Terms of Service

CITYNET RESIDENTIAL SUBSCRIBER AGREEMENT

This Residential Subscriber Agreement (“Agreement”) sets forth the terms and conditions under which Citynet, and its applicable operating subsidiary that owns and/or operates the cable IPTV television system in your area (“Citynet”) will provide residential subscribers (“you”, “your” or “Subscriber”) with Citynet high-speed Internet service (and DSL where offered in very limited locations), including wireless Internet (“WiFi”) (“Internet Service”), Citynet IPTV broadcast and cable television (“Video Service”), and/or Citynet voice (“Voice Service”) (each a “Service” and collectively the “Services”) and associated equipment used in connection with the Services (“Citynet Equipment”) at your premises where the Services will be installed and used (“Premises”). Your use of the Services constitutes your acknowledgement and agreement that you have read and that you understand the terms and conditions of this Agreement and that you agree to be bound by the terms of this Agreement.  If you do not agree to comply with all of the terms of this Agreement, your sole and exclusive remedy is to discontinue your use of the Services.

THIS AGREEMENT CONTAINS: (1) A BINDING ARBITRATION PROVISION, WHICH PROVIDES THAT YOU AND CITYNET AGREE TO RESOLVE CERTAIN DISPUTES THROUGH ARBITRATION; AND (2) A WAIVER OF YOUR RIGHT TO BRING CLAIMS AS CLASS ACTIONS.  YOU HAVE THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS.

1. AGREEMENT. By signing up for, activating, using or paying for the Services, you agree to the terms and conditions set forth in this Agreement and the prices, charges, terms and conditions which Citynet has posted or may in the future post on its website, www.citynet.net (“Website”), all of which are incorporated herein by reference.  If you do not agree to the pricing or to any terms or conditions, you may cancel the Services by calling us on our customer service line.  The updated, online version of this Agreement shall supersede any prior version of this Agreement.  You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.  You warrant that you are at least eighteen (18) years of age and that the Subscriber information that you have provided, and will provide, to Citynet during the term of this Agreement, including without limitation, your legal name, address, telephone number(s), and payment data, if applicable (e.g. credit card numbers and expiration dates and bank account information) is accurate, complete, and current.
2. USE OF SERVICE. If you have subscribed to Citynet’s residential services, the Service and Equipment are provided to you as a residential user only, for your personal, residential, nonbusiness and non-professional use.  Specifically, “residential use” means that you are not using the Service or Equipment for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-marketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns.  You shall not resell or redistribute access to the Services in any manner without the express prior written consent of Citynet. 

You agree that your use of the Service and/or Equipment for any non-residential purpose will obligate you to pay Citynet’s higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for non-residential purposes.  Citynet reserves the right to immediately terminate or modify the Service if Citynet determines, in its sole discretion, that the Service is being used for non-residential or commercial use.  You agree that the Services and Citynet Equipment will only be used by you or by any other person, whether authorized by you or not, for lawful purposes and agree that it will not be used for transmitting or receiving any communication or material that in Citynet’s sole judgment may constitute a crime, give rise to civil liability, or otherwise violate any applicable local, state, or federal law or regulation. You understand that Citynet reserves the right to act immediately and without notice to you to terminate or suspend the Services and/or to remove from the Services any information transmitted by you or to you if Citynet (i) determines that such use or information does not conform with the requirements set forth in this Agreement; (ii) determines that such use or information interferes with Citynet’s ability to provide the Services to you or others; (iii) determines that such information or use interferes with the rights of other subscribers; or (iv) reasonably believes that such use or information may violate any law or regulation. You understand that Citynet’s action or inaction does not constitute review or approval of your or any other user’s use or information.

3. CHARGES AND PAYMENT.

3.1          Fees and Charges: Subscriber will pay all charges and fees for the Services, including, but not limited to, installation/service call charges, monthly service charges, Citynet Equipment 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 Citynet, permitted fees and cost recovery charges, or any programs in which Citynet participates, including, but not limited to, public, educational, and governmental access, universal service fund, 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. You will be responsible for paying any governmental or quasi-governmental imposed fees and taxes that become applicable retroactively.  Citynet will provide you with notice and an effective date of any change in our prices or fees, unless the change in price is related to a change in governmental or quasi-governmental taxes, fees, or assessments, in which case Citynet may elect not to provide notice except where required by applicable law.  Not all fees apply to all Services.  Citynet may charge additional service-related fees and surcharges, including without limitation, a Local TV Surcharge and/or a Sports Programming Surcharge (collectively, “Surcharges”).  The “Local TV Surcharge” recovers a portion of the fees that Citynet pays to local broadcast stations for the right to carry such stations.  The “Sports Programming Surcharge” recovers a portion of the fees that Citynet pays to various content providers for access to sports programming.  Such Surcharges may be increased by Citynet at any time to reflect increases in Citynet’s costs.  Pricing used for advertising, marketing and other promotional purposes is exclusive of these Surcharges, taxes and governmental or regulatory fees.  Subscriber acknowledges receipt of the schedule of applicable fees and charges for the Services.  Citynet may charge additional fees, including fees for returned checks, fees for paying by phone through a live agent, and fees for providing paper bills.  A list of applicable fees is available by calling our customer service number listed on our website.  Subject to applicable law, Citynet will have the right from time to time to change the amount of fees and charges and/or its method of invoicing for Services at its discretion.  Such changes may include imposing fees and charges for new services or features.  Monthly service, equipment and other fees will be payable monthly in advance while usage-based charges (for example, international calls associated with Voice Service) will be billed in arrears.  Installation and other charges will be billed according to Citynet’s then current invoicing policies.

3.2          Monthly Invoices: Citynet will issue a summary invoice statement to you monthly.  All charges are due on the date specified on your monthly invoice.  Unless you are subject to a minimum term arrangement, Services are provided to you on a month-to-month basis.  You will generally be invoiced monthly, in advance, for recurring service charges, Citynet Equipment charges, and fees.  Your first invoice may include pro-rated charges from the date you first begin receiving Services, as well as monthly recurring charges for the next month and charges for non-recurring services you have received.  You may be invoiced for some Services individually after they have been provided to you; these include, but are not limited to, measured and per-call charges (international calls).  If you receive Services under a promotion, then-current standard charges for the Services will apply after the promotional period ends.  Citynet does not waive it rights to collect the full balance owed to Citynet by accepting partial payment.  Citynet will apply the partial payment to the outstanding charges in the amounts and proportions that Citynet determines.

3.3          Credit Cards; Direct Debit/Electronic Funds Transfer: Subject to acceptance by Citynet, Subscriber may opt to authorize Citynet to charge all amounts payable by Subscriber to Citynet via Subscriber’s credit card, direct debit, or electronic funds transfer.  By choosing any of these options, Subscriber authorizes Citynet to continue charging, debiting or transferring amounts due for all monthly fees (including, without limitation, monthly service fees and Citynet Equipment charges, as well as applicable taxes and fees), and any other charges incurred by Subscriber which are payable to Citynet pursuant to this Agreement, until you withdraw consent.  You agree to inform Citynet immediately of any change in your credit card (including without limitation, a change in expiration date), direct debit, electronic funds transfer or bank account information.  Use of any credit card to pay for the Service is governed by the applicable card issuer agreement.  If we do not receive payment from your credit card issuer, you agree to pay all amounts due upon demand.  If you pay by check you authorize us to collect your check electronically.  You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on or accompanying checks or other payments accepted by us and any such notations shall have no legal effect.

3.4          Late Payments or Failure to Pay: If payment is not received by the due date stated on your invoice, late fees and/or collection charges may be assessed against you and your Services may be suspended, downgraded, restricted, cancelled, or terminated without notice.  Service suspension, restriction, or termination could result in loss of your Citynet provided telephone number associated with your Services.  You may be required to pay a reconnect fee, activation fee, and/or a security deposit, in addition to all past due charges, before the Services are reconnected.

3.5          Collection Costs: If Citynet is required to use a collection agency or attorney to collect moneys owed by you or to assert any other right Citynet may have against you, you agree to pay the reasonable costs of collection or other action.  These costs include, but are not limited to, any collection agency’s fees, reasonable attorney’s fees, and arbitration or court costs.

3.6          Fees Not Considered Interest or Penalties: Any late fees and related fees, charges, and assessments due to late payment or nonpayment are not interest, credit service charges, or finance charges.  Such fees, charges, and assessments are not penalties.  Rather, they are liquidated damages intended to be a reasonable advance estimate of Citynet’s costs resulting from late payments and nonpayment.  These costs will be difficult to calculate or to predict at the time such late fees and related fees, charges, and assessments are set, because Citynet cannot know in advance (i) whether you will pay for the Services on a timely basis; (ii) if you do pay late, when you will actually pay; and (iii) what costs Citynet will incur because of your late payment or nonpayment.

3.7          Invoicing Errors: Subject to applicable law, you must notify Citynet of any invoicing errors or other requests for refund within thirty (30) days of the date on the invoice.  You understand that, from time to time, Citynet may inadvertently fail to invoice you for charges or fees incurred by you in connection with your use of the Service.  In such an event, you agree to pay any such charges or fees when invoiced by Citynet, without regard to when those charges or fees were incurred by you.

3.8          Our Right to Make Credit Inquiries: YOU AUTHORIZE CITYNET TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT HISTORY WITH OTHERS, ENTER THIS INFORMATION IN YOUR FILE, AND DISCLOSE THIS INFORMATION TO CREDIT REPORTING AGENCIES AND SIMILAR THIRD PARTIES.

3.9          Voice Service; Minutes of Use Rounded up to the Next Full Minute: Any fractional minute of use for the Voice Service will be rounded up to the next full minute at the end of each call for usage and invoicing purposes and, if applicable, for calculating International calling minutes.  For example, if the first call lasts 1 minute and 5 seconds and the next call last 3 minutes and 38 seconds, the first call will be counted as 2 minutes and the second call would be counted as 4 minutes, for a total of 6 minutes for usage, plan and invoicing purposes.

3.10       Early Termination Charges: Citynet may offer promotional discounted rates that require you to agree to a term commitment as a condition of receiving service at a discount.  If you entered into a term commitment contract, you have received certain benefits from us in exchange for any Service commitment greater than one month.  If we terminate your service for nonpayment or other default before the end of the Service commitment period, or if you terminate your service for any reason other than (a) in accordance with our cancellation policy; or (b) pursuant to a change of terms, conditions or rates as set forth herein, you agree to pay us, in addition to all other amounts owed, an early termination fee in the amount specified in the promotion to which you subscribed (“Early Termination Charge”). The Early Termination Charge is not a penalty, but rather a charge to compensate us for your failure to satisfy the Service commitment on which your promotional rate is based.  AFTER YOUR SERVICE COMMITMENT PERIOD ENDS, THIS AGREEMENT SHALL AUTOMATICALLY RENEW ON A MONTH-TO-MONTH BASIS AT CITYNET’S THEN-CURRENT RETAIL RATE FOR THE APPLICABLE SERVICES UNTIL EITHER PARTY GIVES NOTICE PURSUANT TO THE TERMINATION PROVISIONS HEREIN.  Such Early Termination Charges may be waived, at the sole discretion of Citynet, and may be waived if you can demonstrate that you have moved outside of Citynet’s service area.

3.11       Prior Accounts: Subscriber warrants that no outstanding balances are owed to Citynet from previous accounts with Citynet.  If Citynet finds a prior account with Subscriber that has outstanding balances owed to Citynet, then Citynet may apply any funds received to that prior account or transfer the outstanding balance from the prior account to the new Subscriber account.

3.12       Charges for Online Services, Internet Transactions or Additional Third-Party Charges: Through use of the Internet Service, you may access certain information, content, products, and services of other third-parties, for which there is a charge.  You agree that you are solely responsible for all fees or charges for these online services, products or information.  In addition, you are solely responsible for protecting the security of credit card information provided in connection with any such transactions.

4. EQUIPMENT AND HOME WIRING.

4.1          Citynet Equipment: The set-top box unit, cable modem and/or other Citynet Equipment delivered to you and/or installed on your Premises to receive the Services shall remain the property of Citynet.  You assume the risk of loss, theft or damage to Citynet Equipment at all times prior to the removal of Citynet Equipment by Citynet or return of Citynet Equipment by you.  A valid credit card or cash deposit may be required as a condition for the provision of certain equipment.  You must use Citynet Equipment to access the Services.  The monthly rental fee is listed on the price list.  Please contact our Customer Service team to obtain a current price list.  You agree to return Citynet Equipment to Citynet within thirty (30) days of your termination date regardless if your Service is terminated or cancelled by either you or Citynet.  You agree not to sell, transfer, lease, encumber, or assign all or any part of Citynet Equipment to any third party.  You agree to pay Citynet the cost of the full replacement of any Citynet Equipment if such Citynet Equipment or part thereof is lost, stolen, unreturned, damaged (excluding normal wear and tear), sold, transferred, leased, encumbered, assigned or if for any other reason you fail to return Citynet Equipment at the end of your Service.  You further agree not to tamper with Citynet Equipment or change its identifier or electronic serial number or address.  You acknowledge that Citynet Equipment is merely a means for Citynet to provide you the Service and that Citynet may remove or change it at Citynet’s discretion.  You agree not to use Citynet Equipment for any purpose other than to use the Service in accordance with this Agreement.

4.2          Subscriber Owned Equipment: Subscriber agrees that Citynet is not responsible for the operation, maintenance, service or repair of Subscriber’s television, computer, media players, speakers, receivers, cable modem, wireless router, cellphones, tablets, mobile devices, radio or any other consumer electronics, which may, from time to time, be connected to the Services.  “Customer Equipment” means software, hardware or services that you elect to use in connection with the Service(s) or Citynet Equipment that is not provided or leased by us.  If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner in order to use it in connection with your Citynet service.  Customer Equipment that does not meet our minimum technical or other specifications constitutes “Incompatible Equipment,” including, but not limited to, modems not currently certified by us as compatible with Internet Service or Voice Service; Customer Equipment, including, but not limited to: certain fax machines, dial-up modems, rotary-dial phone handsets, answering machines, and traditional Caller ID units.  We reserve the right to deny support for the Service(s) and/or terminate Service(s) if you use Incompatible Equipment.  NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS OR AGENTS WARRANTS THAT INCOMPATIBLE EQUIPMENT WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICE(S).  YOU ACKNOWLEDGE THAT INSTALLATION, ACCESS, OPERATION OR USE OF INCOMPATIBLE EQUIPMENT COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, YOU, YOUR PREMISES OR CITYNET EQUIPMENT.  NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE.

4.3          Home Wiring: You may install wiring inside your Premises (“Home Wiring”), such as additional cable and/or ethernet wiring and outlets, provided it does not interfere with the normal operations of Citynet’s wiring and network.  If you have Citynet install or repair Home Wiring, Citynet will charge you for that installation or repair.  Regardless of who installed it, Citynet considers the Home Wiring your property or the property of whomever owns the Premises.  Accordingly, you are responsible for the repair and maintenance of the Home Wiring, unless you and Citynet have agreed otherwise in writing.  If you do not own the Premises, contact your landlord or building manager about the installation, repair or maintenance of Home Wiring.  For multiple dwelling units or commercial installations, the Home Wiring shall not be deemed a fixture or part of the Subscriber’s Premises unless the Subscriber purchases the Home Wiring when Services are terminated.

5. ACCESS. Subscriber authorizes Citynet and its employees, agents, contractors, and representatives to enter your Premises in order to install, activate, deactivate, maintain, inspect, repair and remove Citynet Equipment and the Services.  Citynet will arrange access at reasonable times agreeable to you and Citynet.  You warrant that you are either the owner of the Premises or that you have the authority to give Citynet access to the Premises.  If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agents into the Premises to perform the activities specified above.  In addition, you agree to supply Citynet or its agent, if requested, the owner’s name, address, and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises.  Citynet shall not be liable for any damage, loss or destruction to your Premises or your property or associated equipment during installation, including but not limited to any damage to, or loss or destruction of, any property, hardware, software, files or data.  YOU UNDERSTAND THAT THE INSTALLATION, ACTIVATION, DEACTIVATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICES OR CITYNET EQUIPMENT MAY RESULT IN DAMAGE TO YOUR TELEVISION, COMPUTER(S) OR OTHER HARDWARE, INCLUDING SOFTWARE, SOFTWARE CONFIGURATION AND DATA FILES STORED THEREON.  YOU SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES.
6. CHANGES TO SERVICES. Subject to applicable law, Citynet has the right to change our Services, Citynet Equipment and rates or charges, at any time with or without notice.  We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Services, including, but not limited to, content, functionality, hours of availability, subscriber equipment requirements, speed, and upstream and downstream rate limitations.  Citynet may notify you of any change by any of the following ways, as determined in our discretion: (1) by posting it at www.citynet.net; (2) by sending you an email to the address for your account in our records; (3) by mail or delivery service to your address of record; or (4) by including it on or with your bill for Services.  You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement.  Because we may from time to time notify you about important information regarding the Service by these methods, you agree it is your responsibility to regularly check your postal mail, email and all postings at www.citynet.net.  If any material change negatively affects your Services, you have the right to cancel your Service.  If you continue to receive the Services for more than 30 days after the change, you agree to accept the change(s).
7. ACKNOWLEDGMENTS AND CONSENTS REGARDING RECORDING OF COMMUNICATIONS, USE OF AUTOMATED DIALING SYSTEMS AND METHOD OF CONTACTING YOU.

7.1          Recording of Communications: You acknowledge and agree that all communications between you and Citynet may be recorded or monitored by Citynet for quality assurance or other purposes, subject to applicable law.

7.2          Consent to Phone Calls and Texts: You consent to receiving calls and texts from Citynet and/or our agents or vendors at the phone number you provide to Citynet verbally or via our website, email or text (or the phone number that Citynet issues to you in connection with voice service), as part of our established business relationship, and regardless of whether the phone number is on the federal Do-Not-Call Registry (or state equivalent(s)), for any purpose, including sales, promotions, customer care and/or collections, placed by any means, including autodialed or prerecorded voice calls, and text messages. Consent is not a condition to purchase any goods or services.  You may withdraw this authorization by contacting us.  Please note that we are permitted to send service-related text messages to customers such as service notifications, bill reminders, or outage and repair information without your express authorization, but will not do so upon your request.  You acknowledge that you are responsible for charges for incoming text messages on your wireless phone(s).  By providing a mobile phone number, you confirm that you are the current owner/subscriber of the mobile phone number provided or that the current owner/subscriber of this mobile phone number authorized you to provide this number (collectively, “Current Owner”) to Citynet.  You understand that by providing this mobile phone number, the Current Owner consents to being contacted by Citynet and/or our agents and vendors at the mobile number provided.  You agree to notify us immediately if there is any change in the information that you have provided to us, including without limitation any change in your telephone number or mobile telephone number.  Failure to do so is a breach of this Agreement.

7.3          Consent to Contact by Email: You consent to Citynet emailing you, at any email address, including that of a wireless or mobile device, that you provide to Citynet (or that Citynet issues to you in connection with Internet Service), for any purpose, including the marketing of Citynet’s current and future services.  If your wireless or mobile provider charges you for receipt of such messages, you acknowledge and agree that you are responsible for paying such charges.  You may revoke this authorization insofar as it relates to marketing messages at any time by calling or writing Customer Service.  By signing up for electronic billing statements, you agree that Citynet may communicate with you at the email address utilized for receipt of such electronic billing statements.

7.4          Consent to Electronic Notice: You agree that unless otherwise specified, all notices required or contemplated hereunder will be provided by Citynet by such means as Citynet shall determine in its discretion.  Without limiting the foregoing, you agree that Citynet may provide any notices required or contemplated hereunder or by applicable law, including notice of changes to any of the following: 1) this Agreement; 2) the Customer Privacy Notice; or 3) Citynet’s rates and services, by electronic means (including email or online posting).  An online version of this Agreement and the Customer Privacy Notice, as so changed from time to time, will be accessible at www.citynet.net or another online location designated by Citynet, or can be obtained by calling Customer Service.

7.5          Consent to Use of Automated Dialing System: Citynet (or persons acting on Citynet’s behalf) may use automated dialing systems or artificial or recorded voices to contact you or leave you messages if the call goes to voicemail.  Citynet may use automated dialing systems to call and/or text you regarding service outages impacting your area, confirm service appointments, conduct customer satisfaction surveys or to remind you to pay overdue invoices, as well as other service-related matters.  YOUR RIGHT TO WITHDRAW CONSENT TO USE OF AUTOMATED DIALING SYSTEM: IF YOU DO NOT WISH TO RECEIVE CALLS, MESSAGES OR TEXTS FROM CITYNET VIA AUTOMATED DIALING SYSTEMS OR PRERECORDED MESSAGES ON YOUR CELLULAR PHONE, YOU MAY CONTACT US BY PHONE, MAIL OR THE WEBSITE THROUGH THE CONTACT INFORMATION SET FORTH ON OUR WEBSITE TO OPT OUT OF SUCH AUTOMATIC CALLS.  YOU AGREE TO ALLOW CITYNET THIRTY (30) DAYS TO HONOR YOUR REQUEST, AND FURTHER AGREE THAT CITYNET WILL NOT BE LIABLE FOR ANY CALLS OR TEXTS TO YOU IN THE INTERIM.

7.6          Other Consents: Citynet may ask you to provide consents or authorizations through electronic means, such as email, the Website or through your equipment (for instance, using your remote control), and any consent or authorization Citynet receives through electronic means from your Premises shall be deemed to have been authorized by you.

7.7          Email Address for Notice: Upon Citynet’s request, you will provide Citynet with a current email address that you regularly check so that Citynet may provide notices and communications to you at that address.

7.8          Survival of Contact Rights: Citynet’s right to contact you as described in this Section survives the termination of this Agreement.

8. TERMINATION, SUSPENSION, AND TRANSFER OF SERVICE.

8.1          Termination of Service by Subscriber: Subject to any obligations under a minimum term agreement, you may terminate this Agreement for any reason at any time by calling Citynet’s customer service department.  To avoid any invoicing misunderstanding, telephone requests for termination should be followed up in writing.  Upon termination, Citynet may charge additional fees on any unpaid balance.  Citynet reserves the right to continue invoicing for Services through the end of the invoice cycle or until all Citynet Equipment has been returned, whichever occurs first.  The replacement costs for any unreturned Citynet Equipment and any termination fees will be posted to Subscriber’s account once invoicing ends.  In the event that Citynet Equipment is destroyed, damaged, lost or stolen, or not returned to Citynet upon termination of Services, Subscriber shall be liable to Citynet for the full replacement cost of any unreturned Citynet Equipment.  Subscriber understands and agrees that any security deposit amounts may be used solely at the discretion of Citynet to offset any outstanding balance and or the cost of any unreturned Citynet Equipment.  Further, Subscriber understands and agrees that Citynet may charge Subscriber’s credit card on file at termination of Services in the amount of any outstanding balance and/or for the cost for any unreturned Citynet Equipment, in accordance with applicable law.  All applicable fees and charges will accrue until the date of termination, including any applicable Early Termination Charges if applicable.

8.2          Suspension or Termination of Services by Citynet: Citynet may suspend Services or terminate this Agreement for any reason.  If Citynet suspends Services or terminates this Agreement because you failed to comply in full with any term of this Agreement, Citynet may do so at any time with or without notice to you.  If you reinstate any or all Services after suspension or termination, Citynet may require you to pay a reconnection fee, installation fee and/or service activation fee.  These fees are in addition to all past due charges and other fees.  Reconnection of the Services is subject to Citynet’s credit policies, this Agreement and applicable law.

8.3          Obligation Upon Termination of Agreement: You agree that upon termination of this Agreement you will (i) immediately cease use of the Services and Citynet Equipment; (ii) pay in full all applicable outstanding charges; and (iii) promptly return Citynet Equipment to Citynet.

9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

9.1          No Warranty: YOU AGREE THAT YOUR USE OF THE SERVICES AND ANY CITYNET EQUIPMENT IS AT YOUR SOLE RISK.  THE SERVICES AND CITYNET EQUIPMENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.  CITYNET DOES NOT WARRANT UNINTERRUPTED USE OF THE SERVICES OR THAT THE SERVICES OR CITYNET EQUIPMENT WILL OPERATE AS REQUIRED, UNINTERRUPTED, OR ERROR FREE.  EXCEPT AS PROVIDED BELOW, YOUR SOLE REMEDY FOR SERVICE INTERRUPTION SHALL BE LIMITED TO A PRORATED CREDIT UPON REQUEST ONLY IN THE EVENT OF COMPLETE FAILURE OF THE SERVICES DUE TO A TECHNICAL MALFUNCTION FOR TWENTY-FOUR (24) CONSECUTIVE HOURS OR MORE.  TO QUALIFY FOR SUCH CREDIT, YOU MUST REQUEST THE CREDIT FROM CITYNET WITHIN THIRTY (30) DAYS OF THE FAILURE.  CREDITS SHALL BE APPLIED ONLY AGAINST CURRENT AND FUTURE FEES PAYABLE BY YOU FOR THE SERVICES AND ANY CREDITS PROVIDED BY CITYNET ARE AT OUR SOLE DISCRETION AND IN NO EVENT SHALL CONSTITUTE OR BE CONSTRUED AS A COURSE OF CONDUCT BY CITYNET.  CITYNET DOES NOT WARRANT THAT THE SERVICES OR CITYNET EQUIPMENT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  CITYNET DOES NOT WARRANT THAT ANY INFORMATION, DATA OR FILES YOU SEND OR RECEIVE VIA THE SERVICES WILL BE FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO SUCH INFORMATION, DATA OR FILES.  CITYNET DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. 

9.2          Limitation of Liability: CITYNET SHALL HAVE NO LIABILITY, AND WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGES TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, SOFTWARE CONFIGURATION, HARDWARE, DATA OR FILES.  IN NO EVENT WILL CITYNET BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES OR PERSONAL INJURY OR DEATH ARISING OUT OF OR OTHERWISE ARISING IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, THE INSTALLATION, MAINTENANCE, REMOVAL OR FAILURE OF THE SERVICES OR ANY CITYNET EQUIPMENT.  CITYNET SHALL NOT BE LIABLE FOR ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING, DIRECTLY OR INDIRECTLY, OUT OF, OR IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING ALLEGING IN WHOLE OR IN PART THAT THE USE OF THE SERVICES OR CITYNET EQUIPMENT BY SUBSCRIBER OR ANY OTHER PERSON OR ENTITY INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY. CITYNET’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY CITYNET OF ANY OBLIGATION CITYNET MAY HAVE UNDER THIS AGREEMENT OR APPLICABLE LAW SHALL BE SUBSCRIBER’S ABILITY TO TERMINATE THE SERVICES OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE CITYNET EQUIPMENT.  IN NO EVENT SHALL CITYNET’S LIABILITY TO SUBSCRIBER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY SUBSCRIBER DURING THE PRECEDING THIRTY (30) DAY PERIOD.  IN NO EVENT SHALL CITYNET BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING UNDERLYING SERVICE PROVIDERS, OR ANY THIRD-PARTY EQUIPMENT OR SERVICES NOT PROVIDED BY CITYNET.

9.3          Customer’s Sole Remedies: Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. 

9.4          Survivability: All representations, warranties, indemnifications and limitations of liability contained in this Agreement will survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination.

10. INDEMNIFICATION. You agree to indemnify and hold harmless Citynet from any claims brought against Citynet related to: (a) your (including multiple users) use of the Services or the violation of this Agreement including, without limitation, the Acceptable Use Policy; (b) the negligence, willful misconduct, violation of a third party’s rights, or failure to comply with applicable law; (c) libel or slander resulting from any use of the Service; (d) infringement or misappropriation of any patent, copyrights, trademark, trade name, service mark, trade secret, or other intellectual property rights by you or any other person using the Service through you, including without limitation through combination of the Service with facilities, equipment or services provided or used by you or obtained from third parties; (e) any unauthorized, unlawful or fraudulent use of or access to the Service, except as otherwise provided by applicable law; and (f) 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 Citynet 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 thereunder, and/or that which arises out of the negligence or other wrongful act of you or anyone using the Service through you. The foregoing indemnity obligations exclude damages to the extent caused by the gross negligence or willful misconduct of Citynet.  You agree to pay any attorneys’ fees incurred by Citynet in bringing any action related to the Services or a breach of the terms of this Agreement by you or any other user of your Services or Citynet Equipment.
11. SUBSCRIBER INFORMATION AND PRIVACY. Citynet will respect your privacy interests, including your right to limit disclosure of certain information to third parties in the manner described in Citynet Customer Privacy Notice.  You can view the most current version of the Customer Privacy Notice on the Website.  Citynet reserves the right to amend its policies from time to time.
12. THEFT OF SERVICE, LIMITATIONS OF USE, AND INTELLECTUAL PROPERTY RIGHTS.

12.1       Obligation to Report Theft of Service: You are liable for all use of the Services, using your Citynet Equipment and for any and all stolen Services or unauthorized use of the Services or Citynet Equipment.  You agree to notify Citynet immediately in writing or by calling Citynet’s Customer Service line if you become aware at any time that Citynet Equipment is stolen or that your Service is being stolen or used without your authorization.  If you fail to notify Citynet in a timely manner, your Services may be terminated without notice, with additional charges to you.

12.2       Limitations of Use: The Services and Citynet Equipment, including any firmware or software embedded in Citynet Equipment or used to provide the Services, are protected by trademark, copyright, and/or other intellectual property laws and international treaty provisions.  You are granted a limited, non-sublicensable, non-transferable revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement.  You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in Citynet Equipment or used to provide the Services.  You expressly agree that you will use Citynet Equipment exclusively in connection with the Services.  You shall not reverse, compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.  If you decide to use the Services through an interface device not provided by Citynet, which Citynet reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights to use that interface device with the Services, including all software and firmware licenses.  You will indemnify and hold harmless Citynet against any and all liability arising out of your use of such interface device with the Services.

12.3       Protection of Intellectual Properties: All Citynet’s Service information, documents, and materials on Citynet’s Website are protected by trademark, copyright, or other intellectual property laws and international treaty provisions.  All websites, corporate names, service marks, trademarks, trade names, logos, and domain names of Citynet are, and shall remain, the exclusive property of Citynet, and nothing in this Agreement shall grant you the right or license to use any of Citynet’s intellectual properties.

12.4       Additional Terms Applicable to Video Products and Services.

12.4.1   Set-Top Boxes: Certain software is contained in your set-top box.  Other software programs may be delivered to your set-top box by Citynet or its suppliers from time to time, which your set-top box will automatically accept.  You may use such software solely in executable code form and solely in conjunction with your set-top box.  You must not use any unauthorized software on the set-top box.

12.4.2    The Video Service: In the event you have subscribed to video services that Citynet is providing, you may access and use such Service only with a product that is authorized to receive the Service.  Citynet retains the absolute right to immediately suspend or terminate Service, and terminate this Agreement, if you breach any provision in this Agreement, if you misuse the Service, or if you alter your video software or use the Service in such a manner as to infringe upon the intellectual property rights of Citynet, its suppliers or any third party.

12.4.3    General Provisions: Any attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use the Service, software, application or set-top box (collectively, “Products”) for other purposes is strictly prohibited (except to the extent that any such restrictions are prohibited by applicable law).  Citynet and its suppliers retain title to and ownership of the Products and certain intellectual property rights in and to the Products.  Citynet and its suppliers also retain ownership of all copyrights and trademarks in and on the Products.  Without limiting the foregoing, all copyrights and trademarks are the exclusive property Citynet, its affiliates, or its suppliers or vendors.  If you fail to comply with these terms, Citynet may terminate this license to use the Products.  Unauthorized transfers or distribution of copyrighted works is a violation of these terms and may be a violation of copyright.  There are penalties for copyright infringement if you violate applicable copyright laws.  To the extent required by the license for the open source components (“Open Source Software”) of the Products: (i) the terms of such license will apply to such Open Source Software instead of the terms of the license grant in this Section 12.4; and (ii) any restrictions prohibited by such license that are contained in this agreement will not apply to such Open Source Software.  You understand and agree that Citynet and Citynet’s suppliers have no warranty obligations or other liabilities to you.  Except for those liabilities that may not be disclaimed under applicable law, Citynet disclaims all liability for any liabilities, losses, damages, costs or expenses (whether arising in contract, tort (including negligence) or under any other cause of action) suffered or incurred by any person in connection with the Products or any act or omission of Citynet or any of its personnel in connection with the license agreement set forth in this Section 12.4: (i) on behalf of and for the benefit of Citynet’s suppliers; and (ii) for itself.

13. BINDING ARBITRATION, WAIVER OF CLASS ACTION AND JURY TRIAL.

13.1       Arbitration: Except as expressly permitted by this Agreement, any Dispute (as defined below) involving you and Citynet that cannot be mutually resolved shall be resolved through individual arbitration rather than through litigation of the Dispute in court.  By agreeing to this binding arbitration provision, you may be waiving constitutional or statutory rights.  Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.  Proceeding in arbitration may also result in limited discovery.  An arbitration award is subject to limited review by a court.

13.2       Dispute: As used herein, the term “Dispute” means any dispute, claim or controversy between you and Citynet, its affiliates, and/or each of their respective officers, directors, employees and agents regarding any aspect of your relationship with such parties that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (as defined in Section 14.8). “Dispute” is to be given the broadest possible meaning that will be enforced.

13.3       Right to Opt Out: IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, INCLUDING WITHOUT LIMITATION, THE WAIVER OF YOUR RIGHT TO BRING CLASS ACTION CLAIMS PURSUANT TO SUBSECTION 13.4.2 BELOW, YOU MUST NOTIFY CITYNET IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY WRITTEN NOTICE TO CITYNET, 100 CITYNET DRIVE, BRIDGEPORT, WV 26330, ATTENTION: CHIEF FINANCIAL OFFICER. YOUR WRITTEN NOTIFICATION TO CITYNET MUST INCLUDE YOUR NAME, ADDRESS AND CITYNET ACCOUNT NUMBER, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH CITYNET THROUGH ARBITRATION.  YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH CITYNET OR THE DELIVERY OF SERVICES TO YOU BY CITYNET.  IF YOU HAVE PREVIOUSLY NOTIFIED CITYNET OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.

13.4       Restrictions:

13.4.1   Waiver of Right to Bring Claims After One Year: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.  FAILURE TO DO SO WILL RESULT IN YOUR WAIVER OF ALL CLAIMS ARISING FROM THAT DISPUTE.

13.4.2    Waiver of Right to Bring Class Action Claims: ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED.  THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION 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 SIMILARLY SITUATED.  FURTHER, UNLESS BOTH YOU AND CITYNET AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS WITH YOUR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.  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.  THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT.

13.4.3    Waiver of Consequential Damages: ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH CITYNET UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.

13.4.4   Selection of Arbitrator, and Applicable Rules and Law: The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes that are in effect when the arbitration is initiated (collectively, “AAA Rules”).  The AAA Rules are available at www.adr.org or by calling 800-778-7879.  The Services provided to you by Citynet concern interstate commerce, so the Federal Arbitration Act (“FAA”), not any state arbitration law, shall govern the arbitrability of all Disputes and the application and enforceability of this Arbitration Provision.  Applicable federal law or the law of the state of West Virginia, however, shall apply to and govern the substance of any Disputes.  No state arbitration statute shall apply to the arbitration proceeding.  If there is a conflict between this Arbitration Provision and the rules of the arbitration organization, this Arbitration Provision shall govern.  If the AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your Dispute with Citynet.  If this situation arises, the parties shall agree on a substitute arbitration organization.  If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written.  If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.

13.4.5   Arbitration Procedures: The party initiating the arbitration proceeding may open a case with the American Arbitration Association, Case Filing Services, by sending an email to [email protected] or through the following website: https://www.adr.org/Support.  An explanation of the procedures for initiating an arbitration proceeding are available at www.adr.org or by calling 877-493-4185.  A single arbitrator will resolve the Dispute.  The arbitrator will honor claims of privilege recognized by applicable law and will take reasonable steps to protect customer account information and other confidential or proprietary information.  The arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or required by applicable law.  An award granted by the arbitrator may be enforced in any court with appropriate jurisdiction over the parties.  If an award granted by the arbitrator exceeds $75,000, either party may appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award.  The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization.  The arbitration organization will then notify the other party that the award has been appealed.  The three-arbitrator panel will issue its decision within one hundred and twenty (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 that exists under the FAA.

13.4.6   Arbitration Hearing and Location: If the Dispute is for $10,000 or less, you may choose whether to conduct the arbitration solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules.  If the Dispute exceeds $10,000, the AAA Rules will determine the right to a hearing.  Any in-person hearing will take place at a location convenient to you in the area where you receive the Services from Citynet, unless you and Citynet agree or the arbitrator orders otherwise under the AAA Rules.

13.4.7 Payment of Arbitration Fees and Expenses: Payment of all arbitration fees and expenses will be governed by AAA Rules.  Citynet will promptly reimburse you for payment of your filing fee, and Citynet will pay all filing, administration, and arbitrator fees and arbitrator expenses for the Dispute (unless the arbitrator determines that the Dispute is frivolous) if the following three conditions are met: (i) if you provide Citynet with 30 days’ prior explicit written notice of your intent to seek arbitration, addressed to Citynet, 100 Citynet Drive, Bridgeport, WV 26330, Attention: Chief Financial Officer; (ii) if we are unable to resolve the dispute within the thirty-day time period, notwithstanding your good faith cooperation in seeking to resolve the dispute; and (iii) if you thereafter initiate an arbitration proceeding regarding the Dispute described in your prior notice. You are responsible for paying fees and expenses for your attorneys, witnesses, and experts in arbitration, unless applicable law requires otherwise.  Citynet will not seek attorneys’ fees and expenses in arbitration, unless the arbitrator determines the Dispute is frivolous.  If the arbitrator determines that the Dispute is frivolous, you agree to reimburse Citynet for previous payments it made that are otherwise your obligation to pay under the AAA Rules and applicable law.

13.4.8   Severability: If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect.  If the class action and class arbitration waiver in subsection 13.4.2 of this section is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the Dispute will be decided by a court.  If this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found to be excluded from the scope of this Arbitration Provision, YOU AND CITYNET EACH HEREBY AGREE TO WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY TRIAL BY JURY.

13.4.9   Survival: This Arbitration Provision will survive the termination of your Services with Citynet.  13.4.10 Small Claims Exclusion from Arbitration: YOU AND CITYNET AGREE THAT ANY CLAIM FILED BY YOU OR BY CITYNET THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A SMALL CLAIMS COURT WILL NOT BE SUBJECT TO ARBITRATION.

13.4.11 Exclusion from Arbitration: The following will not be subject to arbitration: (1) any claim filed by Citynet to collect outstanding balances for unpaid service or the theft of any service or equipment; or (2) any dispute over validity of either party’s intellectual property rights or Citynet’s licenses to operate its business. 

14. MISCELLANEOUS.

14.1        Entire Agreement: This Agreement and the policies and postings referenced in this Agreement, along with the rates of your particular Service, any term commitments and Early Termination Charges associated with any promotion for your particular Services, constitute the entire agreement with respect to the Services.  This Agreement supersedes and nullifies all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of you and/or Citynet or any predecessor in interest to Citynet with respect to the subject matter of this Agreement.

14.2 No Rights or Remedies for Third Parties: Except as expressly stated herein, this Agreement is not intended to give and does not give any rights or remedies to any person other than you and Citynet.

14.3 Severability: This Agreement is subject to all applicable federal, state and local laws and regulations in effect in the relevant jurisdiction(s) in which you receive your Services.  If any provision of this Agreement is in conflict with any such law or regulation, or if you are entitled to more favorable rights under any such law or regulation than are set forth in any provision of this Agreement, then the terms of such law or regulation, or the rights to which you are entitled under such law or regulation, shall take priority over the relevant provision of this Agreement. If the relevant law or regulation applies to some but not all of your Services, then such law or regulation will take priority over the relevant provision of this Agreement only for purposes of those Services to which the law or regulation applies.  If any part of this Agreement shall be determined to be invalid or unenforceable by a Court of competent jurisdiction, said part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of this Agreement.

14.4       Changes to the Agreement: Citynet may change, amend, alter, or modify this Agreement at any time.  Citynet may notify you of any change by any of the following ways, as determined in our discretion: (1) by posting it on https://citynet.net/about/legal; (2) by sending you an email to the address for your account in our records; (3) by mail or delivery service to your address of record; or (4) by including it on or with your bill for Services.  You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement.  Because we may from time to time notify you about important information regarding the Agreement by these methods, you agree it is your responsibility to regularly check your postal mail, email and all postings at www.citynet.net.  If you find any material change to this Agreement to be unacceptable, you have the right to cancel your Service, subject to term commitment obligations.  If you continue to use the Services for more than 30 days after notice has been made of a change, you agree to accept those changes.

14.5       No Assignment: You may not assign this Agreement or your rights or obligations under this Agreement without Citynet’s prior written consent.

14.6       Waiver: Except as otherwise provided herein, the failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

14.7       Contact Information: Citynet’s contact information is provided on the Website.  Please do not mail written correspondence with your invoice statement. 

14.8       Governing Law and Jurisdiction: You agree that any dispute with Citynet under this Agreement will be governed by the laws of the state of West Virginia.  You agree that all for matters other than those addressed in, and subject to, Section 13 (“Arbitration Provision”), the courts of such state will have exclusive jurisdiction over any legal action not subject to the Arbitration Provision, and you hereby subject yourself to the jurisdiction of such courts.  All matters with respect to this Agreement, including, without limitation, matters of validity, construction, effect and performance, shall be governed by the internal laws of such state applicable to agreements made and to be performed therein between the residents thereof (regardless of the laws that might otherwise be applicable under principles of conflicts of law).

14.9       Force Majeure: You agree that Citynet will not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of service, directly or indirectly caused by circumstances beyond its control, including but not limited to denial of use of poles or other facilities of a utility company, fiber or cable cuts, labor disputes, acts of war, natural causes, fires, floods, storms, mechanical or power failures, unavailability of rights-of-way or materials; strikes, labor difficulties, or any order, law or ordinance in any way restricting the operation of the Services.

14.10     Survival of Terms: In addition to the terms that are specifically noted in this Agreement as surviving termination of this Agreement, all representations, warranties, indemnifications, and limitations of liability shall survive this Agreement.  Citynet’s right to contact you shall also survive this Agreement.  All other obligations of you and Citynet under this Agreement also survive termination if they relate to the period before termination or, if by their terms, they would be expected to survive such termination.

14.11     Customer Information: You represent and warrant that you have provided to us information that is accurate, complete and current, including without limitation, your legal name, address, telephone number(s), the number of devices on which or through which the Service is being used, and payment data (including without limitation, information provided when authorizing recurring payments).  YOU AGREE TO NOTIFY US IMMEDIATELY IF THERE IS ANY CHANGE IN THE INFORMATION THAT YOU HAVE PROVIDED TO US, INCLUDING WITHOUT LIMITATION ANY CHANGE IN YOUR TELEPHONE NUMBER OR MOBILE TELEPHONE NUMBER.  FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT.  IF YOU OWE ANY OUTSTANDING AMOUNTS FOR THE SERVICE OR HAVE ANY UNRETURNED EQUIPMENT, THIS OBLIGATION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE UNTIL YOU PAY ALL OUTSTANDING AMOUNTS IN FULL AND RETURN ALL EQUIPMENT.  YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. SEC. 227), AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

15. ADDITIONAL PROVISIONS APPLICABLE TO VIDEO SERVICE.

15.1       Parental Control: Parental control features are available for use with the Video Service to block certain video programming channels and/or filter certain Internet content.  You will find information in your subscriber guide on how to enable these features.

15.2       Restrictions: Subscriber may not order or request residential Services for receipt, exhibition or taping in a commercial establishment.  If Subscriber fails to abide by this restriction, Subscriber accepts liability for any and all claims made against Subscriber or Citynet on account of any commercial exhibition.

15.3       Programming: Subscriber acknowledges and agrees that Citynet has the right at any time to preempt specific programs and to determine what substitute programming, if any, shall be made available.  Citynet may in its discretion make additions, deletions or modifications to its channel line-up without liability to Subscriber.

16. ADDITIONAL PROVISIONS APPLICABLE TO INTERNET SERVICE.

16.1       Customer Equipment: The personal computer and/or other devices that you use to access the Internet Service must meet minimum configuration standards.  Please refer to the Website for the current specifications.  Citynet does not install, support, maintain, repair or replace third-party hardware, including but not limited to home networks.  Any questions concerning third-party hardware should be directed to the manufacturer of that hardware product.

16.2        Software: If Citynet provides any third-party application or software and/or to the extent Citynet licenses any software, including installation tools, such software is provided for the limited purpose of facilitating your use of the Internet Service.  You will not engage in, or permit any additional copying, or any translation, reverse engineering, or reverse compiling, disassembly or modification of or preparation of any derivative works based on such software, all of which are prohibited.  Citynet may recommend use of software, information, products, or web sites that are owned or operated by other companies.  Citynet offers or facilitates this recommendation by application downloads, hyperlinks or other methods to aid your access to the third-party resource.  While Citynet endeavors to direct you to helpful, trustworthy resources, Citynet cannot endorse, approve, or guarantee software, information, products, or services provided by or at a third-party resource.  Thus, Citynet is not responsible for the content or accuracy of any third-party resource or for any loss or damage of any sort resulting from the use of, or for any failure of, products or services provided at or from a third-party resource.  When you use a third-party resource, you will be subject to its terms and licenses and no longer be protected by Citynet’s Customer Privacy Notice or security practices, which may differ from the third policy or practices or other terms.  You should familiarize yourself with any license or use terms of, and the privacy policy and security practices of, the third-party resource, which will govern your use of that resource.  You agree to comply with the terms and conditions of all end user license agreements accompanying any software and any such licenses will terminate upon the termination of this Agreement, and, at such time, you shall destroy all versions and copies of all software received by you in connection with the Internet Service.  Citynet makes no warranties, express or implied, regarding the conditions of merchantability or fitness for particular purpose or non-infringement of third-party rights of any product or application offered by a third-party resource.  You are solely responsible for ensuring compatibility of the Internet Service with any devices, including without limitation smart home devices.

16.3        Privacy:

Your use of the Internet Service is subject to the Customer Privacy Notice located at: http://www.citynet.net/about/legal. 

16.4        Using the WiFi Service:

In order to access and use the WiFi Service, you must: (1) have a wireless-enabled device (compliant with the IEEE 802.11g or n standards, and or any later standard we support) with a web browser or its equivalent; (2) provide all equipment and software necessary to connect to the Service (other than the access point provided by Citynet); (3) comply with applicable laws and regulations, including but not limited to copyright and intellectual property rights laws, and (4) be at least 18 years of age.

Your wireless Internet enabled device must be in close enough proximity to the WiFi Service access points to achieve connectivity with the WiFi Service network.  Actual WiFi Service coverage, location, and quality may vary.  While Citynet will use commercially reasonable efforts to provide useful and reliable WiFi Service, you acknowledge that the WiFi Service utilizes public unlicensed radio-frequency spectrum.  As a result, the WiFi Service is subject to external interferences, environmental influences, and other factors and variables beyond Citynet’s reasonable control, and may also be interrupted, refused, limited or curtailed for these reasons.

16.5        Facilities Allocation: Citynet reserves the right to determine, in its discretion, and on an ongoing basis, the nature and extent of its facilities allocated to support the Internet Service, including, but not limited to, the amount of bandwidth to be utilized and delivered in conjunction with the Internet Service.

16.6       Speeds Not Guaranteed: You agree that actual upload or download speeds that are experienced at any given time will vary based on many factors, including the capabilities of your equipment and equipment you have obtained from us, Internet congestion, the performance of network equipment, the strength of the Wi-Fi signal at your location, whether you have adequately protected your router from unauthorized use, the technical capabilities and demand for the content of the content provider, the distance between you and the content provider, the environmental factors, and any network management tools and techniques employed by Citynet. Citynet reserves the right to protect the integrity of its network and resources by any means it deems appropriate.  You agree that your Internet Service is subject to Citynet’s network management practices as posted on the Website, including any provisions related to bandwidth and data usage and storage.

16.7       Acceptable Use Policy: You agree not to use the Internet Service for any unlawful purpose and to comply with all policies and terms of Citynet’s Acceptable Use Policy which is incorporated into this Agreement by this reference.  You also agree that Citynet may change the Acceptable Use Policy from time to time without notice by posting updated versions on the Website.  If you, and/or any user of your Service, fail to abide by any of the terms of the Acceptable Use Policy, as updated, Citynet may terminate this Agreement and the provision of the Internet Service to you.  Additionally, Citynet reserves the right to charge you for any direct or indirect costs we may incur in connection with your failure to abide by this section or the Acceptable Use Policy.  You and other users of the Internet Service should periodically review the Acceptable Use Policy to conform to the most recent version.

The Internet Service may be used to provide Internet access over a wireless network using standard wireless Internet protocols.  You can use the Service to connect WiFi-compliant devices like a mobile phone, tablet, or laptop computer to the Internet.  You may only use the Internet Service (including WiFi) for personal conveniences and not for any critical uses.  Further, you are prohibited from using this Internet and WiFi Service for any and all commercial purposes.  If you have profited and engaged in commercial activity through your use of the Internet and WiFi Service, then Citynet will retroactively charge you for a comparable monthly data subscription for the period of such use, not to be less than one (1) month. 

16.7.1    Copyright Infringement: Citynet is committed to complying with U.S. copyright and related laws, and requires all users of the Citynet Internet Service to comply with these laws.  Accordingly, you may not use the Citynet Internet Service to store any material or content, or disseminate any material or content, in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted by U.S. copyright law.  If you are the owner of a copyrighted work and believe your rights under U.S. copyright law have been infringed by any material on the Internet Service, you may take advantage of certain provisions of the Digital Millennium Copyright Act (the “DMCA”) by sending Citynet’s authorized agent a notification of claimed infringement that satisfies the requirements of the DMCA.  Upon Citynet’s receipt of a satisfactory notice of claimed infringement, Citynet will respond expeditiously either directly or indirectly (i) to remove the allegedly infringing work(s) accessible through the Internet Service or (ii) to disable access to the work(s).  It is Citynet’s policy in accordance with the DMCA and other applicable laws to reserve the right to terminate access to the Internet Service (or any part of those services) for any user who is either found to infringe third-party copyright or other intellectual property rights, including repeat infringers, or who Citynet, in its sole discretion, believes is infringing these rights.  Citynet may terminate access to the Citynet Internet Service at any time with or without notice for any affected customer or user.  If the affected user believes in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then that person may send a counter notification to Citynet.  Upon Citynet’s receipt of a counter notification that satisfies the requirements of DMCA, Citynet will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures with respect to a received counter notification.  In all events, you expressly agree that Citynet will not be a party to any disputes or lawsuits regarding alleged copyright infringement.  Any notification of claimed infringement must be in a form that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act.  Under the DMCA, anyone who knowingly makes misrepresentations regarding alleged copyright infringement may be liable to Citynet, the alleged infringer, and the affected copyright owner for any damages incurred in connection with the removal, blocking, or replacement of allegedly infringing material.  If a notification of claimed infringement has been filed against you, you can file a counter notification with Citynet.  All counter notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act.

16.7.2    Unlawful Use and Prohibited Activities:  The use of the Internet Service for any activity that violates any local, state, federal or international law, order or regulation is a violation of this Acceptable Use Policy.  Prohibited activities include, but are not limited to the following: 

When you use the Internet and WiFi Service, you agree that you will not:

• undertake or accomplish any unlawful purpose, including without limitation by posting, storing, transmitting or disseminating information, data or material which is libelous, obscene, unlawful, threatening or defamatory, or which infringes the intellectual property rights of any person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offense, or otherwise violate any local, state, federal, or non-U.S. law, order, or regulation;
• post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be unlawful;
• upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way information, software or other material obtained through the Service or otherwise that is protected by copyright or other proprietary right, without obtaining any required permission of the owner;
• transmit unsolicited bulk or commercial messages commonly known as “spam;”
• send very large numbers of copies of the same or substantially similar messages, empty messages, or messages which contain no substantive content, or send very large messages or files that disrupts a server, account, blog, newsgroup, chat, or similar service;
• initiate, perpetuate, or in any way participate in any “pyramid” or other illegal scheme;
• participate in the collection of very large numbers of email addresses, screen names, or other identifiers of others (without their prior consent), a practice sometimes known as spidering or harvesting, or participate in the use of software (including “spyware”) designed to facilitate this activity;
• collect responses from unsolicited bulk messages;
• falsify, alter, or remove message headers;
• falsify references to Citynet or its network, by name or other identifier, in messages;
• impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity (for example, “phishing”);
• violate the rules, regulations, terms of service, or policies applicable to any network, server, computer database, service, application, system, or web site that you access or use;
• access any other person’s computer or computer system, network, software, or data without his or her knowledge and consent; breach the security of another user or system; or attempt to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, or probing the security of other hosts, networks, or accounts without express permission to do so;
• use or distribute tools or devices designed or used for compromising security or whose use is otherwise unauthorized, such as password guessing programs, decoders, password gatherers, keystroke loggers, analyzers, cracking tools, packet sniffers, encryption circumvention devices, or Trojan Horse programs. Unauthorized port scanning is strictly prohibited;
• copy, distribute, or sublicense any proprietary software provided in connection with the Service by Citynet or any third party, except that you may make one copy of each software program for back-up purposes only;
• distribute programs that make unauthorized changes to software (cracks);
• use or run dedicated, stand-alone equipment or servers, also commonly referred to as public services or servers. Examples of prohibited equipment and servers include, but are not limited to, email, web hosting, file sharing, and proxy services and servers;
• use or run programs that provide network content or any other services, except for personal and non-commercial use;
• service, alter, modify, or tamper with any Citynet equipment or service or permit any other person who is not authorized by Citynet to do so;
• use the Service for any purpose other than personal and non-commercial use;
• use the Service for operation as an Internet service provider or for any business, other legal entity, or organization purpose (whether or not for profit);
• restrict, inhibit, or otherwise interfere, regardless of intent, purpose or knowledge, with the ability of any other person to use or enjoy the Service (except for tools for safety and security functions such as parental controls, for example), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature;
• impede others’ ability to use, send, or retrieve information;
• restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any Citynet (or Citynet supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any Citynet (or Citynet supplier) facilities used to deliver the Service;
• resell the Service, in whole or in part, directly or indirectly;
• interfere with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abusing operator privileges, and attempts to “crash” a host;
• falsify, alter, spoof, or otherwise modify or change any Internet protocol (“IP”) or Media Access Control address (sometimes called a MAC address) assigned to or associated with your device to access the WiFi Service; or
• access and use the Service with anything other than a dynamic IP address that adheres to the dynamic host configuration protocol (“DHCP”). You may not configure your device to use this Service or any related equipment to access or use a static IP address or use any protocol other than DHCP.

16.7.3   Multiple Users: The Internet Service and Citynet Equipment shall be used only by you and by members of your immediate household living with you at the same address.  The Residential Subscriber Agreement binds you and all persons who use your Internet Service.  You shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and provisions incorporated herein by reference.  You further acknowledge and agree that you are solely responsible for and liable for any and all breaches of the terms and conditions of this Agreement, whether the breach is the result of use of the Internet Service and/or Citynet Equipment, by you or by any other user.

16.7.4   Theft of Service: You acknowledge that any unauthorized receipt of the Service constitutes theft of service, which is a violation of federal 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.

16.7.5   Responsibility for Content: You acknowledge that there is some content and material on the Internet or otherwise available through the Internet Service that may be offensive to some individuals, may be unsuitable for children, may violate federal, state or local laws, rules or regulations, or may violate your protected rights or those of others.  We assume no responsibility for this content or material.  Anyone who accesses such content and material does so at his or her own risk.  NEITHER CITYNET NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO ACCESS TO SUCH CONTENT OR MATERIAL BY YOU OR OTHERS.  Questions or complaints regarding content or material should be addressed to the content or material provider.  You acknowledge that software programs are commercially available that claim to be able to restrict access to sexually explicit or other objectionable material on the Internet.  We make no representation or warranty regarding the effectiveness of such programs.

16.7.6   Eavesdropping: The public Internet is used by numerous persons or entities including, without limitation, other subscribers to Citynet’s Internet Service.  As is the case with all shared networks like the public Internet, there is a risk that you could be subject to “eavesdropping.” This means that other persons or entities may be able to access and/or monitor your use of the Internet Service.  If you post, store, transmit, or disseminate any sensitive or confidential information, you do so at your sole risk.  NEITHER CITYNET NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO SUCH ACTIONS BY YOU.  You acknowledge that software programs are commercially available that claim to be capable of encryption or anonymization.  We make no representation or warranty regarding the effectiveness of these programs.

16.7.7    Security: You are solely responsible for taking the necessary precautions to protect yourself and your equipment, software, software configurations, files and data against any risks inherent in the use of the public Internet.  You are also responsible for any misuse of your Internet Service, even if the inappropriate activity was committed by a friend, family member, guest, employee, or any other person with access to the Internet Service.  Therefore, you must take steps to ensure that others do not gain unauthorized access to the Internet Service, for instance by strictly maintaining the confidentiality of your passwords or by appropriately protecting the use of your computer or any wireless devices you use in connection with the Internet Service.  You are solely responsible for the security of any device you choose to connect to the Internet Service, including any data stored on that device.  Citynet recommends that any files or services you do choose to make available for remote access be protected with a strong password or as otherwise appropriate.  In addition, without limiting this responsibility:

16.7.7.1 Service Setup: You acknowledge that when using the Internet Service there are certain applications, such as a web browser or email client, that use protocols such as FTP (File Transfer Protocol) or HTTP (Hyper Text Transfer Protocol) which may be used by others to gain access to your computer and operating system including all software, files and data thereon.  You are solely responsible for the security of your computer and operating system or any other equipment you choose to use in connection with the Internet Service, including without limitation any software, files or data stored thereon.  Citynet shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to the use of such applications by you, or the access by others to your computer, operating system, or other equipment of yours or the data, software or files thereon.

16.7.7.2 File and Print Sharing: The Internet Service functions in some ways as a Local Area Network (LAN) with each subscriber constituting a node on the network.  As such, others may be able to access your computer, operating system, data and other equipment connected in some way to your computer and operating system.  In addition, some available software includes capabilities that will permit other users to gain access to your computer, operating system, data and other connected equipment to the software, files and data stored on such equipment, even if you are not using the Internet Service.  We recommend that you disable file and print sharing and other capabilities that allow outside users to gain access to your computer, operating system, or other equipment of yours or the data, software or files thereon.  You acknowledge that if you choose to run these applications, you should take appropriate security measures, and that any failure by you to follow this recommendation is at your sole risk.  Citynet shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to access by others to your computer, operating system, or other equipment of yours or the data, software or files thereon.

16.7.7.3 Information Provided to Third Parties: The Internet Service will allow you to access third parties, including without limitation, content providers, online services and other providers of goods, services and information.  Some of these goods, services and information may be accessible directly from the Internet Service and others may be accessible from the third parties referenced above.  In connection with this third-party access, you may be requested or required to provide your name, address, telephone number, credit card number and other personally identifiable information to such third parties.  If you choose to provide this information to third parties, you understand that it is not subject to the privacy provisions of this Agreement or Citynet’s Customer Privacy Notice.  You are solely responsible for any and all data, including, without limitation, encrypted data that is sent to, stored on or retrieved from any server utilized in providing the Internet Service to you.  We make no representations or warranties regarding the viability, integrity or robustness of any encryption used by Citynet or its suppliers.  Citynet shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to access by others to your data.  You assume all privacy and other risks associated with providing personally identifiable information to third parties via the Internet Service.

16.7.8    Bandwidth Monitoring and Enforcement: We have no stated limits on usage at this time, but may implement such usage limits in the future.  Any usage of bandwidth that interferes with the efficient operation of our network shall be deemed excessive for purposes of this provision.  Subscriber acknowledges and agrees that Citynet shall have the right to monitor the “bandwidth” utilization (i.e. volume of data transmitted) arising out of the Internet Service provided hereunder at any time and on an on-going basis.  In its sole discretion, Citynet may: (i) limit excessive use of bandwidth; (ii) suspend or terminate your account for excessive use of bandwidth; (iii) require you to upgrade your service level and pay additional fees in accordance with Citynet’s then-current price list; (iv) require the payment of one and a half times the Internet Service charges for past excessive bandwidth usage; and/or (v) otherwise require the payment of high bandwidth usage fees. If Citynet determines that Subscriber has failed to comply with Citynet’s Acceptable Use Policy or limits on bandwidth utilization, Citynet may suspend or terminate Subscriber’s account immediately without prior notification.  Citynet may also immediately suspend or terminate Subscriber’s account for using the Internet Service to post content to the Internet that violates the Acceptable Use Policy.  If Subscriber’s account is suspended, Subscriber will not be charged for that period of time.  If Subscriber’s account is terminated, Subscriber will be refunded any pre-paid fees minus any amount due to Citynet for Citynet Equipment or other applicable fees and charges.  For more information regarding Citynet’s network management practices, please see the Network Management Disclosure on the Website at http://www.citynet.net/about/legal. 

16.7.9    Inappropriate Content and Transmissions: Citynet reserves the right, but not the obligation, to refuse to transmit or post and to remove or block any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate, and regardless of whether this material or its dissemination is unlawful.  Neither Citynet nor any of its suppliers have any obligation to monitor transmissions or postings (including, but not limited to, email, newsgroup, and instant message transmissions) made on the Internet Service.  However, Citynet and its suppliers have the right to monitor these transmissions and postings from time to time for violations of this Acceptable Use Policy and to disclose, block, or remove them in accordance with the Residential Subscriber Agreement and any other applicable agreements and policies.

16.7.10  Electronic Mail:  The Internet Service may not be used to send unsolicited bulk or commercial messages and may not be used to collect responses from unsolicited email sent from accounts on other Internet hosts or email services that violate this Acceptable Use Policy or the acceptable use policy of any other Internet service provider.  Activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email, whether or not the email is commercial in nature, are prohibited.  Forging, altering, or removing electronic mail headers is prohibited.  You may not reference Citynet or the Citynet network (e.g. by including “Organization: ” in the header or by listing an IP address that belongs to the network) in any unsolicited email even if that email is not sent through the Citynet network or Internet Service.

Citynet is not responsible for forwarding email sent to any account that has been suspended or terminated.  This email will be returned to the sender, ignored, deleted, or stored temporarily at Citynet’s sole discretion.  In the event that Citynet believes in its sole discretion that any subscriber name, account name, or email address (collectively, an “identifier”) on the Internet Service may be used for, or is being used for, any misleading, fraudulent, or other improper or illegal purpose, Citynet (i) reserves the right to block access to and prevent the use of any such identifier and (ii) may at any time require any subscriber to change his or her identifier. In addition, Citynet may at any time reserve any identifiers on the Internet Service for its own purposes.

Citynet offers unlimited email storage subject to the terms of the Residential Subscriber Agreement and this Acceptable Use Policy.  In addition to any other remedy stated herein, Citynet reserves the right to assess a fee if, in its sole discretion, you email storage is deemed excessive.  Citynet similarly may limit the size of any individual email message or attachment, if in Citynet’s sole discretion, it is considered excessive.

16.7.11  Newsgroups:  Messages posted to newsgroups must comply with the written charters or frequently asked questions for those newsgroups as well as any other terms and conditions applicable to any particular newsgroups or provider of newsgroups.  Advertisements, solicitations, or other commercial messages should be posted only in those newsgroups whose charters or frequently asked questions explicitly permit them.  You are responsible for determining the policies of a given newsgroup before posting to it.  Citynet reserves the right to discontinue access to any newsgroup at any time for any reason.

16.7.12  Instant Messages and Social Media:  You alone are responsible for the contents and the consequences of any instant messages or social media activities.  Citynet assumes no responsibility for the timeliness, delivery or mis-delivery, deletion or failure to store instant messages or social media content.

16.7.13  Violation of Acceptable Use Policy:  Citynet does not routinely monitor the activity of Internet Service accounts for violation of this Acceptable Use Policy.  However, in Citynet’s efforts to promote good citizenship within the Internet community, Citynet will respond appropriately if Citynet becomes aware of inappropriate use of the Internet Service.  Although Citynet has no obligation to monitor the Internet Service and/or the network, Citynet and its suppliers reserve the right at any time to monitor bandwidth, usage, transmissions, and content from time to time to operate the Internet Service; to identify violations of this Acceptable Use Policy; and/or to protect the network, the Internet Service and Citynet users.

Citynet prefers to advise customers of inappropriate behavior and any necessary corrective action.  However, if the Internet Service is used in a way that Citynet or its suppliers, in their sole discretion, believe violate this Acceptable Use Policy, Citynet or its suppliers may take any responsive actions they deem appropriate.  These actions include, but are not limited to, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and the immediate suspension or termination of all or any portion of the Internet Service.  Neither Citynet nor its affiliates, suppliers, or agents will have any liability for any these responsive actions.  The above described actions are not Citynet’s exclusive remedies and Citynet may take any other legal or technical action it deems appropriate.

Citynet reserves the right to investigate suspected violations of this Acceptable Use Policy, including the gathering of information from the subscribers or users involved and the complaining party, if any, and examination of material on Citynet’s servers and network and those of Citynet’s suppliers used in delivering service.  During an investigation, Citynet may suspend the account or accounts involved and/or remove or block material that potentially violates this Acceptable Use Policy.  You hereby authorize Citynet and its suppliers to cooperate with (i) law enforcement authorities in the investigation of suspected legal violations and (ii) and system administrators at other Internet service providers or other network or computing facilities in order to enforce this Acceptable Use Policy.  This cooperation may include Citynet providing information about you to law enforcement or system administrators, including, but not limited to, username, subscriber name, IP address, and other account information.  Upon termination of your account, Citynet is authorized to delete any files, programs, and email messages associated with your account.  The failure of Citynet or its suppliers to enforce this Acceptable Use Policy, for whatever reason, shall not be construed as a waiver of any right to do so at any time.  You agree that if any portion of this Policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.

17. ADDITIONAL PROVISIONS APPLICABLE TO VOICE SERVICE.

17.1       Voice Service Provided: The Voice Service provides a voice connection to the public switched telephone network using voice over Internet protocol technology, together with various other related features and functionalities.  Citynet may offer various service options from time to time.  Citynet’s most current services are set forth in Citynet’s product description, which may be updated or changed from time to time.  The Voice Service may also include various calling features (for example, Call Waiting, Call Forwarding, Caller ID, etc.), and international calls with per minute metered rates.  You understand and agree you are prohibited from reselling the Voice Service or Citynet Equipment or using them for dialup Internet service to a long-distance number, autodialing, international dial back, continuous or extensive calling forwarding, telemarketing, fax broadcasting, fax blasting, or any use inconsistent with normal call patterns.  If Citynet determines, in its sole discretion, that your Voice Service or Citynet Equipment is being used for any of the aforementioned activities or in the event of an excessive number of calls or minutes of use, Citynet reserves the right to terminate your Voice Service immediately and without notice or to assess additional charges for each month in which excessive usage occurred.  You understand that Citynet will set limits, in its sole discretion, on the amount and length of time voice mail messages may be saved and that neither Citynet nor any of its third-party providers will be liable for any lost, erased or non-delivered voice mail messages.

17.2       Unauthorized Use: You will be liable for all authorized and unauthorized Voice Service use at the Premises.  You agree to notify Citynet immediately in writing or by calling Citynet’s customer service line if your Citynet Equipment has been stolen or your Voice Service is being stolen or used without your authorization.  When you call or write, you must provide your account number and a detailed description of the circumstances of the theft of your Citynet Equipment or unauthorized use of the Voice Service.  If you fail to notify us in a timely manner, your Voice Service may be terminated without notice and you may be responsible for any charges incurred through the unauthorized use of the Voice Service.

17.3       Unavailability of Service: You understand and acknowledge that you will not be able to use the Voice Service (and potentially other Citynet equipment in homes served directly by fiber optics) under certain circumstances, including, but not limited to, the following: (1) if our network or facilities are not operating or (2) if normal electrical power to the voice capable modem is interrupted and the voice-capable modem does not have a functioning battery backup. You also understand and acknowledge that the performance of a battery backup is not guaranteed and may depend on many variables, including but not limited to battery age and temperature.  If the battery backup does not provide power, the Voice Service will not function until normal power is restored.  YOU ARE RESPONSIBLE FOR MONITORING THAT THE TELEPHONE EQUIPMENT BEING USED IS CONNECTED TO ELECTRICAL POWER AT ALL TIMES, THAT YOU HAVE SUFFICIENT BACKUP POWER SUPPLIES FOR ELECTRICAL POWER OUTAGES, AND ORDER REPLACEMENT BATTERIES WHEN NECESSARY.  Cordless telephones powered by electricity will not function during a power outage, even if the Voice Service is functioning properly.  You understand and acknowledge that Citynet does not support priority restoration of its Voice Service.  You also understand and acknowledge that you will not be able to use online features of the Voice Service (where available), under certain circumstances including, but not limited to, the interruption of your Internet connection.

17.4       Relocation: If you do not provide the correct address when you register for the Voice Services or if you relocate your Citynet Equipment to a new address and do not register the new address with Citynet, 911/E911 may fail in two ways: (i) 911/E911 calls may be misdirected to the wrong emergency authorities, and (ii) emergency authorities will be given the wrong address for the origin of your E911 calls. You will not relocate Citynet Equipment associated with the Voice Service.  At your request, Citynet may relocate Citynet Equipment within your Premises for an additional charge, at a time agreeable to you and to Citynet.  If you change service location, you must contact Citynet for information on whether Citynet Equipment and Voice Services can be transferred to your new location and what the relocation will cost.  You understand that Citynet will need several business days to update service location information, so that 911/E911 calls may be properly directed.  If you wish to disconnect the Voice Services, you must contact Citynet for information on the necessary procedures.

17.5       Power Source and Battery Back-Up: The Voice Service does not have its own power source and will not work unless Citynet Equipment is connected to an independent power supply (for example, an active wall socket) provided by the Subscriber.  IF YOU LOSE POWER, YOUR TELEPHONE SERVICES WILL NOT WORK, INCLUDING EMERGENCY 911, ALARM AND SECURITY SERVICES, AND MEDICAL MONITORING SERVICES THAT RELY ON OUR PHONE SERVICE.  Citynet has backup batteries available for purchase to supply power for a limited period of time in the event of a power outage at the Subscriber’s Premises.  Batteries are not included in our standard equipment rental since many of our customers prefer to avoid the extra cost of batteries by choosing to rely on mobile phones and/or provide their own backup power sources that can also power other equipment.  You are responsible for making your own decision about whether or how to supply back-up power for your phone service. 

The warranty period for batteries ordered directly from Citynet is specified by the battery manufacturer.  Any warranty claims must be submitted to the battery manufacturer, whose information can be found in the manual provided with the battery.  Please note the battery is designed to fit your specific telephone modem and may not be available at retail stores. 

TO THE EXTENT PERMITTED BY LAW, CITYNET IS NOT LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE BATTERY.  TO THE EXTENT PERMITTED BY LAW, CITYNET DISCLAIMS ALL WARRANTIES FOR THE BATTERY, WHETHER IMPLIED, EXPRESSED, ORAL, WRITTEN OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Additionally, you understand that any battery backup attached to Citynet Equipment may enable backup Voice Service for a limited period of time or not at all, depending on the circumstances, and that inclusion of the battery does not ensure that the Voice Service will be available in all circumstances.  The length of time that the Voice Service will be available during a power outage will depend on the following: (i) the backup battery remains properly installed in the voice-capable modem; (ii) the condition and age of the backup battery; and (iii) the amount of Voice Service usage when the voice-capable modem is utilizing power from the backup battery.  If Voice Service is also being used with Internet Service, continued use of the Internet Service during a power outage will decrease the battery backup life.  Batteries also lose capacity with age, performance is likely to degrade if the battery is stored at temperatures outside of normal room temperature or if it is frequently discharged and charged.  YOU ARE SOLELY RESPONSIBLE FOR TESTING, MONITORING, AND REPLACING YOUR BATTERIES ON A REGULAR BASIS.  We recommend that you check your battery at least every six months by checking the battery indicator while the battery backup unit is plugged in or by checking your home phone’s functionality while the battery backup unit is unplugged.  It is recommended that all batteries be replaced every three years.

You understand and acknowledge that: (i) the performance of the backup battery is not guaranteed; and (ii) you will not be able to use the Voice Service if electrical power to the voice-capable modem is interrupted and the voice-capable modem does not have a functioning backup battery.  A voice-capable modem backup battery does not power cordless phones or other equipment connected to the telephone line that require electricity from your Premises, such as telecommunications devices used to assist customers with disabilities.  UNDER THE FOREGOING CIRCUMSTANCES, INCLUDING IF THE ELECTRICAL POWER AND/OR CABLE NETWORK OR FACILITIES OF CITYNET ARE NOT OPERATING, THE VOICE SERVICE, INCLUDING THE ABILITY TO ACCESS EMERGENCY 911, ALARM AND SECURITY SERVICES, AND MEDICAL MONITORING SERVICES, WILL NOT BE AVAILABLE.  CITYNET WILL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE VOICE SERVICE.  In the event of a power failure you may be required to reset your Citynet Equipment or other equipment prior to utilizing the Voice Service.

17.6       Subscriber Equipment: In order to use the Voice Service, you must also provide certain subscriber premise equipment, such as a telephone handset or equivalent, telephone inside wire and outlets, a powered electrical outlet, and a backup battery.  Citynet does not provide subscriber premise equipment as part of the Voice Service.  You represent that you either own the subscriber premise equipment or have the right to use it in connection with the Voice Service.  Citynet shall have no obligation to provide, maintain, or service the subscriber premise equipment that you provide.  Citynet makes no representation that any particular type or brand of subscriber premise equipment, such as facsimile, credit card readers, data terminals, alarm or other security systems will operate with the Voice Service or Citynet Equipment.

17.7       Limit of Liability for Directory Assistance, White Pages, Yellow Pages or Other Directory Errors: Citynet’s liability arising from errors in or omissions of directory listings as a result of Citynet’s negligence, shall be limited to and satisfied by a refund not exceeding the amount of any charges associated with the directory listing in which the error or omission occurs.  Citynet, in accepting listings as prescribed by Subscriber, will not assume responsibility for the result of the publication of such listings in directories, nor will Citynet be a party to controversies arising between Subscriber and others as a result of such publication.

17.8       Transfer of Phone Number:

17.8.1    Switching to Citynet from Another Provider: In order to transfer, or “port” your existing telephone number to Citynet Voice Service, you must authorize Citynet as your local, long distance, and international call carrier.  Until your number is successfully ported, you should not cancel your telephone service with your current provider or you may lose the ability to port your number.  You will be notified by Citynet when your number has been successfully ported.  You understand that, on the date your telephone number is ported from your existing telephone provider, you will no longer be able to receive telephone service on that line.  You must have Citynet Equipment and the Voice Service installed as of that date to avoid interruption to your service.  Your ported number will be your primary number.  Local number portability may not be available in all areas, and Citynet makes no guaranty or warranty that you will be able to transfer, port, or retain your existing telephone number.

17.8.2   Switching from Citynet to Another Provider: To transfer your phone number from Citynet to another service provider, you must place the order to transfer the Voice Service through your new service provider (and not through Citynet).  Citynet will release your phone number to your new service provider, provided that: (i) your new service provider submits a properly completed transfer request to Citynet; (ii) your new service provider will accept transfer of the phone number without delay or charge to Citynet; (iii) you have paid all outstanding charges to Citynet; and (iv) transfer of your existing phone number to the new service provider would not, in Citynet’s sole discretion, violate applicable law or Citynet’s processes and procedures.

17.9       Phone Number Assignment: If you do not port your existing telephone number, a new phone number will be assigned to you based on the location of your Premises.  The new phone number assigned will be your primary number.  Once the number is assigned to you, you will generally not be able to change numbers except in extraordinary circumstances (for example, harassment, etc.) as determined by Citynet in its sole discretion.

17.10     Alarm and Security Systems and Other Non-Voice Communications Equipment: By using the Voice Service and thereby agreeing to this Agreement you hereby waive any claim against Citynet and Citynet’s third party providers in connection with your Voice Service and Citynet Equipment, for interference with or disruption of such alarm or other security systems and any and all other communications or electronic equipment due to your Voice Service and Citynet Equipment.  Subscriber acknowledges and agrees that Voice Service may not be compatible with any or all ancillary services and systems, including, but not limited to, alarm and security systems, fire alarm and communication panels, 911/E-911 calling, or other emergency or medical monitoring devices.  Additionally, Subscriber’s election to use the Voice Service with certain fire panel alarms or other emergency notification operations may violate or be out of compliance with applicable laws, codes and regulations.  Subscriber’s attempt to use any such ancillary services and systems in connection with the Voice Service is solely at Subscriber’s own discretion and risk, and Citynet shall not be liable for any damages whatsoever for any non-compliance, non-operation or damage to such ancillary services or systems.  SUBSCRIBER ACKNOWLEDGES AND AGREES THAT NEITHER CITYNET NOR ITS AFFILIATES WILL BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911/E911, INABILITY TO USE FIRE PANEL ALARMS AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE VOICE SERVICE.  SUBSCRIBER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CITYNET AND ITS AFFILIATES, DIRECTORS, MEMBERS, OFFICERS, EMPLOYEES, MANAGERS, AGENTS, REPRESENTATIVES, AND CONTRACTORS FROM ANY AND ALL ACTIONS, CLAIMS, SUITS, JUDGMENTS, DAMAGES, DEMANDS, LOSSES, OR PENALTIES, AND ANY COSTS OR EXPENSES ASSOCIATED THEREWITH (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES, EXPERT FEES AND COSTS) BY, OR ON BEHALF OF, SUBSCRIBER OR ANY THIRD PARTY OR USER OF THE VOICE SERVICE RELATING TO THE NON-COMPLIANCE, FAILURE OR OUTAGE OF THE VOICE SERVICE, INCLUDING THOSE RELATED TO 911/E911 OR OTHER EMERGENCY NOTIFICATION/RESPONSE SERVICES.

17.11     Automated Number Identification: If Subscriber has call forwarding, locate me, do not disturb, or other features programmed and in use at the time Subscriber dials a 911 call, and Subscriber’s 911 call is interrupted, the emergency dispatcher may not be able to call Subscriber back at the phone from which Subscriber dialed the call.  Existing emergency response systems are not always technically capable of receiving and/or passing routing information properly.  Accordingly, emergency personnel may not be able to identify your phone number in order to call you back if your call is not completed, dropped or disconnected, or if you are unable to speak to tell the emergency dispatcher or operator your phone number and/or if the Voice Service is not operational for any reason.

17.12     Use of TDD Or TTY Equipment: The Voice Service and Citynet Equipment may not be fully compatible with all types of TDD or TTY devices for the hearing impaired and that where such devices are used to make calls, neither Citynet nor Citynet’s third party providers, hold themselves out as providing or enabling Citynet to provide the Voice Service, including emergency 911/E911 services compatible with any TDD/TTY devices.

17.13     Suspension and Termination by Citynet: You understand and acknowledge that all Voice Services, including 911/E911, as well as all online features of the Voice Services, where we make these features available, will be disabled if your account is suspended or terminated