Subscriber Agreement
Effective as of November 11, 2011 until replaced.
THIS DOCUMENT DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH PEAK INTERNET WILL PROVIDE ITS SERVICE TO YOU. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE NOTIFY US IMMEDIATELY AND PEAK INTERNET WILL CANCEL YOUR SERVICE. IF YOU ARE A NEW PEAK INTERNET CUSTOMER, YOUR ACTIVATION OF A PEAK INTERNET ACCOUNT AND RECEIPT OF PEAK INTERNET SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU.
IF YOU ARE AN EXISTING PEAK INTERNET CUSTOMER, YOUR CONTINUED RECEIPT OF PEAK INTERNET SERVICES FOLLOWING RECEIPT OR PUBLICATION BY PEAK INTERNET ON ITS WEB SITE OF THIS AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS, AND, ACCORDINGLY, THEY WILL BE LEGALLY BINDING ON YOU.
Thank you for choosing Peak Internet as your Communications Service Provider. Peak Internet is happy to answer any questions you may have and to provide you with technical and other customer support through the following telephone number and web address:
(719) 686-0250
http://www.peakinter.net/
or you may write to:
Peak Internet
PO Box 399
Woodland Park, CO 80866-0399
and, for general knowledge, try our website at www.peakinter.net.
"Peak Internet" is a tradename of Fundamental Holdings, Corp., a Delaware corporation.
This Agreement (the "Agreement") covers all services provided by Peak Internet.
1. THE PEAK INTERNET SERVICE
A. Services Defined. Peak Internet offers a wide variety of communications and other services, and it is constantly striving to add new services. For purposes of this Agreement the term "Services” shall mean the communications services (including, but not limited to, Internet Services) available from Peak Internet (whether subscription based or pay-per-access based) and any other services that Peak Internet may provide to consumers either now or in the future. For purposes of this Agreement, the terms "You” or "Your” refer to you, the Peak Internet subscriber.
B. Service Changes. Except as otherwise set forth in this Agreement, you may change your service package selection at any time by notifying us. A fee may apply to downgrade changes (Downgrade of Service Fee). In addition, you may be charged a fee (Service Access Fee) if you fail to subscribe to one of Peak Internet's basic service packages.
C. Service Availability. Certain Services provided by Peak Internet depend on a clear line-of-sight to a microwave tower transmitter site. If Peak Internet is unable to achieve a reliable signal to one of its microwave sites, Peak Internet shall have no obligation to provide service of any kind. Should signal delivery be impacted for any reason and Peak Internet would no longer be able to provide service, Peak Internet shall have no obligation to continue providing service of any kind.
D. Residential Use. For service packages designated as "Residential," Peak Internet provides Services to you for your private home use and enjoyment. You agree that the Services provided will not be utilized outside of your private residence. The Services may not be resold or shared with anyone other than those within your private residence. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave possession of the same to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services in a commercial establishment or any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full commercial rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice our ability to exercise any other rights and remedies Peak Internet may have under this Agreement, at law, in equity, or otherwise.
E. Business Use. For service packages designated as "Business," Peak Internet provides Services to you for your in-office use and enjoyment. You agree that the Services provided will not be utilized outside of your office suite. The Services may not be resold or shared with anyone other than those within your office. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave permission of the same to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services to an area outside that of your office suite or in any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full reseller rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice Peak Internet’s ability to exercise any other rights and remedies itmay have under this Agreement, at law, in equity, or otherwise.
F. Changes in Services Offered. Peak Internet reserves the right to change the Services that it offers, and its prices or fees related to such Services at any time. If the change affects you, Peak Internet will provide you notice of the change and its effective date. The notice may be provided on your billing statement or by other communication permitted by this Agreement. In the event of a change in the contents of any Services, you understand and agree that Peak Internet has no obligation to replace or supplement the Services previously offered that have been deleted, rearranged or otherwise changed. You further understand and agree you will not be entitled to any refund because of a change in the contents of any Services previously offered.
G. Multi-Month Subscriptions. For multi-month subscriptions, you may downgrade the Services by paying a one-time Downgrade of Service Fee.
H. Acceptable Use Policy. You agree to abide by and accept the terms of our Acceptable Use Policy, as posted on our website at www.peakinter.net and incorporated herein by reference.
I. IP Addresses: Peak Internet will provide you with a dynamic, non-public Internet Protocol ("IP") address(es) as a component of the Service and these IP addess(es) can and do change over time. You will not alter, modify or tamper with these dynamic IP address(es) or those of any other customer. You also agree not to use any software on or in conjunction with any computer(s) or network device connected to the Service that provides for static IP address(es). If applicable, Peak Internet will release and/or recover the dynamic IP address(es) upon disconnection, discontinuance, or termination of the Service or this Agreement.
2. BILLING POLICIES AND PAYMENTS FOR SERVICES
A. You agree to pay all charges associated with the Services and to pay all applicable taxes, fees and other charges, including, but not limited to, installation/service call charges, monthly service charges, measured and per call charges, applicable federal, state, and local taxes and fees (however designated), regulatory recovery fees for municipal, state and federal government fees or assessments imposed on Peak Internet, permitted fees and cost recovery charges, or any programs in which Peak Internet participates, including, but not limited to, public, educational, and governmental access, universal service, telecom relay services for the visually/hearing impaired, rights-of-way access, and programs supporting the 911/E911 system and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services which are now or may in the future be assessed on the Services you receive from Peak Internet. Unless you prepay for a multi-month subscription to Services, Peak Internet will bill you each month, in advance, for Services ordered by you or anyone who uses your Peak Internet subscription, whether with or without your permission, until you cancel the Services. The bills you receive will show the total amount due, the payment due date, payments, credits, purchases and other charges to your account.
B. You agree to pay Peak Internet in full monthly by the payment due date for the Services and for any other charges due Peak Internet, including any fees set forth in this Section 2. Payment of your bill after the due date will result in you paying Peak Internet a Late Payment Fee. Other fees and charges also may be assessed. If partial payments are made, they will be applied first to the oldest outstanding bill. If you send checks or money orders marked "payment in full,” Peak Internet can accept them without losing any of its rights to collect any other amounts owed by you, notwithstanding your characterization of the payment. Peak Internet does not extend credit to our customers, and the Late Payment Fee is not interest, a credit service charge or a finance charge. You understand and agree that in the case of late payment or nonpayment for any Services ordered by you or for any of the charges stated below, you agree that Peak Internet may report such late payment or nonpayment to credit reporting agencies. See also Section 11(D). If you do not pay your bill by the due date, Peak Internet has the right to disconnect your Services at any time thereafter, in our sole discretion. Peak Internet may require you to pay all past due charges, a Reconnect Fee, a deposit equal to a minimum of one month's advance charges and all outstanding balances accrued through the date of deactivation, before Peak Internet reconnects your Services. Deposits will not be held segregated from other funds and shall not earn or accrue interest.
C. If you at any time fail, neglect, or refuse to make timely payments hereunder, or if a petition in bankruptcy shall be filed on your behalf or against you, or if you take advantage of any insolvency law or become insolvent or make an assignment for the benefit of creditors, or if a receiver, liquidator, or trustee is appointed for your property or affairs, Peak Internet shall be wholly relieved from its obligations hereunder.
D. If you paid for an annual or other multi-month subscription to any Services and your account is past due for any amounts owed to Peak Internet, at its option Peak Internet may suspend any or all Service until payment is received, and/or convert your annual or other multi-month subscription to a monthly subscription. If Peak Internet converts your multi-month subscription to a monthly subscription, Peak Internet will first apply the amount you paid for your multi-month subscription to any past due amounts and then any remaining amounts to future obligations. If Peak Internet elects to offset the amount paid for the remaining portion of a multi-month subscription against amounts past due, you agree to pay, in addition to all other applicable fees, the Offset Fee set forth below for each month and partial month that the multi-month subscription was previously received.
E. If Peak Internet uses a collection agency or attorney to collect money you owe Peak Internet or to assert any other right which we may have against you, you agree to pay all reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorney's fees and court costs.
F. If there are billing errors or other requests for credit, you can contact Peak Internet’s Customer Service Center by telephone or in writing. You must contact Peak Internet within thirty (30) days of the time you receive the billing statement for which you are seeking corrections. Failure to timely notify us of a dispute shall constitute acceptance of the bill. Undisputed portions of the billing statement must be paid before the next billing statement is issued to avoid an administrative fee for late payment.
G. All payments for Services must be made directly by you to Peak Internet. Peak Internet shall have no obligation to provide Services for which payment is made by you to a third party.
H. In addition to the amounts due for Services, you agree to pay the fees referenced below ("Fees”) when applicable. Peak Internet reserves the right to increase these Fees or add additional Fees in the future, in our sole discretion and without prior notice to you.
Late Payment Fee $5.00
Credit Card Chargeback Fee $35.00
Downgrade of Service Fee $25.00
Service Access Fee (monthly) $5.00
Duplicate Billing Statement Fee $3.00
Overnight Delivery Fee $23.00
Reconnect Fee $25.00
Returned Payment Fee $35.00
Offset Fee $2.00
Ledger Request Fee $6.00
Relocation of Service $75.00
Paper Invoice Fee (monthly) $2.00
I. You agree to keep a valid credit card on file with Peak Internet at all times during your subscription.
3. CANCELLATION OF SERVICE
A. Your Service will continue until cancelled as provided for herein. Your subscription will be automatically renewed unless you contact Peak Internet to cancel as provided for in the next paragraph.
B. You have the right to cancel your Service for any reason at any time by notifying Peak Internet in writing at the address set forth above. Please be aware that certain services have a minimum subscription commitment and if you cancel your service prior to the expiration of that commitment, certain early termination fees may apply.
C. Peak Internet has the right to terminate your Services at any time without providing notice to you if: (i) you fail to pay your bill when it is due; (ii) Peak Internet receives confirmation that you have received the Services, or any part of the Services without paying for them; (iii) you otherwise violate any term of this Agreement; or (iv) for any other reason upon email notice to you.
D. If your Service is cancelled for any reason, you are still responsible for payment of all outstanding balances accrued, including any applicable fees and costs pursuant to Section 2(H). Upon cancellation you give Peak Internet explicit permission to immediately charge any outstanding balances on your account to the credit card or other payment method you have on-file with Peak Internet at that time.
E. You understand that charges for Services, once charged to your account, are nonrefundable. For monthly subscriptions, the cancellation will be effective at the end of the period covered by the last monthly bill. No refunds or credits will be provided in connection with the cancellation of monthly subscriptions. For annual or other multi-month subscriptions, the cancellation will be effective as of the date the multi-month subscription expires. Because you are receiving a discounted price in exchange for your agreement to pay for your services on an annual or other multi-month basis, in the event you cancel the Services prior to expiration of your multi-month subscription, you understand and agree that you are not entitled to any refund or credit for the unused portions of the multi-month subscription and that we have the right to retain any prepaid monies as liquidated damages.
4. EQUIPMENT
A. In order to receive the Services, it will be necessary for you to utilize certain equipment owned and maintained by Peak Internet ("Equipment”).
B. Equipment is defined as, and strictly limited to the following; outdoor microwave radio transceiver and associated antennae, and power supply/lightning protection devices associated with these systems. Any and all other equipment associated with or installed in conjunction with the Services, or specifically billed and invoiced for, shall not be covered under this Agreement and no warranty, either expressed or implied, shall be provided by Peak Internet.
C. Peak Internet reserves the right to alter software in the Equipment through periodic downloads. Peak Internet will use commercially reasonable efforts to schedule these downloads in a manner that result in the least amount of interference with or interruption to your Service.
D. The Equipment may contain certain components and software which are proprietary to Peak Internet. You agree that you will not try to reverse-engineer, decompile or disassemble any software or hardware contained within the Equipment. Such actions are strictly prohibited and may result in the termination of your Services and/or legal action.
E. If the Equipment is stolen or otherwise removed from your premises without your authorization, you must notify Peak Internets’ Customer Service Center immediately, but in any event not more than three (3) business days after such removal to avoid liability for payment for unauthorized use of the Equipment. You will not be liable for unauthorized use after Peak Internet has received your timely notification. If you fail to notify Peak Internets’ Customer Service Center within the three (3) business days, you will be liable for all unauthorized use of the Equipment, as well as the current replacement cost of the Equipment.
5. PEAK INTERNET OWNED EQUIPMENT
A. Such Equipment shall at all times remain the sole and exclusive property of Peak Internet, and Peak Internet will have the right, at its discretion, to replace it with new or reconditioned Equipment and to remove the Equipment upon termination of Services. None of the Equipment shall be deemed fixtures or part of your realty. Peak Internet’s ownership of the Equipment may be displayed by notice contained on the Equipment. You shall have no right to pledge, sell, mortgage, give away or remove, relocate, alter or tamper with the Equipment (or any notice of Peak Internet’s ownership thereon) at any time. Any reinstallation, return of or change in location or alignment of the Equipment shall be performed by us at the service rates in effect at the time of service. You shall not attach any electrical or other devices to or otherwise alter the Equipment without Peak Internet’s prior written consent. Peak Internet shall have the right to make such filings as are necessary to evidence its ownership rights in the Equipment, including, but not limited to, Uniform Commercial Code filings, and you agree to execute any and all documents as are necessary for us to make such filings. Upon termination of Services, you must notify our Customer Service Center to schedule return of the Equipment.
B. You shall notify us promptly of any defect in, damage to, or accident involving the Equipment. All maintenance and repair of the equipment shall be performed by Peak Internet or its designees. Peak Internet may charge you for any repairs that are necessitated by any damage to, or misuse of, the Equipment. The failure to timely pay for such repairs will result in your obligation to pay Peak Internet for all costs and fees pursuant to Section 2(H).
6. TRANSFER OF ACCOUNT, SERVICES OR EQUIPMENT
Peak Internet may sell, assign or transfer your account to a third party without notice to you. You may not assign or transfer your Services without our written consent which will not be unreasonably withheld. Peak Internet may, however, refuse to allow you to assign or transfer your Services if your account has an outstanding balance.
7. NO WARRANTY
THE PEAK INTERNET SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT THE PEAK INTERNET EQUIPMENT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
8. LIMITATION OF OUR LIABILITY
A. WE WILL NOT BE LIABLE FOR ANY INTERRUPTIONS IN SERVICE OR LIABLE FOR ANY DELAY OR FAILURE TO PERFORM, IF SUCH DELAY OR NONPERFORMANCE ARISES IN CONNECTION WITH THE TERMINATION OF ALL OR A PORTION OF THE SERVICES, THE RELOCATION OF ALL OR A PORTION OF THE SERVICES TO DIFFERENT TRANSMITTER(S), A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT OR ANY ACTS OF GOD (INCLUDING LIGHTNING), FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, UPLINK FAILURE, THEFT OR VANDALISM, ACTS OF ANY GOVERNMENTAL BODY OR ANY OTHER CAUSE BEYOND OUR CONTROL.
B. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY BY APPLICABLE STATE LAW, WE DO NOT MAKE ANY WARRANTY, EITHER EXPRESSED OR IMPLIED, REGARDING OUR PEAK INTERNET EQUIPMENT OR ANY OTHER EQUIPMENT OR ANY SERVICES FURNISHED TO YOU. ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
C. IN NO EVENT SHALL WE HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO PEAK INTERNET EQUIPMENT OR ANY OTHER EQUIPMENT OR RESULTING FROM OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU, OR FROM ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT FURNISHED TO YOU.
D. IT IS YOUR RESPONSIBILITY TO IMPOSE VIEWING RESTRICTIONS ON YOURSELF, MEMBERS OF YOUR FAMILY AND HOUSEHOLD, AND GUESTS, AS YOU DEEM APPROPRIATE. WE SHALL HAVE NO LIABILITY TO ANYONE DUE TO, OR BASED UPON, THE CONTENT OF ANY OF THE SERVICES FURNISHED TO YOU.
E. CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, UPDATING, REPAIR, AND REMOVAL OF PEAK INTERNET EQUIPMENT, CUSTOMER EQUIPMENT AND/OR THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PEAK INTERNET NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY PEAK INTERNET, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS, PEAK INTERNET SHALL PAY AT ITS SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS DESIGNEES, EXCEPT AS OUTLINED ABOVE. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE OPENED, UPDATED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AGENTS, IN CONNECTION WITH THE INSTALLATION, UPDATING OR REPAIR OF SERVICES. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER, OTHER DEVICES USED IN CONNECTION WITH THE SERVICES MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR OTHER DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER PEAK INTERNET NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
F. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE PEAK INTERNET EQUIPMENT OR THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 3.
G. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities. Peak Internet shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond its control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications backbone or uplink; loss of use of towers/repeater locations, or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within sixty (60) days of such interruption, to a pro rata credit for any Service interruption exceeding twenty-four consecutive hours after such interruption is reported to Peak Internet, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS DESIGNEES FOR INTERRUPTION OF SERVICE, EXCEPT AS OUTLINED ABOVE. Any credits provided by Peak Internet are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Peak Internet.
H. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE PEAK INTERNET EQUIPMENT OR THE SERVICES OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE, THE PEAK INTERNET EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
(2) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE PEAK INTERNET EQUIPMENT OR THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
I. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement.
J. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement. Any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
9. WARNING AGAINST PIRACY
You will not connect the Service or any Peak Internet Equipment to more computers, either on or outside of the Premises, than are reflected in your account with Peak Internet. You acknowledge that any unauthorized receipt of the Service constitutes theft of service, which is a violation of federal and/or state law and can result in both civil and criminal penalties. In addition, if the violations are willful and for commercial advantage or private financial gain, the penalties may be increased. It is a violation of several U.S. federal and state laws to receive any Services, or any portion of such Services, without paying for them. The penalties for violating such laws can range from imprisonment to civil damage awards of up to $110,000 per violation.
10. INDEMNIFICATION AND LIABILITY OF CUSTOMER
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICE OR PEAK INTERNET EQUIPMENT; (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (c) ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; AND (d) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
11. GENERAL
A. Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and Peak Internet with respect to the subject matter of this Agreement, and replace any and all prior written or verbal agreements. In entering into this Agreement, you specifically and expressly disclaim any reliance upon any terms, conditions, statements, warranties, or representations, oral or written, made by Peak Internet, together with any of its predecessors, successors, assigns, shareholders, officers, directors, agents, attorneys, and personal representatives, that are not contained in this Agreement.
B. Severability. Each provision of this Agreement is intended to be severable, and if any portion of this Agreement is held invalid, illegal, unenforceable, or void for any reason, the remainder of this Agreement will remain in full force and effect. Any portion of the Agreement held to be invalid, unenforceable, or void will, if possible, be deemed amended or reduced in scope, but such amendment or reduction in scope will be made only to the minimum extent required for purposes of maximizing the validity and enforceability of this Agreement
C. Non-Waiver. Peak Internet does not waive any provision or right if it fails to insist upon or enforce strict performance of any provision of this Agreement. Neither the course of conduct between you and Peak Internet, nor trade practice shall act to modify any provision of this Agreement.
D. Physical Address/Change of Address. When setting up your Peak Internet account, you agree to provide Peak Internet with the physical street address where your Equipment will be located and your Services will be provided. A post office box does not constitute a physical address and is not sufficient to meet this requirement. You agree to give Peak Internet prompt notice of your change of name, mailing address, physical address where your Equipment is located, and telephone number. You may do this by notifying our Customer Service Center by telephone or in writing at the phone number or mailing or e-mail address set forth in the first paragraph of this Agreement.
E. Notice. Any notice required or permitted to be given by Peak Internet under this Agreement may be provided via the mail, on your billing statement, as a bill insert, through publication on the website set forth in the first paragraph of this Agreement, by telephone, by e-mail or by any other reasonable means. If Peak Internet sends you notice by mail, on your billing statement or as a bill insert, it will be considered given when deposited in the U.S. Mail, addressed to you at your then-current billing address in its records. If Peak Internet sends you notice through publication on the website set forth in the first paragraph of this Agreement, it will be considered given when first published. If Peak Internet sends you notice by telephone, it will be considered given when personally delivered to you or when left as a message at your then-current phone number in its records. If Peak Internet sends you notice via e-mail, it will be considered given when transmitted to its server, addressed to you at your then-current e-mail address in its records. Unless otherwise specified in this Agreement, any notice required or permitted to be given by you under this Agreement shall be in writing, shall be sent by first class mail addressed to Peak Internet at the mailing address set forth in the first paragraph of this Agreement, and shall be deemed given when actually received by Peak Internet at such mailing address.
F. Credit Checks. You authorize Peak Internet to investigate your financial responsibility and creditworthiness, including, without limitation, acquiring credit reports and histories and reporting any payment defaults, delinquicies, collections, charge-offs, or similar actions to credit reporting agencies. Under the Fair Credit Reporting Act, you have the right to notify Peak Internet if you believe Peak Internet has reported inaccurate information about your account to any consumer reporting agency. Please include the specific item of dispute and why you believe the information reported is in error in any such notice. If you do not notify Peak Internet about such alleged inaccurate information in a timely manner, Peak Internet shall be entitled to rely upon its current information as entirely accurate and complete.
G. Applicable Law. This Agreement, including without limitation all matters relating to its validity, construction, performance and enforcement, and any claim, complaint or dispute arising out of or related to this Agreement or Services, shall be governed by the laws and regulations of the State of Colorado without giving effect to its conflict of law provisions.
H. No term or provision of this Settlement Agreement may be varied, changed, modified, waived, discharged, or terminated orally, except in writing signed by an authorized representative of Peak Internet or as required by applicable laws and regulations
I. Remedies Cumulative. It is agreed that the rights and remedies provided under the terms and conditions of this Agreement to Peak Internet in case of default or breach by you of this Agreement are cumulative and without prejudice to any other rights and remedies that Peak Internet may have by reason of such default or breach by you at law, in equity, under contract or otherwise (all of which are expressly reserved).
J. Other. No salesperson, installer, customer service representative, authorized retailer, or other similarly situated individual is authorized to change or modify the terms and conditions of this Agreement. Peak Internet may, however, change or modify the terms and conditions of this Agreement at any time and from time to time in its sole discretion and will notify you if that occurs. The terms and conditions of this Agreement that either are expressly stated to survive or by their nature would logically be expected to survive its expiration or termination shall continue thereafter until fully performed. This Agreement is in addition to any other written agreement(s), if any, between you and Peak Internet, including without limitation any installation agreement or customer agreement(s), if any, applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, and except as provided to the contrary herein all such written agreements shall remain in full force and effect. Except as expressly set forth in this Agreement to the contrary, any and all prior Peak Internet Subscriber Agreements are hereby replaced and superseded in their entirety by this Agreement, and such prior Peak Internet Subscriber Agreements shall be of no further force or effect whatsoever. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, the terms and conditions of such customer agreement(s) shall be controlling. In the event of any ambiguity between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, Peak Internet shall have the sole and exclusive authority to interpret and/or make a final determination in its sole discretion concerning any issue arising from such ambiguity.
K. Arbitration. To the extent that you may have a dispute that is not waived pursuant to the aforementioned waivers or a dispute that is not covered by the subject matter of the aforementioned waivers, all such disputes first shall be submitted to mediation pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Submission to mediation under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association is a condition precedent to additional dispute resolution procedures. If the parties fail to resolve the dispute pursuant to mediation, you shall submit the dispute to binding arbitration pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The locale of the arbitration shall be Colorado Springs, Colorado. Each party shall bear all of his/her/its own costs and fees associated with the arbitration, including, but not limited to, arbitration costs, attorneys’ fees, and expert witness fees.
ADDITIONAL PROVISIONS APPLICABLE TO DIGITAL VOICE SERVICE
In addition to the General Terms and Conditions above, the following terms and conditions are specifically applicable to Customers who also subscribe to Digital Voice Service through Peak Internet.
1. SPECIAL NOTICE FOR PEAK INTERNET DIGITAL VOICE SUBSCRIBERS: LIMITATIONS OF DIGITAL VOICE SERVICE
a. Limitations. Digital Voice includes 911/Enhanced 911 functionality (“911/E911”) that may differ from the 911/E911 functionality furnished by other providers. As such, it may have certain limitations. CAREFULLY READ THE INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS OF 911/E911. YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES. IF YOU HAVE ANY QUESTIONS ABOUT 911/E911, CALL PEAK INTERNET.
i. Correct Address: In order for your 911/E911 calls to be properly directed to emergency services, Peak Internet must have your correct Premises address. If you move Digital Voice Service to a different address without Peak Internet’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, and/or Digital Voice Service (including 911/E911) may fail altogether. Therefore, you must call Peak Internet before you move Digital Voice Service to a new address. Peak Internet will need several business days to update your Premises address in the E911 system so that your 911/E911 calls can be properly directed. All changes in service address require Peak Internet’s prior approval.
ii. Service Interruptions: Digital Voice Service uses the electrical power in your home. If there is an electrical power outage, 911 calling may be interrupted. Furthermore, calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network/equipment/power failure, or another technical problem.
iii. Suspension and Termination by Peak Internet: You understand and acknowledge that all Digital Voice Service, including 911/E911, as well as all online features of Digital Voice, where we make these features available, will be disabled if your account is suspended or terminated.
iv. Telephone Number Assignments: The telephone numbers utilized for Digital Voice Service are assigned in accordance with applicable federal and state numbering rules. Therefore, Peak Internet cannot accommodate the assignment of a telephone number outside of the telephone rate center to which that number is appropriately assigned.
b. Limitation of Liability and Indemnification. YOU ACKNOWLEDGE AND AGREE THAT PEAK INTERNET WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911 USING THE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS OR AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911/E911.
2. ADDITIONAL DIGITAL VOICE-SPECIFIC PROVISIONS REGARDING CUSTOMER EQUIPMENT
a. Incompatible Equipment and Services. You acknowledge and understand that Digital Voice Service may not support or be compatible with:
i. Certain non-voice communications equipment, including certain makes or models of alarm and home security systems, certain medical monitoring, personal emergency alert, and home detention devices, certain fax machines, and certain “dial-up” modems;
ii. Rotary-dial phone handsets, and certain makes and models of other voice-related communications equipment including key systems, private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units;
iii. Casual/dial around (10-10) calling; 976, 900, 700, or 500 number calling;
iv. 311, 511, or other N11 calling (other than 411, 611, 711, and 911); and
v. Other call types not expressly set forth in our product literature (e.g., outbound shore-to-ship calling); and
vi. Certain service codes such as automatic callback and automatic recall (e.g., *66, *69) due to compatibility limitations with other carrier signal functions.
3. TRANSFER OF YOUR PHONE NUMBER(S)
For information about switching to another provider from Peak Internet and the assignment of telephone numbers related to Peak Internet Service, please call Peak Internet.
4. CUSTOMER INFORMATION
Peak Internet and its suppliers reserve the right both during the term of this Agreement and upon its termination to delete your voicemail, call detail, data, files, or other information that is stored on Peak Internet’s or its suppliers’ servers or systems, in accordance with our storage policies. You understand and acknowledge that Peak Internet shall have no liability whatsoever as a result of the loss or removal of any such voicemail, call detail, data, files, or other information.
Effective as of November 11, 2011 until replaced.
THIS DOCUMENT DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH PEAK INTERNET WILL PROVIDE ITS SERVICE TO YOU. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE NOTIFY US IMMEDIATELY AND PEAK INTERNET WILL CANCEL YOUR SERVICE. IF YOU ARE A NEW PEAK INTERNET CUSTOMER, YOUR ACTIVATION OF A PEAK INTERNET ACCOUNT AND RECEIPT OF PEAK INTERNET SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU.
IF YOU ARE AN EXISTING PEAK INTERNET CUSTOMER, YOUR CONTINUED RECEIPT OF PEAK INTERNET SERVICES FOLLOWING RECEIPT OR PUBLICATION BY PEAK INTERNET ON ITS WEB SITE OF THIS AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS, AND, ACCORDINGLY, THEY WILL BE LEGALLY BINDING ON YOU.
Thank you for choosing Peak Internet as your Communications Service Provider. Peak Internet is happy to answer any questions you may have and to provide you with technical and other customer support through the following telephone number and web address:
http://www.peakinter.net/
or you may write to:
Peak Internet
PO Box 399
Woodland Park, CO 80866-0399
"Peak Internet" is a tradename of Fundamental Holdings, Corp., a Delaware corporation.
This Agreement (the "Agreement") covers all services provided by Peak Internet.
1. THE PEAK INTERNET SERVICE
A. Services Defined. Peak Internet offers a wide variety of communications and other services, and it is constantly striving to add new services. For purposes of this Agreement the term "Services” shall mean the communications services (including, but not limited to, Internet Services) available from Peak Internet (whether subscription based or pay-per-access based) and any other services that Peak Internet may provide to consumers either now or in the future. For purposes of this Agreement, the terms "You” or "Your” refer to you, the Peak Internet subscriber.
B. Service Changes. Except as otherwise set forth in this Agreement, you may change your service package selection at any time by notifying us. A fee may apply to downgrade changes (Downgrade of Service Fee). In addition, you may be charged a fee (Service Access Fee) if you fail to subscribe to one of Peak Internet's basic service packages.
C. Service Availability. Certain Services provided by Peak Internet depend on a clear line-of-sight to a microwave tower transmitter site. If Peak Internet is unable to achieve a reliable signal to one of its microwave sites, Peak Internet shall have no obligation to provide service of any kind. Should signal delivery be impacted for any reason and Peak Internet would no longer be able to provide service, Peak Internet shall have no obligation to continue providing service of any kind.
D. Residential Use. For service packages designated as "Residential," Peak Internet provides Services to you for your private home use and enjoyment. You agree that the Services provided will not be utilized outside of your private residence. The Services may not be resold or shared with anyone other than those within your private residence. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave possession of the same to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services in a commercial establishment or any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full commercial rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice our ability to exercise any other rights and remedies Peak Internet may have under this Agreement, at law, in equity, or otherwise.
E. Business Use. For service packages designated as "Business," Peak Internet provides Services to you for your in-office use and enjoyment. You agree that the Services provided will not be utilized outside of your office suite. The Services may not be resold or shared with anyone other than those within your office. If Peak Internet later determines that you utilized your Peak Internet service or sold, leased or otherwise gave permission of the same to a third party who you knew or reasonably should have known intended to use it to permit the utilization of the Services to an area outside that of your office suite or in any other area open to the public, Peak Internet may terminate the Services and in addition to all other applicable fees, you agree to pay Peak Internet the difference between the price actually paid for the Services and the full reseller rate for such Services. The payment of that amount and/or the termination of Services shall not prejudice Peak Internet’s ability to exercise any other rights and remedies itmay have under this Agreement, at law, in equity, or otherwise.
F. Changes in Services Offered. Peak Internet reserves the right to change the Services that it offers, and its prices or fees related to such Services at any time. If the change affects you, Peak Internet will provide you notice of the change and its effective date. The notice may be provided on your billing statement or by other communication permitted by this Agreement. In the event of a change in the contents of any Services, you understand and agree that Peak Internet has no obligation to replace or supplement the Services previously offered that have been deleted, rearranged or otherwise changed. You further understand and agree you will not be entitled to any refund because of a change in the contents of any Services previously offered.
G. Multi-Month Subscriptions. For multi-month subscriptions, you may downgrade the Services by paying a one-time Downgrade of Service Fee.
H. Acceptable Use Policy. You agree to abide by and accept the terms of our Acceptable Use Policy, as posted on our website at www.peakinter.net and incorporated herein by reference.
I. IP Addresses: Peak Internet will provide you with a dynamic, non-public Internet Protocol ("IP") address(es) as a component of the Service and these IP addess(es) can and do change over time. You will not alter, modify or tamper with these dynamic IP address(es) or those of any other customer. You also agree not to use any software on or in conjunction with any computer(s) or network device connected to the Service that provides for static IP address(es). If applicable, Peak Internet will release and/or recover the dynamic IP address(es) upon disconnection, discontinuance, or termination of the Service or this Agreement.
2. BILLING POLICIES AND PAYMENTS FOR SERVICES
A. You agree to pay all charges associated with the Services and to pay all applicable taxes, fees and other charges, including, but not limited to, installation/service call charges, monthly service charges, measured and per call charges, applicable federal, state, and local taxes and fees (however designated), regulatory recovery fees for municipal, state and federal government fees or assessments imposed on Peak Internet, permitted fees and cost recovery charges, or any programs in which Peak Internet participates, including, but not limited to, public, educational, and governmental access, universal service, telecom relay services for the visually/hearing impaired, rights-of-way access, and programs supporting the 911/E911 system and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services which are now or may in the future be assessed on the Services you receive from Peak Internet. Unless you prepay for a multi-month subscription to Services, Peak Internet will bill you each month, in advance, for Services ordered by you or anyone who uses your Peak Internet subscription, whether with or without your permission, until you cancel the Services. The bills you receive will show the total amount due, the payment due date, payments, credits, purchases and other charges to your account.
B. You agree to pay Peak Internet in full monthly by the payment due date for the Services and for any other charges due Peak Internet, including any fees set forth in this Section 2. Payment of your bill after the due date will result in you paying Peak Internet a Late Payment Fee. Other fees and charges also may be assessed. If partial payments are made, they will be applied first to the oldest outstanding bill. If you send checks or money orders marked "payment in full,” Peak Internet can accept them without losing any of its rights to collect any other amounts owed by you, notwithstanding your characterization of the payment. Peak Internet does not extend credit to our customers, and the Late Payment Fee is not interest, a credit service charge or a finance charge. You understand and agree that in the case of late payment or nonpayment for any Services ordered by you or for any of the charges stated below, you agree that Peak Internet may report such late payment or nonpayment to credit reporting agencies. See also Section 11(D). If you do not pay your bill by the due date, Peak Internet has the right to disconnect your Services at any time thereafter, in our sole discretion. Peak Internet may require you to pay all past due charges, a Reconnect Fee, a deposit equal to a minimum of one month's advance charges and all outstanding balances accrued through the date of deactivation, before Peak Internet reconnects your Services. Deposits will not be held segregated from other funds and shall not earn or accrue interest.
C. If you at any time fail, neglect, or refuse to make timely payments hereunder, or if a petition in bankruptcy shall be filed on your behalf or against you, or if you take advantage of any insolvency law or become insolvent or make an assignment for the benefit of creditors, or if a receiver, liquidator, or trustee is appointed for your property or affairs, Peak Internet shall be wholly relieved from its obligations hereunder.
D. If you paid for an annual or other multi-month subscription to any Services and your account is past due for any amounts owed to Peak Internet, at its option Peak Internet may suspend any or all Service until payment is received, and/or convert your annual or other multi-month subscription to a monthly subscription. If Peak Internet converts your multi-month subscription to a monthly subscription, Peak Internet will first apply the amount you paid for your multi-month subscription to any past due amounts and then any remaining amounts to future obligations. If Peak Internet elects to offset the amount paid for the remaining portion of a multi-month subscription against amounts past due, you agree to pay, in addition to all other applicable fees, the Offset Fee set forth below for each month and partial month that the multi-month subscription was previously received.
E. If Peak Internet uses a collection agency or attorney to collect money you owe Peak Internet or to assert any other right which we may have against you, you agree to pay all reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorney's fees and court costs.
F. If there are billing errors or other requests for credit, you can contact Peak Internet’s Customer Service Center by telephone or in writing. You must contact Peak Internet within thirty (30) days of the time you receive the billing statement for which you are seeking corrections. Failure to timely notify us of a dispute shall constitute acceptance of the bill. Undisputed portions of the billing statement must be paid before the next billing statement is issued to avoid an administrative fee for late payment.
G. All payments for Services must be made directly by you to Peak Internet. Peak Internet shall have no obligation to provide Services for which payment is made by you to a third party.
H. In addition to the amounts due for Services, you agree to pay the fees referenced below ("Fees”) when applicable. Peak Internet reserves the right to increase these Fees or add additional Fees in the future, in our sole discretion and without prior notice to you.
Late Payment Fee $5.00
Credit Card Chargeback Fee $35.00
Downgrade of Service Fee $25.00
Service Access Fee (monthly) $5.00
Duplicate Billing Statement Fee $3.00
Overnight Delivery Fee $23.00
Reconnect Fee $25.00
Returned Payment Fee $35.00
Offset Fee $2.00
Ledger Request Fee $6.00
Relocation of Service $75.00
Paper Invoice Fee (monthly) $2.00
I. You agree to keep a valid credit card on file with Peak Internet at all times during your subscription.
3. CANCELLATION OF SERVICE
A. Your Service will continue until cancelled as provided for herein. Your subscription will be automatically renewed unless you contact Peak Internet to cancel as provided for in the next paragraph.
B. You have the right to cancel your Service for any reason at any time by notifying Peak Internet in writing at the address set forth above. Please be aware that certain services have a minimum subscription commitment and if you cancel your service prior to the expiration of that commitment, certain early termination fees may apply.
C. Peak Internet has the right to terminate your Services at any time without providing notice to you if: (i) you fail to pay your bill when it is due; (ii) Peak Internet receives confirmation that you have received the Services, or any part of the Services without paying for them; (iii) you otherwise violate any term of this Agreement; or (iv) for any other reason upon email notice to you.
D. If your Service is cancelled for any reason, you are still responsible for payment of all outstanding balances accrued, including any applicable fees and costs pursuant to Section 2(H). Upon cancellation you give Peak Internet explicit permission to immediately charge any outstanding balances on your account to the credit card or other payment method you have on-file with Peak Internet at that time.
E. You understand that charges for Services, once charged to your account, are nonrefundable. For monthly subscriptions, the cancellation will be effective at the end of the period covered by the last monthly bill. No refunds or credits will be provided in connection with the cancellation of monthly subscriptions. For annual or other multi-month subscriptions, the cancellation will be effective as of the date the multi-month subscription expires. Because you are receiving a discounted price in exchange for your agreement to pay for your services on an annual or other multi-month basis, in the event you cancel the Services prior to expiration of your multi-month subscription, you understand and agree that you are not entitled to any refund or credit for the unused portions of the multi-month subscription and that we have the right to retain any prepaid monies as liquidated damages.
4. EQUIPMENT
A. In order to receive the Services, it will be necessary for you to utilize certain equipment owned and maintained by Peak Internet ("Equipment”).
B. Equipment is defined as, and strictly limited to the following; outdoor microwave radio transceiver and associated antennae, and power supply/lightning protection devices associated with these systems. Any and all other equipment associated with or installed in conjunction with the Services, or specifically billed and invoiced for, shall not be covered under this Agreement and no warranty, either expressed or implied, shall be provided by Peak Internet.
C. Peak Internet reserves the right to alter software in the Equipment through periodic downloads. Peak Internet will use commercially reasonable efforts to schedule these downloads in a manner that result in the least amount of interference with or interruption to your Service.
D. The Equipment may contain certain components and software which are proprietary to Peak Internet. You agree that you will not try to reverse-engineer, decompile or disassemble any software or hardware contained within the Equipment. Such actions are strictly prohibited and may result in the termination of your Services and/or legal action.
E. If the Equipment is stolen or otherwise removed from your premises without your authorization, you must notify Peak Internets’ Customer Service Center immediately, but in any event not more than three (3) business days after such removal to avoid liability for payment for unauthorized use of the Equipment. You will not be liable for unauthorized use after Peak Internet has received your timely notification. If you fail to notify Peak Internets’ Customer Service Center within the three (3) business days, you will be liable for all unauthorized use of the Equipment, as well as the current replacement cost of the Equipment.
5. PEAK INTERNET OWNED EQUIPMENT
A. Such Equipment shall at all times remain the sole and exclusive property of Peak Internet, and Peak Internet will have the right, at its discretion, to replace it with new or reconditioned Equipment and to remove the Equipment upon termination of Services. None of the Equipment shall be deemed fixtures or part of your realty. Peak Internet’s ownership of the Equipment may be displayed by notice contained on the Equipment. You shall have no right to pledge, sell, mortgage, give away or remove, relocate, alter or tamper with the Equipment (or any notice of Peak Internet’s ownership thereon) at any time. Any reinstallation, return of or change in location or alignment of the Equipment shall be performed by us at the service rates in effect at the time of service. You shall not attach any electrical or other devices to or otherwise alter the Equipment without Peak Internet’s prior written consent. Peak Internet shall have the right to make such filings as are necessary to evidence its ownership rights in the Equipment, including, but not limited to, Uniform Commercial Code filings, and you agree to execute any and all documents as are necessary for us to make such filings. Upon termination of Services, you must notify our Customer Service Center to schedule return of the Equipment.
B. You shall notify us promptly of any defect in, damage to, or accident involving the Equipment. All maintenance and repair of the equipment shall be performed by Peak Internet or its designees. Peak Internet may charge you for any repairs that are necessitated by any damage to, or misuse of, the Equipment. The failure to timely pay for such repairs will result in your obligation to pay Peak Internet for all costs and fees pursuant to Section 2(H).
6. TRANSFER OF ACCOUNT, SERVICES OR EQUIPMENT
Peak Internet may sell, assign or transfer your account to a third party without notice to you. You may not assign or transfer your Services without our written consent which will not be unreasonably withheld. Peak Internet may, however, refuse to allow you to assign or transfer your Services if your account has an outstanding balance.
7. NO WARRANTY
THE PEAK INTERNET SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT THE PEAK INTERNET EQUIPMENT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
8. LIMITATION OF OUR LIABILITY
A. WE WILL NOT BE LIABLE FOR ANY INTERRUPTIONS IN SERVICE OR LIABLE FOR ANY DELAY OR FAILURE TO PERFORM, IF SUCH DELAY OR NONPERFORMANCE ARISES IN CONNECTION WITH THE TERMINATION OF ALL OR A PORTION OF THE SERVICES, THE RELOCATION OF ALL OR A PORTION OF THE SERVICES TO DIFFERENT TRANSMITTER(S), A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT OR ANY ACTS OF GOD (INCLUDING LIGHTNING), FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, UPLINK FAILURE, THEFT OR VANDALISM, ACTS OF ANY GOVERNMENTAL BODY OR ANY OTHER CAUSE BEYOND OUR CONTROL.
B. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY BY APPLICABLE STATE LAW, WE DO NOT MAKE ANY WARRANTY, EITHER EXPRESSED OR IMPLIED, REGARDING OUR PEAK INTERNET EQUIPMENT OR ANY OTHER EQUIPMENT OR ANY SERVICES FURNISHED TO YOU. ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
C. IN NO EVENT SHALL WE HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO PEAK INTERNET EQUIPMENT OR ANY OTHER EQUIPMENT OR RESULTING FROM OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU, OR FROM ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT FURNISHED TO YOU.
D. IT IS YOUR RESPONSIBILITY TO IMPOSE VIEWING RESTRICTIONS ON YOURSELF, MEMBERS OF YOUR FAMILY AND HOUSEHOLD, AND GUESTS, AS YOU DEEM APPROPRIATE. WE SHALL HAVE NO LIABILITY TO ANYONE DUE TO, OR BASED UPON, THE CONTENT OF ANY OF THE SERVICES FURNISHED TO YOU.
E. CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, UPDATING, REPAIR, AND REMOVAL OF PEAK INTERNET EQUIPMENT, CUSTOMER EQUIPMENT AND/OR THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PEAK INTERNET NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY PEAK INTERNET, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS, PEAK INTERNET SHALL PAY AT ITS SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS DESIGNEES, EXCEPT AS OUTLINED ABOVE. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE OPENED, UPDATED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AGENTS, IN CONNECTION WITH THE INSTALLATION, UPDATING OR REPAIR OF SERVICES. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER, OTHER DEVICES USED IN CONNECTION WITH THE SERVICES MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR OTHER DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER PEAK INTERNET NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
F. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE PEAK INTERNET EQUIPMENT OR THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 3.
G. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities. Peak Internet shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond its control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications backbone or uplink; loss of use of towers/repeater locations, or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within sixty (60) days of such interruption, to a pro rata credit for any Service interruption exceeding twenty-four consecutive hours after such interruption is reported to Peak Internet, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. YOU UNDERSTAND AND AGREE THAT YOU WAIVE ALL CLAIMS AGAINST PEAK INTERNET AND ITS DESIGNEES FOR INTERRUPTION OF SERVICE, EXCEPT AS OUTLINED ABOVE. Any credits provided by Peak Internet are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Peak Internet.
H. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PEAK INTERNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE PEAK INTERNET EQUIPMENT OR THE SERVICES OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE, THE PEAK INTERNET EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
(2) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE PEAK INTERNET EQUIPMENT OR THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
I. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement.
J. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement. Any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
9. WARNING AGAINST PIRACY
You will not connect the Service or any Peak Internet Equipment to more computers, either on or outside of the Premises, than are reflected in your account with Peak Internet. You acknowledge that any unauthorized receipt of the Service constitutes theft of service, which is a violation of federal and/or state law and can result in both civil and criminal penalties. In addition, if the violations are willful and for commercial advantage or private financial gain, the penalties may be increased. It is a violation of several U.S. federal and state laws to receive any Services, or any portion of such Services, without paying for them. The penalties for violating such laws can range from imprisonment to civil damage awards of up to $110,000 per violation.
10. INDEMNIFICATION AND LIABILITY OF CUSTOMER
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICE OR PEAK INTERNET EQUIPMENT; (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (c) ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; AND (d) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
11. GENERAL
A. Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and Peak Internet with respect to the subject matter of this Agreement, and replace any and all prior written or verbal agreements. In entering into this Agreement, you specifically and expressly disclaim any reliance upon any terms, conditions, statements, warranties, or representations, oral or written, made by Peak Internet, together with any of its predecessors, successors, assigns, shareholders, officers, directors, agents, attorneys, and personal representatives, that are not contained in this Agreement.
B. Severability. Each provision of this Agreement is intended to be severable, and if any portion of this Agreement is held invalid, illegal, unenforceable, or void for any reason, the remainder of this Agreement will remain in full force and effect. Any portion of the Agreement held to be invalid, unenforceable, or void will, if possible, be deemed amended or reduced in scope, but such amendment or reduction in scope will be made only to the minimum extent required for purposes of maximizing the validity and enforceability of this Agreement
C. Non-Waiver. Peak Internet does not waive any provision or right if it fails to insist upon or enforce strict performance of any provision of this Agreement. Neither the course of conduct between you and Peak Internet, nor trade practice shall act to modify any provision of this Agreement.
D. Physical Address/Change of Address. When setting up your Peak Internet account, you agree to provide Peak Internet with the physical street address where your Equipment will be located and your Services will be provided. A post office box does not constitute a physical address and is not sufficient to meet this requirement. You agree to give Peak Internet prompt notice of your change of name, mailing address, physical address where your Equipment is located, and telephone number. You may do this by notifying our Customer Service Center by telephone or in writing at the phone number or mailing or e-mail address set forth in the first paragraph of this Agreement.
E. Notice. Any notice required or permitted to be given by Peak Internet under this Agreement may be provided via the mail, on your billing statement, as a bill insert, through publication on the website set forth in the first paragraph of this Agreement, by telephone, by e-mail or by any other reasonable means. If Peak Internet sends you notice by mail, on your billing statement or as a bill insert, it will be considered given when deposited in the U.S. Mail, addressed to you at your then-current billing address in its records. If Peak Internet sends you notice through publication on the website set forth in the first paragraph of this Agreement, it will be considered given when first published. If Peak Internet sends you notice by telephone, it will be considered given when personally delivered to you or when left as a message at your then-current phone number in its records. If Peak Internet sends you notice via e-mail, it will be considered given when transmitted to its server, addressed to you at your then-current e-mail address in its records. Unless otherwise specified in this Agreement, any notice required or permitted to be given by you under this Agreement shall be in writing, shall be sent by first class mail addressed to Peak Internet at the mailing address set forth in the first paragraph of this Agreement, and shall be deemed given when actually received by Peak Internet at such mailing address.
F. Credit Checks. You authorize Peak Internet to investigate your financial responsibility and creditworthiness, including, without limitation, acquiring credit reports and histories and reporting any payment defaults, delinquicies, collections, charge-offs, or similar actions to credit reporting agencies. Under the Fair Credit Reporting Act, you have the right to notify Peak Internet if you believe Peak Internet has reported inaccurate information about your account to any consumer reporting agency. Please include the specific item of dispute and why you believe the information reported is in error in any such notice. If you do not notify Peak Internet about such alleged inaccurate information in a timely manner, Peak Internet shall be entitled to rely upon its current information as entirely accurate and complete.
G. Applicable Law. This Agreement, including without limitation all matters relating to its validity, construction, performance and enforcement, and any claim, complaint or dispute arising out of or related to this Agreement or Services, shall be governed by the laws and regulations of the State of Colorado without giving effect to its conflict of law provisions.
H. No term or provision of this Settlement Agreement may be varied, changed, modified, waived, discharged, or terminated orally, except in writing signed by an authorized representative of Peak Internet or as required by applicable laws and regulations
I. Remedies Cumulative. It is agreed that the rights and remedies provided under the terms and conditions of this Agreement to Peak Internet in case of default or breach by you of this Agreement are cumulative and without prejudice to any other rights and remedies that Peak Internet may have by reason of such default or breach by you at law, in equity, under contract or otherwise (all of which are expressly reserved).
J. Other. No salesperson, installer, customer service representative, authorized retailer, or other similarly situated individual is authorized to change or modify the terms and conditions of this Agreement. Peak Internet may, however, change or modify the terms and conditions of this Agreement at any time and from time to time in its sole discretion and will notify you if that occurs. The terms and conditions of this Agreement that either are expressly stated to survive or by their nature would logically be expected to survive its expiration or termination shall continue thereafter until fully performed. This Agreement is in addition to any other written agreement(s), if any, between you and Peak Internet, including without limitation any installation agreement or customer agreement(s), if any, applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, and except as provided to the contrary herein all such written agreements shall remain in full force and effect. Except as expressly set forth in this Agreement to the contrary, any and all prior Peak Internet Subscriber Agreements are hereby replaced and superseded in their entirety by this Agreement, and such prior Peak Internet Subscriber Agreements shall be of no further force or effect whatsoever. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, the terms and conditions of such customer agreement(s) shall be controlling. In the event of any ambiguity between the terms and conditions of this Agreement and any customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, Peak Internet shall have the sole and exclusive authority to interpret and/or make a final determination in its sole discretion concerning any issue arising from such ambiguity.
K. Arbitration. To the extent that you may have a dispute that is not waived pursuant to the aforementioned waivers or a dispute that is not covered by the subject matter of the aforementioned waivers, all such disputes first shall be submitted to mediation pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Submission to mediation under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association is a condition precedent to additional dispute resolution procedures. If the parties fail to resolve the dispute pursuant to mediation, you shall submit the dispute to binding arbitration pursuant to the then applicable Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The locale of the arbitration shall be Colorado Springs, Colorado. Each party shall bear all of his/her/its own costs and fees associated with the arbitration, including, but not limited to, arbitration costs, attorneys’ fees, and expert witness fees.
ADDITIONAL PROVISIONS APPLICABLE TO DIGITAL VOICE SERVICE
In addition to the General Terms and Conditions above, the following terms and conditions are specifically applicable to Customers who also subscribe to Digital Voice Service through Peak Internet.
1. SPECIAL NOTICE FOR PEAK INTERNET DIGITAL VOICE SUBSCRIBERS: LIMITATIONS OF DIGITAL VOICE SERVICE
a. Limitations. Digital Voice includes 911/Enhanced 911 functionality (“911/E911”) that may differ from the 911/E911 functionality furnished by other providers. As such, it may have certain limitations. CAREFULLY READ THE INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS OF 911/E911. YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES. IF YOU HAVE ANY QUESTIONS ABOUT 911/E911, CALL PEAK INTERNET.
i. Correct Address: In order for your 911/E911 calls to be properly directed to emergency services, Peak Internet must have your correct Premises address. If you move Digital Voice Service to a different address without Peak Internet’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, and/or Digital Voice Service (including 911/E911) may fail altogether. Therefore, you must call Peak Internet before you move Digital Voice Service to a new address. Peak Internet will need several business days to update your Premises address in the E911 system so that your 911/E911 calls can be properly directed. All changes in service address require Peak Internet’s prior approval.
ii. Service Interruptions: Digital Voice Service uses the electrical power in your home. If there is an electrical power outage, 911 calling may be interrupted. Furthermore, calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network/equipment/power failure, or another technical problem.
iii. Suspension and Termination by Peak Internet: You understand and acknowledge that all Digital Voice Service, including 911/E911, as well as all online features of Digital Voice, where we make these features available, will be disabled if your account is suspended or terminated.
iv. Telephone Number Assignments: The telephone numbers utilized for Digital Voice Service are assigned in accordance with applicable federal and state numbering rules. Therefore, Peak Internet cannot accommodate the assignment of a telephone number outside of the telephone rate center to which that number is appropriately assigned.
b. Limitation of Liability and Indemnification. YOU ACKNOWLEDGE AND AGREE THAT PEAK INTERNET WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911 USING THE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PEAK INTERNET AND ITS AFFILIATES, SUPPLIERS OR AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911/E911.
2. ADDITIONAL DIGITAL VOICE-SPECIFIC PROVISIONS REGARDING CUSTOMER EQUIPMENT
a. Incompatible Equipment and Services. You acknowledge and understand that Digital Voice Service may not support or be compatible with:
i. Certain non-voice communications equipment, including certain makes or models of alarm and home security systems, certain medical monitoring, personal emergency alert, and home detention devices, certain fax machines, and certain “dial-up” modems;
ii. Rotary-dial phone handsets, and certain makes and models of other voice-related communications equipment including key systems, private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units;
iii. Casual/dial around (10-10) calling; 976, 900, 700, or 500 number calling;
iv. 311, 511, or other N11 calling (other than 411, 611, 711, and 911); and
v. Other call types not expressly set forth in our product literature (e.g., outbound shore-to-ship calling); and
vi. Certain service codes such as automatic callback and automatic recall (e.g., *66, *69) due to compatibility limitations with other carrier signal functions.
3. TRANSFER OF YOUR PHONE NUMBER(S)
For information about switching to another provider from Peak Internet and the assignment of telephone numbers related to Peak Internet Service, please call Peak Internet.
4. CUSTOMER INFORMATION
Peak Internet and its suppliers reserve the right both during the term of this Agreement and upon its termination to delete your voicemail, call detail, data, files, or other information that is stored on Peak Internet’s or its suppliers’ servers or systems, in accordance with our storage policies. You understand and acknowledge that Peak Internet shall have no liability whatsoever as a result of the loss or removal of any such voicemail, call detail, data, files, or other information.
Copyright 2013 © Peak Internet. All Rights Reserved | Subscriber Agreement | Acceptable Use Policy | 911 Dialing | Network Information
