Terms & Conditions

END USER LICENSE AGREEMENT AND TERMS OF SERVICE

ANY REFERENCE TO ‘ACTUAL BROADBAND,’ ‘WE,’ ‘US,’ OR ‘OUR’ PERTAINS TO ACTUAL BROADBAND, LLC AND ITS SERVICES PROVIDED.

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY PRIOR TO USING Actual Broadband, LLC’S SERVICES. THEIR SERVICES ARE AVAILABLE FOR USE ONLY ON THE CONDITION THAT YOU AGREE COMPLETELY TO THESE TERMS. BY ACCESSING OR USING THEIR SERVICES, YOU AND THE ENTITY YOU ARE AUTHORIZED TO REPRESENT (“YOU” OR “YOUR”) AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS, DO NOT ACCESS OR USE THEIR SERVICES.

 

SMS COMMUNICATIONS

By providing your mobile phone number and opting in to receive SMS messages from Actual Broadband LLC, you agree to receive account-related communications, support inquiries, and sales inquiries from Actual Broadband LLC at the mobile number provided. You understand that consent is not a condition of purchase. Message and data rates may apply. You may opt out of receiving these messages at any time by replying “STOP” to any SMS message received or by contacting us at [email protected].

 

END USER LICENSE AND RESTRICTIONS.

Actual Broadband, LLC grants You a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license and right to use the Actual Broadband, LLC Services and Applications in strict accordance with this Agreement. All rights not expressly granted under this Agreement are retained by Actual Broadband, LLC.

1.1    No Grant of Intellectual Property Rights. You acknowledge and agree that any and all patents, copyrights, trademarks, service marks, trade secrets, and all other intellectual property rights (collectively, “IP Rights”) in the Applications and Services are and shall remain the sole and exclusive property of Actual Broadband LLC and its licensors. Nothing in this Agreement intends to or shall grant, transfer, or assign any IP Rights to, or vest any IP Rights in, You. You are only entitled to the limited use of the rights expressly granted to You in this Agreement. You will not take any action to jeopardize, limit, or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement, as well as a violation of applicable intellectual property laws. You acknowledge and understand that all title and rights in and to any third party content that may be accessed through the Applications or Services is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.

1.2    No Grant of Rights to Third Parties and No Resale. You agree not to sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Applications or Services or any part thereof without Actual Broadband LLC’s prior written consent.

1.3    No Modifications. You agree not to undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Applications or Services, or any parts thereof. You agree not to intercept, capture, emulate, decrypt, or redirect the communications protocols used by Actual Broadband LLC for any purpose, including without limitation causing the Applications to connect to any computer server or other device not authorized by Actual Broadband LLC or in a manner not authorized by Actual Broadband LLC.

SERVICE REGISTRATION PROCEDURES.

Upon signing up for the Service and at all subsequent times, You agree to provide to Actual Broadband LLC Your true, accurate, current, and complete personal name and/or business name, administrator name, billing address, shipping address, the addresses where the Services will primarily be used, 911 registered address for each applicable device, email address, contact phone number, credit card information, and other data which may be necessary to administer Your Actual Broadband LLC account (“Account”) (collectively, “Registration Data”). You represent and warrant that the information You provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If You provide Registration Data that is, or that Actual Broadband LLC suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, Actual Broadband LLC has the right, in its sole discretion, to suspend or terminate the Service and refuse any and all current or future use of all Services by You, Your business(es), affiliates and all users of Your Account. At all times, You shall maintain and promptly update Registration Data.

Upon completion of all Registration Data and acceptance of this Agreement, Actual Broadband LLC will provide You with, as applicable, a password(s), user ID(s), PIN(s), telephone number(s), and other account information. You will be required to provide a security question and answer that will be used to verify ownership or affiliation with the Account. You are solely responsible for maintaining the confidentiality of all passwords, PINs, and security questions and answers associated with the Account, and, at all times, You will be solely responsible for all transactions and activities that occur as a result of the disclosure (whether authorized or unauthorized) of any password(s), PIN(s), and/or security questions(s) and answer(s) associated with the Account, even if such transactions and/or activities were not authorized by You. You are solely liable for any transactions or activities by You or anyone else that occur on Your Account. You shall immediately notify Actual Broadband LLC of any unauthorized use of Your Account or if any other breach of security has occurred. In no event shall Actual Broadband LLC be liable for any unauthorized use of Your Account.

In connection with the registration, implementation, maintenance, or servicing of the Services, You will be required to provide data, information or other materials (collectively “Customer Data”). You hereby grant to Actual Broadband LLC a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable (except in connection with an assignment of this Agreement) license to copy, store, record, transmit, display, view, print, and use Customer Data to the extent required to provide or improve the Services. Actual Broadband LLC may also share Customer Data as permitted pursuant to Actual Broadband LLC’s Privacy Policy, which is incorporated into this Agreement.

CUSTOMER REPRESENTATIONS.

You represent and warrant that You possess the legal right, capacity, and ability to enter into this Agreement. You represent and warrant that You will not use the Applications or Services in environments requiring fail-safe performance or in which the failure of the Applications or Services could lead directly to death, personal injury, or severe physical or environment damage. You represent and warrant that the Registration Data, user-name, contact information, Registered Location(s), and all other information provided in connection with Your Actual Broadband LLC Account are true and correct at all times. You represent and warrant that You will not use the Applications or Services in violation of the Use Policy herein.

You agree to be financially responsible for Your use of the Applications or Services, including the authorized or unauthorized use of Your Account. In order to use the Applications or Services, You must have properly configured and working Internet service and/or Public Switched Telephone Network (“PSTN”) service (i.e., mobile and/or landline phone service) and hereby agree, at Your sole expense: to (1) obtain access to Your own Internet and/or PSTN service with a third party provider other than Actual Broadband LLC; (2) be responsible for payment of Internet and/or PSTN connection or service fees and all equipment necessary to establish a connection to such Internet and/or PSTN service, as may be required to use the Applications or Services; (3) supply and pay third-party providers for all additional phone service and features required for Your use of the Applications or Services; and (4) pay Actual Broadband LLC for the Applications or Services.

USE POLICIES.

You shall not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Actual Broadband LLC’s ability to provide high quality Services to other customers, prevents or restricts other customers from using the Services, or damages any Actual Broadband LLC’s or other customers’ property. If Actual Broadband LLC finds that You are using the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Actual Broadband LLC may at its sole discretion terminate Your Service and charge You any applicable fees for the Services used plus damages caused by Your improper use. Prohibited uses include, but are not limited to:

Behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
Sending unsolicited messages or advertisements, including email, voicemail, SMS, or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk and/or junk email, voice mail, SMS, or faxes.

 

Harvesting or otherwise collecting information about others, including email addresses, without their consent.

 

Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.

 

Creating a false Caller ID identity (“ID spoofing”) or forged email/SMS address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services.

 

Transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties.

 

Violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services.
Utilizing the Services in excess of what, in Actual Broadband LLC’s sole discretion, would be expected of normal business use, including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user.

 

Using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services or use the Services in any manner which disrupts, prevents or restricts any other customer from using the Services.

 

Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid this Use Policy.
Using the Applications or Services to store PHI on a non-temporary basis.

 

(If You are a HIPAA-Covered Entity) using our Services to transmit, receive, or store PHI without subscribing to our Actual Broadband LLC HIPAA plan you may not be complaint with federal law.

You further understand and agree that:

You shall be solely liable for any transmissions sent and data stored through the Services under Your Account, including the content of any transmission sent and data stored through the Services under Your Account.

 

You will abide by all applicable Actual Broadband LLC policies, procedures, and agreements related to the Services.

 

You shall not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.

 

Your use of the Services is subject to all applicable local, state, national, and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws, and false advertising).

 

Plans also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services):

 

Trunking or forwarding Your Actual Broadband LLC number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.

 

Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously).

 

Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.).

 

Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).

In addition, unusually high usage of the Services may impair Actual Broadband LLC’s ability to provide high quality Services to others and/or indicate unauthorized use of the Services, in which case Actual Broadband LLC may suspend or terminate Your Account or, upon prior notice, convert Your Account to a metered calling plan that charges significantly higher usage rates.

Actual Broadband LLC reserves the right to add to, modify or amend this Use Policy at any time for any reason at its sole discretion.

UNSOLICITED ADVERTISEMENT.

The transmission of unsolicited calls, using the Services for broadcasting, and/or transmitting unsolicited fax advertisements is illegal under federal law, including the Federal Telephone Consumer Protection Act of 1991 (http://www.fcc.gov/document/telephone-consumer-protection-act-1991), and under a number of similar state laws. Distribution of unsolicited voicemail, broadcast, and fax advertisements through the Services is prohibited. You shall not use the Services to send or transmit any unsolicited communications or advertisements and understand that, if You do, Actual Broadband LLC may immediately terminate Your right to use the Services without liability of any kind.

At Actual Broadband LLC’s sole option and without further notice, Actual Broadband LLC may use technologies and procedures, such as filters, that may terminate such unsolicited advertisements without delivering them. You hereby release and agree to fully, finally, and forever release, hold harmless, and fully indemnify Actual Broadband LLC from and against any damages or liabilities of any kind related to any voicemail, broadcast, and/or fax spam or solicitations that You may send and/or receive using the Services.

If You transmit or are otherwise connected with any transmission of voice, fax, e-mail, or other unsolicited marketing messages using the Services, You agree to pay Actual Broadband LLC its actual damages if those damages can be reasonably calculated. If actual damages cannot be reasonably calculated, You agree to pay Actual Broadband LLC liquidated damages of ten dollars ($10.00) for each unsolicited marketing message transmitted through the Services. You acknowledge that if actual damages cannot be reasonably calculated, these liquidated damages are a reasonable estimation of such damages and are not a penalty.

 

PLAN CREDITS, TAXES, CHARGES, FEES AND CHARGEBACKS.

6.1   Generally. Please note that all prices, taxes, surcharges, and fees are subject to change at any time. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international, additional feature charges, 411 and operator assisted charges, and directory assistance charges, and for all taxes, surcharges, and fees imposed on you or us as a result of your use of the Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance upon opening a new account or updating their credit card information on file. Actual Broadband LLC also reserves the right to charge termination and transfer fees consistent with each plan’s terms and conditions and as provided in this Agreement.

6.2   Taxes, Charges, and Fees. All fees for Services advertised or otherwise listed on the Website are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes or fees and administrative or recovery fees or charges (collectively “Taxes and Fees”). You agree to pay all Taxes and Fees and/or similar liabilities, however denominated, that may now or hereafter be levied on the Services which are chargeable to or recoverable from customers by any federal, state, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Services by Actual Broadband LLC, whether or not mandated by law or regulation. Should Actual Broadband LLC pay or be required to pay such liabilities (including any Taxes and Fees that were due but not charged or previously collected), You agree that Actual Broadband LLC may charge Your credit card on file for such payments upon receipt of an invoice and showing of indebtedness to Actual Broadband LLC.

 

6.3   Fraudulent Activity or Erroneous Charges. In the event of suspected fraudulent activity or erroneous charges on Your Account, You agree to contact Actual Broadband LLC as soon as possible. In many cases, Actual Broadband LLC can mitigate or correct fraudulent activity or erroneous charges without bank or credit card company intervention. If You suspect fraudulent activity or erroneous charges on Your Actual Broadband LLC Account, please contact Actual Broadband LLC customer support. When You contact customer support, please have the following information available: (a) Your name, contact information, Actual Broadband LLC Account telephone number in question, and security verification information; (b) the date that the Account in question was created; (c) the credit card account number used to open the Account; and (d) the total amount charged to the Account. If You do not contact Actual Broadband LLC within thirty (30) days after the suspected fraudulent activity or erroneous charges appear on Your Account, You waive Your rights to object to or challenge such activity or charges. Furthermore, if You request that Your bank or credit card company perform a chargeback without first contacting Actual Broadband LLC, and Actual Broadband LLC subsequently determines that the charges at issue are not erroneous, Actual Broadband LLC reserves the right to terminate Your Account immediately and take any available legal action. Notwithstanding the above, You are solely liable for any transactions or activities by You or anyone else that occur on Your Account, and in no event shall Actual Broadband LLC be liable for any unauthorized use of Your Account.

 

6.4    Discounts. From time to time in its sole discretion, Actual Broadband LLC may offer promotions or discounts. Any promotion or discount codes must be provided to Actual Broadband LLC upon purchase of the Services. You shall not be entitled to a subsequent credit for such promotions or discounts if You do not request such credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. If a promotion and/or discount is offered on a confidential basis, You agree not to disclose the promotion and/or discount and to assume full responsibility for any harm, direct or indirect, caused to Actual Broadband LLC by the disclosure of the promotion and/or discount.

BILLING AND PAYMENT.

Any applicable initiation charges, usage, monthly recurring charges, support charges, and other fees are billed in full in advance. Termination, international calling, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Plan Credits, and international calling credits shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Plan Credits, Additional Credits, Promotional Credits, or international calling credits or of any remaining periods/months on any Service plan.

When You subscribe to Services, You will provide us with a payment method, such as a valid credit card (including proper billing information), and, if applicable, authorize us to collect from Your payment method. Any authorization will remain valid until thirty (30) days after You terminate our authority to charge Your payment method. Upon termination, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, Actual Broadband LLC will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, Actual Broadband LLC reserves the right to disconnect Your Service and terminate Your Account if Your credit card on file is declined or fails for any reason, and Actual Broadband LLC reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to Actual Broadband LLC.

7.1   Time is of the essence for payment. Therefore, You agree to pay us interest at the lesser rate of (a) 18% per annum or (b) the highest rate allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of Actual Broadband LLC’s rights to collect the full amount due. We may assess an additional fee of the lesser of (a) fifty dollars ($50) or (b) the highest amount allowed by law for any credit card chargeback or check returned for nonpayment.

 

7.2   Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and prorate the charges to Your Account.

 

You must dispute any charges for the Services in writing to Actual Broadband LLC within thirty (30) days of the date of the charge by Actual Broadband LLC. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges.

EQUIPMENT RETURN POLICY.

You are responsible for all return shipping charges for any hardware returned to Actual Broadband LLC for any reason, including situations in which hardware is covered under warranty. If You have purchased any hardware from us or we have otherwise provided You with any hardware and Your Account is terminated for any reason, You hereby authorize us to immediately bill your credit card the appropriate equipment return fees, as set forth below.

If You cancel Your Actual Broadband LLC Service within ninety (90) days from the date of purchase of the hardware, You may (a) keep the hardware and pay the list price minus the actual price paid for the hardware, excluding taxes, or (b) return Your hardware and receive a full refund. No returns are accepted after ninety (90) days from the date of purchase of the hardware. In addition, the following terms and charges apply to hardware returns:

 

You agree to pay all shipping and handling charges related to any hardware returns.

 

All hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the hardware. At our discretion, we may decline Your return or charge You an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.

 

Before returning any hardware that has data in its memory, please transfer all files You wish to retain to another file source. Once the hardware is returned, Your files cannot be recovered and You release us of any liability for any lost, damaged, or destroyed files, data, or other information.

 

ACCOUNT OWNERSHIP.

The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with Actual Broadband LLC. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation. Actual Broadband LLC shall not adjudicate ownership-related disputes, or any other internal business dispute. If Actual Broadband LLC is unable to determine the valid owner of the Account, Actual Broadband LLC reserves the right to suspend or terminate the Account and Services.

 

NUMBER PORTING AND AVAILABILITY.

Actual Broadband LLC will use reasonable efforts to facilitate number transfers or port requests for You, provided that You comply with the necessary and specific procedures for porting between service providers.

You acknowledge and understand that number porting depends on the cooperation of third parties outside of Actual Broadband LLC’s control. Accordingly, You agree that Actual Broadband LLC will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the allegedly unauthorized porting of any telephone number by a third party.

Actual Broadband LLC works with third party carrier(s) who, on Actual Broadband LLC’s behalf, port telephone numbers in accordance with applicable Regulatory Rules and Industry Guidelines. Actual Broadband LLC’s third-party carrier(s) require very specific and detailed information and requirements when completing a port request. Please be informed that You will be required to provide such detailed and specific information to complete a port request.

Number porting is defined and regulated by the Federal Communications Commission (FCC). Visit http://www.fcc.gov/cgb/NumberPortability to learn more about number porting.

Actual Broadband LLC cannot guarantee requested telephone numbers will be available, that Your existing provider will port Your number, or that circumstances beyond Actual Broadband LLC’s control will not prevent or delay a successful port of Your number for the Services. You should not order any printed material, such as business cards or stationery, showing a telephone number, or issue any press releases or otherwise publicize any telephone number until that telephone number becomes active on Your Account. Actual Broadband LLC shall not be liable for reimbursement for press releases, business cards, and/or stationery under any conditions.

You understand and agree that Actual Broadband LLC may from time to time need to change the telephone or facsimile number assigned to You (due to an area code split or for any other reason). Actual Broadband LLC shall not be liable for any damages (including consequential, special damages or other damages) to You in the event that it needs to assign You a new telephone or facsimile number.

 

STORAGE OF USER INFORMATION.

Actual Broadband LLC is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that Actual Broadband LLC has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e- mails, messages, and/or other communications maintained or transmitted by the Services. In addition, You specifically agree and acknowledge that to the extent that You use our HIPAA services, any stored messages will be deleted on or after thirty (30) days.  You acknowledge and agree that Actual Broadband LLC may establish limits as to the size of communications that Actual Broadband LLC transmits or stores and the duration for which Actual Broadband LLC stores any communications.

SERVICE CHANGES.

You understand and agree that Actual Broadband LLC may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in Actual Broadband LLC’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), Actual Broadband LLC shall provide You with written notice of such Change at least sixty (60) days prior to the date the Change will take effect. If the Change is unacceptable to You, You may terminate the Services without penalty by calling Actual Broadband LLC. Any use of the Services after the effective date of Change will be deemed Your acceptance of the Change.

ADDITIONAL TERMS FOR Actual Broadband LLC VOIP SERVICE.

Actual Broadband LLC Office plans include one or more Voice over Internet Protocol (“VoIP”) lines included in Your Services.  Services for the VoIP line(s) will be referred to as “VoIP Service”, for which the following additional terms shall apply:

13.1          Grant of Rights. Actual Broadband LLC grants You a non-exclusive, non-transferable, revocable license, and right to use each VoIP line exclusively with one user under Your Account, subject to all the other terms of this Agreement. Accordingly, if You want to allow multiple users to use the VoIP Service, You will need to purchase at least one VoIP line for each user.

13.2          Equipment. To use the VoIP Service, You may need to purchase phones, headsets, or other equipment (collectively, “Equipment”). All Equipment shipments are F.O.B. Actual Broadband LLC’s shipping distributor facility. Actual Broadband LLC’s liability for delivery shall cease, and title to such Equipment (if applicable) and all risk of loss or damage shall pass to You upon delivery to the shipping carrier.

All equipment obtained from Actual Broadband LLC in connection with VoIP Service is subject to the Equipment Return Policy above. You understand and acknowledge that if You purchase an annual service plan and You cancel the Services plan prior to the end of Your initial term, cancellation or termination fees, or phone, hardware, and other equipment fees may apply in accordance with the terms and conditions of Your plan. You hereby authorize Actual Broadband LLC to charge Your credit card, and You hereby agree to be liable for any and all such fees, costs, and charges. 

13.3          VoIP 911 Service. Actual Broadband LLC VoIP 911 Service (“VoIP 911 Service”) operates differently than traditional 911 service. We are required by the FCC to advise you of the circumstances under which 911 may not be available or may be in some way limited by comparison to traditional 911 service. Such circumstances include:

Internet Connection Failure. If the connection to the wired broadband Internet over which Your Actual Broadband LLC VoIP Service is provided is interrupted, You would not have access to Actual Broadband LLC VoIP Service during that interruption and therefore will not have access to VoIP 911 service during that interruption.

 

Number Flexibility & Service Portability. Traditional 911 service automatically sends Your 911 call to the appropriate local emergency responder, or Public Safety Answering Point (“PSAP”), based on Your telephone number. Traditional Enhanced 911 service (also known as E911) automatically sends Your 911 call to the appropriate PSAP along with Your registered address and telephone number. Because the Actual Broadband LLC VoIP Service permits You to obtain a telephone number that does not correspond to Your geographic location (for example, You may obtain a Actual Broadband LLC VoIP telephone number with a California area code even if You do not have a California address) and allows You to use Actual Broadband LLC VoIP Service anywhere You have wired broadband Internet, the VoIP 911 Service functions differently than traditional 911 service in certain respects:

 

Because Your address does not necessarily correspond with Your telephone number, You must provide Actual Broadband LLC with the street address(es) where You will be using Actual Broadband LLC VoIP Service (“Registered Location(s)”) when You sign up for service.

 

If You relocate any equipment (PC with softphone, IP phone, or ATA with traditional phone) that You use to access the VoIP Service, You must update Your Registered Location(s). If You do not update your Registered Location(s), any 911 calls You make using the VoIP Service will be routed based on Your previously provided Registered Location and therefore may not be routed to the appropriate PSAP for Your new location.

 

In addition, because the VoIP Service will, where possible, automatically transmit Your Registered Location to the PSAP, You must update Your Registered Location to ensure that the VoIP Service transmits accurate location information to the PSAP.

 

Once You notify us of a change in Your Registered Location, there may be a delay in making the new Registered Location available to properly route 911 calls and advise PSAPs of Your new Registered Location.

 

In some parts of the country where direct routing to PSAPs is not available for VoIP 911 Service, the Service will route Your call to the National Emergency Call Center where trained agents will ask for the name, location, and telephone number of the person calling 911 and will contact the appropriate PSAP to send help. The call center will not automatically receive Your address and telephone number. In these situations, public safety response times may be delayed. As a result, there may be an additional delay before emergency services arrive.

 

Loss of Electrical Power. Unless You have a backup system to power Your wired broadband Internet connection and any equipment (PC with softphone, IP phone, ATA with traditional phone) that You use to access Your VoIP Service, You will not have phone service or 911 service during any power outage.

13.4             Registration of Physical Locations Required.  As discussed above, You must register the Registered Location where You will be using VoIP service for each VoIP phone line You use from Actual Broadband LLC (e.g., if You purchase Actual Broadband LLC Office with three VoIP lines, You must provide a Registered Location for each of the three VoIP lines). Actual Broadband LLC will obtain Your Registered Location as part of the service initiation process and will not provide VoIP Service until you have provided Your initial Registered Location. However, You must update Your Registered Location when You use Your VoIP Service from a new location. Regardless of what address You register, in some circumstances, such as unavailability of direct routing to PSAPs or the use of portable devices to access the VoIP Service, emergency calls will be routed to the National Emergency Call Center.

 

You agree to provide true, accurate, current, and complete Registered Location information to Actual Broadband LLC as part of the service initiation process and to update as soon as possible Your Registered Location with true, accurate, current, and complete information whenever You use Your VoIP Service from a new location. If You provide Registered Location information that is, or that Actual Broadband LLC suspects to be, false, inaccurate, not current, or incomplete, Actual Broadband LLC has the right to suspend or terminate the Services and refuse any and all current or future use of all Services, or any portion thereof. Actual Broadband LLC will not, however, disable Your ability to make a 911 call during any service suspension.

You may update Your Registered Location by calling customer support. For purposes of 911 Dialing, You may only register one Registered Location for each VoIP line.

 

13.5          Notify All Users of 911 Limitations. You should inform all business colleagues, household residents, guests, and other persons who may be present at the physical location where You utilize the VoIP Service that 911 may not be available or may be in some way limited in comparison to traditional 911 service.

13.6          Disclaimer of 911 Liability. Actual Broadband LLC disclaims all responsibility for the conduct of PSAPs, the National Emergency Call Center, and all other third parties involved in the provision of emergency response services. Actual Broadband LLC does not have any control over PSAPs, the National Emergency Call Center, or other third parties and is therefore not responsible for whether they answer 911 calls made using the VoIP service, how they answer these calls, or how they handle or respond to these calls. Actual Broadband LLC relies on third parties to assist it in the provision of 911 service and disclaims any and all liability for acts or omissions by third parties in the provision of Actual Broadband LLC’s 911 service.

 

13.7          711 Calling. The VoIP Service allows You to dial 711 to reach Telecommunications Relay Services (“TRS”). TRS enables persons with hearing or speech disabilities to access the public telephone system and communicate with voice telephone users through a communications assistant at a TRS relay center. Because the VoIP Service allows You to use a phone number that may not reflect Your geographic location, 711 calls made using the VoIP Service may not be routed to the appropriate TRS center for Your geographic location.

 

PUBLICITY RIGHTS.

You agree that Actual Broadband LLC may identify You as a user of the Services in its business deals; press releases; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on Actual Broadband LLC’s website; or any other third-party website where Actual Broadband LLC or its designated agents may promote the Services. You hereby grant Actual Broadband LLC and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

NON-DISPARAGEMENT.

You agree not to directly or indirectly through a third party engage in any conduct or make any communication (public or private) that disparages Actual Broadband LLC or the Applications or Services in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. You further agree not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party. In accordance with the termination provisions below, Actual Broadband LLC may terminate Your access to the Applications or Services if You breach the requirements of this section.

COPYRIGHT INFRINGEMENT.

Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the Applications or Services for purposes of determining copyright infringement. However, Actual Broadband LLC reserves the right to terminate access to its Applications or Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Applications or Services if Actual Broadband LLC determines that a user is a repeat infringer.

INDEMNIFICATION.

To the maximum extent permitted by applicable law, You shall indemnify and hold harmless, individually and collectively, Actual Broadband LLC, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to (1) the use of or reliance upon the Applications or Services by You or any third party acting upon Your permission, knowledge, authority or direction, (2) a breach of this Agreement by You, (3) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction, (4) the inability to use the Applications or Services or failure or outage of the Applications or Services for any reason, including but not limited to those related to calling, “911” or other emergency responders, (5) the use of the Applications or Services in connection with a violation of any applicable law, code, regulation, or ordnance, and/or (6) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights), rights of privacy, and rights of publicity and personality.

TERM.

Your license to the Applications and Services is provided for a term specified in Your Services contract (the “Term”). The initial Term begins on the date that you sign up for the Services (the “Date of Purchase”).

The Term for all Service plans will renew automatically for successive Terms of the same length without further action by or notice to You unless You notify Actual Broadband LLC customer service of non-renewal at least thirty (30) days before the end of the then current Term, unless otherwise provided in Your Services contract.

For avoidance of doubt, the provisions of this Agreement relating to intellectual property ownership, customer representations, confidentiality, use policies and restrictions, equipment, number porting and availability, storage of user information, customer feedback, publicity rights, non-disparagement, additional software licenses, indemnification, force majeure, warranty disclaimers, limitations of liability, notices, assignment, future changes, interpretation, dispute resolution and arbitration, and choice of law shall survive termination or expiration of this Agreement for the maximum term allowable by law.

TERMINATION.

 

19.1               Monthly Plan Customers. For monthly plan customers, You may cancel or terminate Your use of the Services with or without cause at any time by calling customer service, subject to the restrictions and fees provided in this Agreement, Your Services contract, and any additional agreements governing the Services.

19.2            Annual Plan Customers. For annual plan customers, You are purchasing the Service for the full length of the applicable Term. You have thirty (30) days from the Date of Purchase for a prorated refund in accordance with Your Services Contract. After thirty (30) days, if You terminate the Services prior to the end of Your Term, You are responsible for all charges for any remaining time left on the Term as if You remained a customer through the end of the then-current Term, including, without limitation, outstanding charges, unbilled charges, taxes, and fees, including any applicable disconnection fee. In addition, You will not be entitled to a refund for any unused portion of prepaid Term charges.

19.3               Generally. You understand and agree that Actual Broadband LLC may at any time, and without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Application or Services if:

Actual Broadband LLC determines that You have materially breached this Agreement.

 

Actual Broadband LLC determines that You have created or caused to be created multiple free accounts.

 

Actual Broadband LLC determines that You have used a fraudulent credit card to pay for Service charges on Your Account.

 

Actual Broadband LLC determines that You have verbally insulted, abused, or harassed any of its employees, contractors, agents, or other representatives.

 

 

 

You have failed to respond to Actual Broadband LLC’s calls or email attempts to contact You about Your Account.

 

Actual Broadband, LLC determines that You did not or will not reasonably comply or cooperate with any applicable law or regulation.

 

Actual Broadband, LLC is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account.

 

You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against Actual Broadband, LLC, or participate in any class action lawsuit against Actual Broadband, LLC.

 

You make any disparaging statement (whether written, oral, electronic, or otherwise) against Actual Broadband, LLC, its Services, or its employees, contractors, agents, investors, affiliates, or other representatives.

 

Actual Broadband, LLC determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect Actual Broadband, LLC, its customers, or other third parties affiliated with Actual Broadband, LLC; or for any other good cause.

Upon any termination or suspension of Your Account, Actual Broadband, LLC may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or the Applications or Services.

Actual Broadband, LLC shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Applications or Services.

If You or Actual Broadband, LLC terminate or suspend Your right to use the Services, You shall not be entitled to any refund or pro ration of any pre-paid amounts or other amounts paid to Actual Broadband, LLC prior to the termination or suspension date.

FORCE MAJEURE.

Actual Broadband, LLC shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, fiber cuts, actions or inactions of third party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond Actual Broadband, LLC’s reasonable control.

Actual Broadband INSURANCE.

Actual Broadband, LLC agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law.  Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, MSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services.  Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).

 

YOUR INSURANCE.

22.1.            Commercial Property Insurance. You shall secure at your own cost and expense Property Insurance for the equipment that is part of the provisions of this Agreement. The policy shall include the following coverages:

Replacement cost valuation on Actual Broadband’s equipment.
Waiver of coinsurance for the insured property.
Insured for “All Risk”/“Special Perils” with an extension of coverage for Flood and Earthquake

 

22.2             Cyber Insurance.  You shall secure and maintain for the duration of the Agreement Cyber Liability Insurance to insure your cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine your specific coverage and policy limit requirements.

WARRANTY DISCLAIMER.

THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND Actual Broadband, LLC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. Actual Broadband, LLC MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY YOU.

Actual Broadband, LLC MAKES NO WARRANTY ON UP-TIME, RESPONSE TIMES, LATENCY, MEAN-TIME BETWEEN FAILURES, QUALITY OF SERVICE, AND/OR QUALITY OF VOICE OR FAX COMMUNICATIONS. Actual Broadband, LLC EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES ARE APPROPRIATE FOR HIGH-RISK OR OTHER ACTIVITIES WHERE FAILURE OF THE SERVICE COULD RESULT IN SERIOUS HARM TO PERSONS OR PROPERTY.

Actual Broadband, LLC EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES ARE APPROPRIATE FOR USE AS A REPOSITORY OR MEANS BY WHICH TO STORE PHI ON A NON-TEMPORARY BASIS OR FOR USE BY A HIPAA-COVERED ENTITY TO TRANSMIT, RECEIVE, OR STORE PHI WITHOUT SUBSCRIBING TO THE Actual Broadband, LLC HIPAA PLAN.

Actual Broadband, LLC MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. Actual Broadband, LLC IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL. Actual Broadband, LLC IS NOT RESPONSIBLE FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD PARTY NETWORK USED IN CONNECTION WITH THE SERVICES.

Actual Broadband, LLC DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT YOUR SOLE RISK AND DISCRETION AND Actual Broadband, LLC WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Actual Broadband, LLC, ITS EMPLOYEES, RESELLERS, PARTNERS, OR AFFILIATES OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.

ALTHOUGH EVERY EFFORT IS MADE TO ENSURE THAT VOICEMAILS AND FAX TRANSMISSIONS ARE SECURE, Actual Broadband, LLC MAKES NO GUARANTEES OF SECURITY.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT Actual Broadband, LLC CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL Actual Broadband LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF Actual Broadband LLC HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY Actual Broadband LLC. Actual Broadband LLC’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY TO THE MONTHLY FEES Actual Broadband LLC CHARGED YOU DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED. THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

NOTICES.

Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at Actual Broadband LLC’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying Actual Broadband LLC of any changes in Your contact information or address by contacting customer service.

Written notice to Actual Broadband LLC shall be effective when directed to Actual Broadband LLC’s Legal Department and received at Actual Broadband LLC’s then-current address as posted on Actual Broadband LLC’s Website. Your notice must specify Your name, Account information. All notices from You to Actual Broadband LLC must be made in writing.

ASSIGNMENT.

Actual Broadband LLC may assign this Agreement and any of its rights and obligations hereunder at any time. You may not transfer or assign this Agreement or any of Your rights or obligations under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.

FUTURE CHANGES TO THIS AGREEMENT.

We may change the terms of this Agreement from time to time upon delivery of electronic or written notices to You. Actual Broadband LLC generally provides written notice of changes to Your account, including this Agreement and any other legal agreements, via email, electronic notice on the Actual Broadband LLC Website or on Your billing statements. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from Actual Broadband LLC fully regarding any such notices of changes to Your Account.

The modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement. You agree that you are solely responsible for (a) making sure that Your registered email account is current and functional, (b) checking Your registered email account on a routine basis, (c) checking the Actual Broadband LLC Website on a routine basis, and (d) making sure that Actual Broadband LLC communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason.

DISPUTE RESOLUTION AND OPTIONAL ARBITRATION.

In the event of any dispute, claim, question, or disagreement between You and Actual Broadband LLC (“Dispute”), You and Actual Broadband LLC shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of Actual Broadband LLC’s legal department (or other representative of Actual Broadband LLC designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor Actual Broadband LLC shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.

You agree that any Disputes shall be adjudicated in the state and federal courts of the State of Oregon, U.S.A. Venue for any Disputes shall be the Circuit Court of Wasco County. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.

Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, Actual Broadband LLC may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider chosen by Actual Broadband LLC, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.

In the event of any litigation (including arbitration) between You and Actual Broadband LLC, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.

MISCELLANEOUS.

              29.1       Waiver. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance. All waivers must be in writing.

         29.2 Severability. If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.

          29.3 Injunctive and Other Equitable Relief. You agree that the remedy at law for any breach or threatened breach of this Agreement by you would, by its nature, be inadequate, and that in that event Actual Broadband will be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.

         29.4 Entire Agreement. The Statement of Work and these Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings, or representations with respect to the Services. Any preprinted terms on any form of purchase order provided by Client are expressly rejected by Actual Broadband and will be given no force or effect.

29.5             No Agency.  Nothing in this Agreement shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto.

              29.6 Captions.  The section titles in this Agreement are for convenience only and have no legal or contractual effect.

              29.7       Electronic Documents.  This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (2) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (3) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

 

29.8             Choice of Law. This Agreement and Your use of the Applications and Services shall be governed by and construed under the laws of the State of Oregon and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Your sign up or use of the Applications or Services and you are agreeing to Wasco County having venue.

 

Ethernet Internet Access Service Level Agreement (“SLA”)

During the term of the agreement under which Actual Broadband has agreed to provide Actual Broadband Business Services to you (“Agreement”), the Covered Service will provide a Monthly Uptime Percentage to you of 99.9% (the “Service Level Guarantee”). The terms of this SLA are incorporated into the Agreement. If Actual Broadband does not meet the Service Level Guarantee, you will be eligible to receive the SLA Credits described below. This SLA states your sole and exclusive remedy for any failure by Actual Broadband to meet the Service Level Guarantee.

Definitions

The following definitions apply to the SLA:

  • Covered Service” means a Actual Broadband Business Service to which this SLA applies, as indicated to you during the sign up process (if you are a new customer), or in the portal (if you are an existing customer).
  • Downtime” means a Covered Service outage associated with your connection to the Actual Broadband network such that the Covered Service is unusable due to a total loss of signal after completion of construction and installation of the Covered Service.
  • Monthly Recurring Charge” means the recurring charges for the Covered Service as specified in your bill, and excludes all taxes, surcharges, license fees, right-of-way fees, and franchise fees assessed by or required by applicable law to be remitted to any federal, state, or local governmental entity or its agent.
  • Monthly Uptime Percentage” means the total number of minutes in a month, minus the number of minutes of Downtime in a month, divided by the total number of minutes in a month.
  • Service Credit” means any financial credit (other than SLA Credits) Actual Broadband provides to you under the Agreement.
  • SLA Credit” means the following:

 

 

Monthly Uptime Percentage

Percentage of Monthly Recurring Charge that will be credited

< 99.9%

25%

< 99.5%

50%

 

 

Reporting

When a Service Outage occurs, Customer must contact Actual Broadband’s commercial customer support center (also known as the “NOC”) at 1-(833)422-8825 to identify the Service Outage and initiate an investigation of the cause (“Trouble Ticket”).

Responsibility for Trouble Ticket initiation rests solely with Customer. Once the Trouble Ticket has been opened, the appropriate Actual Broadband departments will initiate diagnostic testing and isolation activities to determine the source. In the event of a Service Outage, Actual Broadband and Customer will cooperate to restore the Service. If the cause of a Service Outage is a failure of Actual Broadband’s equipment or facilities, Actual Broadband will be responsible for the repair. If the degradation is caused by a factor outside the control of Actual Broadband, Actual Broadband will cooperate with Customer to conduct testing and repair activities at Customer’s cost and at Actual Broadband’s standard technician rates.

 

A Service Outage begins when a Trouble Ticket is initiated and ends when the affected E-LINE Service is Available; provided that if the Customer reports a problem with a Service but declines to allow Actual Broadband access for testing and repair, the Service will be considered to be impaired, but will not be deemed a Service Outage subject to these terms.

 

If Actual Broadband dispatches a field technician to perform diagnostic troubleshooting and the failure was caused by the acts or omissions of Customer or its employees, affiliates, contractors, agents, representatives or invitees; then Customer will pay Actual Broadband for all related time and material costs at Actual Broadband’s standard rates.

SLA Credit Procedures

If Actual Broadband determines in its sole discretion that you are eligible to receive an SLA Credit, Actual Broadband will automatically apply the SLA Credit to your bill for the second billing cycle following the month in which Actual Broadband did not meet the Service Level Guarantee.

Maximum Credits

The aggregate maximum number of SLA Credits to be issued by Actual Broadband to you in a single billing month will not exceed 25% of the Monthly Recurring Charge for the applicable month.

The aggregate maximum number of credits (i.e., SLA Credits plus Service Credits) to be issued by Actual Broadband to you in a single billing month will not exceed 100% of the Monthly Recurring Charge for the applicable month.

Scheduled Maintenance

Actual Broadband will provide you with at least 72 hours’ prior notice of scheduled maintenance.

SLA Exclusions

The SLA does not apply to Downtime that resulted from: (a) scheduled maintenance events, (b) your acts or omissions, including abuses or other behaviors that violate the Agreement, (c) your software or hardware or third party software or hardware, or both, (d) updates or configuration changes to equipment provided by Actual Broadband, or (e) factors outside of Actual Broadband’s reasonable control, including commercial power outages.

The SLA does not apply to any month where (x) you subscribed to the Covered Service for less than the full calendar month or (y) you or Actual Broadband suspended your receipt of the Covered Service at any point during such month.