Service Agreement
PLEASE READ THIS AGREEMENT CAREFULLY AND COMPLETELY AS IT SETS FORTH SUBSCRIBER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO USE OF THE SERVICE.
THIS AGREEMENT ALSO LIMITS THE REMEDIES AVAILABLE TO SUBSCRIBERS IN THE EVENT OF A DISPUTE, INCLUDING AN ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES.
This Master Service Agreement (the “MSA” or “Service Agreement”) is an agreement between CBTR Services, LLC d/b/a Digital Passage (“Digital Passage,” “Company,” “Us,” “We,” or “Our”) for the purpose of establishing the terms and conditions under which Digital Passage will furnish wireless and fiber-based internet access services, IT support and/or maintenance services, Voice over Internet Protocol (“VoIP”) services , and/or additional services as identified herein (collectively, the “Services,” and individually, a “Service”). This MSA governs all individual and entity subscribers for Digital Passage’s Services (“You,” “Your” or “Subscriber”). (Digital Passage and Subscriber, are each a “Party” and, collectively, the “Parties. “Affiliate” means an entity that controls, is controlled by, or is under common control with Digital Passage). This Service Agreement outlines the terms and conditions under which Digital Passage is providing Services to Subscriber and the associated obligations of both Parties.
This Service Agreement governs standard Internet access Service (“Standard Internet Service”) and VoIP Service (“Standard VoIP Service”), collectively “Standard Services” for residential and business Subscribers. Premium dedicated Internet access service (“Premium DIA Service”), customized VoIP Services (“Premium VoIP Services”), and related Services that are customized for high-volume commercial, government, institutional, educational, business park, apartment complexes and other residential multiple dwelling unit Subscribers, collectively, “Premium Services,” are also governed by this Service Agreement.
By using the Services, Subscriber understands, acknowledges and agrees to be bound by the terms and conditions of this Service Agreement and all documents incorporated or referenced herein, as each may be amended from time to time, including without limitation Digital Passage’s Privacy Policy, Open Internet Transparency Statement (“OITS”), Customer Service Agreement (“CSA”) for Standard Services, Service Level Agreement (“SLA”) for Premium Services, and the DMCA Notice to Copyright Holders Regarding Alleged Infringement (“DMCA Notice”).
1. ELIGIBILITY AND OBLIGATIONS OF SUBSCRIBERS
1.1. SUBSCRIBER ELIGIBILITY AND USE OF THE SERVICES – Individual Subscribers represent and warrant that they are at least 18 years of age and have full legal authority to execute this Agreement. If a Subscriber is not an individual but is a corporate or organized entity, the individual representative executing this Agreement, represents and warrants that he/she has full legal authority to execute this Service Agreement on behalf of the Subscriber.
1.2. Subscriber understands, acknowledges and agrees that the Service is personal to Subscriber and agrees not to assign, transfer, resell or sublicense Subscriber’s rights under this Service Agreement unless specifically permitted by the terms of this Service Agreement.
1.3. For residential Subscribers, Subscriber understands, acknowledges, and agrees that the Services and the “Digital Passage Equipment” (as defined below) shall be used only by Subscriber and by members of Subscriber’s immediate household living with Subscriber at the same service address (unless designated otherwise in the CSA), and Subscriber will not redistribute or share the Services with any others or transmit the Services over a wireless or other network that is not secured.
1.4. For non-residential Subscribers, Subscriber agrees that the Services and the Digital Passage Equipment shall be used only by Subscriber and by authorized employees, patrons, contractors, representatives, vendors, and visitors of Subscriber located or operating at the same service address (unless designated otherwise in the CSA or SLA), and Subscriber will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured.
2. OTHER SUBSCRIBER OBLIGATIONS FOR USE OF THE SERVICES
2.1. Subscriber agrees that Subscriber is responsible for installing, establishing, setting up, verifying and maintaining the email address, account, options, settings and other parameters under which the Services are used, including, without limitation, all related passwords and user identification information. Subscriber understands, acknowledges and agrees that these account functions may be performed only by a person at least 18 years of age, without exception.
2.2. Subscribers represent and warrant that the personally identifiable information (“Personal Information”) Subscriber provides to Digital Passage during the term of this Service Agreement, including without limitation Subscriber’s legal name, email address, service address, billing address, telephone number(s), and payment data (including without limitation information provided when authorizing Automated Clearing House (“ACH”) payments or other recurring payments) and Non-Personal Information, such as, but not limited to, the number of computers on which the Service is being accessed (collectively, the “Subscriber Information”) for purpose of this Service Agreement is accurate, complete and current throughout the term of this Service Agreement.
2.3. Subscriber represents and warrants that when Subscriber transmits, uploads, posts, or submits any “Subscriber Material” (as defined herein) using the Services, Subscriber has the legal right to do so and that Subscriber’s use of such Subscriber Material does not violate any copyright or trademark laws or any other third party rights. Subscriber Material collectively includes without limitation any lawful or unlawful software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content – anything installed by Subscriber on Digital Passage’s servers or via the Digital Passage Network not provided by Digital Passage.
2.4. Subscriber shall be responsible for all access to and use of the Services through Subscriber’s account or password(s) and for any fees incurred for service, software or other merchandise purchased thereon or any other expenses incurred in accordance with the terms of this Service Agreement. Except for items that are the subject of a bona fide dispute that has been noticed to Digital Passage pursuant to Section 8.3.3 of this Service Agreement, Subscriber promises to timely pay such amounts billed for services, software or merchandise and any related fees, taxes and charges. Permitted users of Subscriber’s account are limited to those entities to which Subscriber provides access. Subscriber acknowledges that Subscriber is aware that areas accessible on or through the Digital Passage Service may contain material that is unsuitable for minors (persons under 18 years of age). Subscriber acknowledges sole responsibility to prevent minors from accessing unsuitable material through Subscriber’s account, including installation of filtering software. Digital Passage is not responsible for any content accessed by Subscriber or anyone who utilizes the Digital Passage Service.
2.5. Subscriber understands, acknowledges and agrees that prior to Digital Passage servicing any “Subscriber Equipment” or “Digital Passage Equipment” (as defined below), it is Subscriber’s responsibility to: (i) back-up the data, software, information or other files stored on Subscriber’s computer or other device including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (ii) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Subscriber’s equipment. Under no circumstances shall Digital Passage and/or its Operational Service Provider(s) be liable for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media.
3. INSTALLATION AND USE OF SUBSCRIBER EQUIPMENT
3.1. It is Subscriber’s responsibility, at Subscriber’s own expense, to obtain, maintain and operate suitable and fully compatible equipment to access the Services. Subscriber acknowledges that such equipment may have been acquired by Subscriber separate and apart from this Service Agreement (“Subscriber Equipment”). Subscriber is solely responsible for maintaining equipment that Subscriber has acquired. DIGITAL PASSAGE MAKES NO REPRESENTATION OR WARRANTIES PURSUANT TO THIS SERVICE AGREEMENT, EITHER EXPRESS OR IMPLIED, REGARDING SUCH SUBSCRIBER EQUIPMENT (ALTHOUGH SUBSCRIBER MAY HAVE LIMITED WARRANTIES UNDER A SEPARATE PURCHASE AGREEMENT FROM THE SELLER OR MANUFACTURER OF THE EQUIPMENT).
3.2. Please note that Subscriber authorizes Digital Passage to automatically check Subscriber’s premise equipment via the Internet and to provide upgrades via the Internet that will be automatically downloaded to Subscriber’s system. In addition, Digital Passage may check the health and status of Subscriber’s system, via the Internet, to ensure that the configuration of Subscriber Equipment is optimized for use with the Digital Passage Service.
4. INSTALLATION AND USE OF DIGITAL PASSAGE EQUIPMENT
4.1. Subscriber understands, acknowledges and agrees that at the time of installation of the Services, the equipment leased, owned and/or operated by Digital Passage (specifically, module, power injector, ethernet cable, antenna and mounting hardware), listed on the CSA or in the SLA (collectively, “Digital Passage Equipment”) was installed at a location and in a manner authorized by Subscriber. Subscriber further understands, acknowledges and agrees that the Digital Passage Equipment may, at Digital Passage’s sole discretion, be refurbished or otherwise used equipment. The Digital Passage Equipment is and shall remain the property of Digital Passage, and Subscriber shall acquire no ownership interest therein by virtue of the payments provided for herein or the attachment of any portion of the Digital Passage Equipment to the Subscriber’s premises or otherwise. Subscriber and Digital Passage expressly understand, acknowledge and agree that the Digital Passage Equipment is not and shall not be considered a fixture to Subscriber’s premises.
4.2. Subscriber understands, acknowledges and agrees that Digital Passage is not responsible for any malware, spyware, or other potentially harmful viruses or material transmitted via the Digital Passage Equipment and/or any software provided by Digital Passage or a third party vendor.
4.3. Subscriber further agrees to not alter, modify or tamper with the Digital Passage Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Digital Passage.
4.4. At such time as Subscriber or Digital Passage terminate the Service for any reason, Subscriber will return the Digital Passage Equipment to Digital Passage within fifteen (15) calendar days in the same condition it was received (ordinary wear and tear excepted), and in accordance with Digital Passage’s then-current return procedures. In the event that Subscriber has not returned the Digital Passage Equipment within fifteen (15) calendar days as set forth in the previous sentence, or in the event that the Digital Passage Equipment is damaged, destroyed, lost or stolen in Subscriber’s possession or otherwise inoperable, Subscriber shall be solely responsible for the cost of replacement or repair of any lost, stolen, damaged, sold, transferred, leased, encumbered or assigned Digital Passage Equipment or part thereof, together with any incidental costs incurred by Digital Passage relating to the replacement, repair or installation of Digital Passage Equipment, including storm damage or acts of God. Subscriber shall pay an “Equipment Replacement Fee” of up to one hundred fifty dollars ($450.00 U.S.) for each piece of Digital Passage Equipment that is damaged and/or not properly returned to Digital Passage upon termination or expiration of this Agreement for any reason. Any damage caused by lightning, wind, hail, falling debris (such as without limitation tree limbs, trees, and pine cones), sports or recreational balls, or any toy or material will be covered by the Subscriber’s property or other insurance or paid out of pocket by Subscriber.
4.5. Subscriber understands, acknowledges and agrees that Digital Passage or its designated Operational Service Provider (as defined below) may be required to access Subscriber’s premises or system in order to install and maintain the components necessary for Subscriber to access the Services. This may include opening Subscriber’s computer to install, repair or replace equipment or install software on Subscriber’s computer(s) at Your location and installing a VoIP compatible phone(s). By accepting this Service Agreement, scheduling a service or installation visit and permitting Digital Passage or its Operational Service Provider(s) to enter Subscriber’s home, business, or location, Subscriber hereby authorizes Digital Passage or its Operational Service Provider(s) to access Subscriber’s computer(s) for the purpose of installing, repairing or replacing the necessary components. By requesting a Digital Passage Service, any Subscriber that is not the owner of the property at which the Service is being installed (e.g., a tenant or lessee) agrees that Subscriber has obtained any necessary permission or clearance from the property owner for the installation. Subscriber shall bear all responsibility for any installation work for which the property owner’s permission has not been granted and for any associated damage to the property. Neither Digital Passage nor its Affiliates, Operational Service Provider(s) shall have any liability whatsoever for any losses resulting from installation, repair or other services, including, without limitation, damage to Subscriber’s premises or loss of software, data or other information from Subscriber’s computer(s). This limitation does not apply to any damage arising from the gross negligence or willful misconduct of any installation or maintenance service provider. Digital Passage installs ground wire as a matter of course because the ground wire can protect electronic equipment and the premises from damage caused by electrical storms and lightning. Timeframes for installation, if any, are not guaranteed and may vary depending on the types of Services requested and other factors. Subscriber further understands, acknowledges and agrees that Digital Passage owns all equipment installed and provided in connection with the Digital Passage Service (including any VoIP telephones).
4.6. Subscribers of any VoIP Service will pay a five dollar ($5.00 U.S.) one-time fee per number to transport (also called “port”) any telephone number from Your previous subscriber.
4.7. Subscriber agrees to notify Digital Passage at least fourteen (14) business days before Subscriber moves or vacates the location where Digital Passage Equipment is installed. Upon notification of a move or vacating a service location, Digital Passage will de-install Digital Passage Equipment located on the outside of Subscriber’s premises. Digital Passage will coordinate with Subscriber a time in which Digital Passage can retrieve any Digital Passage Equipment inside Subscriber’s premises.
4.8. Subscriber is considered the registered recipient of the Digital Passage Services until Digital Passage receives notice of termination as set forth in this Service Agreement, and Subscriber will be liable for any charges or fees incurred by the use of Subscriber’s Digital Passage Equipment by anyone else up to the time that Digital Passage receives Subscriber’s notice, unless otherwise provided by state law. If any Digital Passage Equipment is stolen or otherwise removed from Subscriber’s premises without Subscriber’s authorization, Subscriber must notify Digital Passage immediately, or Subscriber may be liable for payment for unauthorized use of Subscriber’s Digital Passage system. Subscriber will not be liable for such unauthorized use after Digital Passage has received Subscriber’s notification.
5. ACCESS TO SUBSCRIBER’S PREMISES
5.1. Subscriber agrees to provide Digital Passage and its agents with reasonable access to subscriber’s premises to install, configure, inspect, maintain, repair, upgrade, replace, and/or remove (collectively, “modify”) the Services. Subscriber authorizes any adult resident or guest at Subscriber’s residence to grant access to Subscriber’s premises for these purposes. Subscriber understands and agrees that Digital Passage may drill, cut, and otherwise alter improvements on the premises (including walls, flooring, and/or other surfaces) to modify the Services and may install equipment on the exterior and interior of the premises (including underground conduit and equipment affixed to the outside of the premises) at any reasonable location.
5.2. If Subscriber does not own the premises or Subscriber’s premises is part of a multi-dwelling unit, Subscriber represents and warrants that Subscriber has obtained permission from any necessary party, including, but not limited to, the owner, landlord, or building manager, to allow Digital Passage and its agents reasonable access to modify the Services, make alterations Digital Passage deems necessary for the modifications, and/or install equipment. Subscriber acknowledges that Subscriber may be asked to provide written evidence that all necessary permissions have been received.
5.3. Subscriber acknowledges that Digital Passage may use existing wiring located within or around Subscriber’s premises to provide the Services, including altering or removing wiring, accessories, and equipment. Subscriber represents and warrants that Subscriber owns or controls the wiring or has any necessary permissions to grant Digital Passage to use existing wiring. Digital Passage has no responsibility for the operation, support, maintenance, or repair of wiring in and around Subscriber’s premises, except as otherwise described to Subscriber in writing.
5.4. Without limiting any other provisions of this Service Agreement, Subscriber agrees to indemnify Digital Passage from and against all claims by an owner, landlord, building manager, or other party in connection with the modification or provision of the Services, alteration of the premises, installation of the equipment, access to the premises, or use of existing wiring.
6. MODIFICATIONS; RIGHTS OF TERMINATION OR SUSPENSION
6.1. MODIFICATION OF THIS SERVICE AGREEMENT; NOTICES – At any time following delivery of effective notice, published by Digital Passage via Subscriber’s designated email address, Digital Passage may modify this Service Agreement, including, without limitation, pricing and billing terms. Subscriber is required to ensure Digital Passage possesses a valid email address for Subscriber at all times for notice purposes. In the event Subscriber does not agree to such modifications, then Subscriber must terminate the subscription and stop using the Digital Passage Service prior to the effective date of such modifications, which will be stated clearly in the Company’s notice to Subscriber. Digital Passage will comply with applicable state and federal notice requirements and, in all cases, will provide a minimum of ten (10) calendar days’ notice of any modifications. Subscriber understands, acknowledges and agrees that Subscriber’s continued use of the Digital Passage Service after the effective date of such modifications constitutes Subscriber’s acceptance of same.
6.2. MODIFICATION OF THE DIGITAL PASSAGE SERVICE – Digital Passage may also discontinue, add to or revise any or all aspects of the Digital Passage Service, including access to support services, publications and any other products or services ancillary to the Digital Passage Service. Digital Passage may, among other things, (a) subject to Digital Passage’s Privacy Policy, make available to third parties information relating to Digital Passage or its subscribers, (b) withdraw, change, suspend or discontinue any functionality or feature of the Digital Passage Service, and (c) limit access to the Digital Passage Service to prevent abusive consumption and ensure fair access for all subscribers.
7. TERMINATION OF SERVICE AGREEMENT BY SUBSCRIBER
Termination provisions for any Premium Services are set forth in the Premium SLA. The following provisions apply only to the Standard Services:
7.1. Standard Services In the event that Digital Passage modifies this Service Agreement, Subscriber may immediately terminate Subscriber’s account and this Service Agreement, without liability for payment of any termination charges, by notifying Digital Passage via email at Contact Us within ten (10) calendar days of the date of the email notice (as provided in Section 5.1 herein) . Subject to Subscriber’s payment of the termination charges herein described, Subscriber may also do so at any other time, for any reason or for no reason, upon thirty (30) days’ notice to Digital Passage via email at Contact Us. Subscriber must terminate this Service Agreement in accordance with the terms and conditions specified herein. Failure to do so may delay or prevent Digital Passage from knowing that a termination was intended. Subscriber will continue to be liable under this Service Agreement for all fees and charges until such time as this Service Agreement has been properly terminated. In the event that Subscriber terminates Subscriber’s subscription to the Digital Passage Service prior to the expiration of the minimum commitment period specified in the CSA or SLA for the applicable service plan, Subscriber may be subject to an “Early Termination Fee” of four-hundred dollars ($400 U.S.) or the remaining contractual value (whichever is the lesser amount). The contractual value includes any activation or monthly fees, connect time charges, ISP service charges, minimum charges and other amounts charged to or incurred by Subscriber, or by users of Subscriber’s account, at the rates in effect at the time Subscriber cancels multiplied by the remaining months of the Subscriber’s term.
7.2. Premium Services “Early Termination Fee” of 50% of the contractual value. The contractual value includes any activation or monthly fees, connect time charges, ISP service charges, minimum charges and other amounts charged to or incurred by Subscriber, or by users of Subscriber’s account, at the rates in effect at the time Subscriber cancels multiplied by the number of months in the Subscriber’s term.
8. TERMINATION OR SUSPENSION OF SERVICE AGREEMENT BY DIGITAL PASSAGE
8.1. Subscriber understands, acknowledges and agrees that the Services and all Service features are subject to availability on an ongoing basis. Except as provided below or restricted by applicable state or federal law, Subscriber further understands acknowledges and agrees that Digital Passage may cease to offer the Service or any Service feature at any time, for any reason or no reason, and without advance notice to Subscriber.
8.2. Without limiting the generality of the foregoing, Digital Passage may also suspend, disconnect or terminate the Service if Digital Passage believes in its sole discretion that Subscriber has (i) failed to pay Subscriber’s invoice when due pursuant to Section 8.3; (ii) threatened or harassed or is reasonably believed to have threatened any Digital Passage employee, Operational Service Provider, agent, representative or vendor; or (iii) violated or is believed to have violated any other provision of this Service Agreement. Digital Passage will not suspend or disconnect service for a Subscriber on any Friday, Saturday, Sunday or legal holiday, on any day when Digital Passage’s offices are not open to the public, except where an emergency exists, or during the last two (2) hours of a business day. In the event a Subscriber's' account is suspended for any reason, charges to the account will continue to accrue during the suspension period.
8.3. In the event that Digital Passage either terminates or suspends Subscriber’s account or this Service Agreement for reasons other than the event of a dangerous condition or violation of this Service Agreement by the Subscriber or any user of Subscriber’s account, then Digital Passage shall provide Subscriber a minimum of fourteen (14) days’ notice, or other period of notice as required by any applicable state, federal or international statute, regulation, rule, policy or treaty (“Applicable Law”), of such termination or suspension. Except as prohibited by Applicable Law, Digital Passage may immediately and without prior notice, terminate Subscriber’s account and this Service Agreement in the event of a dangerous condition or a violation this Service Agreement by Subscriber or any user of Subscriber’s account.
9. FEES AND PAYMENT
9.1. FEES, TAXES AND OTHER CHARGES – Subscriber agrees to pay, in accordance with the provisions of the monthly rate plan Subscriber has selected and set forth in the CSA or SLA, any registration, activation or monthly fees, connect time charges, ISP service charges, minimum charges and other amounts charged to or incurred by Subscriber, or by users of Subscriber’s account, at the rates in effect for the billing period in which those amounts are charged or incurred. Subscriber agrees to pay all applicable taxes related to use of the Digital Passage Service by Subscriber or other users of Subscriber’s account. Information on charges and surcharges (if any) that are to be paid to Digital Passage and are incurred by Subscriber or by other users of Subscriber’s account will be made available to Subscriber on the Digital Passage website, and Subscriber agrees that this is sufficient notice for all purposes as to charges incurred, paid or to be paid to Digital Passage. Digital Passage reserves the right to increase fees, surcharges, monthly subscription fees or to institute new fees at any time following delivery of effective notice, as provided in Section 8.3.3 herein. Unless required by Applicable Law, Subscriber understands, acknowledges and agrees that Subscriber may not receive a paper bill in the mail for Subscriber’s Service; a digital or electronic bill will be sent. Additional terms relating to pricing, billing and payment, which are an integral part of this Service Agreement, are set forth in the CSA or SLA, and are incorporated herein by reference.
9.2. CONTINUED PAYMENT NOTWITHSTANDING TERMINATION OR SUSPENION – Notwithstanding any termination or suspension of this Service Agreement, any portion of Your account, or any suspension or termination of access to or use of the Services, Subscriber will remain responsible for any obligations accrued up to the date of such action(s), including payment of any charges that may be due as a result of or in connection with such action(s). Subscriber’s payment and other obligations under this Service 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 credibly alleged) of this Service Agreement or of any law or legal obligation, whether by Subscriber or any user of Subscriber’s account related to the Service.
9.3. PAYMENT
9.3.1. Payment for Digital Passage services will be made by the Subscriber in advance. Digital Passage services and billing will commence on the date the Subscriber submits its sign-up information to Digital Passage. Statements are issued on the first day of the month and reflect receipt by such date of any payments submitted by Subscriber and any amounts received on behalf of Subscriber as a result of Digital Passage’s submission of charges against Subscriber’s identified credit card or bank account, as applicable. Payment will be due on the twenty eigth day (28) of the month. If Subscriber’s entire amount of payment (except for amounts that are the subject of a validly submitted dispute) is not received by Digital Passage within seven (3) days following the due date, Digital Passage will assess, as a “Late Payment Fee,” of five dollars ($5.00 U.S.) or the maximum amount permitted by Applicable Law. Digital Passage may also assign unpaid late balances to a collection agency for appropriate action. Digital Passage will charge Subscriber a twenty-five dollar $25 (U.S.) “ACH/Insufficient Funds Fee” for any check or other instrument tendered to the Company by Subscriber and returned unpaid by a financial institution for any reason. Furthermore, following the due date, Digital Passage has the right to suspend or terminate Subscriber’s subscription to the Digital Passage Service if Digital Passage does not receive full payment of the amount due from Subscriber, or Digital Passage has not agreed to alternative payment arrangements for Subscriber.
9.3.2. Except where additional methods of payment are specifically required to be accepted under Applicable Law or as otherwise agreed to by Digital Passage from time to time, Subscriber understands, acknowledges and agrees that Subscriber will provide a major credit or charge card (e.g., MasterCard, Visa, or Discover) or ACH bank authorization that Digital Passage may charge for all fees or other amounts payable under this Service Agreement. Additionally, Subscriber agrees that Digital Passage may pre-charge Subscriber’s monthly fee to the credit or charge card or bank account supplied by Subscriber during activation or subscription or as subsequently updated. With respect to such charges, the following authorization applies: Subscriber authorizes automatic credit or charge card billing by Digital Passage. Subscriber agrees that the charges described above will be billed to the credit or charge card that Subscriber provided when Subscriber applied for the Digital Passage Service or as subsequently updated. Subscriber must provide current, complete and accurate information for Subscriber’s billing account. Subscriber must promptly update all information in order to keep Subscriber’s account current, complete and accurate (such as a change in email address, billing address, credit card number, expiration date, or security code). If Subscriber fails to provide Digital Passage with any of the foregoing information, Subscriber agrees that Digital Passage may continue billing Subscriber, using the most recently provided contact and billing information for any Service provided under Subscriber’s account, and Subscriber will be required to provide updated payment information and pay the applicable Late Payment Fees for any payments that become overdue as a result of unprocessed charges. Subscriber agrees that Digital Passage will not be responsible for any expenses that Subscriber may incur resulting from overdrawing Subscriber’s bank account or exceeding Subscriber’s credit limit as a result of an automatic charge made under this Service Agreement.
9.3.3. Subscriber understands, acknowledges, and agrees that all charges are considered valid unless disputed in writing via Contact Us, as provided in Section 2.4 herein, within thirty (30) days of the date of Subscriber’s credit or charge card bill, unless a longer period of time is required by Applicable Law. If Subscriber thinks a charge is incorrect or Subscriber needs more information, Subscriber must contact Digital Passage’s billing department. Digital Passage will email Subscriber a statement for each billing cycle showing payments, credit purchases and other charges. Digital Passage’s 30 Day Money Back Guarantee for customers that are not satisfied with the performance of their subscription(s) service(s) will have 30 calendar days from the date of activation to notify Digital Passage for a de-installation appointment and return of equipment. Refunds – Once Digital Passage completes the de-installation and removal of equipment, we will notify the subscriber regarding the status of the refund. Digital Passage will initiate a refund to the subscriber’s credit card (or original method of payment). You will receive the credit within 30 days, depending on your card issuer’s policies. The refund consists of full credit of billed subscription services exclusively and does not include credits for one-time installation costs. If we are unable to gain access to the installed address and equipment, shipping of the premise equipment will become the subscriber’s responsibility. Subscriber will be responsible for paying all shipping costs for returning the premise equipment. Shipping costs are nonrefundable. If the subscriber receives a refund, the cost of return shipping will be deducted from the subscriber’s refund. To initiate this refund process subscriber may contact Digital Passage at (940)-549-0339, email billing at Contact Us.
9.3.4. Digital Passage may, but is not required to, accept partial payments from Subscriber. If partial payments are made, they will be applied to monthly statements starting with the oldest outstanding statement. If Subscriber sends Digital Passage checks or money orders marked “payment in full,” or otherwise labeled with restrictive endorsements, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT DIGITAL PASSAGE CAN, BUT IS NOT REQUIRED TO ACCEPT A CHECK, MONEY ORDER OR ANY SUCH RESTRICTIVE ENDORSEMENT AND THAT UNDER NO CIRCUMSTANCES WILL ACCEPTANCE OF SUCH PAYMENT INSTRUMENTS BY DIGITAL PASSAGE CAUSE THE COMPANY TO LOSE OR WAIVE ITS RIGHTS TO COLLECT ALL AMOUNTS OWED BY SUBSCRIBER UNDER THIS SERVICE AGREEMENT.
9.3.5. In the case of late payment or non-payment for any of the Digital Passage Services ordered by Subscriber or any of the charges stated herein, Subscriber understands and agrees that Digital Passage may report such late payment or non-payment to the appropriate credit reporting agencies. If Digital Passage chooses to use a collection agency or attorney to collect money that Subscriber owes Digital Passage, or to assert any other right which Digital Passage may have against Subscriber, Subscriber agrees to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable attorney’s fees and court costs, insofar as permitted by applicable law.
9.3.6. If Subscriber’s Services are suspended or terminated for any reason, including at Subscriber’s request or because of Subscriber’s failure to pay past due amounts, then in order to reactivate the service, Subscriber agrees to pay a “Reconnection Fee” in accordance with Digital Passage’s then-current rates. In addition, Subscriber must bring Subscriber’s account up to date by making payment in full of any outstanding balance, fees and charges. Subscriber will also be required to pay the current monthly bill in order to reactivate Subscriber’s account. No refunds of monthly payments will be made.
9.3.7. If the Digital Passage Equipment is missing, has been disconnected or needs to be replaced, Subscriber agrees to pay an additional “Equipment Re-installation Fee” in accordance with Digital Passage’s then-current rates.
10. SOFTWARE LICENSE
10.1. Subject to the terms of this Service Agreement, Digital Passage grants to Subscriber a personal, non-exclusive, non-assignable, non-transferable and revocable license to use and display the software provided by or on behalf of Digital Passage (“Software”) only for purposes of accessing the Services on any machine(s) on which Subscriber is the primary user or which Subscriber authorizes for use by others. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Digital Passage or its third party licensors/Operational Service Providers. Unauthorized copying of the Software, including software that has been modified, merged or included with the Software, or the written materials associated therewith is expressly forbidden. Subscriber may not sublicense, assign or transfer this license or the Software, except as permitted by Digital Passage. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void.
10.2. Subscriber may not copy, de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party, or allow, encourage or solicit others to do the same. Subscriber may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Subscriber is not granted any title or rights of ownership in the Software. Subscriber acknowledges that this license is not a sale of intellectual property and that Digital Passage or its third party licensors/Operational Service Providers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
11. ACCEPTABLE USE POLICY
General Policy: The Services and Digital Passage Equipment may not be used for any unlawful, fraudulent, harassing, threatening, libelous, deceptive, or abusive purpose, or use that is invasive of another’s privacy or other rights, or otherwise objectionable in Digital Passage’s sole discretion. By requesting the Services, You understand, acknowledge and agree that You will not use, or allow, encourage, or solicit others to use the Services and Digital Passage Equipment in any manner that prohibited by any policy applicable to the Services or this Service Agreement. Digital Passage reserves the right, without notice or limitation, to restrict, limit, deny, terminate, modify, disconnect, or suspend Service if any individual uses the Services for any unlawful or prohibited purpose, or if Digital Passage determines, on a case-by-case basis, that action is necessary to protect Digital Passage, the Digital Passage Network, Digital Passage Equipment, Services, or other subscribers using the Services from liability, harm, or degradation resulting from such unlawful and/or prohibited uses. Digital Passage reserves the right to filter, restrict, block or remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be in violation of any policy applicable to the Services or this Service Agreement, regardless of whether the information or materials, or their dissemination, is unlawful. Digital Passage does not have any obligation to monitor transmissions or postings (including, but not limited to, email, file transfer, blog, newsgroup and instant message transmissions) made on the Services. You acknowledge, understand and agree that Digital Passage has the right, however, to monitor transmissions and postings for unlawful and prohibited uses of the Service.
11.1. PERMITTED USES – Standardized Services for residential Subscribers are for personal, non-commercial uses only, unless otherwise specifically authorized by Digital Passage in writing. Such personal uses include web surfing, sending and receiving email, photographs and other similar messaging activities and the non-continuous streaming of videos, downloading files or online gaming. Residential Standard VoIP Service is provided only for live dialogue between, and initiated by, individuals for personal use. Permitted uses for Business Subscribers of Standard Services are much broader and include commercial use by employees, visitors, patrons, Operational Service Providers, contractors and vendors.
Please see the customized SLA for permitted uses of Subscribers of Premium Services.
11.2. UNLAWFUL AND PROHIBITED USES – Unlawful and prohibited uses of the Services include, but are not limited to:
11.2.1. Transmitting or facilitating any unsolicited or unauthorized advertising, telemarketing, promotional materials, “junk mail,” unsolicited commercial or bulk email, or faxes not in compliance with the federal CAN-SPAM Act.
11.2.2. Transmission of recorded material or broadcast transmissions.
11.2.3. Using voice services for monitoring services, operating a call center or conference line, extensive call forwarding, autodialed calls or other connections that do not consist of uninterrupted live dialogue between individuals.
11.2.4. Reselling, redistributing, re-provisioning, retransmitting, renting or otherwise allowing third parties, other than household residents and guests, to use the Services, in whole or in part, by wired, wireless or other means, regardless of whether a fee is charged.
11.2.5. Accessing, altering or destroying any other person or entity’s computer or computer system, network, software or data without their knowledge and consent; breaching, circumventing or probing user authentication or security of any user, host, network, network element, account or system; or attempting any of the foregoing.
11.2.6. Impersonating any person or entity, creating a false identity, or otherwise misrepresenting Your identity or affiliation with any person or entity.
11.2.7. Forging, falsifying, altering, removing, obscuring or engaging in unauthorized use of message headers, IP addresses, network MAC addresses, digital or manual signatures, sender addresses, domain names, uniform resource locators (“URLs”) or use of other techniques to disguise or obscure the origin of any communication or transmission using the Services, or attempting any of the foregoing.
11.2.8. Engaging in activities that adversely affect the ability of other people or entities to use or enjoy the Services or other parties’ Internet-based services, including, but not limited to “denial of service” (“DoS”) attacks against another network host or individual user, such as “flooding” of networks, deliberate attempts to overload a service and attempts to “crash” a host; intercepting, interfering with, redirecting or disrupting email or other transmissions sent by or to others by using automated or manual routines, such as “auto-responders,” cancel bots or other similar routines; using, distributing or making available viruses, worms or Trojan horses, or other harmful code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
11.2.9. Impairing the Service by, for example, placing abnormally high numbers of calls, sending or receiving very high numbers of messages, or repeatedly making calls of abnormally long duration compared with other Digital Passage Subscribers.
11.2.10. Generating excessive levels of Internet traffic given the type of Subscriber (residential or non-residential subscriber) and type of service (Standard or Premium Services) through continuous, unattended streaming, downloading or uploading of videos, music or other files; through continuous active network connections to the Internet (such as through a web camera or machine-to-machine connections that do not involve active participation by a person; or by operating hosting services including, but not limited to, web or game hosting).
11.2.11. Engaging in conduct, or the transmission, distribution or publication of material that is defamatory, libelous, harassing, threatening, abusive, indecent, obscene, deceptive, sexually explicit, cruel or racist, or which espouses, promotes or incites bigotry, hatred or racism, or which in any way constitutes or encourages conduct that would constitute a criminal offense or give rise to a civil liability.
11.2.12. Engaging in conduct that is fraudulent, including advancing any type of scam such as “pyramid schemes,” “Ponzi schemes,” “contests,” or “chain letters.”
11.2.13. Violating Applicable Law, terms of service or policies applicable to any network, server, computer database, service, software, application, system, or website that You access or use.
11.2.14. Using the Services to download, transmit, disseminate, or publish child pornography or solicit sex with minors.
11.2.15. Using or attempting to use the Services in any manner designed to avoid incurring charges or otherwise avoid being required to pay for such usage.
12. DIGITAL PASSAGE COPYRIGHT INFRINGEMENT & DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
General Policy: Digital Passage respects the intellectual property rights of others. You are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property, proprietary or publicity rights, or other right of any party unless You own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information that are made available through the Services. Digital Passage assumes no responsibility, and You assume all risks, regarding the determination of whether material is in the public domain or may otherwise be used by You for such purposes.
Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), Digital Passage’s policy is to terminate, in appropriate circumstances, the Service access of any Subscriber or account holder who is a repeat infringer. The Subscriber will be designated a repeat infringer if they have violated or has been alleged to have violated the General Policy in this Section 11 three (3) times over a period of six (6) months, or if the Subscriber has continued multiple offenses over a longer period of time.
“Three Strike” Enforcement Process: Digital Passage maintains a graduated “Three Strike” enforcement process for its Repeat Infringer Policy. If Subscriber is found in violation or is alleged to have violated the General Policy in this Section 11, Subscriber will be subject to the following:
(1) First Offense – An infringement case will be created, Subscriber will be notified of the complaint/offense via email and Subscriber will be forwarded copies of the DMCA takedown notice received by the Company and Digital Passage’s DMCA Notice.
(2) Second Offense – For a second offense, Subscriber will be issued the same notices as provided for a first offense. In addition, Subscriber will be notified of the complaint/offense via phone and will be required to acknowledge the complaint/ offense via phone within five (5) business days or alternatively, file a counter-notification under penalty of perjury as provided by the DMCA, or face suspension of service.
(3) Third Offense – Subscriber’s Digital Passage Service will be terminated without advance notice, unless the Subscriber files a counter-notification under penalty of perjury as provided by the DMCA.Any Subscriber communications in response to Company correspondence regarding alleged infringement, including, but not limited to, the notices described above in this Section 11, must be directed to:
Digital Passage DMCA Copyright Infringement/Abuse Agent
Digital Passage
PO Box 886
Graham, TX 76450
940-549-0339 or Contact Us
13. COMPLIANCE WITH APPLICABLE LAWS
Subscriber agrees to comply with all Applicable Laws in connection with the Services, Subscriber’s use of the Services and this Service Agreement. Digital Passage may suspend or terminate Subscriber’s Services, at its discretion, for any known, alleged, or reasonable belief there has been a violation of Applicable Law.
PART IV — GRANT OF IMPORTANT RIGHTS BY YOU TO DIGITAL PASSAGE, AND IMPORTANT DISCLAIMERS, ACKNOWLEDGMENTS AND OBLIGATIONS
14. COPYRIGHT AND LICENSES
14.1. Subscriber’s rights as granted in this Service Agreement are not transferable and, cannot be transferred, assigned, shared, sold, or used by anyone other than the Subscriber.
14.2. Digital Passage and/or Digital Passage’s third party content providers and licensors own all rights, title and interest to certain copyrighted content provided by or accessed through the Services (“Digital Passage Content”). Subscriber is hereby granted a revocable, non-exclusive, non-transferable license to access and use the Digital Passage Content as allowed under this Service Agreement. Subscriber may not copy, distribute, transmit or publish in any form, including print, electronic, digitized, audio or otherwise, or modify all or any portion of any Digital Passage Content without the prior written consent of Digital Passage. Notwithstanding the foregoing, Subscriber may store one (1) copy of the copyrighted content on Subscriber’s computer(s) for Subscriber’s personal use for a period not to exceed thirty (30) calendar days. All copyright or other proprietary rights notices contained in or associated with the Digital Passage Content must be preserved in or on any copies made of such material.
14.3. The placement of any proprietary material, including material owned by other third parties, in any public posting area, social media network, or any software library, without the consent of the owner/copyright holder, is in violation of this Service Agreement.
15. NO ENDORSEMENT
Digital Passage does not endorse or in any way vouch for the accuracy, completeness, truthfulness or reliability of any service, opinion, advice, communication, information or other content on or made available through the Digital Passage Services. None of such content should be construed or understood to constitute or reflect the views or approval of Digital Passage or any of its Affiliates. Digital Passage does not recommend that such content be relied on for reaching important decisions or conclusions without appropriate verification and, as appropriate, professional advice.
16. INTERNET CONTENT AND MATERIAL
Subscriber acknowledges that Internet websites, and use of the Internet, might consist of, include and/or provide access to images, sound, messages, text, services or other content and material that may be unsuitable for minors and that may be objectionable to many adults. Subscriber understands, acknowledges and agrees that Digital Passage is not responsible for any such content or material and further agrees that access to same through use of the Services is at Subscriber’s sole risk. THE RELIABILITY, AVAILABILITY, LEGALITY, PERFORMANCE AND OTHER ASPECTS OF RESOURCES ACCESSED THROUGH THE INTERNET ARE BEYOND DIGITAL PASSAGE’S REASONABLE CONTROL AND ARE NOT IN ANY WAY WARRANTED OR SUPPORTED BY DIGITAL PASSAGE ITS OPERATIONAL SERVICE PROVIDERS, OR ITS THIRD PARTY CONTRACTORS. Subscriber understands, acknowledges and agrees that safeguards relative to copyright, ownership, appropriateness, reliability, legality and integrity of content may be entirely lacking with respect to the Internet and content accessible through the Internet. Subscriber confirms that Subscriber assumes all risks and liability of any use of the Internet through Subscriber’s account, including Subscriber’s continuous compliance with this Service Agreement.
17. SUBSCRIBER INFORMATION
17.1. USE AND CONTROL OF SUBSCRIBER INFORMATION – By agreeing to this Service Agreement and continued use of the Services, You also agree to the terms of the Digital Passage Privacy Policy that describes the Subscriber Information Digital Passage collects, uses, discloses, and secures. The Privacy Policy may change from time to time so You should review it regularly.
17.2 Subject to Applicable Law, Digital Passage reserves the right to immediately delete without further notice to Subscriber all Subscriber Material, Subscriber Information and other data, files, electronic messages, or other information that is stored on Digital Passage’s servers or systems when Subscriber’s account with Digital Passage is terminated for any reason.
17.3. As Digital Passage provides telecommunications products and services to You, it obtains information about the quantity, technical configuration, type, location and destination of telecommunications products and services You use, as well as some other information found on Your bill. Any such “Subscriber Proprietary Network Information” (“CPNI”) collected from You will be handled in accordance with Applicable Laws, including those of the Federal Communications Commission (“FCC”), and the Privacy Policy. Under federal law, you have the right and Digital Passage has the duty to protect the confidentiality of Your CPNI.
17.4. Digital Passage automatically measures and monitors network performance and the performance of Subscriber’s Internet connection and the Digital Passage network. Digital Passage also will access and record information about Subscriber’s computer and Digital Passage Equipment’s profile and settings and the installation of software. Subscriber understands, acknowledges and agrees that Digital Passage is permitted access to Subscriber Equipment and to monitor, adjust and record such data, profiles and settings for the purpose of providing the Service(s). Subscriber also consents to Digital Passage’s monitoring of Subscriber’s Internet connection and network performance, and to Digital Passage accessing and adjusting Subscriber’s computer’s and other equipment’s settings, as they relate to the Service(s), software and other services, which we may offer from time to time. Digital Passage reserves the right to modify the password(s) for the router(s) used with the Service in order to safeguard Internet security, the security and privacy of Subscriber Personal Information and CPNI, where required by Applicable Law, and/or for other good cause to provide, upgrade and maintain the Services, protect the Digital Passage Network, other users of the Internet, or Our Subscribers. Digital Passage reserves the right to comply with law enforcement as described in the Digital Passage Privacy Policy and OITS.
17.5. Digital Passage may, from time to time, provide online, telefax, telephone, email, mail and other communications to Subscriber on matters pertaining to the Services. Subscriber understands, acknowledges and agrees that communications with Digital Passage, Digital Passage’s representatives and Operational Service Providers may be monitored or reviewed for quality control and other reasonable business purposes.
18. ADVERTISING
Subscriber acknowledges that advertising and promotion may occur on the Digital Passage Service and that neither Subscriber nor any other user shall have any claim with respect to any proceeds from such activities.
19. WARRANTIES AND LIABILITIES
19.1. DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY – Subscriber expressly understands, acknowledges, and agrees that use of the Services is at Subscriber’s sole risk. To the fullest extent allowed by Applicable Law, in no event shall Digital Passage, its Affiliates, Operational Service Providers, agents, contractors, licensors, or suppliers, or each of their respective shareholders, directors, officers, employees, agents, or representatives, and any of their successors and assigns (collectively, “Digital Passage Entities”) represent or warrant that the Digital Passage Services will be uninterrupted, secure or error free. The Services are provided and distributed on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or otherwise, except for those warranties, if any, which are expressly stated herein this Service Agreement, or implied by and incapable of exclusion, restriction or modification under the laws applicable to this Service Agreement. No oral advice or written information given by Digital Passage, its Operational Service Providers, employees, agents, and licensors, or the like, shall create a warranty, nor shall Subscriber rely on any such information or advice.
19.1.1. In particular, because Digital Passage, through the Services, may provide Subscriber with electronic access to Internet content and material that may be originated by independent publishers or providers, and is not augmented by Digital Passage, the Company cannot and does not warrant the accuracy of any such information, and Digital Passage shall not be liable in any manner whatsoever for any errors, omissions or inaccuracies relating thereto. Subscriber is solely responsible for Subscriber’s experience of and/or reliance upon such content. The Digital Passage Entities shall have no individual or joint liability in connection with Subscriber’s use or any user of Subscriber’s account, or interaction with any content accessed through the Services.
19.1.2. No oral or written information or advice given by Digital Passage or its employees, Operational Service Providers, agents, representatives and vendors, shall create any warranty in, or to, the Services or the content, and Subscriber remains responsible for any reliance upon such information or advice. Notwithstanding the foregoing, Subscriber may have other rights, which vary from state to state.
20. LIMITATION OF LIABILITY
20.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE DIGITAL PASSAGE ENTITIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUBSCRIBER’S USE OF THE DIGITAL PASSAGE SERVICES, OR INABILITY TO USE THE DIGITAL PASSAGE SERVICES, OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THIS SERVICE AGREEMENT. WITHOUT IN ANY WAY LIMITING THE FOREGOING, IF FOR ANY REASON, BY OPERATION OF LAW OR OTHERWISE, ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT DIGITAL PASSAGE’S MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY, AND THE LIABILITY OF ITS AFFILIATES, OPERATIONAL SERVICE PROVIDERS, AGENTS, REPRESENTATIVES, VENDORS OR EMPLOYEES, IF ANY, SHALL BE LIMITED TO GENERAL MONETARY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO DIGITAL PASSAGE BY SUBSCRIBER FOR THE SERVICES FURNISHED UNDER THIS SERVICE AGREEMENT DURING AND FOR A PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF SUCH ERROR, DEFECT OR FAILURE AND CEASING UPON THE DISCOVERY OF SAME, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHICH SUCH ERROR, DEFECT OR FAILURE IS FIRST DISCOVERED, IN WHOLE OR IN PART.
20.2. STATUTE OF LIMITATIONS: SUBSCRIBER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
20.3. SUBSCRIBER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT DIGITAL PASSAGE WILL HAVE NO LIABILITY FOR:
20.3.1. ANY THIRD-PARTY FEES OR CHARGES, INCLUDING WITHOUT LIMITATION, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES.
20.3.2. FOR ANY DAMAGE TO SUBSCRIBER PREMISES, SUBSCRIBER EQUIPMENT, SUBSCRIBER’S DATA OR SOFTWARE, OR SUBSCRIBER’S INABILITY TO ACCESS THE SERVICE(S) BY DIGITAL PASSAGE OR DIGITAL PASSAGE EQUIPMENT;
20.3.3. OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR DATA LOSSES;
20.3.4. FOR ANY USE OF THE SERVICE BY SUBSCRIBER OR USER OF SUBSCRIBER’S ACCOUNT IN CONNECTION WITH ANY HIGH-RISK, HARMFUL OR UNLAWFUL USE, OR ANY USE THAT VIOLATES THIS SERVICE AGREEMENT.
20.3.5. FOR ANY DAMAGES OR LOSS DUE TO SUBSCRIBER’S FAILURE TO BACK-UP ANY EQUIPMENT OR SUBSCRIBER MATERIAL AS REQUIRED HEREIN IN SECTION 2.5.
20.4. FULL APPLICABILITY – The foregoing exclusions or limitations of liability apply regardless of any allegation or finding that a remedy failed its essential purpose, regardless of the form of action or theory of liability (including, without limitation, negligence) and even if Digital Passage or others were advised or aware of the possibility or likelihood of such damages or liability.
21. INDEMNIFICATION
SUBSCRIBER AGREES TO DEFEND, INDEMNIFY AMD HOLD HARMLESS EACH OF THE DIGITAL PASSAGE ENTITIES AGAINST ANY AND ALL CLAIMS, ACTIONS, LIABILITY, JUDGMENTS, DAMAGES, GOVERNMENTAL INQUIRIES AND/OR INVESTIGATIONS, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR RELATED TO ANY AND ALL USE OF THE DIGITAL PASSAGE SERVICEIN ANY MANNER, WHETHER DIRECTLY OR INDIRECTLY. SUCH USE ALSO INCLUDES, WITHOUT LIMITATION, RESPONSIBILITY FOR ALL SUCH CONSEQUENCES OF SUBSCRIBER’S (OR THAT OF ANY USER OF SUBSCRIBER’S ACCOUNT) VIOLATION OF THIS SERVICE AGREEMENT AND ALL OTHER DOCUMENTS INCORPORATED HEREIN BY REFERENCE, OR PLACEMENT OF MATERIAL ON OR OVER THE SERVICES, OR RETRIEVAL OF MATERIAL FROM OR THROUGH SAME, OR ANY SOFTWARE, FILE, INFORMATION, COMMUNICATION OR OTHER CONTENT.DIGITAL PASSAGE RESERVES THE RIGHT TO ASSUME THE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY SUBSCRIBER, IN WHICH EVENT SUBSCRIBER WILL COOPERATE WITH DIGITAL PASSAGE IN ASSERTING ANY AVAILABLE DEFENSES.
22. THIRD PARTY BENEFICIARIES
You understand, acknowledge and agree that the provisions of this MSA are for the benefit of Digital Passage and its Affiliates, Operational Service Providers, licensors, vendors, agents, and representatives, each shall have the right to assert and enforce such provisions directly on its own behalf.
23. LIMITS ON TRANSFERS & ASSIGNMENTS; OTHER LIMITS
Unless otherwise agreed to by Digital Passage in writing, Subscriber’s rights to use the Services, or to designate other users of Subscriber’s account, may not be assigned or transferred and are subject to any limits established by Digital Passage, or by Subscriber’s credit card company or other billing institution, as applicable. Attempts by Subscriber to assign or transfer these rights without written approval of Digital Passage will constitute a violation of this Service Agreement and the Company may de-activate Subscriber’s account.
24. CHOICE OF LAW AND VENUE
This Service Agreement is made in the State of Texas. This Service Agreement and all of the Parties respective rights and duties in connection herewith, including, without limitation, claims for violation of this Service Agreement, state consumer protection laws, unfair competition laws and any claims in tort, shall be governed by and construed in accordance with the laws of the State of Texas, United States, notwithstanding any conflict of laws. You understand, acknowledge and agree that you are subject to the personal jurisdiction of state and federal courts for Young County, Texas.
25. MODFICATION, WAIVER AND DISCRETIONARY ENFORCEMENT
Neither the course of conduct between the Parties nor trade practices shall act to modify the provisions of this Service Agreement. Digital Passage may enforce or decline to enforce any or all of the terms of this Service Agreement in its sole discretion. Subscriber understands, acknowledges and agrees that Digital Passage’s failure to exercise or enforce any right or provision of this Service Agreement shall not constitute a waiver of such right or provision. In no event shall Digital Passage be required to explain, comment on, suffer liability for or forfeit any right or discretion based on the enforcement, non-enforcement or consistency of enforcement of such terms.
26. MISCELLANEOUS
26.1. SEVERANCE – If any term of this Service Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be construed in such a way as to render such term enforceable while still giving as much effect as possible to the original intentions of such term. If this cannot be done, and the entire term is held to be invalid, illegal or unenforceable, and cannot be so repaired, then the term shall be considered to be stricken from this Service Agreement as if it had not been included from the beginning. In any such case, the balance of this Service Agreement shall remain in effect in accordance with its remaining terms, notwithstanding such invalid, illegal or unenforceable term. Nothing contained in this Service Agreement shall be construed to limit Digital Passage’s rights and remedies available at law or in equity.
26.2. CAPTIONS/HEADINGS – Captions or headings used in this document are for convenience only and shall not be considered a part of this Service Agreement or be used to construe its terms or meaning.
26.3. CONTINUATION – The provisions of any Sections of this Service Agreement which by their nature should continue shall survive any termination or expiration of this Service Agreement. Overall, Sections 1 – 5, 7 – 25, 27, 30 – 31 shall also survive any termination or expiration.
27. RENEWAL
Unless designated otherwise in the CSA or SLA, this Service Agreement shall automatically renew for successive one (1) year terms unless at least ninety (90) days prior to the end of the current one (1) year term, either Party gives written notice to the other Party of their intent to terminate the Service Agreement. No Early Termination Fees shall apply in any such successive term of this Service Agreement.
28. NOTICE
All notices required of Subscriber pursuant to this Service Agreement shall be sent via email to Contact Us. Except as otherwise specified herein, all notices required of Digital Passage pursuant to this Service Agreement shall be sent via email to the Subscriber, using the email address that Subscriber has most recently provided to the Company for such purposes.
29. 911 SERVICE AND ALARM SYSTEM NOTICE
29.1. Digital Passage voice service includes 911/E911 (“911”) access to emergency services. The Company provides this access pursuant to the FCC’s rules. 47 C.F.R. § 9.5. See https://www.fcc.gov/consumers/guides/voip-and-911-service for additional information. VoIP service does not support traditional 911 access to emergency services. In particular, it is essential that the physical location (street address) of the caller (the “Registered Location”) be registered with the Company to ensure correct routing of emergency calls. Therefore, it is extremely important that Subscriber provide Digital Passage with the correct address where the equipment and the Digital Passage Service is or will be located. Subscribers are only permitted to use the Digital Passage Service, including VoIP voice service, at the address associated with the Subscriber’s account. Subscriber must also promptly update this address if it changes and may do so in any of the following ways: Call Customer Service at 940-549-0339, or toll-free at 800-254-3037, or Log into the Digital Passage Subscriber Portal and make the change.
29.2. Your call will be routed directly to the nearest public-safety operator. Even with a correctly registered service address, however, some emergency agencies may not be able to automatically determine the location of the 911 call and Subscriber understands that in such circumstances, Subscriber, or any other caller, may need to provide the physical location of the emergency.
29.3.Digital Passage VoIP Services recommends an uninterruptible power supply (“UPS”) intended to provide up to eight (8) hours backup power in the event of power outages. In the event that Subscriber’s Internet service experiences an outage as a result of a power outage beyond the coverage of the UPS or for some other reason, Subscriber will be unable to make 911 calls using Digital Passage’s VoIP service. In such event, Subscriber is encouraged to use a cellular phone to call 911. Subscriber should also notify any employees or guests regarding these potential limitations. A Service suspension or termination (regardless of the reason) will prevent Subscriber or any other party from using the Digital Passage Service, including the ability to make 911 calls.
29.4. Subscribers who have an alarm system connected to Digital Passage’s VoIP service may also experience outages if the Internet connection or power is down. As such, Digital Passage encourages Subscribers to use a cellular phone based alarm system or keep a single POTS line (also called wireline, copper / analog lines) in place for those services.
29.5. As required by the FCC, the Company notifies You, the Subscriber, that 911/E911 service may not be available through Your Digital Passage VoIP service or may have less availability than traditional E911 services in circumstances including, but not limited to (i) relocation of Subscriber’s VoIP equipment, (ii) use of a non-native telephone number; (iii) a broadband connection failure; (iv) loss of electrical power and delays in the registration (or update) of your service address in the emergency services databases. If E911 service is available, Subscribers will pay a one dollar and fifty cent ($1.50 U.S.) charge per month.
29.6. Digital Passage provides You with this information when service is initiated and provides warning stickers or equivalent labels for placement in Subscriber’s location to alert individuals regarding the potential limitations of access to emergency services. In the event that Subscriber requires additional labels for use in Subscriber’s location, please contact the Company.
30. FORCE MAJEURE
If the performance of this Service Agreement or any obligations hereunder is prevented, restricted or interfered with by reason of earthquake, fire, flood or other casualty or due to strikes, riot, storms, explosions, acts of God, war, terrorism or a similar occurrence or condition beyond the reasonable control of either or both Parties, the Party so affected shall, upon giving prompt notice to the other Party, be excused from such performance during such prevention, restriction or interference, and any failure or delay of performance reasonably deemed to result therefrom shall not be considered a breach of this Service Agreement.
31. ARBITRATION
31.1. Digital Passage and Subscriber agree to arbitrate all disputes and claims related to the Digital Passage Service between them. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (1) claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or other legal theory; (2) claims that arose before this or any prior Service Agreement (including but not limited to, claims relating to advertising); (3) claims that are currently the subject of purported class action litigation in which You are not a member of a certified class; and (4) claims that may arise after the termination of this Service Agreement.
31.2. This arbitration agreement does not preclude You from bringing issues to the attention of federal, state or local agencies, including, for example, the FCC or state regulatory commission. Such agencies can, if the law allows, seek relief against us on Your behalf. You understand, acknowledge and agree that, by entering into this Agreement, You and Digital Passage are each waiving the right to a trial by jury or to participate in a class action. This Service Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Service Agreement.
31.3. A Party who intends to seek arbitration must first send notice of the dispute to the other Party. The notice to Digital Passage must be sent via email to Contact Us. Notices to the Subscriber will be sent via certified mail to the last mailing address on file. The notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Digital Passage and Subscriber do not reach an agreement to resolve the claim within thirty (30) days after notice pursuant to this provision is received, Subscriber or Digital Passage may commence an arbitration proceeding. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Service Agreement. The arbitrator is bound by the terms of this Service Agreement. All issues are for the arbitrator to decide, except that any issue(s) relating to the scope and enforceability of the arbitration are for a court of appropriate jurisdiction to decide. Any arbitration hearings will take place in the county of Subscriber’s billing address. Subscriber is responsible for paying the non-refundable filing fee and the costs of its own attorney. Digital Passage shall be responsible for paying the arbitrator fees and hearing fees. The prevailing Party is entitled to recover their attorneys’ fees if awarded by the arbitrator.
32. ENTIRE AGREEMENT
This Service Agreement, including rates, products and services agreed to at time of service or purchase origination and other documents incorporated herein by reference constitutes the entire and only agreement with respect to the subject matter hereof between Subscriber and Digital Passage, applicable also to all users of Subscriber’s account. This Service Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements and other communications with respect to the subject matter hereof, except as expressly set forth in this document. By executing this Service Agreement and the Subscriber’s continued use of the Services, the Parties agree to the terms and conditions of this Service Agreement. This Service Agreement can be amended only in writing with Agreement by both Parties.