Residential Acceptable Use Policy and Customer Agreement
Orbitel High Speed Internet is an Internet cable modem access service (the “Service”) owned and operated by Orbitel Communications (“OC”). The following Residential Acceptable Use Policy and Customer Agreement (the “AUP”) applies to all individuals (collectively, “you”) who subscribe to or use or access the Service, including access of the OC network through http://www.orbitelcom.com References to OC in this AUP include Orbitel Communications., its parent company and its subsidiaries and other affiliates.
Note: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 20 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICE(S). THE ARBITRATION PROVISION REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs . If you change your telephone number or other contact information without notifying
You must be 18, in good financial standing with OC and have paid the appropriate subscription fee to sign up for an account with OC. (Please note: Parents who sign up for their children or allow their children to access their account, will be held responsible for all AUP violations associated with that account.) By accessing the Service, you agree to be bound by all of the following terms and conditions of this AUP as it may be amended from time to time. If you are dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of OC in operating the Service, your sole and exclusive remedy is to discontinue using the Service.
You must provide and are responsible for maintaining the integrity of all computer hardware, software and other equipment necessary to access or use the Service. At a minimum, this includes a DOCSIS 2.0 or higher cable modem, and a computer with a USB port or Ethernet card, meeting the following system requirements:
- Microsoft Windows Server 2008 and above, Windows 7, 8 and 10.
- Mac OS currently supported by Apple, Inc.
You may not alter, modify or tamper with the modem, gateway, eMTA or other device provided by OC (the “Equipment”) or the Service, or permit any other person to do the same that is not authorized by OC. You may attach equipment of your choosing to the cable modem outlet that is interoperable with the Equipment and the Service, provided it does not harm the Equipment, Service, or OC’s network. If you do attach equipment that harms the Equipment, Service, or OC’s network, you will be subject to liability for damages and/or criminal prosecution.
OC does not provide technical assistance for third-party hardware or software, including but not limited to home networks. Any questions concerning third-party hardware or software should be directed to the manufacturer of that product.
1. Use of the Service
The Service is designed for personal and family use within a single household. You agree that only the Service account holder and co-residents living in the same household will use the Service. The term ‘single household’ means the customer’s home and includes an apartment, condominium, flat or other residential unit that may be used as a household. The Service is being provided solely for use in your household and any unauthorized access by a third party to the Internet, or any other function of the Service, relieves OC of any affirmative obligations it may have, and is in violation of this AUP. You are responsible for any misuse of the Service that occurs through your account, whether by a member of your household or an authorized or unauthorized third-party.
You will not use, nor allow others to use, the Service to operate any type of business or commercial enterprise, including but not limited to, IP address translation or similar facilities intended to provide additional access. You will not advertise that the Service is available for use by third parties or unauthorized users. You will not resell or redistribute, nor allow others to resell or redistribute, access to the Service in any manner, including but not limited to wireless technology.
2. Internet Use and Content
You assume total responsibility and risk for your use of the Service. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services and other information, as well as the quality and merchantability of all merchandise, provided through use of the Service or on the Internet generally. You are responsible for any misuse of the Service that occurs through your account, whether by a member of your household or an authorized or unauthorized third-party.
You agree that all information you provide any merchant, organization or service provider while using the Service for purposes of making purchases or conducting business will be accurate, complete and current. You are responsible for payment of any and all charges incurred by users of your account, including payment of any applicable taxes, relating to purchases on the Service.
You are responsible for any text, communication, software, images, sounds, data or other information (“Content”) that you upload, e-mail, transmit or otherwise make available through your use of the Service. You understand further that the Internet contains unedited materials some of which are offensive, indecent or objectionable. You access such materials at your own risk. OC has no control over and accepts no responsibility whatsoever for such Content.
3. Conduct on the Service
You are prohibited from violating or attempting to violate, or allowing others to violate, the security of Orbitelcom.com or using, or allowing others to use, the Service for illegal purposes. Any violations may result in termination of your account, additional Service fees, prosecution under federal and/or state law and/or civil or criminal penalties to you. To the extent permitted by law, OC will cooperate with the appropriate governmental, regulatory, and/or law enforcement agencies if a criminal violation is suspected.
Examples of violations, include without limitation, engaging in, or allowing others to engage in, the following:
- Any restriction or inhibition of any other valid OC subscriber from use of the Service or access to the Orbitelcom.com network.
- Allowing unauthorized access to your account;
- Use of your account to provide inbound traffic to your site (such as creating server services);
- Use of your account to engage in any form of commercial sales or other clearly non-residential uses;
- Any download, receipt, upload, post, publication, reproduction, transmission, or other distribution or the facilitation of distribution of any Content that:
a web page, website, files transfer protocol server, file server or game server
whose daily average data transfer negatively impacts the Service;
a virus, bot, trojan horse, worm, constitutes a denial of service attack, or
other computer code, file, program or information such as any lock, key, bom,
worm, cancelbot, or other harmful feature that is designed or intended to
disrupt, damage or limit the functioning of any software, hardware or
telecommunications equipment or to damage or obtain unauthorized access to any
data or other information of any third party;
unlawful, fraudulent, threatening, abusive, harassing, libelous, defamatory,
obscene, pornographic, profane, or otherwise objectionable material of any
kind, including without limitation any transmissions inciting or encouraging
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, national or international law (including
without limitation the U.S. export control laws and regulations and the
Children’s Online Privacy Protection Act);
any type of spam, mass distribution or other unsolicited e-mail, advertisement,
or forum posting inappropriate to the rules of that forum, for any purpose
whatsoever, that circumvents the approval process for posting to a moderated forum,
or that “floods”, “newsbombs” or otherwise disrupts users of forums by posting
a large number of messages to with the intent to hinder normal discussion, cancel
messages of others (except as authorized moderator), send excessive quantities
of data, post content forbidden by the rules of the forum;
the patents, trademarks copyrights, trade secrets or proprietary rights of any
other person or entity (including without limitation the digitization of music,
movies, photographs or other copyrighted material or software);
any person or entity, falsifies your user name, company name, age or identity,
or contains a forgery of anyone else’s digital or manual signature.
- Any post, publication, transmission, reproduction, or distribution that in any way exploits any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
- Any attempt to disrupt or penetrate the security of the Service or any attached network service or other computer system for any purpose whatsoever, including, but not limited to, improperly interfering with, inhibiting, degrading, or restricting the use and operation of the Service by others, sending excessive data transfers that exceed consumption limits that are now in place or may be established in the future for the package or tier of service to which you subscribe, modifying or altering in any manner any modem, or modem configuration, so as to allow its use beyond the parameters outlined by the specific level of service to which you subscribe, use of a static or dynamic IP address not authorized and provisioned by OC, altering any IP address provisioned by OC or otherwise cloning another user’s IP address, use of the Service to disrupt other Internet Service Providers or services, including but not limited to e-mail bombing or the use of mass mailing programs, or in any way altering or modifying Service or tampering with the OC equipment or service or permitting any other person to do the same who is not authorized by OC;
- Access of any directory structure within the Services file system(s) which is not either the home directory assigned to that user or a temporary directory in the /tmp tree;
- Leaving files within a temporary storage area (i.e. /tmp) for more than 48 hours;
- Any intentional or unintentional violation of any applicable local, state, federal or international law;
- Access of any account which you are not authorized to access or attempt to penetrate security measures of the Service or other computer systems;
- Use of tools designed for compromising network security, such as password-guessing programs, cracking tools, packet sniffers or network probing tools;
- Participating in, or allow others to participate in, the collection of e-mail addresses, screen names, or other identifiers of others (without their prior express consent), a practice known as spidering or harvesting, or participate in the use of software (including “adware” or “spyware”) designed to facilitate this activity; or
- Forging, altering, or removing electronic mail headers or message header of any other electronic transmission, deceiving any recipient as to the identity of the sender through any process, and referencing, or allowing others to reference OC or the OC network (e.g., by including “Orbitel Communications” or “Orbitel” or similar term in the header or by listing an IP address that belongs to OC) in any unsolicited e-mail even if that e-mail is sent through the OC network or Service (in addition to the prohibition on sending spam addressed above).
- Participating in or allowing others to participate in chat rooms, bulletin boards, discussion groups or other interactive sections of the Internet (“Chat Rooms”) that you or person using your service has been banned from using. You will not, nor allow others to violate the Acceptable Use Policy of the server or Chat Room. In addition, you will not, nor allow others to: flood or scroll such Chat Rooms (sending messages or material in quick succession with the intent to disrupt use of such Chat Rooms by others); use automated programs such as “bots” or “clones” to participate in Chat Rooms unless you are physically present at your computer; manipulate any Chat Room server to harass or disconnect other Internet users or to gain privileges that you are not entitled to; send Chat Room messages to recipients who have indicated their desire not to receive such messages; or forge alter, or hide your identity (other than by using a nickname from which OC may, if necessary, determine your real name).
You acknowledge and agree that when using the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of your equipment. You are responsible for taking and should take all appropriate security measures when using the Service. This includes but is not limited to procuring and installing patches, any and all anti-virus and firewall software/ hardware and operating system patches, up-dates, or supplements that may be necessary for (i) the protection and maximum functionality of your computer and related equipment and (ii) the protection of OC’s network and other customers. For purposes of clarification, OC hereby disclaims any and all responsibility and liability for any damages that may arise from your failure to procure or install the aforementioned security software and /or hardware.
You agree that OC may block traffic to and from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network and/or eliminate Spam. OC may take other actions to manage or protect its network or to benefit the greatest number of its subscribers, including, but not limited to, traffic prioritization and protocol filtering. In addition, OC may, without liability, immediately suspend or terminate access by Customer to the network, with or without notice to you, to secure its network. OC may take these actions in situations including, but not limited to, where your computer becomes infected with any Virus, that OC believes, in its sole discretion, may harm the OC network or disrupt the performance of the Service for other users or where You are transmitting or are otherwise connected with what OC considers in its sole discretion to be spam. You agree that OC is entitled to damages if you are transmitting or is otherwise connected with spam. You agree OC is entitled to actual damages, however, if actual damages cannot be reasonably calculated, you agree to pay OC liquidated damages of five dollars (U.S. $5.00) for each piece of spam transmitted from or otherwise connected with your account.
You are solely responsible for the security of any device connected to the Service, including any data stored on that device. OC recommends that you take appropriate security precautions for any systems connected to the Service. You are responsible for securing any wireless (WiFi) networks connected to your OC Service. Any wireless network installed by you or an OC representative that is unsecured or “open” and connected to the OC network will be deemed to be operating as an ISP and subject to the prohibition on commercial use set forth in Section 1 and 3 above.
5. No Excessive Use of Bandwidth
If OC determines, in OC’s sole discretion, that you are using an excessive amount of bandwidth over the OC network infrastructure for Internet access or other functions using public network resources, and which we deem disruptive to or harmful to OC’s network and other users, we may adjust your Service and/or adjust, suspend or terminate your account at any time and without notice.
6. Other Service Providers’ Acceptable Use Policies
OC obtains services from and relies upon many other entities to provide the Service to you. Where you access services of other entities through the Service, you agree to and shall abide by the acceptable use policies of such other entities.
6.1 International Use: The Internet is global. As such, you agree to comply with all local rules regarding online conduct and acceptable Content, including without limitation, United States export control laws and/or other federal rules and regulations restricting exports.
6.2 Links: The Service may provide links to sites operated and controlled by third parties. OC has no control over such sites and you acknowledge and agree that OC is not responsible for the availability or content on such sites and does not endorse such sites.
For content on OC’s servers, OC reserves the right at all times and without notice and you agree that OC has the right to refuse to post, to remove, restrict access to, or make unavailable any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this AUP, including but not limited to content it considers obscene lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, and to monitor, review, retain and/or disclose any content or other information in OC’s possession about or related to you, your use of the Services or otherwise as OC deems necessary to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers.
7. Customer Payment Obligations
7.1 Monthly Service Fees: OC will bill you a standard monthly fee for the Service. You agree to pay the bill by its due date and to be responsible for any and all charges, damages and costs that you or anyone using your account incurs. If you lease equipment from OC, additional monthly charges will apply. In addition, you agree to pay all applicable taxes. OC may also charge a monthly support maintenance fee or a per instance support charge, depending on your location, for technical support services related to the Service including, but not limited to repairs, or for any Service features, such as OC’s Home Networking Service. OC may change the amount of the standard monthly fee, the modem rental fee, or any applicable monthly maintenance fee upon thirty (30) days written notice. OC will identify any per instance support charges to you prior to providing any technical support that would result in such charge(s).
7.2 Installation Fees: OC may charge you a one-time installation fee . OC shall notify you of such fees prior to installation. You shall not be eligible to receive the applicable Service feature unless you pay any applicable installation fee.
7.3 Late Fees , Collections Expenses and Termination for Unpaid Balances: If your payments are not current, OC may impose a late fee or the Service may be disconnected without notice, and OC may remove OC’s equipment from your premises. You will also be liable to pay OC for all attorneys’ fees, collection fees or other expenses arising from efforts to collect any unpaid balances on your Account.
7.4. Charges for Online Services Internet Transactions or Toll Charges For Dial-Up Service: Through use of the Service, you may access certain information, products, and services of others, for which there is a charge. These include, for example, certain on-line services such as America Online. You agree that you are solely responsible for all fees or charges for these on-line services, products or information.
8. Limited Manufacturer’ Warranty Only – Modem
In the event you purchase a cable modem from OC in conjunction with the Service, only the manufacturer’s warranty applies. The modem otherwise comes “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This means that OC disclaims any responsibility for defects in the modem as provided or that develop, including but not limited to those caused by acts of nature, such as, but not limited to, lightning damage; damage from misuse or neglect; water damage; loss of programming or data; or installation. To obtain manufacturer warranty service information, please contact the manufacturer directly.
9. No Service Warranties
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OC DOES NOT WARRANT THAT THE SERVICE (I) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE OR (II) THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, SPAM, POP-UP ADVERTISING, SYPWARE, ADWARE OR OTHER HARMFUL COMPONENTS EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED OR (III) THE SERVICE WILL MEET YOUR REQUIREMENTS.
OC DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO CONNECT AT YOUR MODEM'S MAXIMUM CONNECTION SPEED . YOU UNDERSTAND AND AGREE THAT OC DOES NOT GURANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE OC NETWORK OR THAT ANY SPEED OR THROUGHPUT OF YOUR CONNECTION TO THE OC NETWORK WILL BE AVAILABLE TO YOU. You understand and agree that the speed of the Service provided at your site will vary depending upon a number of factors, including your computer system(s) and associated equipment, Internet traffic, and associated equipment, and other factors such as system capacity limitations, governmental actions, events beyond OC’s control, and System failures, modifications, upgrades and repairs.
NO ADVICE OR INFORMATION GIVEN BY OC, ITS AFFILIATES, LICENSEES OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES OR AGENTS SHALL CREATE A WARRANTY.
You understand further that, except for information, products or services clearly identified as being supplied by OC, OC does not operate or control any information, products or services on the Internet in any way. All merchandise, information and services offered or made available or accessible through the Service or on the Internet generally are offered or made available or accessible by third parties who are not affiliated with OC.
OC DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY CONTENT OR SERVICE PROVIDED THROUGH THE SERVICE, USE THEREOF OR ON THE INTERNET GENERALLY, AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. OC DOES NOT WARRANT THAT ANY MERCHANDISE, INFORMATION, OR SERVICES OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS.
You acknowledge and understand that OC utilizes anti-spam software and that such security technology is a feature of the Service that may block incoming and outgoing electronic mail. OC does not warrant that such feature will block all unwanted mail/Spam. Consistent with other statements set forth in this section, OC does not warrant that such feature will be error-free.
In addition, in its sole discretion, OC may make available to you security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, anti-spyware or anti-adware software for your use on your computer system(s) in conjunction with the Service. Any such security software provided by OC to you is intended to provide only a minimal level of protection to your computer system(s). YOU UNDERSTAND AND AGREE THAT OC AND ITS THIRD-PARTY SUPPLIERS OF ANY SUCH SECURITY SOFTWARE DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. YOU UNDERSTAND AND AGREE THAT OC ITS THIRD-PARTY SUPPLIERS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S) OR THE INFORMATION STORED ON IT THAT MAY RESULT FROM THE SECURITY SOFTWARE OR ITS NON-PERFORMANCE.
10. Limitation of Liability
OC’s entire liability and YOUR exclusive remedy with respect to the use of the Service or its software and equipment or any breach by OC of any obligation OC may have under this agreement shall be your ability to terminate the Service or to obtain the replacement or repair of any defective software or equipment. UNDER NO CIRCUMSTANCES SHALL OC, ITS AFFILIATES, SUBSIDIARIES AGENTS, LICENSORS OR CONTRACTORS BE OTHERWISE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OR INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR ANY PART THEREOF OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. THIS LIMITATION APPLIES WHETHER THE ALLEGED CLAIM IS BASED ON TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF OC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES shall OC be liable for damages for failure to furnish, or the degradation or interruption of any services, for any lost data or content, identify theft, for any TV, monitor or screen burn-in, pin misalignment, uneven TV, monitor or screen wear, stuck pixels, phosphor burn, files or software damage, regardless of cause. OC shall not be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of equipment, software, wiring or the provision of services.
Upon the request of OC, you further agree to defend, indemnify and hold harmless OC and its employees, agents, contractors, officers and directors from any and all liabilities, claims costs and expenses, including reasonable attorneys' fees, related to your use of or access to the Service or your violation of any terms and/or conditions of this AUP. OC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with OC in asserting any available defenses.
12. Intellectual Property
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) is protected by copyrights, trademarks and other intellectual property and proprietary rights worldwide, in all media and technologies, and your use of the Service and the materials thereon is subject to OC or its licensors rights, as well as the terms of this AUP. All rights not expressly granted herein are reserved. You agree to use the Service only for personal and noncommercial purposes and OC grants you a nonexclusive, nontransferable license to use the Software only for those purposes in connection with the Service.
Your license to use any software provided by OC and its suppliers and licensors is contingent upon your compliance with all use and other restrictions contained in this agreement and AUP. Except as otherwise expressly provided by law, you will not copy (except for personal and noncommercial use), modify, distribute, transmit, display, perform, license, create derivative works from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code transfer or sell assign, sublicense, grant a security interest in or otherwise transfer any right in the Software any information, trademarks, service marks, software, products or services obtained from the Service. All trademarks, names and logos mentioned herein are the property of their respective owners. OC’s trademarks may not be used by you without OC’s written consent.
13. Copyright and Trademark Infringement
In addition to the restrictions contained in Section 3 prohibiting the infringement of patents, trademarks copyrights, trade secrets or proprietary rights of any other person or entity (including without limitation the digitization of music, movies, photographs or other copyrighted material or software), you must obtain appropriate authorization from a copyright or trademark holder prior to sending, receiving or using such materials. You represent and warrant that you are the author and copyright owner and/or authorized licensee with respect to any hosted content and you further represent and warrant that no hosted content violates the trademark, copyright, domain name or intellectual property rights of any third party. OC assumes no responsibility, and you assume all risks regarding the determination of whether material is in the public domain, or may otherwise be used for such purposes.
Under the Digital Millennium Copyright Act of 1988 (“DMCA”), any copyright owner has the right to notify OC if they believe that you have infringed the copyright owner’s work(s). If OC receives a notice from a copyright owner alleging your copyright infringement, OC will notify you of the alleged infringement. OC may determine that you are a “repeat copyright infringer” if OC learns that you have engaged in online copyright infringement on more than one occasion in violation of OC’s repeat infringer policy. OC reserves the right to terminate the accounts of repeat copyright infringers. OC’s repeat infringer policy is available to subscribers upon request.
14.1 Customer Right to Terminate the Service: You may terminate the Service at any time by calling your local customer service department. Email submissions to OC shall not constitute effective notice. Upon termination, you agree to pay any outstanding account balance and you will return any leased equipment to OC within ten (10) days of termination of account. If you do not return leased equipment within ten (10) days of the date of termination of your account, OC will add a charge to your account balance for the full retail value of the leased equipment, which you failed to return. If YOU cancel the Service for any reason, OC will not refund to Customer any portion of the monthly charges paid (or to be paid) by YOU for the month in which cancellation occurs.
14.2. OC’s Right to Suspend/Terminate the Service: The Service and all Service features are subject to availability on an ongoing basis. You understand that OC may cease to offer the Service or any Service feature at any time. OC may suspend, disconnect and/or terminate the Service at any time without prior notice if OC believes in its sole discretion that you have:
(a) Failed to pay your bill when due;
(b) Violated the Acceptable Use Policy;
(d) Violated any other provision of this Service Agreement.
If you are disconnected for any reason, you may be charged a reasonable disconnection and/or a reconnection fee.
If OC denies you access to the Service, you shall have no right:
- to access through Orbitelcom.com any materials stored on the Internet;
- to obtain any credit(s) otherwise due to you, and such credit(s) will be forfeited; nor
- to access third party services, merchandise or information on the Internet through the Service.
OC shall not be responsible:
- for the notification of such termination to any third-party providers of services, merchandise or information:
- for any consequences resulting from lack of notification; nor
- for the return of data stored on OC's servers.
OC reserves the right to terminate your account following any single AUP violation or multiple violations. If your account is terminated as a result of an AUP violation, you will not be eligible to sign up for another Orbitelcom.com account or utilize the Service at any time.
This AUP constitutes the entire agreement between you and OC with respect to the Services. In the event that any portion of this AUP is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
OC’s failure to insist upon or enforce strict performance of any provision of this AUP shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
17. Choice of Law and Forum
This AUP shall be governed by and construed in accordance with the laws of the State of Arizona , without regard to its conflicts of law provisions. Any cause of action you may have with respect to the Service must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred.
18. Binding Arbitration
- a. Purpose. Any Dispute involving you and us shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
- b. Definitions. This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to us or our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement, and (4) claims that are the subject of purported class action litigation. As used in this Arbitration Provision, “us” means Orbitel and any of its predecessors, successors, assigns, parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of the [name] Service(s) or Equipment.
- c. Exclusions. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING DISPUTES WILL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION; (ii) DISPUTES THAT ARISE BETWEEN US AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9); AND (iii) DISPUTES THAT CAN ONLY BE BROUGHT BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE.
- d. Right to Opt Out. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST ORBITEL SERVICE ACTIVATION, BY VISITING [needs website linked URL here], OR IN WRITING BY MAIL TO ORBITEL COMMUNICATIONS, 21116 N. JOHN WAYNE PARKWAY, SUITE B-9 MARICOPA, AZ 85139 U.S.A., ATTN: LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME, ADDRESS AND OUR ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR SERVICE(S) PROVIDED BY US. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH RESPECT TO THE ACCOUNT GOVERNED BY THIS AGREEMENT, YOU DO NOT NEED TO DO SO AGAIN. YOU MUST SEPARATELY OPT OUT FOR EACH ACCOUNT UNDER WHICH YOU RECEIVE SERVICES. ANY OPTOUTS SUBMITTED AFTER THIS PERIOD WILL NOT BE CONSIDERED EFFECTIVE.
- e. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org) or calling its toll free number (1-800-778-7879). You may deliver any required or desired notice to us by mail to ORBITEL COMMUNICATIONS, 21116 N. JOHN WAYNE PARKWAY, SUITE B-9 MARICOPA, AZ 85139 U.S.A. ATTN: LEGAL DEPARTMENT
- f. Right to Sue in Small Claims Court: Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have an action heard in a small claims court in the area where you receive(d) Service(s) from us if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
- g. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the AAA Consumer Arbitration Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you receive Service(s) from us. If you no longer receive Service(s) from us when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute provided that we offer Service(s) in that county, or in the area where you received Service(s) from us at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
- h. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
- i. Arbitral Fees and Costs. If your claims seek more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be our responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules and you shall reimburse us for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay
- j. Survival. This Arbitration Provision shall survive the termination of your Service(s) with us.
19. Changes to the AUP
These terms may be updated, revised or changed from time to time. Notice of modifications to this AUP may be given by posting such changes to OC’s website at http://www.orbitelcom.com/accept-use-policy by electronic mail or by conventional mail, and will be effective immediately upon posting or sending. It is your responsibility to check for periodic changes. You should regularly check OC’s website for changes to this AUP. Your continued use of the Service following the posting or receiving of any revisions or additions to this Acceptable Use Policy (the “AUP”) constitutes acknowledgment and acceptance of such revised or additional terms.
Waiver of Jury Trial and Joint or Class Action. WHETHER IN COURT OR IN ARBITRATION, YOU AND WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY. YOU MAY NOT BRING YOUR CLAIM AS A CLASS ACTION, OR ON A JOINT OR CONSOLIDATED BASIS.
Any questions regarding the specific terms of this AUP or complaints regarding violations of it by OC customers should be directed to:
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