Terms and Conditions of Service Agreement
This Terms and Conditions of Service Agreement (“Agreement”) is by and between Luminate Fiber LLC (“Luminate”), a Colorado limited liability company and the undersigned customer (“Customer”) and replaces any and all prior agreements between the parties for Services as provided herein.
WHEREAS, Luminate is a provider of a broad range of telecommunications and related services (“Services”) and Customer desires to purchase certain of these Services from Luminate, and Luminate is willing to provide the Services to Customer pursuant to this Agreement, any applicable Attachments (“Attachments”), and the Terms of Service (defined below).
1. SCOPE
The provision of any and all Services provided by Luminate to Customer shall be subject to Customer’s compliance with the terms and conditions of this Agreement, the Terms of Service, and all Attachments to this Agreement, each Attachment is incorporated herein by reference as though fully set forth herein (Agreement, Attachments, and Terms of Service collectively referred to herein as “Terms and Conditions”). As used herein, “Terms of Service” shall mean Luminate’s Acceptable use Policy (“Acceptable Use Policy set forth at www.luminatebroadband.com, Luminate’s Rate Schedule set forth at www.luminatebroadband.com (“Rate Schedule”), and all other applicable Luminate policies, rules, rates, price schedules, and documents, each as amended from time to time by Luminate in Luminate’s sole and absolute discretion, and incorporated herein by reference with the same force and effect as though fully set forth herein. Customer agrees to be bound by the Terms and Conditions and acknowledges that the Terms and Conditions may change from time to time and remain contractually binding. Customer’s use of the Services shall be deemed shall be deemed acknowledgement that Customer has read and agree to the Terms and Conditions. If Customer is an existing Luminate Customer, this Agreement shall supersede any and all prior telecommunications agreements and/or general services agreements. Furthermore, any and all Services currently provided pursuant to any attachments or addenda are hereby subject to the Terms and Conditions.
2. SERVICES
Customer hereby agrees to purchase from Luminate and Luminate agrees to provide to Customer Services as outlined in the Terms and Conditions. Luminate shall supply to Customer Services described in this Agreement and any applicable Attachment. Additional Services requested by Customer shall be requested via a new service order (“Service Order”). Luminate reserves the right to reject any Service Order.
3. TERM AND TERMINATION
The term of the Agreement and all included Attachments shall commence and be effective upon the earlier of the date of last execution hereof or initial installation or activation of any Service and shall continue in full force and effect on a month to month basis unless earlier terminated in accordance with the terms and provisions of the Agreement. Residential Customers may terminate the Agreement on thirty (30) days’ written notice to Luminate. Luminate may terminate the Agreement at any time upon written notice to Customer. Customer shall pay to Luminate all sums then due and unpaid at the time of termination to include the remainder of the contractual obligation.
4. RATES AND CHARGES
The rates and charges for the Services are set forth in this Agreement, together with any Attachments, including the Sales Sign-Up Sheet and the Rate Schedule, as applicable and as amended from time to time. With respect to any Service provided by Luminate to Customer for which a rate is not specified in the Rate Schedule, Luminate’s standard retail rates shall apply. Luminate reserves the right to edit or delete Services during the term hereof and to increase its rates, if notice is provided at least thirty (30) days prior to the effective date of the rate increase. Contractual rates set forth, agreed to and signed by both Luminate and Customer shall remain in effect for the duration of the contractual term. Contractual terms will automatically renew for 1 year, not to exceed 3 consecutive terms. In cases where Customer is subject to Tax Payer Bill or Rights (TABOR) this contract and all financial provisions are subject to appropriation as defined in TABOR as set forth in the Colorado Constitution.
5. OWNERSHIP OF EQUIPMENT-RISK OF LOSS
“Equipment” includes all equipment installed by Luminate in or on Customer premises including, without limitation, inside or outside optical network units (ONT) and wiring. This equipment and other Luminate property and facilities (“Equipment”) delivered to Customer and/or installed on the premises to receive the Service shall remain the sole and exclusive property of Luminate. Customer assumes the risk of loss, theft or damage to all Equipment at all times prior to the removal of the outside units by Luminate or return of the inside units by Customer. Customer agrees to pay any inside Equipment lease charges associated with the Service, if inside Equipment is chosen. Customer shall not alter, misuse, repair, or in any manner tamper with the Equipment or outlets or remove from the Equipment any markings or labels. Luminate will repair Equipment damage resulting from reasonable wear and tear or technical malfunction. Customer shall not remove Equipment from premises and use in another location. Upon termination of Service for any reason, Customer agrees to immediately return all inside Equipment in the operating condition as when received (reasonable wear and tear excepted) directly to Luminate within 5 days of the termination. In the event that the Equipment is destroyed, damaged, lost or stolen, or the inside unit is not returned to Luminate for any reason within 5 days of termination, including fire, flooding, storm or other incident beyond Customer’s control, Customer shall be liable to Luminate for the full replacement cost for any unreturned or damaged Equipment. Further, Customer understands and agrees that Luminate may charge the credit card on file at time of termination of Service for the cost for any unreturned or damaged Equipment, in accordance with applicable law.
6. TAXES AND SURCHARGES
In addition to the rates and charges for the Service(s), Customer shall be responsible for payment of all local, state and federal taxes, fees, and surcharges, however designated, imposed on or based upon the provision, sale, or use of the Services and any Equipment, excluding taxes based on Luminate’s net income. Customer shall be responsible for the payment of all surcharges in effect from time to time, including but not limited to USF, PICC, and payphone surcharges, as required or permitted by applicable law, regulation or rate and/or as specified on the Luminate website at www.luminatebroadband.com.
7. BILLING AND PAYMENT
Billing for any Service shall commence immediately following delivery of the Service to Customer’s service address(es). For recurring charges, Customer will receive a bill on or about the 1st of each month for that month’s usage-based Services (including pro-rata charges for new services added during the prior month) and in advance for the current month’s monthly charges. Non-recurring charges shall be billed in arrears. All bills are due fifteen (15) days after receipt, (“Due Date”), and payable upon receipt. If Customer’s bill is not paid by the next billing cycle date which is thirty (30) days after the initial invoice date listed on the bill, Customer shall pay Luminate , in addition to the amount of the bill, a monthly late charge amount equal to 1.5% of the unpaid balance due (or such lesser amount as is the maximum amount permitted under applicable law). Checks returned for nonsufficient funds will incur an additional fee of thirty-five dollars ($35.00). Customer must provide Luminate with written notice of any disputed charge(s) within thirty (30) days after the invoice date or shall be deemed to have waived its rights to dispute the charges. Customer shall pay the invoiced amount by the Due Date; provided that payment of an invoice shall not be deemed a waiver of Customer’s rights to later dispute an invoice within the time period established in this Section. The dispute notice shall set forth in writing in reasonable detail the information concerning the disputed charges and reasons for the dispute. Luminate and Customer shall attempt in good faith to promptly resolve any objection to the invoiced amount. If the dispute is subsequently resolved in favor of Customer, Luminate shall issue a credit on Customer’s subsequent invoice for the disputed amount. In the event Customer defaults in payment of account, Customer shall be responsible for Luminate’s reasonable costs of collection of accounts, including collection fees up to 50% of the amount due, and reasonable attorney fees. In the event Customer fails to pay any invoice when due or provide Luminate with a notice of dispute, Luminate shall notify Customer regarding its failure to pay such invoice. If after Luminate has provided such notice, Customer continues to fail to pay such invoice(s) within 5 days after such notice, Luminate may, in addition to any other rights and remedies available to Luminate, suspend service under this Agreement and/or any applicable Attachment until all outstanding invoice(s) are paid in full. In such case Luminate may also elect to terminate this Agreement and/or any applicable Attachment and shall be entitled to seek and exercise such rights and remedies that may otherwise be permitted hereunder or at law or in equity. Any applicable sales, use, commercial, or other similar taxes or license fees imposed with respect to Services provided by Luminate, as well as any other imposition by any governmental authority which has the effect of increasing Luminate’s cost of providing such Services, shall also be payable by Customer in addition to the other charges set forth in this Agreement or any applicable Attachment. No payment due under this Agreement or any applicable Attachment is subject to reduction, set-off, or adjustment of any nature except as specifically provided herein.
8. DEPOSIT
Customer may be required to pay a deposit prior to the installation of Service or at any time during the term of this Agreement. Luminate reserves the right during the term of this Agreement to review Customer’s monthly bills and payment history and if deemed necessary, may require an initial deposit and/or increase in existing deposit. Such deposit will not be interest bearing and will be applied to the last month’s Service on the account. Once Service has been terminated, if the account is at a zero balance and all Equipment has been returned to Luminate in good working condition, said deposit will be returned to Customer.
9. CUSTOMER RESPONSIBILITIES
In addition to all other Customer responsibilities as set forth in the Agreement or any applicable Attachment, Customer shall be responsible for providing the following: (i) adequate electrical power (ii)broadband Internet connectivity; (iii) all equipment, software, facilities and/or Internet Protocol (“IP”) connectivity necessary to reach and interoperate with the Service and the Luminate network; (iv) all other equipment, software and other facilities to be installed, including without limitation, routers, IP enabled phones and/or an analog terminal adapters; and (v) access to Luminate’s Equipment on Customer’s premises for maintenance in a timely manner. As a condition of receiving services, Customer agrees to grant to Luminate authorization to enter premises to construct, install, maintain, inspect and/or replace all other Equipment necessary to provide Services. If Customer is not the owner of the premise, Customer warrants that he/she has authority to grant such access to Luminate or that he/she has obtained the consent from the owner and completed a Landlord Permission Form for Luminate to install and maintain Equipment as indicated on work order. Furthermore, if Customer the owner of the premises at which the Services are provided, Customer will, upon request, grant to Luminate a perpetual easement without charge on and through premises to construct, install, maintain, inspect and/or replace our outlets, transmission lines and all other Equipment necessary to provide Services to Customer and others. Customer understands and agrees that the obligation to supply Service shall not include an obligation to supply Interconnection Facilities. As used in this Agreement, the term “Interconnection Facilities” shall mean transmission capacity provided by Customer or its third-party supplier to extend facilities from a Luminate terminal to any other location as designated by Customer. Such Interconnection Facilities shall connect to the Services at the Network Interface points located at the Luminate terminals. Luminate shall not be obligated to provide to Customer or its third-party supplier any equipment, conduit, cable, or common area chase space to facilitate interconnection to the Interconnection Facilities. Any Interconnection Facilities installed by or on behalf of Customer shall be in accordance with Luminate specifications for local access and may not be resold or redistributed. Customer shall have no right to install equipment in any Service without the prior approval of Luminate, which may be withheld in Luminate’s sole and absolute discretion and, if permitted, shall be subject to the execution of Luminate’s Agreement and the payment of fees for occupancy. Customer is responsible for any damage to Luminate’s Equipment caused by Customer’s negligence. Customer shall pay for time and material resulting from problems which were caused by Customer or Customer’s equipment. Upon reasonable advance notice, Customer shall provide Luminate with access to Luminate’s Equipment for the purpose of removing the same. Any Luminate Equipment shall remain the property of Luminate and shall not become part of the real estate or Customer’s personal property.
10. USE OF SERVICES AND EQUIPMENT
(a) Luminate reserves the right to review usage of all its Services to ensure Customer is not abusing them. Customer agrees to use Services for normal voice or fax calls and will not employ methods or equipment to take advantage the Services by using the voice or fax services excessively or for means not intended by Luminate. Luminate may terminate Service immediately if it determines, in its sole discretion, Customer is abusing its plans. Luminate reserve the right to at any time enforce this policy. For subscribers where usage to high cost areas (for example such as calls to rural numbers, Alaska or Hawaii) exceeds 5% of total call traffic, or more than 5% of call volume lasts less than 10 seconds, such usage may be deemed excessive in the sole discretion of Luminate. For such usage, Customer agrees to pay a per minute or per page fee surcharge in excess of established levels at the current Luminate rate. This surcharge applies to all plans, including the unlimited plans. Alternatively, in the sole and absolute discretion of Luminate, Customer’s Service may be immediately terminated.
(b) Copyright; Trademark. The Service and Equipment and any firmware or software used to provide the Service, or provided to Customer in conjunction with providing the Service, or embedded in the Equipment, and all Service information, documents, and materials on Luminate’s websites are protected by trademark, copyright, or other intellectual property laws. All of Luminate’s websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain Luminate’s exclusive property. Nothing in this Agreement grants Customer the right or license to use any of Luminate’s marks.
(c) Unauthorized Usage of Equipment, Firmware, or Software. Luminate has not granted Customer any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Equipment, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. Customer expressly agrees that the Equipment is exclusively for use in connection with the Service and that Luminate will not provide any passwords, codes or other information or assistance that would enable Customer to use the Equipment for any other purpose. Luminate reserves the right to prohibit the use of any interface equipment that Luminate has not provided to Customer. Customer hereby represents and warrants that Customer possesses all required rights, including software and/or firmware licenses, to use any interface equipment that Luminate has not provided to Customer. In addition, Customer shall indemnify and hold Luminate harmless against any and all liability arising out of Customer’s use of such interface equipment with the Service. Customer shall not reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
(d) Tampering with Equipment or Service. Customer shall not change the electronic serial number or equipment identifier of the Equipment to perform a factory reset of the Equipment without Luminate’s prior written consent. Luminate reserves the right to disconnect Customer’s Service if Luminate believes, in its sole and absolute discretion, that Customer has tampered with the Equipment. In the event of such disconnection, Customer will remain responsible for the full charges to the end of the current term, including, without limitation, unbilled charges, all of which will immediately become due and payable. Customer shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
(e) Theft of Service. Customer shall not use the Service in a manner calculated to avoid Luminate policies and procedures. Customer shall not obtain or use the Service in an improper manner. Customer shall notify Luminate immediately, in writing or by calling Luminate’s customer support line, if the Equipment is stolen or if Customer becomes aware at any time that Customer’s Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. Until such time as Luminate receives notice of the theft, fraudulent use, or unauthorized use, Customer will be liable for all use of the Service using Equipment stolen from Customer and any and all stolen, fraudulent or unauthorized use of the Service.
11. PROHIBITED USES
(a) Unlawful. Customer shall use Service and Luminate Equipment only for lawful purposes.
(b) Inappropriate Conduct. Customer shall not use Service or Luminate equipment in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior.
(c) Unacceptable Use. Customer shall not use Service or Luminate Equipment in any way that violates Luminate’s Acceptable Use Policy, as amended from time to time by Luminate in Luminates’ sole and absolute discretion, which policy is set forth at www.luminatebroadband.com and is incorporated herein by reference with the same force and effect as though fully set forth herein.
Luminate reserves the right to immediately disconnect Customer’s Service without notice, if, in Luminate’s sole and absolute discretion, Luminate determines that Customer has used the Service or Luminate Equipment for a purpose prohibited by this section. In the event of such disconnection, Customer will be responsible for the full charges to the end of the current term, including, without limitation, unbilled charges, all of which will become immediately due and payable upon disconnection of Service. If Luminate believes that Customer has used the Service or the Luminate’s Equipment for an unlawful purpose, Luminate may forward the relevant communication and other information, including Customer identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to Luminate forwarding of any such communications and information to these authorities. In addition, Luminate will provide information in response to law enforcement requests, lawful government requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Customer or others.
12. WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) NO WARRANTIES ON SERVICE. LUMINATE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, LUMINATE DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER LUMINATE NOR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICE, EQUIPMENT, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO LUMINATE’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR EQUIPMENT OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF LUMINATE’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. LUMINATE AND ITS SUPPLIERS DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON LUMINATE ’S BEHALF AND THE CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF LUMINATE AND ITS SUPPLIERS
(b) NO HARDWARE WARRANTY. CUSTOMER ACKNOWLEDGES THAT LUMINATE IS NOT THE MANUFACTURER OF ANY HARDWARE OR EQUIPMENT AND THAT ALL HARDWARE AND EQUIPMENT IS BEING PROVIDED BY LUMINATE “AS IS” AND WITHOUT WARRANTY OR GUARANTY OF ANY KIND. CUSTOMER AGREES TO LOOK EXCLUSIVELY TO THE ORIGINAL EQUIPMENT MANUFACTURER OF SUCH HARDWARE AND EQUIPMENTS WITH RESPECT TO ANY WARRANTY OR OTHER CLAIMS RESPECTING SUCH HARDWARE AND EQUIPMENT.
(c) LIMITATION OF LIABILITY. LUMINATE SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OF SERVICE OR DEGRADATION OF QUALITY THAT IS CAUSED BY ANY OF THE FOLLOWING: (i) AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, LUMINATE OR OTHER THIRD PARTY; (ii) EQUIPMENT, NETWORK OR FACILITY FAILURE; (iii) EQUIPMENT, NETWORK OR FACILITY UPGRADE OR MODIFICATION (iv) FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO) ACTS OF GOD, ACTS OF NATURE, STRIKES, FIRE, WAR, RIOT, ACTS OF TERRORISM AND GOVERNMENT ACTIONS; (v) EQUIPMENT, NETWORK, OR FACILITY SHORTAGE; (vi) EQUIPMENT OR FACILITY RELOCATION; (vii) SERVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER; (viii) OUTAGE OF, OR BLOCKING OF PORTS OR OTHER IMPEDIMENT TO USAGE OF THE SERVICE CAUSED BY ANY THIRD PARTY; (ix) ANY ACT OR OMISSION BY CUSTOMER OR ANY PERSON USING THE SERVICE OR EQUIPMENT PROVIDED CUSTOMER; AND (x) ANY OTHER CAUSE THAT IS BEYOND LUMINATE’S CONTROL, INCLUDING, WITHOUT LIMITATION, A FAILURE OF OR DEFECT IN ANY EQUIPMENT, THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS INCLUDING, WITHOUT LIMITATION, 911 DIALING, TO BE CONNECTED OR COMPLETED, OR FORWARDED. LUMINATE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICE PROVIDED TO CUSTOMER (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE INSTALLATION, DELAY, PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR RESTORATION OF ANY SUCH SERVICE) OR BREACH OF THE AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE LIMITED TO A MAXIMUM OF A TOTAL AMOUNT OF ALL FEES PAID BY CUSTOMER TO LUMINATE IN THE MOST RECENT THREE MONTH PERIOD HEREUNDER. IN NO EVENT SHALL LUMINATE OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY OR ANY OF EITHER OF ITS AFFILIATES FOR ANY OUTAGE OR INCORRECT OR DEFECTIVE TRANSMISSIONS OR ANY DIRECT OR INDIRECT CONSEQUENCES THEREOF, INCURRED OR SUFFERED WHILE USING LUMINATE’S NETWORKS. THE PROVISIONS OF THIS SECTION CONSTITUTE AN ALLOCATION OF RISK BETWEEN THE PARTIES AND THE PRICE CHARGED CUSTOMER IS BASED ON SUCH ALLOCATION OF RISK. THE TERMS OF THIS SECTION SHALL SURVIVE THE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY OR THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. THIS SECTION SURVIVES TERMINATION OF THE AGREEMENT. TO THE EXTENT THAT SUCH TERMS CONFLICT, THE TERMS OF THIS SECTION CONTROL WITH RESPECT TO ANY OTHER TERMS AND CONDITIONS.
(d) DISCLAIMER OF LIABILITY FOR DAMAGES. IN NO EVENT WILL LUMINATE, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICE TO CUSTOMER IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT LUMINATE WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
(e) INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Luminate, its members, officers, directors, employees, affiliates, and agents and any other service provider who furnishes services to Customer in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party or user of the Service, relating to the Service, including, without limitation, 911 Dialing, or Luminate Equipment.
13. VOICE 911/E911 SERVICE LIMITATIONS AND LIMITATION OF LIABILITY.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT ACCESS TO LUMINATE PHONE SERVICE MAY BE LOST OR THE SERVICE MAY NOT FUNCTION PROPERLY, INCLUDING THE ABILITY TO CALL FOR 911/E911 SERVICE, UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING: (i) LUMINATE NETWORK OR FACILITIES ARE NOT OPERATING (ii) BROADBAND CONNECTION IS LOST; (iii) CUSTOMER IS EXPERIENCING A POWER OUTAGE; (iv) ELECTRICAL POWER TO THE OPTICAL NETWORK TERMINATOR (ONT) IS INTERRUPTED; (v) CUSTOMER FAILURE TO PROVIDE A PROPER SERVICE ADDRESS OR MOVING THE SERVICE TO A DIFFERENT ADDRESS. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT IN ORDER FOR 911/E911 CALLS TO BE PROPERLY DIRECTED, LUMINATE MUST HAVE CURRENT SERVICE ADDRESS AND IF SERVICE IS MOVED TO A DIFFERENT ADDRESS WITHOUT LUMINATE APPROVAL, 911/E911 CALLS MAY BE DIRECTED TO THE WRONG EMERGENCY AUTHORITY, MAY TRANSMIT THE INCORRECT LOCATION ADDRESS FOR RESPONDING, OR LUMINATE PHONE SERVICE (INCLUDING 911/E911) MAY FAIL ALTOGETHER. CUSTOMER MAY NOT CHANGE ADDRESS OF PHONE SERVICE WITHOUT THE PRIOR WRITTEN CONSENT OF LUMINATE. CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, LUMINATE SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED, DIRECTLY OR INDIRECTLY, BY CUSTOMER’S INABILITY TO ACCESS THE SERVICES, INCLUDING 911/E911 SERVICES. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS LUMINATE, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS AND ANY OTHERS WHO FURNISH SERVICES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMIATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THRID PARTY OR USER OF ACCOUNT RELATING TO THE ABSENCE, FAILURE OR OUTAGE OF SERVICE, INCLUDING 911 DIALING AND/OR INABILITY OF CUSTOMER OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVCIE TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL. CUSTOMER SHOULD INFORM ANY OF ITS CUSTOMERS, EMPLOYEES, GUESTS OR OTHER THIRD PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE CUSTOMER UTILIZES SERVICES OF THE LIMITATIONS OF LUMINATE 911 DIALING AS COMPARED WITH TRADITIONAL BASIC 911 OR E911.
14. INTERNET ACCESS SPEEDS
The internet access speeds quoted are the maximum rates by which downstream internet access data may be transferred between Luminate facilities and the network interface device at Customer premise. The maximum rate is not guaranteed and may vary. Actual internet speeds vary due to many factors. The actual speed may affect Customer on-line experience, including ability to view streaming video and speed of downloads. Except as otherwise provided by law, Luminate reserves the right to implement network management controls to optimize and ensure that adequate speed and data transfer is available to all internet service customers.
15. CPNI
Under federal law, Customer has the right, and Luminate has a duty, to protect the confidentiality of information about the amount, type, and destination of Customer’s service usage (“CPNI”). Customer hereby consents to the sharing of Customer’s CPNI or other personal information with Luminate and its affiliates, agents, members, and contractors, solely for the purpose of developing or bringing to Customer’s attention any products and services, or in the event of any merger, sale of some or all of the company assets or acquisition as well as in any insolvency, bankruptcy or receivership proceeding in which CPNI or other personal information would be transferred as one of the business assets of the company. This consent survives the termination of Customer’s Service and is valid until revoked by Customer. To remove this consent at any time, Customer must notify Luminate in writing at 2201 Elk River Road, Steamboat Springs, CO 80487. Attn: Customer Service and provide the following information: (1) Customer name, (2) Service billing address, (3) telephone number including area code, and (4) service account number. Removing consent will not affect the Customer’s current Service.
16. PRIVACY
Luminate’s Service utilizes, in whole or in part, the public Internet and third-party networks to transmit voice and other communications. Luminate is not liable for any lack of privacy, which may be experienced with regard to the Service.
17. MONITORING
Luminate reserves the right and Customer consents to Luminate, at any time, accessing, monitoring, using, and disclosing to Luminate’s third party service providers and their suppliers any of the following: bandwidth, usage, transmissions, content on the Service, and other data. Luminate need not proactively or routinely monitor a Customer’s use of the Service for violations, though it reserves the right to do so. If Luminate is alerted to violations or potential violations of these terms and conditions of use, Luminate may take whatever measures it deems necessary and appropriate to investigate, stop, and/or prevent those violations.
18. NOTICES
All notices and communications under the Terms and Conditions shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed. Notwithstanding the foregoing, any notices of breach shall be delivered in person or sent via certified mail, return receipt requested, addressed to the respective Party as set forth herein or to such other address as may be designated in writing by such Party.
19. MISCELLANEOUS
(a) The Terms and Conditions represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service.
(b) Luminate reserves the right to modify the Terms and Conditions, including this Agreement and any Attachments, upon thirty (30) days written notice to the Customer. Notwithstanding the foregoing, Luminate may modify the Terms of Service by posting modifications online at least thirty (30) days in advance of the effective date any modification at www.luminatebroadband.com. Customer’s continued use of the Service following notice of any modification shall be deemed to Customer’s acceptance of any such modification. If Customer does not agree to any modification of the Terms and Conditions, Customer must immediately cease using the Service and terminate this Agreement as provided herein.
(c) In case of any conflict between the provisions of this Agreement and any schedule (including any Attachments), the provisions of these this Agreement shall take precedence unless otherwise indicated in the signed Attachment.
(d) No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.
(e) If any provision of the Terms and Conditions shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render the Terms and Conditions unenforceable, but rather the Terms and Conditions shall be construed as if not containing the invalid or unenforceable provision.
(f) The Terms and Conditions shall be interpreted, construed and enforced in accordance with the laws of the State of Colorado, without regard to its conflict of laws principles. Each party consents to personal jurisdiction in the state and federal courts of the State of Colorado.
(g) The Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns, provided, however, that Customer shall not assign or transfer its rights or obligations under this Service Agreement without the prior written consent of Luminate.
(h) The provisions of this Agreement and/or any applicable Attachment that by their sense and context are intended to survive the termination or expiration of this Agreement or the applicable Attachment shall survive.
(i) The parties agree that, before signing this Agreement, each has had an opportunity (and is advised) to consult legal representation to assist it in interpreting and understanding the implications, duties, and potential liabilities that arise under this Agreement. Consequently, this Agreement shall not be construed more strongly as against one party versus the other.
ACKNOWLEDGED AND AGREED:
Name: _________________ ____
Address: _________________________
Signature: ________________ ____
Date: ___________
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