Effective February 1, 2002
This Agreement are between the customer (referred to as “I”, “me” or “my”) on the one hand, and Galaxy Cable, Inc., d/b/a Galaxy Cablevision, or other broadband service provider (together referred to as “you”, or “your”) on the other hand. This Agreement sets forth the terms and conditions under which you will provide me and I will use and subscribe to your service.
1. You will provide me with access to the Internet and its services and, if Paragraph 10 is accepted, the rental of a cable modem (the Service), subject to this Agreement, from the date on which I accept this Agreement until either you or I terminate it as provided in Paragraph 15.
2. You will make reasonable efforts to provide me with continuous, uninterrupted, expedient and error-free service. Nonetheless, I understand that temporary interruptions of the Service may occur as normal events in the provision of the Service and you may modify or discontinue the Service at any time without giving me notice. I understand that you have no control over the networks, facilities or services of third parties and that delays and disruptions involving them are beyond your control.
3. I will pay you the charges for the Service (in advance) including monthly rate, applicable installation and rental charges, taxes and fees in accordance with the terms on the invoice you send me. I understand that your charges, taxes, fees and terms and conditions may be modified by you at any time. Once I have been notified of such a change, my continued use of the Service constitutes my acceptance of such. If I do not agree, I will stop using the service and will submit written notice to terminate this agreement. Current Terms and Conditions may be requested at any time by contacting Galaxy Cablevision. If I have any questions regarding this Agreement or Service, I can contact you at 1-800-ENJOYTV (1-800-365-6988) or at Galaxy Cablevision, Inc., 100 South Main Street, Sikeston, MO 63801. I can also call my local cable service or other service provider.
4. I will provide you with accurate, complete and current information on how to bill me. If I pay you after the specified payment date, you may charge me a monthly late charge as liquidated damages equal to the local cable company or other broadband service provider’s late fee rate for each month of portion thereof for which the balance remains, and the Service may be disconnected. I may also owe you for your expenses incurred to recover past due charges, including attorney’s fees and legal costs. I will notify you of any errors or will ask for any refunds due within six months of when the error occurred.
5. If you disconnect the Service, I may have to pay a reconnect fee and security deposit, in addition to all past due charges before you reconnect the Service.
6. I understand that I may incur charges, including taxes, for which I am solely responsible, from other Internet or on-line services, telecommunications service providers or other providers of goods and services which I may purchase or subscribe to.
7. You may, but need not, monitor the content on the Service and may disclose any information you deem necessary to comply with any law, regulation or government order to protect yourself or other Customers. You may refuse to post or may remove any material or information that, in your sole discretion is unacceptable, undesirable, or in violation of this Agreement. You may suspend or terminate the Service to me, or suspend or terminate any user ID, electronic mail address, Universal Resource Locator or domain name which I use in connection with the Service, if my use of the Service (a) violates any law, regulation or tariff, (b) is obscene, defamatory, deceptive or fraudulent, (c) is intended to threaten, harass or intimidate, (d) interferes with another Customer’s use or enjoyment of the Service, (e) is in any way inconsistent with your Terms and Conditions, (f) tends to damage your name or reputation, (g) involves my provision of ftp or web server capabilities or (h) otherwise violates this Agreement. I hereby warrant that any material or content that I publish, transmit or distribute through the Service complies with the provisions of this Agreement and I authorize you to reproduce, publish, distribute and display such material and content worldwide.
8. I hereby lease _____ do NOT lease _____ from you one cable modem (“Modem”) which will be billed by my cable company or charged to my credit card. I shall use the Modem in a careful and proper manner and only for obtaining access to the Internet. I will not open the Modem, create a safety hazard, or modify the normal operation and use of the modem.
8.1 I have paid you a deposit of $50.00 or authorized a credit card charge of $350.00. You will not implement a credit card charge unless I default or breach this Agreement. The deposit is refundable within thirty days after a termination not caused by my default or breach. I may not be entitled to interest on the deposit. You may offset against the deposit or credit card charge any sums I owe you which are not paid when due, and any damages caused by my default.
8.2 I will bear all risk of loss, damage (beyond normal wear and tear), theft or destruction of the Modem. In the event of such loss or damage to the Modem, I shall pay you $350.00 as liquidated damages, acknowledging that the precise amount of damages is difficult to estimate that that this amount is a reasonable forecast and not a penalty. You may repair any damage to the Modem due in whole or in part to my acts or omissions in violation of this Agreement at my cost and expense at your then standard rates for time and materials. You will provide any routine maintenance of the Modem not caused or contributed to by me.
8.3 I will use the Modem solely at my current address and shall not move it therefrom without your prior written consent. If I ask that the Modem be relocated, a relocation fee may apply.
8.4 Within 15 days of termination of this Agreement, I will, at my own expense, deliver the Modem to you at any place within the cable system you designate, in the same condition as when delivered to me, except for reasonable wear and tear from authorized use.
9. LIMITATION OF LIABILITY. UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR IN THE AGREEMENT, NEITHER YOU NOT YOUR AFFILIATES, SUBCONTRACTORS, EMPLOYEES OR AGENTS WILL BE LIABLE TO ME OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES, LOSSES, ALLEGATIONS, CLAIMS, SUITS OR OTHER PROCEEDINGS, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) INCLUDING LOSS OF PROFITS, EARNINGS, BUSINESS OPPORTUNITIES OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR PERSONAL INJURY (INCLUDING DEATH) RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, MY USE OF THE SERVICE OR MY RELIANCE ON ANY OTHER USE OF THE EQUIPMENT OF SERVICE, INCLUDING, WITHOUT LIMITATION, (A) A CONTENTION THAT THE USE OF THE EQUIPMENT OR SERVICE BY ME OR A THIRD PARTY INFRINGES ON THE COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY OR CONTRACTUAL RIGHT OF ANY THIRD PARTY, (B) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, NONDELIVERIES, MISDELIVERIES, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR SERVICE, (C) THE CONTENT OR SERVICES AVAILABLE ON THE INTERNET OR OTHERWISE THROUGH THE SERVICE, INCLUDING THE ACCURACY, QUALITY AND CONFIDENTIALITY OF INFORMATION OBTAINED THROUGH THIRD PARTIES THROUGH THE SERVICE, (D)THE ACTIVITIES OF OTHER INTERNET USERS OR CABLE OR SERVICE CUSTOMERS IN ACCESSING OR MONITORING MY COMPUTER OR MY USE OF THE SERVICE, OR (E) ACTS OR OCCURRENCES BEYOND YOUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, FIRE, LIGHTNING, EXPLOSION, POWER SURGE OR FAILURE, WATER, ACTS OF GOD, WAR, REVOLUTION, CIVIL COMMOTION OR ACTS OF CIVIL OR MILITARY AUTHORITIES OR PUBLIC ENEMIES, ANY LAW, ORDER, REGULATION OR REQUIREMENT OF ANY GOVERNMENT OR LEGAL BODY OR REPRESENTATIVE THEREOF, LABOR UNREST, INCLUDING, WITHOUT LIMITATION, STRIKES, SLOWDOWNS, PICKETING OR BOYCOTTS, INABILITY TO SECURE RAW MATERIALS, TRANSPORTATION FACILITIES, FUEL OR ENERGY SHORTAGES, OR ACTS OR OMISSIONS OF COMMON CARRIERS, AND (F) ACTS OF TERRORISM IN ANY FORM. Your liability for damages in regards to extraordinary and unreasonable interruptions of Service, or for mistakes, omission, delays, errors, and defects in the Service, shall in no event exceed the pro rata charges to me for the period during which the Service was affected. This section 11 applies to the acts, omissions, negligence and gross negligence of you and each of your respective affiliates, subcontractors, employees and agents, under any contract, tort, or legal authority.
10. My sole and exclusive remedies under this Agreement are as expressly set out in this Agreement. Some states do not allow the limitation or exclusion of incidental or consequential damages, so such limitation or exclusion may not apply to me.
11. I will indemnify and hold you harmless against all claims, losses, expenses, suits, attorney’s fees, costs, fees, or liabilities for injuries to or death of any person or for damages to or loss of any property which may in any way arise out of or result from or in connection with my use of the Service, Software, or Hardware, particularly if such use (a) violates any law, regulation or tariff, (b) is defamatory, deceptive or fraudulent, (c) is intended to threaten, harass, or intimidate, (d) interferes with another Customer’s use or enjoyment of the Service, (e) is in any way inconsistent with your Terms and Conditions, or (f) otherwise violates this Agreement.
12. This Agreement does not give me any interest, title, or license to the user ID, electronic mail address, Universal Resource Locator, domain name or Modem that I use with the Service.
13. I authorize you to ask about and receive, maintain and disclose information about my credit history. I authorize you to collect, maintain, share and use information about my use of the Service so long as you (a) comply with applicable law and (b) do not disclose any personally identifiable information to others, except as allowed by law. If I wish to limit how you disclose such information, I will contact you at 1-800-ENJOYTV (1-800-365-6988) or contact you at Galaxy Cablevision, 100 South Main, Sikeston, MO 63801.
14. YOU ARE PROVIDING ME WITH THE SERVICE, MODEM, SOFTWARE, AND HARDWARE “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, DESIGN, MERCHANTIBILITY, FITNESS FOR ANY PARTICULAR PURPOSE; CONDITION, QUALITY, CAPACITY, WORKMANSHIP, COMPLIANCE WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT, PATENT INFRINGEMENT OR LATENT DEFECTS. YOU DO NOT WARRANT (A) UNINTERRUPTED USE OF THE SERVICE, SOFTWARE, OR HARDWARE, (B) THAT ANY DATA OR FILES THAT I SEND WILL BE TRANSMITTED IN AN UNCORRUPTED FORM OW IN A REASONABLE TIME, (C) THE RELIABILITY OR ACCURACY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR (D) ANY TRANSACTIONS EXECUTED THROUGH THE SERVICE. YOU DISCLAIM ANY AND ALL
WARRANTIES OF FITNESS, MERCHANTABILITY, AND PERFORMANCE. Some states do not allow the exclusion of limitations of implied warranties, so the above exclusions and limitations may not apply to me.
15. No Liability For Viruses: Galaxy Cablevision makes no representation or warranty that any software or content installed on your computer(s) or downloaded from the Service does not contain a virus or other harmful feature and it is your sole responsibility to take appropriate precautions to protect any computer or other hardware of yours from damage to its software, files or data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Service if a virus is found to be present on your system. We are not required to provide you with any assistance in removal of the virus. If we decide, in our sole discretion, to install or run virus check software on your computer(s), we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your system. NEITHER GALAXY NOR ITS AFFILIATES OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
16. Either you or I may terminate Paragraph 10 of this Agreement as a whole at any time by providing the other party with at least 24 hours notice of such termination. If I terminate, I may be eligible for a prorated refund and I may be subject to a cancellation charge equal to the charge for the period in which service is terminated. Upon termination, I will destroy any software provided to me under this agreement. This Agreement should not be construed to limit your rights remedies available at law or equity.
17. I will comply with the Terms and Conditions of all end user software license agreements accompanying any software or plug-ins which you distribute in connection with the Service.
18. I am at least 18 years old and have the ability to sign binding contracts. I am executing this Agreement on behalf of everyone who will use the Service, Software, or Hardware through my computer or with my account or password and am solely responsible for any resulting violation of this Agreement. I am solely responsible to ensure that they understand and will comply with this Agreement and all other Galaxy Cablevision, Inc. Agreements required for the use of this Service. I will not resell the service to others or otherwise charge others to use it.
19. In agreeing to have these services installed, I authorize you or your employee or contractor to enter my premises to install any necessary equipment and Service. I understand that your employee or contractor will provide installation services, including the hardware and software described below. I understand that I am solely responsible for providing, configuring, and maintaining all equipment on my premises except as otherwise expressly stated below. I understand that compatibility of my existing hardware and software can be a major issue in the installation and provision of the Service and that, as a result, it may not be possible to install or provide the Service. Current hardware requirements: PENTIUM (or comparable) – based computer, 16MB of memory, available Ethernet adapter, and Windows/95 or later software. I understand that if I do not meet these requirements I am not entitled to receive customer support relating to issues other than the quality of the signal delivered to the cable modem. I agree to hold you harmless, to not hold you liable for and indemnify you, you r employees and contractors and agents from any and all claims for direct or indirect damage to me or another party, including for attorney’s fees, due to this installation visit and my receiving the Service.
20. I understand you will install 1) any necessary connection from my existing cable outlet up to my primary computer 2) a cable modem and related software as necessary for this Service. Any additional equipment or work necessary to ensure that my computer or other equipment or software is capable of receiving the Service, such as an Ethernet card or a computer virus scan, diagnosis or repair, is my responsibility. I may choose to hire someone with whom you also have a contracted relationship; but if I do so, the responsibility for that activity is between that contractor and I; and I will not hold you responsible in any way for that work. I understand that Galaxy Cablevision, Inc. makes no representations or warranties with regard to that person or the work.
21. I understand there is a risk of damage to my computer. I certify that I have backed-up my computer and its programs and files, and that the programs and files that have not been backed up have no real value.
22. Galaxy shall supply internet services and User shall purchase internet service for standard internet use. Internet service provided to a third party, who is not a party to this Agreement, may not be authorized by User. Any resale or use of the User's internet service by a third party, without Galaxy’s express written consent, is not allowed under this Agreement, and would constitute termination for cause.
23. User usage should not exceed more than 14 gigabytes combined of uploading/downloading of information per month. If user does exceed this allotted usage they may be subject to additional charges and/or possible termination for cause.
Signed: _____________________________________________________________________ Date: _________________________
Print Name: __________________________________________________________________ Installation Charge: _____________
Installation Address, (include Apt#, Lot#, etc.): ____________________________________________________________________
City, State and Zip Code: ______________________________________________________________________________________