL OF THE AAA’S COSTS
AND FEES, EXCEPT THAT YOU WILL PAY A FEE TO THE AAA OF NO MORE THAN $375. IF
YOU ELECT AN ARBITRATION PROCESS OTHER THAN A DOCUMENT (“DESK”) OR TELEPHONE
ARBITRATION, YOU MUST PAY YOUR ALLOCATED SHARE OF ANY HIGHER ADMINISTRATIVE
FEES AND COSTS FOR THE PROCESS YOU SELECT.
ADDITIONAL INFORMATION ABOUT THE AAA’S RULES AND POLICIES
IS AVAILABLE AT THE AAA’S WEBSITE, WWW.ADR.ORG,
INCLUDING INFORMATION REGARDING THE AVAILABILITY OF A PRO BONO ARBITRATOR
AND/OR A WAIVER OR DEFERMENT OF FEES AND EXPENSES FROM THE AAA. SUBJECT TO
APPLICABLE SUBSTANTIVE LAW THAT MAY PROVIDE OTHERWISE, EACH PARTY WILL PAY
ITS OWN EXPENSES TO PARTICIPATE IN THE ARBITRATION, INCLUDING ATTORNEYS’ FEES
AND EXPENSES RELATED TO THE PRESENTATION OF EVIDENCE, WITNESSES, AND DOCUMENT
PRODUCTION. IF YOU PREVAIL IN THE ARBITRATION, YOUR ARBITRATION FILING FEE
WILL BE REIMBURSED BY US. IF WE PREVAIL
IN THE ARBITRATION, AND WE SHOW THAT YOU ACTED IN BAD FAITH IN BRINGING YOUR
CLAIM AGAINST US, THEN WE MAY SEEK TO RECOVER THE AAA’S FEES AND REASONABLE
EXPENSES OF THE ARBITRATION FROM YOU. IF
ANY PROVISION OF THIS DISPUTE RESOLUTION SECTION IS DETERMINED TO BE UNENFORCEABLE,
THEN THE REMAINDER SHALL BE GIVEN FULL FORCE AND EFFECT.
THIS SECTION 10 SHALL NOT APPLY TO ACTIONS FOR THE
COLLECTION OF DEBTS YOU OWE US.
11. Indemnification. You shall indemnify and
hold US harmless from and against any and all claims, losses, damages,
liabilities, fees and expenses incurred by Us (including attorneys’ fees and
expenses) or You resulting from, arising out of, or connected with any breach
or violation by You of any terms and conditions set forth in this Agreement and
Your use of the Service in any manner whatsoever.
12. Notices; Facsimile Signatures. All notices required by this Agreement may be made by any
reasonable means, including, but not limited to, email or publication over the
Service. The delivery of any party to
the other of a telecopy or facsimile signature to the Service Application, this
Agreement or any notice hereunder shall have the same effect as the delivery of
an original signature; provided however, that the party thereafter shall
promptly deliver an original signature page to the other (although any failure
or delay in the delivery of an original signature shall not vitiate or impair
the legally binding effect of a telecopy of facsimile signature).
13. Binding Effect. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the parties and
their successors and permitted assigns of You; provided, however, that neither
the equipment nor this Agreement nor any of the rights, interests or
obligations of You hereunder or to the equipment may be transferred, assigned
or delegated without Our prior written consent.