This Peak Internet Subscriber Agreement together will the exhibits and materials referenced herein (“Agreement”), including, but not limited to, the Acceptable Use Policy and Internet Service Speed, is between Fundamental Holdings Corp. d/b/a Peak Internet (“Peak Internet”) and the end user of the Peak Internet service(s) and equipment described in this Agreement (“you,” “your,” “Customer,” “Subscriber,” or “Internet Subscriber”). This Agreement shall be effective as of April 15, 2015 until replaced. Please review the Agreement carefully as it governs your use of Peak Internet’s supply of services and equipment pursuant to the Agreement.
THE AGREEMENT DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH PEAK INTERNET WILL PROVIDE ITS SERVICE AND/OR EQUIPMENT TO YOU, EVEN IF YOU CHOSE NOT TO READ THE AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE NOTIFY PEAK INTERNET IMMEDIATELY, AND PEAK INTERNET WILL CANCEL YOUR SERVICE. HOWEVER, CANCELLATION OF YOUR SERVICE DOES NOT RELIEVE YOU OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. IF YOU ARE A NEW PEAK INTERNET CUSTOMER, YOUR ACTIVATION OF A PEAK INTERNET ACCOUNT AND RECEIPT OF PEAK INTERNET SERVICES AND/OR EQUIPMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT, AND ITS TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU.
IF YOU ARE AN EXISTING PEAK INTERNET CUSTOMER, YOUR CONTINUED RECEIPT OF PEAK INTERNET SERVICES AND/OR EQUIPMENT AND/OR PAYMENT FOR SUCH SERVICES FOLLOWING RECEIPT OR PUBLICATION BY PEAK INTERNET ON ITS WEB SITE OF THIS AGREEMENT WITHOUT CANCELLATION SHALL CONSTITUTE YOUR EXPRESS ACCEPTANCE OF THE AGREEMENT’S TERMS AND CONDITIONS, WHICH WILL BE LEGALLY BINDING ON YOU.
Thank you for choosing Peak Internet as your Communications Service Provider. Peak Internet is happy to answer any questions you may have and to provide you with technical and other customer support through the following telephone number and web address:
or you may write to:
PO Box 399
Woodland Park, CO 80866-0399
and, for general knowledge, try our website at www.peakinter.net.
“Peak Internet” is a trade name of Fundamental Holdings, Corp., a Delaware corporation.
1. THE PEAK INTERNET SERVICE
A. Services Defined. Peak Internet offers a wide variety of communications and other services, and it is constantly striving to add new services. For purposes of this Agreement, the term “Services” or “Service” shall mean the communications services (including, but not limited to, Internet Services) available from Peak Internet (whether subscription based or pay-per-access based) and any other services that Peak Internet may provide to consumers either now or in the future.
B. Service Changes. Except as otherwise set forth in this Agreement, you may change your service package selection at any time by notifying us. A fee may apply to downgrade changes (“Downgrade of Service Fee”), which amount is outlined in Section 2(j). In addition, you may be charged a fee (“Service Access Fee”) if you fail to subscribe to one of Peak Internet's basic service packages, which amount is outlined in Section 2(j).
C. Service Availability. Certain Services provided by Peak Internet depend on a clear line-of-sight to a microwave tower transmitter site. If Peak Internet is unable to achieve a reliable signal to one of its microwave sites, Peak Internet shall have no obligation to provide service of any kind. Should signal delivery be impacted for any reason and Peak Internet would no longer be able to provide service, Peak Internet shall have no obligation to continue providing service of any kind. Certain Services provided by Peak Internet also depend on a connection to its fiber optic network. If Peak Internet does not have fiber optic cabling immediately adjacent to your property, Peak Internet shall have no obligation to provide service of any kind.
D. Residential Use. For service packages designated as “Residential,” Peak Internet provides Services to you for your private home use and enjoyment. You agree that the Services provided will not be utilized outside of your private residence and for any non-residential purpose. The Services may not be resold or shared with anyone other than those within your private residence. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave possession of the Peak Internet service to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services in a non-residential or commercial establishment or any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full commercial rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice our ability to exercise any other rights and remedies Peak Internet may have under this Agreement.
E. Business Use. For service packages designated as “Business,” Peak Internet provides Services to you for your in-office use and enjoyment. You agree that the Services provided will not be utilized outside of the physical location of your office. If you own the physical location of your office or sub-lease a portion of the physical location of your office, the Services provided will not be utilized by any tenant or sub-tenant, unless the tenant or sub-tenant is a customer of Peak Internet. The Services may not be resold or shared with anyone other than those within the physical location of your office. The Services also may not be resold or shared with any tenant or sub-tenant of the physical location of your office, unless the tenant or sub-tenant is a customer of Peak Internet. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave permission of the same to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services to an area outside that of the physical location of your office, to a tenant or sub-tenant who is not a customer of Peak Internet, or in any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full reseller rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice Peak Internet’s ability to exercise any other rights and remedies it may have under this Agreement.
F. Changes in Services Offered. Peak Internet is not obligated to give you notice of changes to this Agreement before it becomes effective. Peak Internet reserves the right to change the Services that it offers and its prices or fees related to such Services at any time. If the change affects you, Peak Internet will provide you notice of the change and its effective date. The notice may be provided on your billing statement, by posting on http://www.peakinter.net/, or by other communication permitted by this Agreement. In the event of a change in the contents of any Services, you understand and agree that Peak Internet has no obligation to replace or supplement the Services previously offered that have been deleted, rearranged, or otherwise changed. You further understand and agree you will not be entitled to any refund because of a change in the contents of any Services previously offered. Your continued use of the Services constitutes your acceptance of the changes. If you do not agree to all of the changes, you must immediately stop using the Services and cancel your Services with Peak Internet. However, cancellation of the Services does not relieve you of your obligations under the Agreement. Any changes you make or other terms you add to this Agreement, or propose in any documents, written or electronic, are void.
G. Multi-Month Subscriptions. For multi-month subscriptions, you may downgrade the Services by paying a one-time Downgrade of Service Fee.
H. Acceptable Use Policy. You agree to abide by and accept the terms of our Acceptable Use Policy, as posted on our website at www.peakinter.net and incorporated herein by reference. Any violation of the Acceptable Use Policy may result in your Service being suspended or terminated and constitutes a breach of the Agreement. Any such violation does not relieve you of your obligations under the Agreement.
I. IP Addresses: Peak Internet will provide you with a dynamic, non-public Internet Protocol (“IP”) address(es) as a component of the Service and these IP addess(es) can and do change over time. You will not alter, modify, or tamper with these dynamic IP address(es) or those of any other customer. You also agree not to use any software on or in conjunction with any computer(s) or network device connected to the Service that provides for static IP address(es). If applicable, Peak Internet will release and/or recover the dynamic IP address(es) upon disconnection, discontinuance, or termination of the Service or this Agreement.
2. BILLING POLICIES AND PAYMENTS FOR SERVICES
A. You agree to pay all charges associated with the Services and to pay all applicable taxes, fees, and other charges, including, but not limited to, installation/service call charges, monthly service charges, measured and per call charges, applicable federal, state, and local taxes and fees (however designated), regulatory recovery fees for municipal, state and federal government fees or assessments imposed on Peak Internet, permitted fees and cost recovery charges, or any programs in which Peak Internet participates, including, but not limited to, public, educational, and governmental access, universal service, telecom relay services for the visually/hearing impaired, rights-of-way access, and programs supporting the 911/E911 system and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services that are now or may in the future be assessed on the Services you receive from Peak Internet. Unless you prepay for a multi-month subscription to Services, Peak Internet will provide you will a billing statement each month, in advance, for Services ordered by you or anyone who uses your Peak Internet subscription, with or without your permission, until you cancel the Services. The billing statement will show the total amount due, the payment due date, payments, credits, purchases, and other charges to your account.
B. In order to provide a billing statement as outlined in Section 2(B), you will provide all information necessary for Peak Internet to provide and bill for the Services. You affirm that the information you supply to Peak Internet is correct and complete and will promptly notify Peak Internet whenever your personal or billing information changes. You understand that false or incorrect information may result in Services provisioning or delivery delays or the suspension or termination of your Services.
C. You agree to pay Peak Internet in full, monthly, by the payment due date for the Services outlined in the billing statement and for any other charges due Peak Internet, including any fees set forth in this Section 2. Payment of your billing statement and any other charges after the due date will result in you paying Peak Internet a Late Payment Fee as outlined in Section 2(J). Other fees and charges also may be assessed as outlined in Section 2(J). Peak Internet does not extend credit to our customers, and the Late Payment Fee is not interest, a credit service charge, or a finance charge. If a partial payments is made, it first will be applied to the oldest outstanding bill. If you send checks or money orders marked “payment in full,” Peak Internet can accept them without losing any of its rights to collect any other amounts owed by you, notwithstanding your characterization of the payment. Peak Internet, however, reserves the right to reject any checks or money orders marked “payment in full,” which may result in your payment being considered late and result in suspension or termination of your Services pursuant to this Agreement. You understand and agree that in the case of late payment or nonpayment for any Services ordered by you or for any of the charges stated below, you agree that Peak Internet may report such late payment or nonpayment to credit reporting agencies pursuant to Section 12(F). If you do not pay your bill by the due date, Peak Internet has the right to suspend or terminate your Services at any time thereafter in its sole discretion. Peak Internet may require you to pay all past due charges, a Reconnect Fee, a deposit equal to a minimum of one month’s advance charges, and all outstanding balances accrued through the date of deactivation before Peak Internet reconnects your Services. Deposits will not be held segregated from other funds and shall not earn or accrue interest.
D. If you provide Peak Internet with credit card information for payment of your monthly bill or any other amount owed to Peak Internet, you authorize Peak Internet to charge your credit card for all charges that apply to your account. Peak Internet will charge your credit card on or before the payment due date shown on your billing statement. In the event you request a chargeback on your credit card of the amounts Peak Internet has charged you, you will be subject to a chargeback fee as outlined in Section 2(J). If Peak Internet is unable to charge your credit card for any reason, you will be subject to the Late Payment Fee outlined in Section 2(J) and any other fees outlined in Section 2(J). Additionally, you may be subject to suspension or termination of your Services pursuant to this Agreement and other remedies permitted by this Agreement.
E. If you at any time fail, neglect, or refuse to make timely payments, a petition in bankruptcy is filed on your behalf or against you, you take advantage of any insolvency law or become insolvent, you make an assignment for the benefit of creditors, or a receiver, liquidator, or trustee is appointed for your property or affairs, Peak Internet shall be wholly relieved from its obligations under this Agreement and shall be entitled to all relief permitted by the Agreement or any statute or common-law.
F. If you paid for an annual or other multi-month subscription for any Services and your account is past due for any amounts owed to Peak Internet, Peak Internet, at its sole discretion, may suspend any or all Services until payment is received in full and/or convert your annual or other multi-month subscription to a monthly subscription. If Peak Internet converts your multi-month subscription to a monthly subscription, Peak Internet first will apply the amount you paid for your multi-month subscription to any past due amounts and then any remaining amounts to future obligations. If Peak Internet elects to offset the amount paid for the remaining portion of a multi-month subscription against amounts past due, you agree to pay, in addition to all other applicable fees, the Offset Fee outlined in Section 2(j) for each month and partial month that the multi-month subscription was previously received.
G. If Peak Internet uses a collection agency or attorney to collect amounts or money you owe to Peak Internet or to assert any other right that Peak Internet may have against you, you agree to pay all reasonable costs of collection or other action, including, but are not limited to, the costs of a collection agency, court costs, all other reasonable costs incurred, and reasonable attorneys’ fees.
H. If there are billing errors or other requests for credit, you can contact Peak Internet’s Customer Service Center by telephone or in writing. You must contact Peak Internet within thirty (30) calendar days of the time you receive the billing statement for which you are seeking corrections. Failure to timely notify Peak Internet of a dispute shall constitute acceptance of the billing statement. Undisputed portions of the billing statement must be paid before the next billing statement is issued to avoid an administrative fee for late payment.
I. All payments for Services must be made directly by you to Peak Internet. Peak Internet shall have no obligation to provide Services for which payment is made by any third party.
J. In addition to the amounts due for Services, you agree to pay the fees referenced below (“Fees”) when applicable. Peak Internet reserves the right to increase these Fees or add additional Fees in the future, in our sole discretion and without prior notice to you.
Late Payment Fee $5.00
Credit Card Chargeback Fee $35.00
Downgrade of Service Fee $25.00
Service Access Fee (monthly) $5.00
Duplicate Billing Statement Fee $3.00
Overnight Delivery Fee $23.00
Reconnect Fee $35.00
Returned Payment Fee $35.00
Offset Fee $2.00
Ledger Request Fee $6.00
Relocation of Service $75.00
Paper Invoice Fee (monthly) $2.00
K. You agree to keep a valid credit card on file with Peak Internet at all times during your subscription.
3. CANCELLATION OF SERVICE
A. Your Service will continue until cancelled as provided for in this Agreement. Your Service will be automatically renewed unless you contact Peak Internet to cancel as provided for in Section 3(B).
B. You have the right to cancel your Service for any reason at any time by notifying Peak Internet in writing at the address set forth above. Please be aware that certain services have a minimum subscription commitment and if you cancel your Service prior to the expiration of the minimum subscription commitment, certain early termination fees may apply. The early termination fees is not a penalty, but an offset or recovery of Peak Internet’s costs related to early termination and the discounts, if any, associated with your term commitment.
P.O. Box 399
Woodland Park, CO 80866-0399
C. Peak Internet has the right to terminate your Services at any time without providing notice to you if: (i) you fail to pay your billing statement in full when it is due; (ii) Peak Internet receives confirmation that you have received the Services or any part of the Services without paying for them; (iii) you violate any term of this Agreement; or (iv) for any other reason upon email notice to you.
D. If your Service is cancelled for any reason, you still are responsible for payment of all outstanding balances accrued, including any applicable costs and Fees pursuant to Section 2(J). Upon cancellation, you give Peak Internet explicit permission to immediately charge any outstanding balances on your account to the credit card or other payment method you have on-file with Peak Internet at that time.
E. You understand that charges for Services, once charged to your account, are nonrefundable. For monthly subscriptions, the cancellation will be effective at the end of the period covered by the last monthly bill. No refunds or credits will be provided in connection with the cancellation of monthly subscriptions. For annual or other multi-month subscriptions, the cancellation will be effective as of the date the multi-month subscription expires. Because you are receiving a discounted price in exchange for your agreement to pay for your services on an annual or other multi-month basis, in the event you cancel the Services prior to expiration of your multi-month subscription, you understand and agree that you are not entitled to any refund or credit for the unused portions of the multi-month subscription and that we have the right to retain any prepaid monies as liquidated damages.
A. In order to receive the Services, it will be necessary for you to utilize certain equipment owned and maintained by Peak Internet (“Equipment”).
B. Equipment is defined as and strictly limited to the following: outdoor microwave radio transceiver and associated antennae and/or indoor fiber optic transceiver/modem, and power supply/lightning protection devices associated with these systems. Any and all other equipment associated with or installed in conjunction with the Services, or specifically billed and invoiced for, shall not be covered under this Agreement and no warranty, either expressed or implied, shall be provided by Peak Internet.
C. The Equipment provided by Peak Internet is secured and accessible only by Peak Internet personnel. Do not attempt to login to, reconfigure, or reset any Equipment that has been provided by Peak Internet. Any attempt to login to, reconfigure, or reset any Equipment may result in damage, and you will be liable for any resulting damage, costs, and expenses.
D. Peak Internet reserves the right to alter software in the Equipment through periodic downloads. Peak Internet will use commercially reasonable efforts to schedule these periodic downloads in a manner that result in the least amount of interference with or interruption to your Service. Peak Internet shall not be responsible for possible interference with or interruption to your Service as a result of such periodic downloads.
E. The Equipment may contain certain components and software that are proprietary to Peak Internet and/or otherwise protected by trademark, copyright, or other intellectual property laws and international treaties. You agree that you will not try to reverse-engineer, decompile, or disassemble any software or hardware contained within the Equipment. Such actions are strictly prohibited, may result in the suspension or termination of your Services, and/or legal action by Peak Internet .
F. If the Equipment is stolen or otherwise removed from your premises without your authorization, you must notify Peak Internets’ Customer Service Center immediately, but in any event, not more than three (3) business days after such removal to avoid liability for payment for unauthorized use of the Equipment. You will not be liable for unauthorized use after Peak Internet has received your timely notification. If you fail to notify Peak Internets’ Customer Service Center within the three (3) business days, you will be liable for all unauthorized use of the Equipment, as well as the current replacement cost of the Equipment.
5. PEAK INTERNET OWNED EQUIPMENT
A. The Equipment shall at all times remain the sole and exclusive property of Peak Internet, and Peak Internet will have the right, at its sole discretion, to replace it with new or reconditioned Equipment and to remove the Equipment upon termination of Services. None of the Equipment shall be deemed fixtures or any part of your real property. Peak Internet’s ownership of the Equipment may be displayed by notice contained on the Equipment. You shall have no right to pledge, sell, mortgage, give away or remove, relocate, alter or tamper with the Equipment (or any notice of Peak Internet’s ownership thereon) at any time. Any reinstallation, return of, or change in location or alignment of the Equipment shall be performed by Peak Internet at the service rates in effect at the time of service. You shall not attach any electrical or other devices to or otherwise alter the Equipment without Peak Internet’s prior written consent. Peak Internet shall have the right to make such filings as are necessary to evidence its ownership rights in the Equipment, including, but not limited to, Uniform Commercial Code filings, and you agree to execute any and all documents as are necessary for Peak Internet to make such filings. Upon termination of the Services, you must notify our Customer Service Center to schedule return of the Equipment.
B. You shall notify Peak Internet promptly of any defect in, damage to, or accident involving the Equipment. All maintenance and repair of the equipment shall be performed by Peak Internet or its designees. Peak Internet may charge you for any repairs that are necessitated by any damage to or misuse of the Equipment. The failure to timely pay for such repairs will result in your obligation to pay Peak Internet for all costs and Fees pursuant to Section 2(J).
6. TRANSFER OF ACCOUNT, SERVICES OR EQUIPMENT
Peak Internet may sell, assign, or transfer your account or Services to a third party without notice to you. You may not assign or transfer your Services without Peak Internet’s prior written consent, which will not be unreasonably withheld. Peak Internet may, however, refuse to allow you to assign or transfer your Services if your account has an outstanding balance, including any Fees authorized by Section 2(j).
7. NO WARRANTY
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PEAK INTERNET, NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT THE EQUIPMENT OR SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, BE SECURE OR FREE OF VIRUSES OR OTHER HAMFUL COMPONENTS, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER PEAK INTERNET, NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING OR COURSE OF TRADE, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE REQUIRED BY THE APPLICABLE LAW. NO ADVICE OR INFORMATION GIVEN BY PEAK INTERNET OR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WILL VARY THE TERMS OF SECTION 7 OR CREATE ANY FORM OF A WARRANTY.
8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
A. PEAK INTERNET WILL NOT BE LIABLE FOR ANY INTERRUPTIONS IN SERVICE OR LIABLE FOR ANY DELAY OR FAILURE TO PERFORM, IF SUCH DELAY OR NONPERFORMANCE ARISES IN CONNECTION WITH OR RELATING TO THE TERMINATION OF ALL OR A PORTION OF THE SERVICES, THE RELOCATION OF ALL OR A PORTION OF THE SERVICES TO DIFFERENT TRANSMITTER(S), A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT, ANY ACTS OF GOD (INCLUDING LIGHTNING), FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, UPLINK FAILURE, THEFT OR VANDALISM, ACTS OF ANY GOVERNMENTAL BODY, OR ANY OTHER CAUSE BEYOND THE SOLE CONTROL OF PEAK INTERNET.
B. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY BY APPLICABLE LAW, PEAK INTERNET DOES NOT MAKE ANY WARRANTY, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING OR COURSE OF TRADE, REGARDING OUR THE EQUIPMENT OR ANY OTHER EQUIPMENT OR SERVICES FURNISHED TO YOU. C. IN NO EVENT SHALL PEAK INTERNET HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, TREBLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOST OR IMPUTED PROFITS OR REVENUES, LOSS OF INFORMATION OR DATA, COSTS OF COVER, INTERRPUTED SERVICE, OR RELIANCE UPON THE SOFTWARE AND/OR ASSOCIATED DOCUMENTATION) ARISING OUT OF OR RELATING TO THE EQUIPMENT OR ANY OTHER EQUIPMENT OR SERVICES FURNISHED TO YOU, RESULTING FROM OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU, OR FROM ANY FAULT, FAILURE, DEFICIENCY, OR DEFECT IN THE SERVICES OR EQUIPMENT FURNISHED TO YOU.
D. IT IS YOUR RESPONSIBILITY TO IMPOSE VIEWING RESTRICTIONS ON YOURSELF, MEMBERS OF YOUR FAMILY AND HOUSEHOLD, AND GUESTS AS YOU DEEM APPROPRIATE. PEAK INTERNET SHALL HAVE NO LIABILITY TO ANYONE DUE TO OR BASED UPON THE CONTENT OF ANY OF THE SERVICES FURNISHED TO YOU.
E. SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES MAY ALLOW ACCESS TO INFORMATION THAT MAY BE SEXUALLY EXPLICIT, OBSCENE, OR OFFENSIVE OR OTHERWISE UNSUITABLE FOR CHILDREN. SUBSCRIBER AGREES THAT THE SUPERVISION OF THE USE OF THE SERVICES BY CHILDREN IS SUBSCRIBER’S SOLE RESPONSIBILITY AND THAT PEAK INTERNET IS NOT RESPONSIBLE FOR ACCESS BY SUBSCRIBER OR ANY OTHER USERS TO OBJECTIONABLE OR OFFENSIVE MATERIALS OR CONTENT.
F. CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, UPDATING, REPAIR, AND REMOVAL OF THE EQUIPMENT, CUSTOMER EQUIPMENT AND/OR THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PEAK INTERNET, NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY PEAK INTERNET, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS, PEAK INTERNET SHALL PAY, AT ITS SOLE DISCRETION, FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS, EXCEPT AS OUTLINED ABOVE. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE OPENED, UPDATED, ACCESSED, OR USED EITHER BY YOU OR BY PEAK INTERNET OR ITS AGENTS IN CONNECTION WITH INSTALLATION, UPDATING, OR REPAIR. THE OPENING, ACCESSING, OR USE OF YOUR COMPUTER, OTHER DEVICES USED IN CONNECTION WITH THE SERVICES MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR OTHER DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER PEAK INTERNET NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
G. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE EQUIPMENT OR SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 3.
H. THE SERVICES ARE NOT FAIL-SAFE AND ARE NOT DESIGNED OR INTENDED FOR USE IN SITUATIONS REQUIRING FAIL-SAFE PERFORMANCE OR IN WHICH AN ERROR OR INTERRUPTION IN THE SERVICES COULD LEAD TO SEVERE INJURY TO BUSINESS, PERSONS, PROPERTY, OR ENVIRONMENT (“HIGH RISK ACTIVITIES”). THESE HIGH RISK ACTIVITIES MAY INCLUDE, WITHOUT LIMITATION, VITAL BUSINESS, PERSONAL COMMUNICATIONS, OR ACTIVITIES WHERE ABSOLUTELY ACCURATE DATA OR INFORMATION IS REQUIRED. YOU EXPRESSLY ASSUME THE RISKS OF ANY DAMAGES RESULTING FROM HIGH RISK ACTIVITIES. PEAK INTERNET SHALL NOT BE LIABLE FOR ANY INCONVENIENCE, LOSS, LIABILITY, OR DAMAGE RESULTING FROM ANY INTERRUPTION OF THE SERVICES, DIRECTLY OR INDIRECTLY CAUSED BY, OR PROXIMATELY RESULTING FROM, ANY CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING, BUT NOT LIMITED TO, CAUSES ATTRIBUTABLE TO YOU OR YOUR PROPERTY; INABILITY TO OBTAIN ACCESS TO THE PREMISES; FAILURE OF ANY SIGNAL AT THE TRANSMITTER; FAILURE OF A COMMUNICATIONS BACKBONE OR UPLINK; LOSS OF USE OF TOWERS/REPEATER LOCATIONS, OR OTHER UTILITY FACILITIES; STRIKE; LABOR DISPUTE; RIOT OR INSURRECTION; WAR; EXPLOSION; MALICIOUS MISCHIEF; FIRE, FLOOD, LIGHTNING, EARTHQUAKE, WIND, ICE, EXTREME WEATHER CONDITIONS, OR OTHER ACTS OF GOD; FAILURE OR REDUCTION OF POWER; OR ANY COURT ORDER, LAW, ACT OR ORDER OF GOVERNMENT RESTRICTING OR PROHIBITING THE OPERATION OR DELIVERY OF THE SERVICES. IN ALL OTHER CASES OF AN INTERRUPTION OF THE SERVICES, YOU SHALL BE ENTITLED, UPON A REQUEST MADE WITHIN SIXTY (60) DAYS OF SUCH INTERRUPTION, TO A PRO-RATA CREDIT FOR ANY SERVICE INTERRUPTION EXCEEDING TWENTY-FOUR CONSECUTIVE HOURS AFTER SUCH INTERRUPTION IS REPORTED TO PEAK INTERNET, OR SUCH OTHER PERIOD OF TIME AS MAY BE SPECIFICALLY PROVIDED BY LAW. UNLESS SPECIFICALLY PROVIDED BY LAW, SUCH CREDIT SHALL NOT EXCEED THE FIXED MONTHLY CHARGES FOR THE MONTH OF SUCH SERVICE INTERRUPTION AND EXCLUDES ALL NONRECURRING CHARGES, ONE-TIME CHARGES, PER CALL OR MEASURED CHARGES, REGULATORY FEES AND SURCHARGES, TAXES AND OTHER GOVERNMENTAL AND QUASI-GOVERNMENTAL FEES. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS DESIGNEES FOR INTERRUPTION OF SERVICE, EXCEPT AS OUTLINED ABOVE. ANY CREDITS PROVIDED BY PEAK INTERNET ARE AT OUR SOLE DISCRETION AND IN NO EVENT SHALL CONSTITUTE OR BE CONSTRUED AS A COURSE OF CONDUCT BY PEAK INTERNET.
I. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PEAK INTERNET, NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING CLAIMS, LOSSES, DAMAGES, OR COSTS:
(1) ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, TREBLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOST OR IMPUTED PROFITS OR REVENUES, LOSS OF INFORMATION OR DATA, COSTS OF COVER, INTERRPUTED SERVICE, OR RELIANCE UPON THE SOFTWARE AND/OR ASSOCIATED DOCUMENTATION) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE OR SERVICES OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE, THE PEAK INTERNET EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA);
(2) ANY DIRECT OR ACTUAL DAMAGES TO REAL OR PERSONAL TANGIBLE PROPERTY OR BODILY INJURY OR DEATH UNLESS DIRECTLY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF PEAK INTERNET OR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS. ANY DIRECT OR ACTUAL DAMAGES TO REAL OR PERSONAL TANGIBLE PROPERTY OR BODILY INJURY OR DEATH CAUSED BY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE SHALL BE LIMITED BY SECTION 8(I)(1). HOWEVER, PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE NO LIABLITY WHATSOEVER FOR ANY DAMAGES OR MODIFICATION TO OR LOSS OR DESTRUCTION OF ANY OF YOUR SOFTWARE, FILES, DATES, OR PERIPHERALS, REGARDLESS OF THE CAUSE.
(3) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
J. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement.
K. All representations, disclaimer of warranties, indemnifications, and limitations of liability contained in Section 8 shall survive the termination of this Agreement.
L. To the extent any provision of Section 8 is not permitted by the applicable law, such limitation shall not apply to the extent it is barred by the applicable law. However, all other provisions of Section 8 permitted by the applicable law shall apply.
9. WARNING AGAINST PIRACY
You will not connect the Service or Equipment to more computers, either on or outside of the Premises, than are reflected in your account with Peak Internet. You acknowledge that any unauthorized receipt of the Service constitutes theft of service, which is a violation of federal and/or state law and can result in both civil and criminal penalties. In addition, if the violations are willful and for commercial advantage or private financial gain, the penalties may be increased. It is a violation of several U.S. federal and state laws to receive any Services or any portion of such Services without paying for them. The penalties for violating such laws can range from imprisonment to civil damage awards.
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS (“INDEMNIFIED PARTIES”) AND SHALL REIMBURSE THE INDEMNIFIED PARTIES FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY SUITS, ARBITRATIONS, JUDGMENTS, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICE OR EQUIPMENT; (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (c) CLAIMS OR CAUSES OF ACTION FOR DEFAMATION, LIBEL, SLANDER, OR INVASION OF PRIVACY ARISING FROM THE USE OF THE SERVICE OR EQUIPMENT BY YOU OR PARTIES WHO USE THE SERVICE OR EQUIPMENT, WITH OR WITHOUT YOUR PERMISSION, (e) NEGLIGENT ACTS, ERRORS, OR OMISSIONS BY YOU OR PARTIES WHO USE THE SERVICE OR PEAK INTERNET EQUIPMENT, WITH OR WITHOUT YOUR PERMISSION, (f) INJURIES TO OR DEATH OF ANY PERSON AND FOR DAMAGES TO OR LOSS OF ANY PROPERTY, WHICH MAY IN ANY WAY ARISE OUT OF OR RESULT FROM OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH LIABILITIES ARISE FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE INDEMNIFIED PARTIES, (g) ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; (h) YOUR BREACH OR VIOLATION OF ANY PROVISION OR TERM OF THIS AGREEMENT; AND (i) ANY VIOLATION OF APPLICABLE LAWS OR REGULATIONS. SUBSECTIONS (a) THROUGH (i) OF SECTION 10 SHALL BE REFERRED TO AS THE “INDEMNIFIED CLAIMS” OR “INDEMNIFIED CLAIM.”
THE INDEMNITY OBLIGATIONS IN THIS SECTION 10 SHALL BE LIMITED TO THE EXTENT NECESSARY TO COMPLY WITH THE APPLICABLE LAW. THE INDEMNITY OBLIGATIONS IN THIS SECTION 10 SHALL SURVIVE THE TERMINATION OF THE AGREEMENT FOR ANY REASON. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN ANY APPLICABLE LAW, INCLUDING ANY STATUTE OF LIMITATIONS, AN INDEMNIFIED PARTIES’ CLAIM FOR INDEMNIFICATION SHALL NOT ACCRUE, AND ANY APPLICABLE STATUTE OF LIMITATIONS SHALL NOT BEGIN TO RUN, UNTIL PAYMENT OF A FINAL JUDGMENT, ARBITRATION AWARD, OR SETTLEMENT ARISING OUT OF ANY INDEMNIFIED CLAIM. WITH RESPECT TO ANY MATTER TO WHICH INDEMNITY OBLIGATIONS APPLY, THE INDEMNIFIED PARTIES SHALL HAVE THE RIGHT TO ASSUME THEIR OWN DEFENSE IF, IN THEIR SOLE DISCRETION, THEY DETERMINE THE DEFENSE BEING PROVIDED BY YOU IS INADEQUATE OR WHERE YOU HAVE A CONFLICT OF INTEREST IN DEFENDING THE INDEMNIFIED CLAIM. IF THE INDEMNIFIED PARTIES ASSUME THEIR OWN DEFENSE, YOU SHALL REIMBURSE THE INDEMNIFIED PARTIES FOR ALL REASONABLE ATTORNEYS’ FEES AND COSTS RELATED TO THE PREPARATION AND DEFENSE OBLIGATIONS TO THE INDEMNIFIED PARTIES, SUCH PAYMENT TO BE MADE WITHIN TEN (10) CALENDAR DAYS AFTER YOUR RECEIPT OF A STATEMENT OF SUCH FEES AND EXPENSES. YOU WAIVE ALL RIGHTS AGAINST THE INDEMNIFIED PARTIES FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY COMMERCIAL GENERAL LIABILITY, COMMERCIAL UMBRELLA LIABILITY, BUSINESS AUTO LIABILITY, WORKERS COMPENSATION, EMPLOYERS LIABILITY INSURANCE AND ANY OTHER INSURANCE THAT IS MAINTAINED.
11. DISPUTE RESOLUTION
PLEASE READ THIS SECTION 11 CAREFULLY AS IT AFFECTS YOUR RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ANY DISPUTE THROUGH MANDATORY MEDIATION AND ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION
You agree that any dispute or claim arising out of or relating to this Agreement, the Services, or Equipment (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) (“Dispute”) will be resolved as outlined in this Section 11.
To the extent that you may have a Dispute that is not waived pursuant to the aforementioned waivers or a Dispute that is not covered by the subject matter of the aforementioned waivers, the Dispute first shall be submitted to mediation pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Submission to mediation under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association is a condition precedent to additional dispute resolution procedures under this Section 11. The mediator shall be appointed by Peak Internet in its sole discretion. The location of any mediation under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association shall be in a location of Peak Internet’s choosing, including, but not limited to, Woodland Park, CO or Colorado Springs, CO. If the parties fail to resolve a Dispute pursuant to mediation, the Dispute shall be submitted to binding arbitration pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The location of any arbitration under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association shall be in a location of Peak Internet’s choosing, including, but not limited to, Woodland Park, CO or Colorado Springs, CO. The arbitrator shall be appointed by Peak Internet in its sole discretion from potential arbitrators listed in the National Roster or any other list provided by the American Arbitration Association. The locale of the arbitration shall be Colorado Springs, Colorado. Each party shall bear all of his/her/its own costs and fees associated with the arbitration, including, but not limited to, arbitration costs, attorneys’ fees, and expert witness fees. However, if any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing the judicial or administrative action must pay the other party’s reasonable costs and attorneys’ fees in seeking such stay or compelling of arbitration.
By this Agreement, both you and Peak Internet are waiving rights to litigate disputes or claims in court (except as to the one exception provided below). Both you and Peak Internet also waive the right to a jury trial on your respective disputes or claims and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity.
The sole Exception to the aforementioned provisions of mediation and arbitration for a Dispute shall be for a dispute or claim arising out of or relating to this Agreement for the collection of debts you owe to Peak Internet or an assignee brought pursuant to Section 2(G). In the event of such a dispute or claim, you agree to waive the right to a jury trial
A. Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and Peak Internet with respect to the subject matter of this Agreement, and replace any and all prior written or verbal agreements. In entering into this Agreement, you specifically and expressly disclaim any reliance upon any terms, conditions, statements, warranties, or representations, oral or written, made by Peak Internet, together with any of its predecessors, successors, assigns, shareholders, officers, directors, agents, attorneys, and personal representatives, that are not contained in this Agreement.
B. Severability. Each provision of this Agreement is intended to be severable, and if any portion of this Agreement is held invalid, illegal, unenforceable, or void for any reason, the remainder of this Agreement will remain in full force and effect. Any portion of the Agreement held to be invalid, unenforceable, or void will, if possible, be deemed amended or reduced in scope, but such amendment or reduction in scope will be made only to the minimum extent required for purposes of maximizing the validity and enforceability of this Agreement
C. Non-Waiver. Peak Internet does not waive any provision or right if it fails to insist upon or enforce strict performance of any provision or term of this Agreement. Neither the course of conduct between you and Peak Internet, nor trade practice shall act to modify any provision of this Agreement.
D. Physical Address/Change of Address. When setting up your Peak Internet account, you agree to provide Peak Internet with the physical street address where the Equipment will be located and your Services will be provided. A post office box does not constitute a physical address and is not sufficient to meet this requirement. You agree to give Peak Internet prompt notice of your change of name, mailing address, physical address where the Equipment is located, and telephone number. You may do this by notifying our Customer Service Center by telephone or in writing at the phone number or mailing or e-mail address set forth in the first paragraph of this Agreement.
E. Notice. Any notice required or permitted to be given by Peak Internet under this Agreement may be provided via the mail, on your billing statement, as a bill insert, through publication on the website set forth in the first paragraph of this Agreement, by telephone, by e-mail or by any other reasonable means. If Peak Internet sends you notice by mail, on your billing statement or as a bill insert, it will be considered given when deposited in the U.S. Mail, addressed to you at your then-current billing address in its records. If Peak Internet sends you notice through publication on the website, it will be considered given when first published. If Peak Internet sends you notice by telephone, it will be considered given when personally delivered to you or when left as a message at your then-current phone number in its records. If Peak Internet sends you notice via e-mail, it will be considered given when transmitted to its server, addressed to you at your then-current e-mail address in its records. Unless otherwise specified in this Agreement, any notice required by you under this Agreement shall be in writing, shall be sent by first class mail addressed to Peak Internet at the mailing address set forth in the first paragraph of this Agreement, and shall be deemed given when actually received by Peak Internet at such mailing address.
F. Credit Checks. You authorize Peak Internet to investigate your financial responsibility and creditworthiness, including, without limitation, acquiring credit reports and histories, and to report any payment defaults, delinquicies, collections, charge-offs, or similar actions to credit reporting agencies. Under the Fair Credit Reporting Act, you have the right to notify Peak Internet if you believe Peak Internet has reported inaccurate information about your account to any consumer reporting agency. Please include the specific item of dispute and why you believe the information reported is in error in any such notice. If you do not notify Peak Internet about such alleged inaccurate information in a timely manner, Peak Internet shall be entitled to rely upon its current information as entirely accurate and complete.
G. Applicable Law. This Agreement, including, without limitation, all matters relating to its validity, construction, performance and enforcement, and any dispute or claim arising out of or related to this Agreement, shall be governed by the laws of the State of Colorado without giving effect to its conflict of law provisions.
H. No term or provision of this Settlement Agreement may be varied, changed, modified, waived, discharged, or terminated orally, except in writing signed by an authorized representative of Peak Internet or as required by applicable laws and regulations
I. Remedies Cumulative. It is agreed that the rights and remedies provided under the terms and conditions of this Agreement to Peak Internet in case of default or breach by you of this Agreement are cumulative and without prejudice to any other rights and remedies that Peak Internet may have by reason of such default or breach by you at law, in equity, under contract or otherwise (all of which are expressly reserved).
J. Intellectual Property. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names of Peak Internet are and shall remain the exclusive property of Peak Internet and nothing in this Agreement shall be construed as giving or granting Subscriber the right to use such marks. Subscriber acknowledges that Subscriber is not given any license to use any firmware or software other than a revocable, nontransferable license to use such firmware or software (without making any modifications thereto) strictly in accordance with the terms and conditions of this Agreement and only in conjunction with using the Equipment and Services.
K. Other Agreements and Contracts. This Agreement is in addition to any other written agreement(s), if any, between you and Peak Internet, including without limitation, any installation agreement or customer agreement(s), if any, applicable to the promotion(s) pursuant to which you are receiving the Services and/or Equipment, and except as provided to the contrary herein, all such written agreements shall remain in full force and effect. Except as expressly set forth in this Agreement to the contrary, any and all prior Subscriber Agreements are replaced and superseded in their entirety by this Agreement, and prior Subscriber Agreements shall be of no further force or effect. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving the Services and/or Equipment, the terms and conditions of such customer agreement(s) shall be controlling. In the event of any ambiguity between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving the Services and/or Equipment, Peak Internet shall have the sole and exclusive authority to interpret and/or make a final determination in its sole discretion concerning any issue arising from such ambiguity.
L. Heading. The headings of the paragraphs of the Agreement have been inserted for reference only, are not part of the Agreement, and are not to be used in any way in the construction or interpretation of the Agreement.
M. Authority of Signatories. Each person signing the Agreement represents that he or she has the authority to bind the party on behalf of whom or which he or she signs to the terms of this Agreement.
N. Survival of Certain Terms and Conditions. Any obligations of Peak Internet and Subscriber in this Agreement shall survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
13. ADDITIONAL PROVISIONS APPLICABLE TO DIGITAL VOICE SERVICE
In addition to the General Terms and Conditions above, the following terms and conditions are specifically applicable to Subscribers who also subscribe to Digital Voice Service through Peak Internet.
1. SPECIAL NOTICE FOR PEAK INTERNET DIGITAL VOICE SUBSCRIBERS: LIMITATIONS OF DIGITAL VOICE SERVICE
a. 911/Enhanced 911 Functionality (“911/E911”). At Peak Internet, we provide a safe and reliable means of communication in times of emergency. Peak Internet’s 911/E911 service operates differently than traditional 911, and because your safety is important to us, you will just have to fill out a short form during the sign up process that tells us the street address where you will be using your Peak Internet service.
Most of our customers have access to either basic 911 or Enhanced 911 service. With 911/E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary.
With basic 911, the local emergency operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. As additional local emergency centers become capable of receiving our customers’ information, Peak Internet will automatically upgrade customers with basic 911 to 911/E911 service. Peak Internet will not give you notice of the upgrade.
If you do not have access to basic 911 or 911/E911, your 911 call will be sent to the local Public Safety Answering Point (PSAP) administrative phone line. Not all administrative phone lines are staffed 24x7 and may not be staffed by personnel immediately able to assist you in an emergency.
b. Limitations. 911/E911 may differ from the 911/E911 functionality furnished by other providers. As such, it may have certain limitations.
CAREFULLY READ THE INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS OF 911/E911. YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES. IF YOU HAVE ANY QUESTIONS ABOUT 911/E911, PLEASE IMMEDIATELY CONTACT PEAK INTERNET.
i. Correct Address: In order for your 911/E911 calls to be properly directed to emergency services, Peak Internet must have your correct address. If you move Digital Voice Service to a different address without Peak Internet’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, and/or Digital Voice Service (including 911/E911) may fail altogether. Therefore, you must call Peak Internet before you move Digital Voice Service to a new address. Peak Internet will need several business days to update your address in the E911 system so that your 911/E911 calls can be properly directed. All changes in service address require Peak Internet’s prior approval.
ii. Service Interruptions: Digital Voice Service uses the electrical power in your address. If there is an electrical power outage, 911 calling may be interrupted. Furthermore, calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network/equipment/power failure, or another technical problem.
iii. Suspension and Termination by Peak Internet: You understand and acknowledge that all Digital Voice Service, including 911/E911, as well as all online features of Digital Voice, where we make these features available, will be disabled if your account is suspended or terminated.
iv. Telephone Number Assignments: The telephone numbers utilized for Digital Voice Service are assigned in accordance with applicable federal and state numbering rules. Therefore, Peak Internet cannot accommodate the assignment of a telephone number outside of the telephone rate center to which that number is appropriately assigned.
c. Limitation of Liability and Indemnification. YOU ACKNOWLEDGE AND AGREE THAT PEAK INTERNET WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911 USING THE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS (“INDEMNIFIED PARTIES”) AND SHALL REIMBURSE THE INDEMNIFIED PARTIES FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY SUITS, ARBITRATIONS, JUDGMENTS, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911/E911. THE OTHER PROVISIONS OF SECTION 10 SHALL APPLY AS TO THE INDEMNIFIED PARTIES.
2. ADDITIONAL DIGITAL VOICE-SPECIFIC PROVISIONS REGARDING CUSTOMER EQUIPMENT
a. Incompatible Equipment and Services. You acknowledge and understand that Digital Voice Service may not support or be compatible with:
i. Certain non-voice communications equipment, including certain makes or models of alarm and home security systems, certain medical monitoring, personal emergency alert, and home detention devices, certain fax machines, and certain “dial-up” modems;
ii. Rotary-dial phone handsets, and certain makes and models of other voice-related communications equipment including key systems, private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units;
iii. Casual/dial around (10-10) calling; 976, 900, 700, or 500 number calling;
iv. 311, 511, or other N11 calling (other than 411, 611, 711, and 911); and
v. Other call types not expressly set forth in our product literature (e.g., outbound shore-to-ship calling); and
vi. Certain service codes such as automatic callback and automatic recall (e.g., *66, *69) due to compatibility limitations with other carrier signal functions.
3. TRANSFER OF YOUR PHONE NUMBER(S)
For information about switching to another provider from Peak Internet and the assignment of telephone numbers related to Peak Internet Service, please call Peak Internet.
4. CUSTOMER INFORMATION
Peak Internet and its suppliers reserve the right both during the term of this Agreement and upon its termination to delete your voicemail, call detail, data, files, or other information that is stored on Peak Internet’s or its suppliers’ servers or systems, in accordance with our storage policies. You understand and acknowledge that Peak Internet shall have no liability whatsoever as a result of the loss or removal of any such voicemail, call detail, data, files, or other information.