DIRECPATH VIDEO AND BROADBAND SERVICES SUBSCRIBER AGREEMENT
TERMS OF SERVICE
Welcome to DIRECPATH!
BY ACTIVATING OR USING ANY
DIRECPATH SERVICE (INCLUDING CABLE/SATELLITE TELEVISION, BROADBAND INTERNET
ACCESS OR VOIP TELEPHONE SERVICES) OR ANY DIRECPATH EQUIPMENT, YOU AGREE TO BE
BOUND BY THESE TERMS AND CONDITIONS AND POLICIES. PLEASE READ THESE TERMS AND
CONDITIONS AND POLICIES CAREFULLY AS THEY, AMONG OTHER THINGS, ESTABLISH YOUR
LIABILITY FOR THE EQUIPMENT (Sec. 4), REQUIRE TERM COMMITMENTS (Sec. 23),
IMPOSE EARLY CANCELLATION FEES (Sec. 23), AND REQUIRE MANDATORY ARBITRATION OF
DISPUTES (Sec. 33).
This is your agreement (this "Agreement") with DIRECPATH,
LLC and its affiliates (together "DIRECPATH," "we" or "us") for the provision
of Video, Internet access and/or other broadband services, including Voice over
Internet Protocol[1] ("VoIP")
services (the "Services") in accordance with the order form submitted by you to
DIRECPATH (the "Order Form"). In this Agreement, any DIRECPATH Service or
Services to which you have subscribed are referred to as the "Service." This
Agreement includes the Terms of Service set forth below (the "Terms"), DIRECPATH's
Acceptable Use Policy ("AUP") and such other policies as DIRECPATH may adopt
(collectively, "Policies"), each as they may be amended from time to time and
as may be posted from time to time at www.DIRECPATH.net. Additional terms,
restrictions, and limitations may be set forth in authorized service plan
descriptions provided to you by DIRECPATH and/or by our partners, such as
DIRECTV, (each, a "Service Plan"), and all such terms, restrictions, and
limitations are incorporated herein by reference and are binding upon you. If
any Services are subject to any tariffs filed by DIRECPATH ("Tariffs"), then
you agree that such Services will also be governed by the terms of any such
Tariffs. The Order Form, Terms, AUP, Policies, any applicable Tariffs, and the
Service Plans collectively constitute your agreement (the "Agreement") with DIRECPATH.
In the event of conflict, except as otherwise expressly stated in any of the
foregoing, the Terms shall control. By initiating Service, providing a written
or electronic signature or otherwise so indicating electronically, you will
have accepted this Agreement. You
acknowledge that you have read and understood, and you agree to, the terms and
conditions of this Agreement, and you represent that you are of legal age to
enter the Agreement and become bound by its terms. This Agreement governs both
the Service and any Equipment (as defined below) used in conjunction with the
Service. The Agreement applies to you and to anyone who uses the Services or
Equipment sold or rented to you, including your guests.
1. Service and Invoices. You agree to purchase and pay for any Service(s) that you have
selected in the Order Form, which will be binding on you if signed with a
written or electronic signature delivered to DIRECPATH or its agent, or if you
electronically accept the terms of the Order Form, or by your activation of the
Service through equipment provided to you by DIRECPATH (the "Equipment," as
defined in Section 4 below). Upon accepting your Order Form (which will occur
only upon signature of the Order Form by DIRECPATH, which may include an
electronic signature or click-through acceptance of the Order Form by you), DIRECPATH
will bill you for Equipment, installation fees, activation fees, and a prorated
fee for the first month of Service (if applicable), and will bill you (or
notify you of charges to be applied to your Card) in advance thereafter for
recurring monthly charges, as specified on the Order Form. You agree to pay all
of the fees set forth in the Order Form when due. In addition to the charges
for any Service, you will be responsible for all applicable federal, state, and
local taxes, surcharges and fees applicable to the Services. Unless otherwise
agreed in writing between you and DIRECPATH, DIRECPATH will bill you for all
charges relating to the Equipment or the Services by charging the credit, debit
or check card ("Card") account you provided to and accepted by DIRECPATH. You
will promptly notify DIRECPATH of any changes to any your Card account, or in
the event that you decide to terminate or change Card accounts. Charges for
Service are contained in the Order Form, and may be modified by DIRECPATH in
its sole discretion upon thirty (30) days written notice to you, including
notice by electronic mail. Your use of the Services for more than twenty days
after notice of any modified charges constitutes your agreement to accept the
modified charges. Charges not honored by your Card issuer will be considered
delinquent, and you may be charged a late fee on the unpaid balance, based on
the amount of the late payment multiplied by the lesser of one and one-half
percent (1-1/2%) per month or the highest rate allowed by law. You will remain
responsible for all charges not honored by your Card issuer. Delinquent
accounts are subject to immediate suspension or termination of Service at the
sole discretion of DIRECPATH. In the event of such suspension or termination,
all charges (including Early Termination Fees) will become immediately due and
owing together with any costs of collection incurred by DIRECPATH, including
attorneys' fees, and DIRECPATH will be at liberty to pursue all rights and
remedies it may have at law or in equity. DIRECPATH will attempt to notify you
in advance of suspension, termination, and collection actions, but is not
required to make contact prior to taking such actions. To reestablish Service
suspended or terminated for delinquency, you must pay all past due amounts in
full and you may be charged an activation fee and may be required to prepay
fees.
2. Billing Disputes. You must notify DIRECPATH in writing within seven (7) days after
receiving your Card statement if you dispute any DIRECPATH charges on that
statement or such dispute will be deemed waived. You may only dispute charges
that you believe are a result of a billing error or a problem relating to the
Service. DIRECPATH shall resolve all billing disputes in its sole discretion.
3. Payment. DIRECPATH may terminate your Service at any time in its sole discretion, if any
charge to your Card on file with DIRECPATH is declined or reversed, your Card
expires and you have not provided DIRECPATH with a valid replacement Card or in
case of any other non-payment of account charges. If DIRECPATH terminates your
Service for declined, canceled or expired Card, reversed charges or
non-payment, you are still fully liable to DIRECPATH for all charges accrued
before termination, including charges related to the provision of Equipment,
and for all costs incurred by DIRECPATH in collecting such amounts, such as
(but not limited to) collection costs and attorney's fees.
4. Equipment Provided - Purchase. As specified on your Order Form, DIRECPATH
will sell to you, and you will purchase from DIRECPATH, a subscriber unit and
related cabling (collectively the "Equipment"). DIRECPATH warrants that all
Equipment purchased from DIRECPATH will be substantially free from defects in
material and workmanship under normal use in compliance with DIRECPATH's
instructions for a period of one (1) year from the date you receive the
Equipment. All or part of the Equipment may be reconditioned or refurbished,
but all Equipment will be warranted as provided in this Agreement. This
warranty excludes any damage resulting from abuse, misuse, neglect, theft,
vandalism, fire, unusual physical or electrical stress, water, extremes of
temperature, other peril or act of God, your failure to comply with any
Equipment instructions published by DIRECPATH or available at www.DIRECPATH.net,
or actual or attempted alteration of or additions to the Products not approved
by DIRECPATH, all as determined in the sole discretion of DIRECPATH. DIRECPATH
shall have the sole discretion to determine whether to repair or replace any
Equipment. Repair or replacement of the Equipment is DIRECPATH's only
responsibility, and your exclusive remedy, for breach of any warranty regarding
the Equipment. This warranty is in lieu of all other warranties, express or
implied, including but not limited to any implied warranties of merchantability
or fitness for a particular purpose. You may not sell or otherwise transfer the
Equipment to anyone without DIRECPATH's prior written consent. If you sell or
otherwise transfer the Equipment, any warranties will automatically and
immediately terminate. Any repair, upgrade, or replacement of the Equipment
following one (1) year after activation of Service, resulting from defects in
the Equipment or from any other cause, will be your responsibility.
5. Equipment Provided - Rental. If you rent any Equipment from DIRECPATH,
as specified on your Order Form, DIRECPATH will retain title to and ownership
of such Equipment at all times. You must return all rented Equipment in good
working order to DIRECPATH upon the termination of the Agreement or upon the
request of DIRECPATH. Failure to return the rented Equipment to DIRECPATH in
good working order upon request will result in a charge to the Card account that
you have provided, for the amount listed on the Order Form, which you
acknowledge is a reasonable estimation of the replacement cost of the
Equipment. DIRECPATH may periodically replace, upgrade, repoint, or otherwise
modify any rented Equipment, and will repair or replace (as DIRECPATH deems
appropriate in its sole discretion) any properly maintained rented Equipment
that fails to operate as required for the delivery of Services. You may not
modify any rented Equipment in any way.
6. Installation. As necessary, DIRECPATH or its authorized contractor may install
the Equipment at your location (the "Premises") for the installation charges
noted on your Order Form. In addition, the provision of Service to your
Premises may require additional antennas, equipment, or installation activities
beyond those specified in your Order Form. In the event that such additional
equipment or installation activities are required, and you elect to accept
Service despite the need for such additional equipment or installation
activities, you will be responsible for all applicable additional charges. If
you purchase additional Equipment from DIRECPATH, such as additional connection
cabling, you may request DIRECPATH or its authorized contractor to install such
Equipment at the Premises as specified in the Order Form, or you may provide
for your own installation. DIRECPATH warrants that any installations performed
by DIRECPATH will be free from defects in material and workmanship for a period
of one (1) year from the date of the installation. This warranty excludes any
damage resulting from abuse, misuse, neglect, theft, vandalism, fire, unusual
physical or electrical stress, water, extremes of temperature, other peril or
act of God, your failure to comply with Equipment manuals or other
documentation, or actual or attempted alteration of or additions to the
Products not approved by DIRECPATH, all as determined in the sole discretion of
DIRECPATH. By authorizing installation, you represent and warrant to DIRECPATH
that you either own the Premises or have received permission from the owner of
the Premises to make any changes to the Premises or outside the Premises
necessary to install the Equipment and receive the Service. Further, you
represent and warrant that the installation of the Equipment at the Premises
will not violate any rules, restrictions or agreements applicable to the
Premises. You acknowledge that the installation representative may refuse to
perform any custom installation work, or may require inside or external wiring
to complete Service delivery at additional hourly or other charges. In the
event you fail to keep an installation appointment or the Premises are not
prepared to accept installation of the Equipment and Service, DIRECPATH may
charge you a fee to recover any costs associated with an additional
installation appointment. DIRECPATH will not be liable for any alterations or
damage to the Premises that result from the installation, use, or removal of
the Equipment, including, but not limited to, holes in walls or ceilings, or cable
wiring, and will not be responsible for removing any of the Equipment or any
costs related to the removal of the Equipment at the end of the Term for any
reason. You agree to indemnify DIRECPATH from any claims or liabilities associated
with DIRECPATH's installation and/or removal of Equipment, including, but not
limited to, claims by any owner of the Premises.
7. DIRECPATH's Responsibilities. In the event that you request a
professional installation from DIRECPATH, DIRECPATH will install the Equipment
as provided above, and configure one computer using its Ethernet port. DIRECPATH
will not maintain or in any way be responsible for any software, cables, or
hardware attached to the Equipment or in any way related or unrelated to the use
of Service, including your internal network. DIRECPATH will provide customer
care support during its standard business hours for performance and operational
issues related to the DIRECPATH network. Please contact DIRECPATH Customer Care
as set forth at www.DIRECPATH.net.
8. Your Responsibilities. If needed, you are responsible for providing access to the
Premises as scheduled with DIRECPATH for the appropriate preparation and
maintenance of the Premises to allow for proper installation, maintenance, and
other activities of DIRECPATH in connection with the Equipment and Service. You
are responsible for ensuring that your video, computer or telephone equipment
has the minimum hardware and operating system requirements necessary to use the
Equipment and Service. You are responsible for integrating and troubleshooting
your local area network and internal network, as necessary. DIRECPATH will not
be responsible for any loss of use of any Service or degradation in performance
resulting from your use of incompatible equipment or for any damage to any
additional equipment you connect to the Equipment. In accessing the Service,
you will utilize the troubleshooting guides and user information provided by DIRECPATH
or available at www.DIRECPATH.net prior to contacting DIRECPATH Customer Care. DIRECPATH
Customer Care will troubleshoot and support you on Service and Equipment issues
pertaining to the DIRECPATH network and Service only, and reserves the right to
determine that a problem or issue is your responsibility. In the event that you
request a service call to your Premises and DIRECPATH determines that the
problem is your responsibility, DIRECPATH reserves the right to charge your
Card for the cost of the service call.
9. Credits. No credit or adjustment will be made for interruptions of the Service unless
the interruption continues for a period of twenty-four (24) hours or more,
measured from the time that you report the interruption to DIRECPATH. In the
event of an interruption of the Service that continues for a period of
twenty-four (24) hours or more, credit allowance will be made, at your written
request, for an amount not to exceed the prorated monthly charges for your
Service during the affected period. The credit will be available only where the
interruption is in no part due to your acts or omissions whether negligent or
otherwise or by interruptions caused by failure of any equipment or service not
provided by DIRECPATH. The foregoing credit will be your sole and exclusive
remedy for any interruption of the Service or any degradation of performance of
the Service. In order to be eligible for any such credit, you must request the
credit in writing within sixty (60) days of the commencement of the
interruption. No credit will be available if the interruption period results
from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or
electrical stress, water, extremes of temperature, other peril or act of God,
your failure to comply with DIRECPATH instructions or the terms stated at www.DIRECPATH.net,
or actual or attempted alteration of or additions to the Equipment or Service
(sometimes collectively referred to herein as the "Products") not approved by DIRECPATH,
or from any problems with third party network elements that are not within the
control of DIRECPATH, all as determined in the sole discretion of DIRECPATH.
10. Intended Use of the Service. You may not reproduce, duplicate, copy, sell, resell, or
exploit any portion of the Service without DIRECPATH's prior written consent.
You will not use the Service in a manner prohibited by any federal, state, or
local law or regulation, and will abide by DIRECPATH's AUP, which sets forth
additional rules that govern your activity in connection with DIRECPATH's
broadband Services. Without limiting the foregoing, you may not use the
Equipment or Service, or allow the Equipment or Service to be used, for any
abusive purpose or in any way that damages DIRECPATH's property or interferes
with or disrupts DIRECPATH's network or other users.
11. Privacy; Monitoring the Service. DIRECPATH is under no obligation to
monitor the Service, but DIRECPATH may do so from time to time. You agree that DIRECPATH
may disclose any information regarding you or your use of the Service for any
reason and at its sole discretion in order to satisfy applicable laws,
regulations, governmental requests, or in order to operate and deliver the
Service in an efficient manner, or to otherwise protect DIRECPATH's property or
legal interests and those of its subscribers, or to ensure your compliance with
this Agreement and/or DIRECPATH Policies. Please see DIRECPATH's Privacy Policy
at ww.DIRECPATH.net.
12. Use of Service and Equipment Outside the United States. DIRECPATH may support the use of its
Equipment and Service by customers located in other countries. If your or
User's removal of the Equipment from the United States violates any export
control law or regulation, you will be solely liable for such violation and
agree to indemnify and hold harmless DIRECPATH against any and all liability
for such violation.
13. Loss of Service Due to Power Failure. You acknowledge that the Service does not
function in the event of power failure. A power failure or disruption may
require you to reset or reconfigure Equipment prior to utilizing the Service.
14. Copyright / Trademark / Firmware / Software. The Service and Equipment and any
firmware or software used to provide the Service, or embedded in the Equipment,
or used in connection with the Services, and all Services, information,
documents and materials delivered to you by DIRECPATH or located on DIRECPATH's
website are protected by trademark, copyright or other intellectual property
laws. All names, service marks, trademarks, trade names, logos and domain names
(collectively "Marks") of DIRECPATH are and shall remain the exclusive property
of DIRECPATH and nothing in the Agreement grants you the right or license to
use any of such Marks. You acknowledge that you are not given any license to
use any firmware or software under this Agreement. You agree that the Equipment
is exclusively for use in connection with the Service. You shall not use the
Service except by means of the Equipment. If you decide to use the Service
using equipment not provided by DIRECPATH, you represent and warrant that you
possess all required rights, including software and/or firmware licenses, to
use that equipment with the Service and you agree to indemnify and hold
harmless DIRECPATH against any and all liability arising out of your use of
such equipment with the Service. You 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.
15. Tampering with the Equipment or Service. You agree not to change the electronic
serial number or equipment identifier of the Equipment, or to perform a factory
reset of the Equipment, without express permission from DIRECPATH in each
instance which DIRECPATH may deny in its sole discretion.
16. Theft of Equipment or Service. You agree to notify DIRECPATH
immediately, in writing or by calling the DIRECPATH customer support line, if
the Equipment is stolen or if you become aware at any time that your Service is
being stolen or fraudulently used.
17. Service Distinctions. You acknowledge that the DIRECPATH's VoIP Service is not a
telephone service. Important distinctions exist between telephone service and
the enhanced Service offering provided by DIRECPATH, which is subject to
different regulatory treatment than telephone service. This treatment may limit
or otherwise affect your rights of redress before federal, state or local
telecommunications regulatory agencies.
18. Back Up. You
acknowledge that the installation, use, inspection, maintenance, repair, and
removal of the Equipment may result in service outage or potential damage to
your computer equipment and/or loss of software, files, data, or peripherals.
You acknowledge that you are solely responsible for backing up all existing
computer files by copying them to another storage medium prior to installation,
maintenance, repair, or removal of the Equipment. Neither DIRECPATH nor its
subcontractors or equipment vendors will be liable for any loss of data or
damage to hardware, software, or your Premises that occurs during installation
of any Equipment or that results from any service performed on your computer in
support of your Service.
19. Network Address Ownership. The internet protocol ("IP") addresses that DIRECPATH
assigns to you, including static IP addresses, are considered loaned to you,
and not transferred or sold to you. You have no ownership or proprietary
interest in such IP addresses. Such IP addresses will revert back to DIRECPATH
upon the termination of your Service for any reason, or earlier if such change
in IP address is reasonably necessary in the conduct of DIRECPATH's business.
You shall not assign to any other person the IP address assigned to you. You
shall not program any other IP address into the Equipment.
20. Credit Reporting Agencies. You authorize us to ask consumer reporting agencies or
trade references to furnish us with employment and credit information, and you
consent to our rechecking and reporting personal and/or business payment and
credit history. Upon receipt of adverse credit information about you at any
time, DIRECPATH reserves the right to suspend or terminate Service to you or
require a deposit for Service, at our option.
21. Termination/Early Termination Fee. You shall maintain Service for the
duration of any minimum Initial Term (as set forth on the Order Form). After
any Initial Term, Service will automatically renew for additional consecutive
one-year periods, unless terminated as provided in these Terms. You may
terminate the Service at the end of the Initial Term or at the end of any
renewal term, by contacting DIRECPATH's Customer Care department as set forth
at www.DIRECPATH.net and giving notice of termination at least sixty (60) days
in advance of the next scheduled renewal date. If you terminate your Service
for any reason or your Service is terminated by DIRECPATH for any violation of
the Agreement prior to the end of the Initial Term, you will be liable for an
early termination fee of $250, or such other early termination fee as may be
specified on your Order Form. Upon termination of this Agreement, unless you
purchased the Equipment as provided above, you will be responsible for the
costs and risks associated with returning the Equipment to DIRECPATH. You must
return the rented Equipment to DIRECPATH in good working order, reasonable wear
and tear excepted, in accordance with DIRECPATH's return policy set forth at www.DIRECPATH.net.
If you do not immediately return the Equipment in good working order, DIRECPATH
may charge your Card account for $300, which you agree is an appropriate charge
in light of the value of the Equipment.
22. Termination/Discontinuance of Service. DIRECPATH reserves the right to suspend or discontinue providing any Service generally, or to terminate your Service, at any time in its sole discretion. This includes the right to disconnect Customer's access to our satellite distribution system in the event of default on payment for any Service. If DIRECPATH discontinues providing any Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement or any DIRECPATH Policy (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate the DIRECPATH AUP or the policies of a third party provider to which DIRECPATH is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the early termination fee set forth in these Terms, all of which immediately become due and payable.
23. DISCLAIMER OF LIABILITY. (A) EXCEPT AS SET FORTH IN SECTION 4, THE SERVICE AND EQUIPMENT
ARE PROVIDED 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, NON-INFRINGEMENT, NON-INTERFERENCE, OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY STATEMENTS MADE IN ANY
PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY DIRECPATH EMPLOYEES OR
REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS
WARRANTIES BY DIRECPATH. NEITHER DIRECPATH NOR ITS AFFILIATES OR SUPPLIERS
WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR FREE FROM SERVICE
DEGRADATION, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE ON
THE SERVICE ARE FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT
MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. WITHOUT LIMITING THE
FOREGOING, THE QUALITY OF THE SERVICE MAY BE AFFECTED BY CONDITIONS WITHIN OR
BEYOND OUR CONTROL, INCLUDING ATMOSPHERIC, GEOGRAPHIC, OR TOPOGRAPHIC
CONDITIONS, OVERALL NETWORK USAGE LEVELS, NETWORK SIGNAL QUALITY, USER AND
THIRD PARTY EQUIPMENT PERFORMANCE, INTERNET TRAFFIC LEVELS, AND OTHER FACTORS. DIRECPATH
WILL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS
OUTSIDE DIRECPATH'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION ANY FLOOD,
FIRE, ACCIDENT, EMBARGO OR OTHER GOVERNMENTAL ACT OR DIRECTIVE, ABSENCE OF
GOVERNMENTAL APPROVAL OR CONSENT, DELAY OR DEFECT IN DELIVERY BY SUPPLIERS,
TRANSPORTATION DELAY OR UNAVAILABILITY, RIOT, WAR, ACT OF TERRORISM OR OF THE
PUBLIC ENEMY, POWER OUTAGE, LABOR DISPUTE OR SHORTAGE, THIRD PARTY NETWORK
PROBLEMS, ACTS OR OMISSIONS OF UNDERLYING CARRIERS OR OTHER THIRD PARTIES, OR
ACTS OF GOD. SERVICES ARE ONLY AVAILABLE WITHIN THE COVERAGE AREA OF THE DIRECPATH
NETWORK, WHICH IS SUBJECT TO CHANGE. YOU ACKNOWLEDGE THAT SERVICE MAY BE
TEMPORARILY UNAVAILABLE FOR SCHEDULED OR UNSCHEDULED MAINTENANCE, EQUIPMENT
MODIFICATIONS OR UPGRADES, AND FOR OTHER REASONS WITHIN AND WITHOUT THE DIRECT
CONTROL OF DIRECPATH. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT
PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY OF DATA
INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SERVICE FOR THE
RECONSTRUCTION OF ANY LOST DATA OR FILES. ALTHOUGH SECURITY MEASURES ARE
EMPLOYED, DIRECPATH CANNOT GUARANTEE THE SECURITY OF DATA TRANSMISSION OR
STORAGE, OR THAT VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS
CONTAMINATING OR DESTRUCTIVE PROPERTIES WILL BE DETECTED OR REMEDIATED BY THE
SERVICE.
(B) NOTWITHSTANDING ANYTHING ELSE
IN THIS AGREEMENT, NEITHER DIRECPATH NOR ITS AFFILIATES OR SUPPLIERS WILL BE
LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY
AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER DURING THE
THREE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO
LIABILITY, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY,
SERVICES, PRODUCTS, OR RIGHTS, (III) FOR ANY LOSS OR CORRUPTION OF DATA OR
DELAYED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET, (IV) FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS, OR (V) FOR ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE
STORAGE OF YOUR DATA OR ANY END USER'S DATA. THESE LIMITATIONS APPLY WHETHER THE
CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT
LIABILITY, OR ANY OTHER BASIS, AND APPLY WHETHER OR NOT DIRECPATH WAS INFORMED
OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. IF YOU ARE DISSATISFIED
WITH THE SERVICE OR IF YOU HAVE ANY OTHER DISPUTE WITH DIRECPATH, OR CLAIM
AGAINST DIRECPATH, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING
THE SERVICES.
24. Privacy. DIRECPATH
Service utilizes, in whole or in part, the public Internet and third party
networks. DIRECPATH is not liable for any lack of privacy which may be
experienced with regard to the Service. Please refer to the DIRECPATH Privacy
Policy below for additional information.
25. Place of Primary Use. In order to determine which jurisdiction's taxes and other
assessments to collect, federal law may require DIRECPATH to obtain your Place
of Primary Use ("PPU"), which must be your residential street address (if the
Service is primarily for personal use) or your business street address (if the
Service is primarily for business use). This address must be within the
coverage area for the Service. You agree that the street address listed on your
Service Order is your PPU. You agree to notify DIRECPATH of any change to your
PPU.
26. Complaint Resolution/Notices. In order to resolve a complaint regarding the Service or
to receive further information regarding the use of the Service, please contact
DIRECPATH Customer Care at PO Box 7619, Marietta, GA 30065 (U.S. Mail), (866) 430-7284 (tel.), or advocacy@direcpath.com (email). Written notices to
you will be effective three (3) days following the date deposited in the U.S.
Mail addressed to your address as kept in our files, or the date on which any
DIRECPATH email is sent to your DIRECPATH email account. You are responsible
for notifying us of any changes in your address. Written notice to DIRECPATH
will be effective when directed to DIRECPATH's Customer Care Department and
received at the address set forth at www.DIRECPATH.net. Notices must be in
writing to be effective. Notices sent by email to the appropriate email address
shall constitute written notice.
27. Amendments. Subject to applicable law, DIRECPATH may in its sole discretion
amend any of the Terms, any DIRECPATH Policy, or your Service Plan. DIRECPATH
will provide notice to you of any material modification to this Agreement. If
you do not agree to a modification that is materially disadvantageous to you,
you may terminate the Agreement within twenty (20) days of the date we send our
notice, and you will not be charged any Early Termination Fee. If you use the
Service or make any payment to us after we mail notice of a material
modification, and do not provide termination notice to us within the specified
time period, you agree to that change, retroactive to the announced effective
date of the modification. DIRECPATH may revise any Policy at any time, and such
revisions will be effective immediately upon posting on DIRECPATH's website, or
providing written notice to you.
28. Indemnification. You will defend, indemnify, and hold DIRECPATH and its directors,
officers, employees, agents, affiliates, and shareholders and any other service
provider or supplier (collectively, the "DIRECPATH Parties") harmless against
any and all claims, losses, damages, and liabilities sustained by the DIRECPATH
Parties resulting from, arising out of the Agreement, the Services, any breach
or non-fulfillment of any representation, warranty, or covenant set forth in
the Agreement or from your use of the Equipment or the Service. You also agree
to pay DIRECPATH's reasonable attorneys' and expert witness fees and costs
incurred in enforcing the Agreement, including any such fees incurred in
connection with any appeal. This paragraph will survive termination of the
Agreement for any reason.
29. Assignment and Successors in Interest. All of the Terms will be binding upon,
inure to the benefit of, and be enforceable by your respective successors and
permitted assigns. Except as specifically stated herein, neither the Agreement
nor any of your or DIRECPATH's rights, interests, or obligations may be
assigned or delegated by you without the prior written consent of DIRECPATH.
Any unauthorized assignment or delegation will be null and void.
Notwithstanding the foregoing, DIRECPATH may assign or otherwise transfer its
rights and obligations under the Agreement without restriction.
30. Entire Agreement/Severability. This Agreement, including the Order Form,
the Terms, your Service Plan, and the Policies (each as they may be amended
from time to time) together contain the entire agreement and understanding
concerning the Service and Equipment and supersede all prior negotiations,
proposed agreements, and all other agreements, whether electronic, written, or
oral. In the event that it is determined by a court of competent jurisdiction
as a part of a final non-appealable judgment that any provision of the
Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable,
such provision will be enforced as nearly as possible in accordance with the
stated intention of the parties, while the remainder of the Agreement will
remain in full force and effect.
31. ARBITRATION. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS
OF THE STATE OF TEXAS WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. ALL DISPUTES
ARISING UNDER THIS AGREEMENT (OTHER THAN YOUR FAILURE TO MAKE PAYMENTS IN
ACCORDANCE WITH THE AGREEMENT AND ANY ACTION TO COLLECT AMOUNTS DUE TO DIRECPATH
UNDER THIS AGREEMENT, WHICH MAY BE BROUGHT IN ANY COURT OF COMPETENT
JURISDICTION) WILL BE SETTLED BY BINDING ARBITRATION USING THE COMMERCIAL RULES
OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR
ARBITRATION WILL BE DALLAS COUNTY, TEXAS, UNLESS THAT LOCATION IS PROHIBITED BY
LAW, IN WHICH CASE THE ARBITRATOR SHALL SELECT THE LOCATION OF THE ARBITRATION.
ONE (1) ARBITRATOR SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE
IN THE SUBJECT MATTER HEREOF WILL CONDUCT THE ARBITRATION. UNLESS OTHERWISE
REQUIRED BY LAW, YOU AND DIRECPATH WILL EACH BEAR YOUR OWN EXPENSES, INCLUDING
ATTORNEYS' FEES, EXCEPT THAT PAYMENT OF THE FEES AND EXPENSES OF THE ARBITRATOR
SHALL BE GOVERNED BY THE RULES OF THE AAA. THIS DUTY TO ARBITRATE WILL SURVIVE
THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. ALL CLAIMS WILL BE ARBITRATED
INDIVIDUALLY AND THERE WILL BE NO CONSOLIDATION OR CLASS TREATMENT OF ANY CLAIM
UNLESS PREVIOUSLY AGREED TO IN WRITING BY DIRECPATH. THE ARBITRATOR SHALL NOT
HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR ANY OTHER
DAMAGES EXCEPT AS PERMITTED BY THE AGREEMENT. YOU WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE SERVICES. YOU
WAIVE ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM
ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND DIRECPATH
AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THE AGREEMENT
MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR THE CLAIM
WILL BE PERMANENTLY BARRED.
DIRECPATH PRIVACY POLICY
Privacy Policy
DIRECPATH is committed to
protecting your privacy. Please read this privacy policy statement carefully so
that you understand what kinds of information we may gather about you, how we
may use that information, whether we may disclose it to anyone, and the choices
you have regarding our use of the information and your ability to correct the
information. We will not trade, sell, or disclose to any third party any form
of personally identifiable information without your consent, including
information derived from registration, subscription, and use of the DIRECPATH Service,
except as stated below. This policy applies only to DIRECPATH, and not to other
companies' or organizations' Web sites to which we link.
The Information We Collect
The information DIRECPATH gathers
generally falls into three categories: (1) personal, business, and demographic
information you supply that we use primarily for evaluating applicants and
conducting market research, (2) information you supply when you register or
initiate transactions, and (3) tracking information gathered as you navigate
online. Some of this information identifies a particular person, but much of it
does not. Third-party providers, whose sites are featured on and accessed via
our site, may gather information as well.
When you interact with DIRECPATH,
when applying for Service, for example, we may request some or all of the
following information:
- Contact information (e.g., name, address, telephone number, and e-mail address)
- Credit card, debit card or check card and DIRECPATH account number
- Driver's license
- Company name (for corporate accounts)
- Household characteristics (e.g., number of children, and number of Internet users)
- Technology employed (e.g., type of Internet access, and specifications for your computer)
Why We Collect This
Information
We need this information to
process your application or service order and to conduct market research. If we
have trouble processing your application or order, we use the contact
information you provide to get in touch with you. We also use your contact
information to provide you with DIRECPATH updates or to assist you with your video
or broadband service and to inform you of new products or services that may be
of interest to you.
Use of Cookies
To help make our website more
responsive to your needs, we use a standard feature of browser software
nicknamed "cookies." We use cookies to help us tailor our website to
your needs, to deliver a better, more personalized service, and to remember
certain choices you've made so you don't have to re-enter them. A cookie is a
text file that is placed on your hard disk by a web page server. Cookies cannot
be used to run programs or deliver viruses to your computer. Cookies are uniquely
assigned to you, and can only be read by a web server in the domain that issued
the cookie to you.
One of the primary purposes of
cookies is to provide a convenience feature to save you time. For example, if
you personalize DIRECPATH pages, or register with DIRECPATH sites or services,
a cookie helps DIRECPATH to recall your specific information on subsequent
visits. This simplifies the process of recording your personal information,
such as billing addresses, preferred email address, and so on. When you return
to DIRECPATH, the information you previously provided can be retrieved, so you
can easily use the DIRECPATH features that you customized.
We use two kinds of cookies: (i)
temporary or "session"-based cookies that contain certain information
about a user's or visitor's use of our website at a particular time and (ii)
"persistent" cookies that contain certain account-related information
about a registered user's use of our website. Session-based cookies are
automatically disabled or deleted when a user of or visitor to our website
closes his or her browser software at the end of session. Persistent cookies
remain stored on a registered user's computer system until he or she disables
or deletes them. Of course, if you set your browser not to accept cookies or
you delete them, you may not be able to take advantage of the personalized
features enjoyed by other visitors to and users of our website.
Information Collected by Third
Parties
The DIRECPATH web site includes links to other web sites,
and provides access to products and services offered by third parties, whose
privacy policies we don't control. When you access another web site or purchase
products or services or conduct other transactions through a web site linked to
our web site, use of any information you provide is governed by the privacy
policy of the operator of the site you're visiting or the provider of such
products or services. The provider's privacy practices may differ from ours.
Please be aware that these third-party sites may also use their own cookies,
web beacons or third-party software or "spyware," for which we are
not responsible.
Disclosure of Information
We consider the personal
information contained in our business records to be confidential. DIRECPATH
will not read, listen to or disclose to any third parties private e-mail,
conversations, or other communications, except as described here, that are
transmitted using our Services. We may sometimes disclose information about you
to our business partners or to others who work for us. We may access and/or
disclose your personal information if required to do so by law or in the good
faith belief that such action is necessary to: (a) conform to the edicts of the
law or comply with legal process served on DIRECPATH; (b) protect and defend
the rights or property of DIRECPATH including, without limitation the security
and integrity of our network; or (c) act under exigent circumstances to protect
the personal safety of users of our services or members of the public.
As our business grows, we may buy
or sell various assets. In the unlikely event that DIRECPATH, one of its
business units, or substantially all of its assets are acquired by another
company, information on our visitors would be among the transferred assets.
Security
DIRECPATH is committed to
protecting the security of your personal information. We use a variety of
security technologies and procedures to help protect your personal information
from unauthorized access, use, or disclosure. For example, we store the
personal information you provide on computer systems with limited access, which
are located in controlled facilities. When we transmit highly confidential
information (such as a credit card number) over the internet, we protect it
through the use of encryption, such as the Secure Socket Layer (SSL) protocol.
As effective as modern security practices are, no physical or electronic
security system is impenetrable. We cannot guarantee the complete security of
our database, nor can we guarantee that information you supply won't be
intercepted while being transmitted to us over the Internet. We have
implemented strict internal guidelines to ensure that your privacy is
safeguarded at every level of our organization. DIRECPATH will continue to
revise policies and implement additional security features as new technologies
become available.
DIRECPATH and Kids
DIRECPATH takes care to protect
the safety and privacy of young people using our services, and encourages you
to participate in your child's experience in cyberspace. We do not sell
products or services to kids. Also, we do not knowingly collect personally
identifiable information from children and teenagers under the age of 18 and DIRECPATH
does not wish to collect any such information.
Parents, please note that if you
grant consent for your child to use our services, your child will be able to
communicate with other users of all ages. Before providing consent, please be
aware that your child will be able to disclose personal information (e.g. name,
address, e-mail, and phone numbers) on his or her own. We encourage you to talk
with your children about communicating with strangers and disclosing personal
information online. You can obtain additional information about safe surfing
through the Federal Trade Commission web site.
Federal law requires website
operators who collect personal information from children under the age of
thirteen to first get parental consent. DIRECPATH will not knowingly link to
any third party web site that solicits or collects personally identifiable information
from minors.
DIRECPATH Spam Policy
DIRECPATH will deal with Spam
complaints seriously and will close spammer's customer accounts. We may use
customer information to investigate and prevent potentially unlawful activity
that threatens the Service(s) or network integrity or otherwise violates the
DIRECPATH AUP.
What Is Spam?
Spam is email that is sent against the wishes of the recipient. There are two
kinds. The first kind of spam concerns individuals who email people that they
don't know personally. The second type of spam is sent by organizations to
individuals who have not expressed a desire to receive such communications.
Both kinds of spam are inappropriate, and sending spam violates the DIRECPATH
AUP.
European Union Data
Considerations
Personal information collected on
this site may be stored and processed in the United States or any other country
in which DIRECPATH or its affiliates, subsidiaries or agents maintain
facilities, and by using this site, you consent to any such transfer of information
outside of your country. DIRECPATH abides by the safe harbor framework as set
forth by the U.S. Department of Commerce regarding the collection, use, and
retention of data from the European Union.
Privacy Policy Changes
If we decide to change our privacy
policy, we will post those changes here so that you will always know what
information we gather, how we might use that information and whether we will
disclose it to anyone. By continuing to use DIRECPATH after we post any
changes, you accept and agree to this privacy statement, as modified. Of
course, our use of information gathered while the current privacy statement is
in effect will be consistent with the current statement, even if we change that
statement later.
Please contact DIRECPATH with any questions regarding this Privacy
Policy.
[1] DIRECPATH, LLC provides Voice over Internet Protocol (VoIP) services as agent for its affiliate, PurDigital Media, Inc.
