Data Stream Broadband Service Level Agreement (SLA)
DATA STREAM RESIDENTIAL SERVICES AGREEMENT
Effective Date: January 1st, 2022
In addition to these Residential General Terms and Conditions of Service (“General Terms”), You, individually (“You” or “Subscriber”), and You, on behalf of every member of your household, current and future, every visitor to or guest in your household, and any other person who uses the Services (together with Subscriber, the “Subscriber Group”), agree to be bound by the terms of service applicable to the residential Data Stream
service(s) to which You subscribe (hereafter, “Service” or “Services”), as well as the Data Stream Subscriber Privacy Notice which may each be found at www.dsbroadband.com, under “Terms of Service/Policies” and “Your Privacy Rights,” as such may be updated from time to time (collectively, the “Terms of Service”), which are incorporated herein by this reference. In the event of any conflict between these General
Terms below and the Service-specific Terms of Service, the Service-specific Terms of Service shall control. For purposes of these Terms of Service, all references to “Data Stream” mean Data Stream Mobile Technologies, Inc. and any of its affiliates or subsidiaries providing Subscriber the Services (including third parties may retain to provide the Services).
Subscriber’s signature on the work order presented upon installation of Services, the Subscriber Group’s use of Services, and/or any other form of signature or action indicating intention to use (e.g., online acceptance, e-signature or breaking the seal on the box of a self-installation kit) are evidence of Subscriber Group’s agreement to these General Terms which incorporate the Terms of Service. Data Stream may change its prices,
fees, the Services, and/or the Terms of Service. The Subscriber Group’s continued use of the Services after notice of the change shall be considered Subscriber’s acknowledgment and acceptance of the changes, and the most-recent version of these Terms of Service controls Subscriber’s relationship with Data Stream and Data Stream’s provision of Services to Subscriber. The current version of the Terms of Service may be found at
“www.dsbroadband.com” under “Terms of Service/Policies.” Subscriber may not modify these General Terms, the Service-specific Terms of Service, or the Data Stream Subscriber Privacy Notice by making any typed, handwritten, or any other changes to it for any purpose. This is a binding legal document. In the event that a portion of the Services is terminated, or any aspect of it is changed, any remaining Service or
replacement Service will continue to be governed by these General Terms and Terms of Service incorporated herein.
THESE GENERAL TERMS CONTAIN (1) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF YOUR RIGHT TO BRING CLAIMS AS CLASS ACTIONS; (2) A LIMITATION ON YOUR RIGHT TO BRING CLAIMS AGAINST Data Stream MORE THAN 1 YEAR AFTER THE RELEVANT EVENTS OCCURRED; AND (3) THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS. THESE PROVISIONS AFFECT SUBSCRIBER’S RIGHTS
UNDER THESE GENERAL TERMS WITH RESPECT TO ALL SERVICES. SEE SECTION 28 FOR DETAILS ON THESE PROVISIONS. Payment of Charges: Subscriber will be billed monthly in advance for Services to be
received, plus pro-rata charges, if any, for periods not previously billed. Subscriber will be billed monthly in arrears for all Services used including Pay Per View, On Demand or other Services ordered where charges are based on actual usage or on orders placed during the previous month. Subscriber shall pay all monthly charges and all applicable fees and taxes as listed on the Data Stream monthly bill. Subscriber shall notify Data Stream Mobile Technologies, Inc. of disputed charges or items within sixty (60) days of invoice receipt, or longer as required by applicable law. Failure to pay charges billed (including checks returned for insufficient funds) may result in discontinuance of Service, the removal of all Equipment (as defined in Section 4 below) and/or imposition of a late payment or service charge. If the Subscriber has more than one account (business and/or residential) served by Data Stream, all Data Stream-provided Services at all locations may be subject to suspension or discontinuance of Service in the event any one account remains unpaid, and Data Stream may apply any funds received from Subscriber first to such delinquent account(s). Should Subscriber wish to resume a Service after any suspension, Subscriber may be subject to re-connection fees. Should Subscriber wish to resume a Service after termination of Service, Data Stream may charge fees for installation, service calls and/or activation. These fees are in addition to all past due charges and other fees. In the event collection activities are required, additional collection charges may be imposed. Charges may apply for service visits when Data Stream owned equipment is not the cause of any service degradation, outage, or other problem with your service. Subscriber’s first bill may include partial-month charges for Service received. If partial payment is made of any bill and without waiving its right to collect the full balance owed, Data Stream will apply that payment to any outstanding charges in the amounts and proportions that it determines. Subscriber agrees and understands that by entering into the financial arrangement described herein, Data Stream is not extending Subscriber any credit and therefore that Data Stream and Subscriber are not entering into a consumer credit or similar transaction.
Payment by Check; Non-Sufficient Funds/Returned Items; Third Party Processing. If Subscriber makes payment by check, Subscriber authorizes Data Stream to collect such payment electronically. Subscriber may not amend or modify these General Terms with any restrictive endorsements (such as “paid in full”), releases, or other statements on or accompanying checks or other payments accepted by Data Stream; any of which notations shall have no legal effect. If Subscriber’s card issuer or financial institution refuses payment for insufficient funds, closed or unauthorized accounts, or any other reason, Subscriber will be charged an insufficient fund charge (as set forth in the applicable Video Service rate card or Voice Service Price Guide for Subscriber’s area) for each instance in which such payment is refused. Subscriber hereby authorizes Data Stream to collect any declined amount and the insufficient funds charge(s) electronically from the subject account. In addition, Subscriber’s Service may be suspended and/or terminated. This fee is in addition to any charges Subscriber’s financial institution may assess. If initially rejected, Data Stream may make additional multiple attempts to execute the payment for up to thirty (30) days following the initial refusal. Subscriber shall be responsible for any payment processing fees incurred when using a third party to process Subscriber’s payments to Data Stream. Data Stream Mobile Technologies, Inc. Refund Policy/30-Day Guarantee. New Subscribers
(those who have not been Data Stream customers for 90 days prior to subscription) qualify to have all levels of subscription Service refunded/credited if not fully satisfied with the Service. Current Subscribers adding a new level of subscription Service qualify to receive a refund/credit only on those newly added Services not received within the previous 90 days. Such refund is valid for customers who pay for their first month of new or upgraded monthly recurring subscription Services. Pay-Per-View and other non-recurring subscription purchases are not refundable nor are any related installation fees that may apply. Subscriber is limited to one refund or credit per household for a maximum of 30 days of Service. Refunds/credits will be given only when request for cancellation of Service is received by Data Stream within 45 days of installation of Service (30 days
subscribing to the Service, plus 15 day grace period for formal request of refund/credit). Any equipment associated with the new subscription must be returned prior to release of refund/credit. Any state taxes, franchise fees and other fees or charges that may apply are the responsibility of the Subscriber and will not be refunded or credited. Other restrictions per any offer apply. Data Stream Property: All Data Stream provided equipment distributed to and/or installed for use in the Subscriber’s service location(s) by or on behalf of Data Stream (“Equipment”) remains the property of Data Stream, except for the “cable home wiring” as defined at 47 C.F.R. §76.5(ll). Equipment is intended to service and reside at the specific Service location and is not to be used or relocated off premises without Data Stream authorization. Subscriber must return all Equipment upon
substitution of use or termination of Service. Failure to do so will result in a charge to be determined in accordance with Data Stream’s current schedule of charges for non-returned Equipment, which amount shall be due immediately. Subscriber agrees to pay such charge whether the Equipment is lost (through theft or otherwise), damaged or destroyed. Disruption of Service: All Services are provided on an “AS IS” and “AS AVAILABLE” basis. In no event shall Data Stream be liable for any failure or interruption of Service, including without limitation those failures and interruptions resulting in part or entirely from circumstances beyond Data Stream’s reasonable control. Subject to applicable law, Data Stream may give credit with respect to Subscriber’s recurring monthly subscription fee for qualifying outages of Services. Equipment: Data Stream will repair and/or replace damaged or defective Equipment, if any, as long as such damage or defect was not caused by misuse or other improper operations or handling by Subscriber. Data Stream shall have the right to presume misuse or other improper operations or handling by Subscriber in the event Subscriber requests repair or replacement more than twice in any twelve (12) month period, or more than three times in any twenty-four (24) month period and shall have no obligation to fulfill any such repair or replacement. Data Stream is not responsible for the maintenance or repair of Subscriber-provided equipment, including but not limited to connected devices, mobile devices, home telephones, computers, modems, televisions, or any other related Subscriber-provided equipment. A service charge may be imposed upon the dispatch of a technician if there is damage to Equipment due to negligent use or abuse or if no fault is discovered in Data Stream’s system or Equipment. Data Stream makes no warranties, with respect to Equipment or Service provided by Data Stream or with respect to the compatibility of the Service or the Equipment with any Subscriber-provided equipment.
ALL EQUIPMENT IS PROVIDED “AS IS”, AND Data Stream HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A SPECIFIC PURPOSE. Data Stream SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING FROM THE USE, DEPLOYMENT, AND/OR FUNCTIONALITY OF ITS EQUIPMENT. Data Stream’s sole obligation and Subscriber’s sole remedy with respect to any liability or damage caused by Subscriber’s use or deployment of Equipment, shall be a refund of fees paid by Subscriber for such Equipment for the previous billing month/cycle. Subscriber Property: Data Stream assumes no responsibility and shall have no responsibility for the condition or repair of any Subscriber-provided equipment and/or software. Subscriber is responsible for the repair and maintenance of Subscriber-provided equipment and/or software. Data Streams not responsible or liable for any loss or impairment of Data Stream’s Service due in whole or in part to a malfunction,
defect or otherwise caused by Subscriber-provided equipment and/or software. Notwithstanding anything to the contrary, Subscriber agrees to allow Data Stream and our agents the right (A) to install hardware in, (B) send software downloads to, and (C) install, access configure, maintain, inspect or upgrade Subscriber-provided equipment to the extent necessary to provide Service. Subscriber warrants that Subscriber is either the
owner of such equipment or that Subscriber has the authority to give Data Stream access to it. Taxes/Fees: Subscriber agrees to pay any local, state or federal taxes and fees imposed or levied on or with respect to the Services, the Equipment or installation or service charges incurred with respect to the same (including franchise fees). With respect to fees and taxes, including franchise fees, imposed by applicable government and regulatory authorities, Data Stream will review the amount it collects in such fees and taxes on a quarterly and annual basis. In the event Data Stream determines that it has collected any fees and/or taxes in excess of sums due to governmental and regulatory authorities, Data Stream will begin refunding such excess fees and taxes to current subscribers within 15 months of the end of each calendar year. Please be aware that, by law in some cases, Subscriber may be billed for taxes and fees that relate to time periods before Subscriber began receiving Services. However, by law, Data Stream will not bill Subscriber for these fees more than 4 years after the year they are incurred by Data Stream. Franchise fees resulting from an audit by the applicable franchising authority are incurred at the time those fees are assessed.
Care of Data Stream Property and Service:
Subscriber agrees that neither Subscriber nor any other person (except Data Stream’s authorized personnel) will: (A) open, tamper with, service, or make any alterations to the Equipment; nor (B) remove or relocate any Equipment from the service address of initial installation. Any alteration, tampering, removal, or the use of Equipment which permits the receipt of Services without authorization or the receipt of Services to an unauthorized number of outlets, or to unauthorized locations, constitutes theft of Service and is prohibited. Notwithstanding the foregoing, upon receipt of a request by Subscriber, Data Stream shall relocate the Equipment for Subscriber within Subscriber’s home at a time mutually agreed to by Data Stream and Subscriber. Subscriber may incur a charge for such relocation and should consult a current Data Stream schedule of rates and charges prior to requesting such relocation. If the Subscriber moves residences outside of Data Stream’s service area, Subscriber shall notify Data Stream that these General Terms shall be terminated, and the provisions of Section 16 shall apply to such termination. Access to Subscriber Premises: Subscriber authorizes Data Stream and its employees, agents, contractors, and representatives to access and otherwise enter the Subscriber’s premises to install, inspect, maintain and/or repair the Equipment and, upon the termination of Service, to remove the same from the premises. Data Stream’s failure to remove its Equipment shall not be deemed abandonment thereof. If the installation and maintenance of Service are requested at premises that, in Data Stream’s sole discretion, are or may become hazardous or dangerous to our employees, the public or property, Data Stream may refuse to install and maintain such Service. Acknowledgments and Contents Regarding Recording of Communications and Contact Rights: Recording of Communications. Subscriber acknowledges and agrees that all communications between Subscriber and Data Stream may be recorded or monitored by Data Stream for quality assurance or other purposes subject to applicable law. Consent to Phone Calls. Data Stream may call or text Subscriber or authorize others to call or text Subscriber on its behalf including but not limited to at any number Subscriber provides to Data Stream (or that Data Stream issues to Subscriber) for any purpose, including marketing Data Streams services. If Subscriber’s numbers are included on state or federal “do not call” lists, Data Stream will not call or text Subscriber for marketing purposes, but still may call or text Subscriber or authorize others to do so for non-marketing purposes. Subscriber is responsible for charges for incoming text messages on Subscriber’s wireless phone(s). Robo-Calls: Data Stream (or persons acting on Data Stream’s behalf) may use automated dialing systems or artificial or recorded voices to contact Subscriber or leave Subscriber messages if the call goes to voicemail. Other Notices: Subscriber authorizes Data Stream provide other notices to Subscriber using any method Data Stream determines appropriate, including by electronic means (for example, email or online posting). Other Consents: Data Stream may ask Subscriber to provide other consents or authorizations, including by electronic means, email or Subscriber’s equipment (for instance, using Subscriber’s remote control to purchase a VOD movie, to request information regarding an advertiser’s products or to “opt in” to a consumer study), and Data Stream is entitled to assume that any consent or authorization Data Stream receives through the Services or from Subscriber’s location has been authorized by Subscriber. Email Address for Notice: Upon Data Stream’s request, Subscriber will provide Data Stream with a current email address that Subscriber regularly checks so that Data Stream may provide notices and communications to Subscriber at that address. Data Stream’s right to contact Subscriber as described in this Section survives the termination of these Terms of Service.
Subscriber’s Right to Opt Out of Certain Robo-Calls: If Subscriber does not wish to receive calls, messages, or texts from Data Stream via automated dialing systems or pre-recorded messages on Subscriber’s cellular phone, Subscriber may visit our websites to manage communication preferences. Subscriber understands that these straightforward procedures are the exclusive ways to opt-out of such calls. Subscriber also agrees to allow Data Stream sixty (60) business days to honor Subscriber’s request, and further agrees that Data Stream will not be liable for any calls or texts to Subscriber in the interim. Subscriber understands that Data Stream will continue to use automated dialing systems or pre-recorded messages on Subscriber’s cellular phone or landline to communicate non-marketing billing notifications, service notifications, appointment confirmations, and account status updates. Secure Connection Requirements: Without abrogating or otherwise limiting Subscriber’s separate obligations to secure Subscriber’s account and equipment under the Terms of Service, Data Stream shall have the right to implement reasonable measures necessary to track, manage, and/or ensure the security of the connection between any device or application used by Subscriber, members of Subscriber’s household, Subscriber’s guests, or any third parties and Data Stream’s Equipment, system, or other network facilities (whether by physical, WiFi, wireless, software, or other means of connection), including without limitation authentication, access security, or other processes and means. Assignment or Transfer: These General Terms and the Services and/or Equipment supplied by Data Stream are not assignable or otherwise transferable by Subscriber, without specific written authorization from Data Stream Mobile Technologies, Inc.
Termination and Expiration:
Termination by Subscriber: Unless otherwise terminated, these General Terms shall automatically renew on a month-to-month basis. Subscriber acknowledges that upon such renewal all pricing is subject to change. To terminate any recurring Service, Subscribers must call 877-303-8539, or provide a hard copy written notice of termination to Data Stream delivered to 1535 S Perimeter Rd #36B Fort Lauderdale, FL 33309. Termination for Bankruptcy: Data Stream shall have the right to terminate these General Terms immediately in the event that Subscriber makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against Subscriber under any law having for its purpose the adjudication of Subscriber as a bankrupt or the reorganization of Subscriber. Termination for Breach: In the event of any breach of these General Terms by
Subscriber, the failure of Subscriber to abide by the rates, rules and regulations of Data Stream, the failure of Subscriber to provide and maintain accurate registration information, or any illegal activity by the Subscriber using any Service, these General Terms may, at Data Stream’s option, be terminated and the Equipment removed. Failure of Data Stream to remove such Equipment shall not be deemed abandonment thereof. Subscriber shall pay reasonable collection and/or attorney’s fees to Data Stream in the event that Data Stream shall, in its discretion, find it necessary to enforce collection or to preserve and protect its rights under these General Terms. Data Stream may terminate these General Terms or Data Stream Mobile Technologies, Inc. may reject an application or block access to or use of any component of any Service for any reason including, but not limited to, if:
❖ Subscriber violated these General Terms as to this or another Data Stream account;
❖ The information required in the application process is or becomes incorrect, absent or incomplete;
❖ Subscriber threatened or harassed any Data Stream employee, agent, contractor or representative;
❖ Subscriber’s credit card issuer refuses a charge or any other payment method fails to compensate Data Stream;
❖ There is a violation of the Terms of Service or other agreements with respect to any Service, as determined in the sole discretion of Data Stream; or
❖ The amount of technical support required to be provided to Subscriber is excessive as determined in the sole discretion of Data Stream Mobile Technologies, Inc.
Subscriber further agrees that in the event of termination pursuant to subsections (b) or (c), Data Stream shall have no liability to Subscriber.
Obligations Upon Termination:
The Subscriber agrees that upon termination of these General Terms: Subject to 13.a, Subscriber will pay Data Stream in full for Subscriber’s use of the Equipment and the Services, as applicable, up to the later of the effective date of termination of these General Terms, the date on which the Service has been disconnected, or the date on which the Equipment is returned to Data Stream. The Subscriber agrees to pay Data
Stream on a pro-rated basis for any use by the Subscriber of any Service for a part of a month; Subscriber will promptly return all Equipment to Data Stream. In the event that Subscriber fails to return any Equipment within ten (10) days of the termination of these General Terms in addition to Equipment charges contemplated in Section 16.d, Subscriber shall be liable to Data Stream in accordance with Data Stream’s current schedule of charges for non-returned Equipment. Renewal after Cancellation or Termination: Subscriber acknowledges and agrees that in the event of renewal after cancellation or termination of a Service, Subscriber shall be
subject to the pricing, warranties, and Terms of Service as are effective at the time of such renewal. Data Streams Right to Pursue Remedies and Subscriber’s Indemnification Obligations. If Subscriber breaches these General Terms, Data Stream has the right to seek compensation from Subscriber for such breach through arbitration or, if Subscriber has opted out of these General Terms’ arbitration provision or we are seeking an order
requiring you to do or refrain from doing something, in court. Additionally, if any person or entity brings a claim against Data Stream that arises out of Subscriber’s relationship with Data Stream, the Services provided to Subscriber, the General Terms, or Subscriber’s breach thereof or failure to comply therewith, Subscriber will indemnify, defend (at Data Stream’s exclusive election), and release Data Stream from liability and reimburse Data Stream for any losses that Data Stream may incur, including reasonable attorneys’ fees and costs, as a result of such claim. Subscriber’s responsibilities under this Section cover any dispute, whether arising under contract, tort (for example, a negligence or product liability claim), violation of law or regulation or any other legal theory. Security Deposit: Any security deposit required of Subscriber for the Equipment or Data Stream’s Service will be due and payable upon the first monthly billing. Such security deposits will be returned to Subscriber within sixty (60) days of termination of Data Stream’s Service so long as payment has been made for all amounts due on Subscriber’s account and Subscriber has returned the Equipment undamaged. If Data Stream is holding a deposit on Subscriber’s account, Data Stream has the right to apply the deposited amount against any outstanding balance or shortfall in payments. Advance Payment: Subscribers who are unable or unwilling to provide information to establish creditworthiness or who have an unsatisfactory credit rating may be required to make an advance payment. The advance payment will be equal to the applicable installation charge and one month of recurring charges, excluding taxes, fees and surcharges. The advance payment will appear as a credit and be applied to the first monthly bill. Data Stream reserves the right to refuse Service if the Subscriber fails to fulfill standard credit requirements. After Service has been established, the Subscriber will be responsible for the payment of all applicable charges, including taxes, fees and surcharges to avoid discontinuance of Service. Content and Services: All Services are subject to change in accordance with applicable
Return Of Equipment
You will be liable for the costs associated with the repair or replacement of equipment if, in our reasonable opinion, any equipment is not returned to us in the same condition as when it was supplied (fair wear and tear excepted). You must permit Data Stream to access any site or premises to collect any equipment owned by Data Stream in accordance with this agreement. Data Stream will apply a one-time retrieval fee of $135.00
All rates are subject to change in accordance with applicable law. Late Fee: If Subscriber’s account is 30 days past due, a reminder message will be included on Subscriber’s monthly bill. If Subscriber’s past due balance remains unpaid, Subscriber may be charged an applicable late fee in addition to Subscriber’s past due balance at Data Stream’s current rate. If Subscriber’s account thereafter remains unpaid, Subscriber’s Services may be suspended or disconnected. Subscriber can avoid incurring late fees by paying Subscriber’s monthly bill promptly. Any late fees assessed are not considered interest credit service charges, finance charges or penalties. Data Stream expects that Subscriber will pay for Services on a timely basis, and Data Stream does not extend credit to customers. Disclaimer: Data Stream assumes no liability for any program, services, content, or information distributed on or through the Services and Data Stream expressly disclaims any responsibility or liability for Subscriber’s use thereof. Further, Data Stream shall not be responsible for any products, merchandise or prizes promoted or purchased through the use of the Services. Right to Make Credit Inquiries: Subscriber authorizes Data Stream to make inquiries and to receive information about Subscriber’s credit experiences, including Subscriber’s credit report, from others, to enter this information in Subscriber’s file, and to disclose this information concerning Subscriber to appropriate third parties for reasonable business
purposes. Data Stream’s Reservation of Rights: Data Stream reserves the right to refuse, suspend or terminate Service to any person at any time for any reason not prohibited by law. When practical, Data Stream will provide notice that is reasonable under the circumstances before suspending or terminating Service to an existing Subscriber, and Data Stream will provide any prior notice of suspension or termination that is required by law. Indemnification: In requesting and accepting Data Stream Services, Subscriber agrees to defend, indemnify, and hold Data Stream, including its officers, directors, employees, affiliates, subsidiaries, and authorized agents (individually and collectively, “Data Stream Indemnities”) harmless from and against any and all demands, claims, suits, judgments, expenses (including without limitation reasonable attorney or witness fees), loss,
damages to, or destruction of personal, real, or intellectual property, bodily injury or death of any person, and other liabilities arising from:
❖ The installation, operation, provision, or other use of Data Stream Services and/or Equipment;
❖ Any violation of Data Streams Terms of Service, Acceptable Use Policy, or other published policies or requirements;
❖ The negligence, willful misconduct, violation of a third party’s rights, or failure to comply with applicable law by (i) Subscriber, (ii) members of Subscriber’s household, or (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber;
❖ Libel or slander resulting from any use of the Services by (i) Subscriber, (ii) members of Subscriber’s household, (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber;
❖ Infringement or misappropriation of any patent, copyright, trademark, trade name, service mark, trade secret, or other intellectual property rights (whether by transmission or material or otherwise) by (i) Subscriber, (ii) members of Subscriber’s household, (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber, including that effected through combination of Subscriber’s use of the respective Service(s) with facilities, equipment, or services provided or used by Subscriber or obtained from third parties;
❖ Any unauthorized, unlawful, or fraudulent use of or access to the Services, except as otherwise provided by applicable law; and Any infringement or invasion of the right of privacy of any person or persons, caused or
claimed to have been caused, directly or indirectly, by the installation, operation, failure to operate, maintenance, removal, presence, condition, or use of the 911 or E-911 service features and the equipment associated therewith, or by the use of any Voice Services furnished by Data Stream in connection with the 911 or E-911 service, including but not limited to, the telephone number, address or name associated with the telephone used by persons accessing 911 or E-911 service there under, and/or that which arises out of the negligence or other wrongful act of (i) Subscriber, (ii) members of Subscriber’s household, (iii) Subscriber’s guests, or (ii) any other person using the Services provided to Subscriber. The foregoing defense and indemnity obligations exclude damages to the extent caused by the gross negligence or willful misconduct of the Data Stream Indemnities. Subscriber agrees that Data Stream Indemnities are not liable for any damages or liability resulting from the loss of Services (whether Internet, Cable, Voice, or other Services), nor will Subscriber make any claims or undertake any actions against Data Stream Indemnities for loss of Service. Subscriber shall be solely responsible for any damage to or loss of Data Stream Equipment unless such damage or loss is caused solely by the negligence or willful misconduct of Data Stream Indemnities. LIMITATION OF LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION APPLY TO ANY ACTS, OMISSIONS AND NEGLIGENCE OF Data Stream AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND EACH OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES). UNDER NO CIRCUMSTANCES SHALL DATA STREAM BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY ACTS OR
OMISSIONS ASSOCIATED THEREWITH, INCLUDING ANY ACTS OR OMISSIONS BY THIRD-PARTY SERVICE PROVIDERS, AGENTS OR SUBCONTRACTORS OF DATA STREAM, OR RELATING TO ANY SERVICES FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS. DATA STREAMS ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY DATA STREAM OF ANY OBLIGATION DATA STREAM
MAY HAVE UNDER THESE TERMS OF SERVICE OR APPLICABLE LAW, SHALL BE CUSTOMER’S ABILITY TO TERMINATE THE SERVICE OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE EQUIPMENT PROVIDED BY DATA STREAM. IN NO EVENT SHALL Data Stream’s LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING OUT OF THESE GENERAL TERMS EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE PRECEDING THIRTY (30) DAY PERIOD. SUBSCRIBER ALSO AGREES THAT IT SHALL NOT BE PERMITTED TO BRING ANY CLAIM WHATSOEVER AGAINST DATA STREAM THAT RESULTS IN WHOLE OR IN PART FROM
SUBSCRIBER’S FAILURE TO COMPLY WITH THESE GENERAL TERMS. THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE GENERAL TERMS.
The following provisions are important with respect to the agreement between Subscriber and Data Stream regarding Data Stream’s Services memorialized by these General Terms. PLEASE READ THEM CAREFULLY TO ENSURE THAT SUBSCRIBER UNDERSTANDS EACH PROVISION. These General Terms require the use of arbitration to resolve disputes and otherwise limits the remedies available to Subscriber in the event of a dispute.
Subject to the “Exclusions” paragraph below, Data Stream and Subscriber agree to arbitrate disputes and claims arising out of or relating to these General Terms, the Services, the Equipment, or marketing of the Services Subscriber has received from Data Stream. Notwithstanding the foregoing, either party may bring an individual action on any matter or subject in small claims court. THESE GENERAL TERMS MEMORIALIZE A TRANSACTION IN INTERSTATE COMMERCE.THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS. A party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate, entitled “Notice of Intent to Arbitrate” (“Notice”). The Notice to Data Stream should be addressed to: VP and Associate General Counsel, Litigation, Data Stream Mobile Technologies, Inc. 1535 S Perimeter Rd #36B Fort Lauderdale, FL 33309 (“Arbitration Notice Address”). The Notice must: (1) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, Subscriber or Data Stream may commence an arbitration proceeding, in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator shall be bound by the terms of these General Terms. The arbitration shall be governed by the Commercial Arbitration Rules and the
Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these General Terms, and the arbitration shall be administered by the AAA. The AAA Rules and fee information are available at “www.adr.org,” by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. Data Stream SHALL BEAR THE COST OF ANY ARBITRATION FILING FEES AND ARBITRATOR’S FEES FOR CLAIMS OF UP TO $75,000. SUBSCRIBER IS RESPONSIBLE FOR ALL OTHER ADDITIONAL COSTS THAT SUBSCRIBER INCURS IN THE ARBITRATION INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS UNLESS OTHERWISE REQUIRED OF Data Stream UNDER APPLICABLE LAW. If the arbitrator’s award exceeds $2,500, either party may appeal such award to the arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within 30 days after the date of entry of the arbitration award. The appealing party must provide the other party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within 120 days of the date of the appealing party’s notice of
appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act. The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, via a telephonic hearing, or by an in-person hearing as established by AAA rules. SUBSCRIBER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER AND Data Stream ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY Unless Data Stream and Subscriber agree otherwise in writing, all hearings conducted as part of the arbitration shall take place in the county (or parish) of Subscriber’s billing address. The arbitrator may award injunctive relief only in favor of the party seeking relief, only to the extent sought, and only to the extent necessary to provide the specific relief
warranted by such individual’s claim. The parties agree that the arbitrator must give effect to the terms of these General Terms. SUBSCRIBER AND Data Stream AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN
SUBSCRIBER’S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING Furthermore, unless both Subscriber and Data Stream agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person’s claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions shall be null and void and rendered of no further effect with respect to the specific claim at issue. Right to Opt Out: If Subscriber does not wish to be bound by these arbitration provisions, Subscriber must notify Data Stream in writing within 30 days of (a) the date that this arbitration provision becomes effective, if Subscriber is an existing customer, or (b) the date that Subscriber first subscribes to the Service(s). Subscriber may opt out by mail to the Arbitration Notice Address. Subscriber’s written notification to Data Stream must include Subscriber’s name, address, and Data Stream account number as well as a clear statement that Subscriber does not wish to resolve disputes with Data Stream through arbitration. Subscriber’s decision to opt out of this arbitration provision will have no adverse effect on Subscriber’s relationship with Data Stream or the delivery of Services to Subscriber by Data Stream.
If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.
For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from these General Terms, rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein.
EXCLUSIONS. SUBSCRIBER AND Data Stream AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION:
(1) ANY INDIVIDUAL ACTION BROUGHT BY SUBSCRIBER OR BY Data Stream ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS.
(2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.
(3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
For New York Video Subscribers. Subscriber may elect to resolve a dispute through the New York Public Service Commission in accordance with 16 NYCRR §890.709(a) and 16 NYCRR §709(c). The foregoing arbitration provisions shall survive the termination of these General Terms. SUBSCRIBER HAS ONE YEAR TO BRING A CLAIM AGAINST Data Stream UNLESS SUBSCRIBER OPTS OUT. Subscriber must bring any claim against Data Stream within one (1) year after the date on which the claim arose or unless applicable law provides that the normal statute of limitations for that claim may not be shortened by agreement. If Subscriber does not bring a claim within this period, Subscriber waives, to the fullest extent permitted by law, all rights Subscriber has to such claim and Data Stream will have no liability with respect to such claim. Subscriber may opt out of this Section; in which case the normal statute of limitations will apply. To opt out, Subscriber must notify Data Stream in writing by sending a letter to Data Stream addressed to Customer Service 1535 S Perimeter Rd #36B Fort Lauderdale, FL 33309, within 30 days of (a) the date that this provision becomes effective, if Subscriber is an existing customer, or (b) the date that Subscriber first subscribes to the Service(s). Subscriber’s written notice must include Subscriber’s name, address, and Data Stream account number as well as a clear statement that Subscriber does not wish this Section to apply. This Section shall survive the termination of these General Terms.
Data Stream shall not be liable for any failure of performance or equipment of any kind (including Data Stream Equipment) due to causes beyond its control, including but not limited to: acts of God, fire, flood, or other catastrophes; loss of electrical power; any law, order, regulation, direction, action, or request of the United States Government, or of any other government, including state and local governments having or claiming
jurisdiction over Data Stream, or of any department agency, commission, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments, or of any civil or military authority; national emergencies; insurrection; riots, wars; unavailability of rights-of-way or materials; or strikes, lockouts, work stoppages, or other labor difficulties. Survival of Terms: In addition to the terms that are specifically noted in these General Terms as surviving termination of these General Terms, all representations, warranties, indemnifications, and limitations of liability shall survive these General Terms. Data Stream’s right to contact Subscriber shall also survive these General Terms unless Subscriber opts out in the manner described in these General Terms. All other obligations of Subscriber and Data Stream under these General Terms also survive termination if they relate to the period before termination or, if by their terms, they would be expected to survive such termination. Entire Agreement: These General Terms (including the Terms of Service incorporated
herein by reference) constitute the entire agreement between the Subscriber and Data Stream. No undertaking, representation or warranty made by an agent or representative of Data Stream in connection with the sale, installation, maintenance or removal of Data Stream’s Services or Equipment shall be binding on Data Stream except as expressly included herein. Subscriber agrees that, if any portion of these General Terms is held
invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and if severed or rendered null and void thereby, the remaining portions will remain in full force and effect. If Data Stream fails to insist upon or enforce strict performance of any provision of these General Terms, it does not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these General Terms.
VIII. HOW TO CONTACT US
DATA STREAM BROADBAND CORP
Attn: Privacy Administrator
41 W Lee Hwy Ste 59-121
Warrenton, VA 20186
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