TERMS AND CONDITIONS
READ THIS AGREEMENT CAREFULLY AND FULLY. THIS AGREEMENT IS A BINDING CONTRACT. IF YOU DO NOT FULLY UNDERSTAND OR AGREE TO ANY TERM, DO NOT SIGN, USE THE SERVICES, OR USE OR RETAIN SOFTWARE OR EQUIPMENT.
Your acceptance of this Agreement occurs at the first of (a) signature; (b) use of the services, or (c) use or retention of software or equipment provided to you by or on behalf of People's Choice Communications.
1. Purpose
1.1. The purpose of this Agreement is for you, as a residential end user, to receive, and for People’s Choice Communications, Inc. (referred to henceforth as “People's Choice Communications’) to make available, residential broadband internet access (“Services” as defined hereinbelow) provided by People's Choice Communications in accordance with the terms of this Agreement.
1.2. People’s Choice Communications is acting solely to facilitate the availability of the Services. People’s Choice Communications may not be your only option for accessing internet service and you should consider all options before choosing to accept this Agreement and receive the Services.
2. Definitions
2.1. “Agreement” includes these terms and conditions and the terms and conditions set forth on People’s Choice Communications’ websites, as may be changed as set forth herein, including Acceptable Use Policies and Privacy Policies.
2.2. People’s Choice Communications and "we" refer to People’s Choice Communications, acting in their capacity as a facilitator to make services available to you.
2.3. "Customer" and "you" refer to the resident responsible for the receipt, use, and payment for Services hereunder.
2.4. “Delivery Parties” has the meaning set forth in Section 15 (Limitation of Liability).
2.5. "Equipment" means any modem, router and/or other equipment provided by or on behalf of People’s Choice Communications for use with the Service. Unless expressly sold to you, all Equipment is rented and remains the property of its owner. Any monthly rental payments, periodic use payments, or similar arrangements related to Equipment between you and the owner are not purchases of Equipment.
2.6. “People's Choice Communications” means People’s Choice Communications, Inc.
2.7. "Pure Broadband Services" means Broadband Services without residential telephone access lines having the ability to make outbound calls (other than 911 and 711 calls).
2.8. “Services" also known as "High Speed Internet Service" or "HSI Service" means access to the Internet through wireless routers, Ethernet, fiber broadband, and other technologies.
2.9. "Service" or "Services'' means dial-up Internet access services, Broadband Services, Pure Broadband Services, portal websites, and related websites and functionality provided through or in connection with those websites, and any personal web pages created through a provided website, related websites, or other services provided hereunder, Software, Equipment, Content, IP addresses, technical support, email, domain name server (DNS) and related services, and other products and services provided by People's Choice Communications under the plan applicable to your Service. The Services do not include voice telephony services.
All capitalized terms used herein and not otherwise defined in this Section 1 shall have the meanings ascribed to them in this Agreement. As used in this Agreement, the term “include” or “including” shall be deemed nonexhaustive and without implying limitation.
3. Roles of People's Choice Communications.
3.1. People's Choice Communications is facilitating the availability of the Services, which are provided.
3.2. The availability and functionality of the Services is controlled by People's Choice Communications, as defined by People's Choice Communications, subject to People's Choice Communications’s terms of service (including scheduled maintenance, usage limitations, excused non-performance, modification rights, notice provisions, and policies such as their Acceptable Use Policy and Privacy Policy), which may impact your access and use of the Services. People's Choice Communications’s service description and terms of service are set forth..
3.3. You agree that People's Choice Communications is not responsible for the availability or quality of the Services. People's Choice Communications will, however, use commercially reasonable efforts to secure People's Choice Communications’s performance in accordance with People's Choice Communications’ service commitments and/or Service Level Agreements.
4. Additional Terms; Revisions to Terms
4.1. People's Choice Communications may change this Agreement and/or may change their terms of service and/or attributes of the Services. Changes may include changes to the functionality, availability, use, or price of the Services. Changes shall be effective on the date indicated in the notice, and if no date indicated the changes are effective immediately.
4.2. We may provide notice via any of the following methods: bill messages, bill inserts, separate mailings to you, email notification, recorded announcement, posting to People's Choice Communications Website, text message, or any other method at our sole discretion.
4.3. By continuing to access, use, or pay for the Services or retain Equipment after the effective date, you accept and agree to abide by such changes. We may not provide notice of changes to promotional prices or offers, or to taxes, fees, or surcharges (except as required by law).
5. Authorized Users, Use of Services, and Your Responsibilities
5.1. You represent that you are a principal resident of the address (meaning the residence is in your name as an owner or tenant), you are eighteen (18) years of age or older, and that you have the legal authority to enter into this Agreement. If you are or hereafter become ineligible or incompetent to enter into this Agreement or meet your responsibilities hereunder, People's Choice Communications may take such action as it deems advisable, including voiding or terminating this Agreement without any obligation or responsibility to you, considering this Agreement breached, or transferring this Agreement to a successor. You represent that you own or have received permission from the lawful owner of the premises to allow People's Choice Communications, or third parties to make any changes to the premises deemed advisable to install Equipment and provide the Services. You are responsible as or for the lawful owner confirming the use of any equipment space and associated facilities, conduits and rights-of-way comply with all applicable laws, rules and regulations, as well as any existing leases or other contractual agreements or rights of others.
5.2. You are responsible for all use of the Services and Equipment and compliance with this Agreement, whether by you or anyone using the Services on your account with or without your permission, and to pay for all activity associated with your account. You agree to comply with all applicable laws, rules and regulations regarding your use of the Services. You agree People's Choice Communications may modify, suspend, or terminate Services without notice, for violations, suspected violations, or to prevent violations of this Agreement.
5.3. Internet service is inherently subject to vulnerabilities, including security vulnerabilities and service interruptions. As such you will not, and you will not allow any other person or entity to, rely on the Service for any emergency or any use that may result in any harm, damage, or loss, whether physical, emotional, financial, loss of rights or opportunity, or otherwise. You are responsible for backing up any data and arranging for any replacement or alternative services in the event the Services become degraded, compromised, or otherwise unavailable.
5.4. People's Choice Communications does not control the internet or information to which the Services may allow access. Such content may be sexually explicit, obscene or offensive, or otherwise unsuitable for children. You agree that the supervision of use of the Service is solely and exclusively your responsibility and that People's Choice Communications is not responsible for access by you or any other users to objectionable or offensive content. PEOPLE'S CHOICE COMMUNICATIONS STRONGLY RECOMMENDS THE USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE.
5.5. It may be possible for unauthorized third parties to gain access to your devices or data, or monitor data traffic. You are solely responsible for maintaining the security of your devices and data, including encryption of data and protection of your User ID, password and personal and other data. Never share your password or login credentials with others. PEOPLE'S CHOICE COMMUNICATIONS STRONGLY RECOMMENDS THE USE OF CURRENT, COMMERCIAL ENCRYPTION SOFTWARE OR OTHER TRANSMISSION SECURITY PROTECTIONS, AS WALL AS COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE.
5.6. Management of Your Computer and Data. YOU AGREE THAT NEITHER PEOPLE'S CHOICE COMMUNICATIONS, NOR ANY THIRD PARTY ACTING ON EITHER’S BEHALF ARE RESPONSIBLE FOR THE LOSS OF YOUR DATA OR FOR THE BACK-UP OR RESTORATION OF YOUR DATA REGARDLESS OF WHETHER THIS DATA IS MAINTAINED ON OUR SERVERS OR YOUR DEVICE(S). YOU SHOULD ALWAYS BACK-UP ANY IMPORTANT INFORMATION SEPARATELY FROM DATA STORED ON PEOPLE'S CHOICE COMMUNICATIONS, OR ANY THIRD PARTY'S SERVERS.
5.7. You will not suffer, permit, or engage in any illegal conduct or any conduct that prevents, threatens, or interferes with others using and accessing their devices, data, Content, or the Internet, or conduct that interferes with the provision of Services to you or others. Such conduct includes (a) hacking, circumvention of user authentication or security of any network, account, or device, any "denial of service" attacks (port scans, deliberate overload attempts, etc.), or otherwise; (b) creating, transmitting, storing, or posting any information, file, or software that contains a virus, trojan horse, worm, malware, phishing, spoofs, or other harmful component; (c) posting, transmitting, uploading, downloading, submitting, publishing, reproducing, distributing, storing, processing, or in any way exploiting or otherwise accessing or making available or any data, files, information or content (“Prohibited Content”) that may be created in, provided to, stored or processed in, or accessed from any jurisdiction in which the creation, use, storage, access, or display of such Prohibited Content may constitute, give rise to, encourage, facilitate, or condone a criminal offense, civil liability, or otherwise violate any local, state, national or international law, including U.S. export control laws and regulations. Such Prohibited Content may include obscene or harmful content, content that infringes third party information property rights, or unsolicited e-mails, comments, or other communications; and (d) sending or attempting to send or post e-mails, messages, articles, comments, or other postings or communications using a name or address of someone other than yourself, attempting to impersonate any person or using forged headers or other identifying information.
5.8. The Service is a residential consumer grade service, and you may not resell the Service, use it for high volume purposes, exceed or circumvent any bandwidth, usage or other restrictions, or engage in any activities or use that may disrupt or impact the provision of Services to you or to others. You will not run programs or servers that provide services to others through the Services which include web hosting, multi-user interactive forums, game servers, operating an internal mail/http/ftp/irc/dhcp server for external connections or supporting multi-user forums, or engage in peer-to-peer file sharing activities.
5.9. You are not authorized to use People's Choice Communications name or mark, in any advertising, publicity or in any other commercial manner without the prior written consent of the respective owner.
6. Charges and Payment
6.1. Affordable Connectivity Program. You agree to authorize People's Choice Communications to enroll you in the Affordable Connectivity Program (ACP), and apply ACP subsidies to cover all or some of the cost of providing Internet service to you.
6.2. If your service is not covered by the Affordable Connectivity Program, you agree to pay any fees or charges applicable to the Services in U.S. currency within 30 days of the invoice date, including any monthly usage charges, any additional per-usage charges, Equipment charges (including Equipment purchase or rental charges), Software charges, shipping and handling fees, applicable taxes, surcharges, recovery fees, telephone charges, activation fees, installation fees, set-up fees, and all other recurring and nonrecurring charges for your Service plan, as well as any taxes, surcharges, or other charges. You also agree to pay any additional charges or fees applied to your account, including interest and charges due to late payment, insufficient credit, insufficient funds, or otherwise.
6.3. The fees, taxes, and charges may vary or change. Taxes and government surcharges will not exceed amounts that federal, state, and local authorities require or permit.
6.4. Any applicable non-recurring charges such as set up, activation and installation fees, and Equipment charges, will generally be included in your first bill.
6.5. Recurring charges will be billed one month in advance; any usage charges will be billed in arrears.
6.6. Based on your election and subject to our approval, People's Choice Communications or its agent will bill you directly, or bill your charge card. Under all circumstances you are and remain personally liable for all payments, and agree that People's Choice Communications or its agents, or third party collectors, may use all legal means available to secure payment.
6.7. Late Fees. For each month in which any portion of your Service charges are not paid by the due date listed on your bill (including due to insufficient funds or denied credit), People's Choice Communications reserves the right to charge you a late fee of $25.00 and interest on overdue amounts at the highest rate permitted by applicable law. If People's Choice Communications uses a collection agency or initiates any legal action to recover amounts due, you agree to reimburse us for all expenses we incur to recover such monies, including attorneys' fees. Our acceptance of late or partial payment (even those marked, “PAID IN FULL”) and late payment charges will not constitute waiver of any of our rights to collect the full amount due under this Agreement. We may discontinue your Service without notice if you fail to make payment when due or to provide us with a new charge card expiration date before the existing date expires.
6.8. Billing Disputes. You must notify People's Choice Communications in writing within thirty (30) days from the date of the invoice if you dispute any invoiced charge, otherwise such dispute will be deemed waived. You shall have no right to withhold, set off, or reduce any invoiced amount - whether disputed or undisputed. You accept all charges not disputed within 30 days. To dispute a charge on your invoice, you must follow the dispute procedures in this Agreement.
7. Privacy Policy; Legal Compliance; Collection and Use of Data
7.1. Personal information you provide to People's Choice Communications is governed by our Privacy Policy, which is posted on People's Choice Communications website and is subject to change from time to time. People's Choice Communications reserves the right to provide account and user information, including email, to third parties (a) in order to facilitate the provision of Services; (b) to improve or make additional Services of People's Choice Communications, or third parties available to you; or (c) as otherwise required or permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. Such cooperation may include, but is not limited to, monitoring of the People's Choice Communications network consistent with applicable law.
7.2. People's Choice Communications may be required by law to report facts or circumstances reported to us or that we discover from which it appears there may be illegal conduct, including physical abuse or violations of child pornography laws. We reserve the right, but except as required by law do not assume the duty, to report any such information, including the identity of users, account information, images and other facts to law enforcement personnel.
7.3. People's Choice Communications or a third party may automatically measure and monitor network performance and the performance of your internet connection and the network. We, or a third party may also access and record information about your computer and Equipment's profile and settings and the installation of software. You agree to permit us, or third parties to access your device(s) and Equipment and to monitor, adjust and record such data, profiles and settings for the purpose of providing the Services, monitor your Internet connection and network performance, access and adjust your computer settings, as they relate to the Services or other services which we may offer. We, reserve the right to: (i) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple servers for back-up and maintenance purposes; and (ii) block or remove any unlawful content you store on or transmit to or from any server. We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access.
7.4. People's Choice Communications, or third parties may gather information about your internet usage such as the sites visited, session lengths, bit rates, and number of messages and bytes passed, which may be aggregated with similar information from other customers. People's Choice Communications, or third parties may share such aggregated information with other, trusted third parties from time to time. People's Choice Communications, or third parties may also collect and use information obtained from you and from other sources for billing purposes, to provide and change Service, to anticipate and resolve problems with the Service, or to identify, create and inform you of products and services from People's Choice Communications or other companies that might be of interest to you.
7.5. People's Choice Communications will not use or disclose any of your personally identifiable information except as permitted by law or compelled by a court order or subpoena. You specifically consent to the use or disclosure. When People's Choice Communications uses agents, contractors or other companies to perform services on its behalf, it will require that they protect your personally identifiable information in a manner consistent with this Agreement.
7.6. People's Choice Communications does not share your address or any personally identifiable information with advertisers without your notice and consent, however you may see advertisements targeted to you as a result of the geographic location associated with the Services or as a result of your access and use of the Services.
8. Service Availability and Changes
8.1. The Service you select may not be available in all areas or at the rates, speeds, or bandwidth generally marketed, and some locations may not qualify for the Service even if initial testing showed that your line was qualified.
8.2. Bandwidth is provided on a per-line (not a per-device) basis. The bandwidth available to each device connected to the network will vary depending upon the number, type and configuration of devices using the Service and the type of use (e.g., streaming media), among other factors.
8.3. The speed of the Service will vary based on network or Internet congestion, your computer configuration, the condition of your telephone line and the wiring inside your location, among other factors.
8.4. People's Choice Communications makes no guarantees or representations related to download or upload speeds. We RESERVE the right, at any time, with or without prior notice to you, to restrict or suspend the Services to perform maintenance activities and to maintain session control. People's Choice Communications assume no responsibility or liability for interruption of the Services or Service performance differences.
8.5. People's Choice Communications reserves the right to change any of the features, Content or applications of the Service at any time with or without notice. This includes the portal services we may make available as part of the Service or for an additional charge. People's Choice Communications may also change your IP address, either static or dynamic, at any time. If People's Choice Communications changes your static IP address, People's Choice Communications will make reasonable efforts to provide you with prompt notice of the change.
9. Protection of Services. People's Choice Communications may take any action we deem appropriate without notice to protect the ongoing provision of the Services, and to protect the Equipment and facilities used for provision of the Services. You may be unable to use or access the Services or any data or materials stored on or available through the Services. You will protect our network and assets, by not permitting unauthorized or inappropriate access, by not sharing your access credentials with third parties, not making them publicly available, disabling or password-protecting files on your equipment, and having a firewall solution that prohibits unauthorized access to your computer, devices, or other equipment.
10. Other Products and Services. Other products and services provided by People's Choice Communications or third parties may require you to agree to additional terms and conditions or accept an end user license agreement (“EULA”) from such service provider. Your use or acceptance of such products or services are governed by the terms of the EULA and/or other terms and conditions. People's Choice Communications will have no responsibility or liability of any nature arising from or related to such products or services. You agree not to install, accept, or use any product or service unless you have reviewed and accepted such terms.
11. Misuse or Abuse of the Services, Support, or Personnel. People's Choice Communications may terminate this Agreement for misuse or abuse of the Services, Equipment, support, or customer service, installation, or other personnel by you or anyone accessing or using the Service with or without your consent, present at the premises, or otherwise interacting with People's Choice Communications. People's Choice Communications, on behalf of itself, and any third party, reserves the right to limit the amount of time spent on any single issue and recommend the dispatch of an in-home technician, at additional costs to you, in order to resolve the issue, and may condition or decline Services or service assistance in People's Choice Communications, or such third party’s discretion.
12. Term and Termination
12.1. The term of this Agreement is month-to-month (the "Term"). The Term will automatically renew for an additional month unless and until you, People's Choice Communications, provide notice of nonrenewal. Your notice of non-renewal must be received not less than thirty (30) days prior to the expiration of the existing Term by written notice.
12.2. The Term begins when you accept this Agreement and expires on the last day of the month. The Term may end prematurely if you or we terminate this Agreement during the Term as permitted in this Agreement, in which case the Term ends on the legally effective date of such termination.
12.3. If you terminate the Services before the end of that Term, or if People's Choice Communications terminate as a result of your misuse of the Service or other violation of this Agreement or People's Choice Communications terms, you will be responsible for all charges related to the Services through the completion of the Term.
12.4. You remain personally responsible and liable for all charges and use of the Services regardless of whether you vacate the residency, and unless and until you provide effective notice of termination or non-renewal as set forth herein and pay all outstanding charges in full.
12.5. Either you or People's Choice Communications may terminate this Agreement any time by giving notice to the other as set forth in this Agreement. You will be charged and agree to pay charges through the completion of the month in which you or People's Choice Communications terminate. Activation or set-up fees paid at the initiation of your Service and prepaid charges, if any, are not refundable.
12.6. It may take up to 30 days to disconnect your Services.
12.7. If you reinstate Services following cancellation or termination, we may require you to pay a deposit, reactivation, or other fee.
12.8. Deletion of Data upon Termination. If your service is terminated for any reason, People's Choice Communications may immediately delete all data, files and other information (including emails, address book and web storage content) stored in or for your account without further notice to you. You are solely responsible for regularly backing up, downloading, archiving, or otherwise retaining copies of any such data, files, or other information.
12.9. Return of Equipment upon Termination. If your Service Term expires or is terminated for any reason, you remain responsible for the return of any Equipment without damage or modification, accommodating for reasonable and ordinary wear and tear, or you will be charged up to the full original retail price of the Equipment.
13. WARRANTIES
13.1. PEOPLE'S CHOICE COMMUNICATIONS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICES, INCLUDING AVAILABILITY, FUNCTIONALITY, QUALITY, SECURITY, ACCESSIBILITY, FITNESS, VALUE, OR OTHERWISE.
13.2. PEOPLE'S CHOICE COMMUNICATIONS PROVIDE ALL SERVICES, EQUIPMENT, AND SOFTWARE “AS IS” AND DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES RELATED TO THE SERVICES, EQUIPMENT, AND SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PEOPLE'S CHOICE COMMUNICATIONS DO NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE OR EQUIPMENT.
13.3. PEOPLE'S CHOICE COMMUNICATIONS IS ACTING SOLELY TO MAKE INTERNET SERVICES AVAILABLE. TO THE EXTENT ANY COMMITMENT OR OBLIGATION OF PEOPLE'S CHOICE COMMUNICATIONS IS DEPENDENT ON THIRD PARTIES, PEOPLE'S CHOICE COMMUNICATIONS WILL HAVE NO RESPONSIBILITY FOR SUCH COMMITMENT OR OBLIGATION.
13.4. ADVICE OR INFORMATION GIVEN BY PEOPLE'S CHOICE COMMUNICATIONS OR ITS REPRESENTATIVES IS FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT CREATE A COVENANT, WARRANTY, OR REPRESENTATION.
13.5. PEOPLE'S CHOICE COMMUNICATIONS DOES NOT WARRANT OR GUARANTEE THAT SERVICE CAN BE PROVISIONED OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF PEOPLE'S CHOICE COMMUNICATIONS HAS ACCEPTED YOUR ORDER FOR SERVICE.
13.6. Service results may vary, depending on a number of factors, including but not limited to, the type and condition of customer-provided software, equipment and other peripherals. Successful networking setup and maintenance are not guaranteed.
13.7. Websites linked to or from the Service are not reviewed, controlled, or examined by People's Choice Communications and People's Choice Communications is not responsible for any losses you incur or claims you may have against the owner of third party websites. The inclusion of any linked websites or content from the Service, including websites or content advertised on the Service, does not imply endorsement.
13.8. People's Choice Communications is not responsible for invalid destinations, transmission errors, or the corruption of your data. People's Choice Communications does not guarantee your ability to access all websites, servers or other facilities or that the Service is secure or will meet your needs.
13.9. People's Choice Communications makes no warranty as to the Equipment, however to the extent People's Choice Communications provides Equipment and the manufacturer or provider of such Equipment makes a warranty available People's Choice Communications will use commercially reasonable efforts to make such warranty available to you.
13.10. All limitations and disclaimers stated in this section also apply to People's Choice Communications's third party licensors, providers and suppliers, as third party beneficiaries of this agreement.
13.11. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
14. Force Majeure. People's Choice Communications will not be responsible for any delay, interruption, or other failure to perform under the Agreement due to acts beyond our control. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or equipment from third party suppliers; cable cuts or equipment damage by third parties, a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond our reasonable control.
15. Limitation of Liability
15.1. UNDER NO CIRCUMSTANCES IS PEOPLE'S CHOICE COMMUNICATION, OR ITS SUBCONTRACTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (“DELIVERY PARTIES”) LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH PROVIDING OR FAILING TO PROVIDE SERVICES, EQUIPMENT OR SOFTWARE USED IN CONNECTION WITH THE SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, INCLUDING LOST PROFITS OR REVENUE, LOSS OF OPPORTUNITY, COST OF REPLACEMENT SERVICES, OR ANY COSTS OR EXPENSES INCURRED BY YOU OR THIRD PARTIES AS A RESULT OF THE SERVICES.
15.2. Delivery Parties are not liable for any damages arising out of or in connection with any: (A) act or omission by you, or another person or entity; (B) provision or failure to provide Services, Equipment, or Software, including deficiencies or problems with any Equipment or Software used in connection with the Services, the network or Services (for example, transmission failures, interruptions in Service, etc.); (C) Content or information accessed while using the Services or Equipment; or (D) interruption or failure in accessing or attempting to access Services or information through your use of the Services, including any failures caused by Equipment.
15.3. If, notwithstanding the foregoing exclusions and without negating the scope and efficacy thereof, any delivery party is found to be responsible to you for monetary damages relating to any services, equipment, or software obtained through or otherwise relating to a delivery party and if the exclusions above are found to be unenforceable for any reason, you agree that THE AGGREGATE, CUMULATIVE, AND COLLECTIVE LIABILITY OF ALL DELIVERY PARTIES FOR ALL CLAIMS UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF (A) THE ACTUAL, DIRECT DAMAGES YOU INCUR, AND (B) AN AMOUNT EQUAL TO ONE (1) MONTH OF RECURRING MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) THAT YOU PAID TO PEOPLE'S CHOICE COMMUNICATIONS FOR THE SERVICE GIVING RISE TO SUCH CLAIM(S).
16. INDEMNIFICATION.
16.1. You agree to defend, indemnify and hold the Delivery Parties harmless from and against all liabilities, costs and expenses related to or arising from your use of the Services, Equipment, or Software (or the use of your Services, Equipment, or Software by anyone else) in violation of applicable laws, regulations or this Agreement, or in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property, claims of infringement of any intellectual property rights, claims of incorrect or misleading information, libel, slander, invasion of privacy, or identity theft.
16.2. If any person or entity claiming any right through you or otherwise relating to the Services, you indemnify agree to defend, indemnify and hold the Indemnified Parties harmless from and against all such claims and agree that any dispute related to this Agreement or the Services may only be brought by you under the Mandatory Arbitration procedure set forth herein. You waive any right of subrogation of disputes relating to this Agreement or the Services.
17. Notices
17.1. Notices required under this Agreement by you must be provided to us at info@peopleschoice.coop. Notice by People's Choice Communications to you (including notice of changes) shall be deemed given when: (i) transmitted to your email address on file; or (ii) mailed via the US mail or hand-delivered to your address on file; (iii) posted to the People's Choice Communications Website; or (iv) notice is otherwise actually provided or reasonably attempted by People's Choice Communications.
17.2. If you send us an email, you will be responsible for ensuring that the User ID and/or alias contained in the email is legally sufficient to verify you as the sender and the authenticity of the communication.
18. Dispute Resolution
18.1. Dispute Process. If you have a dispute with us relating to any matter, you agree to first notify People’s Choice Communications customer service at the number listed on your invoice or to write to us at info@peopleschoice.coop in an attempt to resolve your dispute. You must describe your dispute with specificity and provide us with any supporting documentation. If we have a dispute with you, we will notify you in writing in an attempt to resolve the dispute. If after following this process, either party is unable to resolve its dispute within sixty (60) days of notifying the other party, either party may, but is not required to, invoke the Mandatory Arbitration process as set forth below. In the event you fail to invoke the Mandatory Arbitration process within ninety (90) days of the circumstances giving rise to the dispute, People's Choice Communications may deem the dispute to be resolved or waived. Mandatory Arbitration shall not apply to payment or collection disputes, which People's Choice Communications or its agent may bring in any court of valid jurisdiction.
18.2. Mandatory Arbitration. Other than payment or collections actions for unpaid fees and charges for Services, Equipment, or Software, the Parties waive any right to bring suit in court. Instead, the Parties agree to arbitrate any and all non-payment collections claims, controversies, or disputes of any kind (“Claims”) arising out of or related to this Agreement or the Services, including the installation, availability, functionality, content, or use of the Services or the Termination of this Agreement, as well as any claims relating to People's Choice Communications’s business, policies, charges, practices, or otherwise. Mandatory Arbitration shall survive the termination or expiration of this Agreement and applies to any claims you may bring against any of the Deliver Parties. The Federal Arbitration Act applies to this Agreement and supersedes any conflicting state law. This provision does not apply to claims that may not, by operation of law, be brought to arbitration by agreement of the parties.
18.3. You and People's Choice Communications agree that no claims will be asserted in any representative capacity on behalf of anyone else, that no claims will be resolved on a class-wide or collective basis, that no arbitrator or arbitration forum will have jurisdiction to accept or determine any claims on a class-wide or collective basis, and that no rules for class-wide or collective arbitration will apply. This paragraph and each of its provisions are integral to, and not severable from, this section on mandatory arbitration of disputes.
18.4. A single arbitrator engaged in the practice of law will conduct the arbitration. The arbitration will be filed with and the arbitrator will be selected according to the rules of the CPR Institute for Dispute Resolution (“CPR”) and 9 U.S.C. Sec. 1, et. seq. Arbitration will be conducted by and under the then-applicable rules of CPR and United States Code unless the parties agree otherwise. All expedited procedures prescribed by the applicable rules will apply. We agree to pay our respective arbitration costs, except as otherwise required by rules of CPR, as applicable, but the arbitrator can apportion these costs as appropriate. The arbitrator's decision and award is final and binding, and judgment on the award may be entered in any court with jurisdiction.
18.5. IF FOR ANY REASON, THE ABOVE PROVISIONS ON ARBITRATION ARE HELD UNENFORCEABLE OR ARE FOUND NOT TO APPLY TO A CLAIM, YOU AND PEOPLE'S CHOICE COMMUNICATIONS AGREE TO WAIVE TRIAL BY JURY. 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 that action must pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including attorneys' fees.
18.6. If any portion of this Mandatory Arbitration of Disputes section is determined to be invalid or unenforceable, the remainder of the section remains in full force and effect.
19. GENERAL PROVISIONS.
19.1. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including those relating to Limitation of Liability and Indemnification, shall survive such termination.
19.2. You will provide reasonable cooperation to enable us or our agents to install, access, maintain, monitor, repair, or otherwise provide or protect the Services, Equipment, and Software. You are responsible for any bodily injury or other harm caused as a result of the premises or your negligence or intentional conduct or that of your co-habitants, residents, guests, or others.
19.3. You and People's Choice Communications agree that the substantive laws of the State of New York, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement.
19.4. Except as otherwise required by law or provided herein, including New York laws relating to consumer transactions, and without negating or limiting the binding nature of the dispute notice and waiver provisions and the Mandatory Arbitration provisions, in the event any claim or action is nevertheless permitted to be brought in a court of law, you irrevocably consent to the exclusive jurisdiction of the courts within New York City, waive any right to jury trial, and agree any cause of action or claim you may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
19.5. People's Choice Communications's failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
19.6. This Agreement, including all policies referred to herein and posted on the People's Choice Communications Website, constitutes the entire agreement between you and People's Choice Communications with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized person at People's Choice Communications.
Installation. People's Choice Communications-provided installation of Services, the following applies:
People's Choice Communications will provide a list of requirements and a pre-installation checklist that you must confirm at your premise(s) before installation; and install the Equipment and Software necessary to initiate the Services. People's Choice Communications reserves the right to employ third parties for installation.
You will meet each of the requirements set forth in the Services welcome packet. If these requirements are not met before People's Choice Communications-provided installation date and cause the installation to be delayed, People's Choice Communications may charge you a fee for each additional installation attempt. You grant People's Choice Communications or its subcontractors the right to enter the premises during normal business hours Monday through Friday to perform installation, repair or maintenance services in support of the Services. You remain responsible to configure and maintain any Equipment and devices in your premises to interface with or otherwise use the Services, including any personal computers, tablets, mobile devices, printers, routers, repeaters, switches, servers and hubs. People's Choice Communications will not be responsible for interference with the performance of Services caused by your configuration of routers. People's Choice Communications will use commercially reasonable efforts to complete installation of Services at your premise within any agreed-upon timeframes. Installation will be complete if the post-installation performance check that we conduct confirms that an end-user may access the Services. If we determine that the test is successful, we consider you as "In Service” and we will begin billing you as of that “In Service” date
"Content" means content provided by or accessible on the Services, including files, images, photographs, animations, video, audio, music, and text in any format.
Billing for Services will automatically begin on the date provisioning of your Service is deemed by People's Choice Communications to be complete ("Service Ready Date"). Upon the expiration or termination of Services for any reason prior to the end of a billing cycle, we will charge you the full monthly recurring charges for Services during the billing cycle (along with all applicable nonrecurring charges, taxes, surcharges, and fees) and will not pro- rate these charges. If your monthly charges are net to $0, you may not be mailed a paper invoice. Invoice information will remain available in your account information An additional fee may be charged for invoice reprints.
Pricing Plans with Minimum Terms. You agree to maintain your Service for the term that applies to the plan you have selected (a "Term Plan"). Your Term Plan begins on the later of: (i) the date you change your existing Service plan to a Term Plan; or (ii) your Service Ready Date. At the end of any Term Plan you may be given the option to select a new Term Plan. If you do not select a new Term Plan, your Service will automatically convert to a month-to-month Service plan at a monthly fee that may be higher than your current rate. If you select a new Term Plan, the terms of that plan will apply when the new Term Plan begins.
Credit Check; Refundable Deposit; Credit Limits. Our provision of Services to you is subject to our approval of your credit. You give us permission to check and verify your credit as needed in our sole discretion. We may require that you provide us with a refundable deposit, which will be specified at the time of your order ("Subscriber Deposit"). We may also require an additional deposit or advanced payment after activation of the Service at any time if you fail to pay any amounts when due or if we determine you are a credit risk at any time during your Service period with us. If you fail to pay for Services when due, we may, without providing notice to you, apply your deposit or advance payment to the amount owed. If you refuse to make a deposit or advance payment or otherwise establish credit as provided by applicable state law, we reserve the right to refuse to provide you Service. Within ninety (90) days after termination of your Service, we will return your Subscriber Deposit, less any unpaid amounts due on your account, including any amounts owed for unreturned or damaged Equipment. Amounts held on deposit will not accrue interest except as required by law. As we determine in our sole discretion and to the extent permitted by applicable law, we may set a credit limit on your account at any time. We may restrict the Services to which you have access if you exceed this credit limit.
Email Storage Limitations. Certain Services have limited storage availability and/or capabilities. People's Choice Communications reserves the right to delete, without prior notice, files from any directory or mailbox if the associated storage limitations are exceeded. People's Choice Communications provides unlimited storage of read email per mailbox, except for attachments to emails and other files uploaded by you which People's Choice Communications reserves the right to remove after 120 days. Unread messages may be removed from your inbox 90 days after delivery. All email may be removed from your Trash or SPAM folders after 2 days. Read email in your inbox and all personal folders, except Trash and SPAM folders and except attachments and files uploaded by you, will be retained indefinitely. Furthermore, People's Choice Communications reserves the right to deactivate email accounts that have not been accessed for a period of 120 consecutive days.
Self Installation. “Self Installation” means you install the Services. In locations where Self-Installation is available, People's Choice Communications (or or a third party) will ship the Equipment and instructions necessary for you to initiate Services. You will install Equipment according to the instructions provided. People's Choice Communications may provide customer service representatives or self-help to assist you with installation via a local or toll-free number. If you require that People's Choice Communications install the necessary Equipment and Software for Services at your location, you may be billed separately for those installation services.
For all other customers, except as otherwise set forth herein, in any event of early termination prior to the end of the applicable Term, unless terminated by you for the People's Choice Communications’s material and uncurable breach, you agree to pay the People's Choice Communications an amount equal to the monthly recurring Service charge multiplied by the number of months remaining in the then-current Term, up to a maximum of $200.00. If you terminate Service at your location, you may be able to carry over your existing Term Plan to a new Service location; ask your the People's Choice Communications Customer Service representative for further details.