This Service Agreement (“Agreement”) states the terms and conditions under which subscribers (“You” or “Customer”) agree to purchase and use video programming, high-speed internet, voice service, and/or any other product or service (individually and collectively the “Services”) from Stimulus Technologies Corp. and its current and future subsidiaries (“Stimulus”).  By using any Service, completing an online order that includes acceptance of the Agreement through e-commerce checkboxes, or completing an order that includes acceptance of the Agreement through CSR verbally, Customer agrees to be bound by the terms of this Agreement and the policies referenced or incorporated herein as may be amended from time to time.  If at any time you decide that you do not agree to these terms and conditions, you must contact us immediately to request disconnection of the Services.  Customer agrees that Stimulus MAY AMEND THE TERMS OF THE AGREEMENT PROSPECTIVELY BY POSTING A REVISED VERSION ON ITS WEBSITE THAT WILL BE DEEMED EFFECTIVE IN 30 DAYS.  We may also change our rates upon thirty (30) days’ prior notice.  If you continue to receive Service(s) after the end of the notice period, you will be considered to have accepted the changes.

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH PROVIDES THAT YOU AND STIMULUS AGREE TO RESOLVE CERTAIN DISPUTES THROUGH ARBITRATION AND TO WAIVE CLASS ACTIONS.  YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION PROVISION.  SEE SECTION 5.

  1. SERVICE AND RATES

Customer agrees to pay all applicable charges for the Services and any equipment provided by Stimulus (“Stimulus Equipment”) at the rates posted at www.stimulusbroadband.com or as otherwise agreed to in any Service Order, term commitment agreement, or provided to Customer in writing at the time that service is ordered, installed, or changed.  These charges may include “Monthly Service Charges” for Services and Stimulus Equipment, usage charges (such as pay-per-view programming or international telephone calls), and one-time charges that may include, but are not limited to, construction, Service Installation Charge(s) for installation, repair, replacement, Customer moves, or any non-recurring charges.  The Service shall only be provided to Customer(s) at the address where Stimulus’s installation is performed.  Customer may not transfer Customer’s rights or obligations to the Service to any successor tenant or occupant or to any other address without Stimulus’s prior written consent.  Service charges will begin to accrue at the earlier of the date a Service is installed or activated, or when Customer receives equipment from Stimulus to perform a self-installation.  The Service and all Service features are subject to availability on an ongoing basis.  Stimulus may without notice rearrange, delete, add, discontinue, modify, decline to provision, preempt or blackout programming, or otherwise change any or all Services or their features, content, technical specifications, packaging, or distribution at any time in its sole discretion.

  1. PAYMENT TERMS

(a)        Service Fees.  Stimulus reserves the right to require payment of installation fees, deposits, and/or the first month of a Service in advance prior to activation or installation of a Service.  Otherwise, Monthly Services Charges will be billed in advance and usage, one-time and other charges will be billed in arrears.  Customer agrees to be responsible for any and all charges, damages and costs that Customer or anyone using Customer’s Services incurs.  Stimulus may charge a monthly support maintenance fee or a per-instance support charge, depending on Customer location, for technical support services related to the Service.  Stimulus will identify any support charges to Customer prior to providing any technical support that would result in such charge(s).

(b)        Taxes, Fees and Government Charges.  Customer agrees to pay any sales, use, property, excise or other taxes, franchise fees, governmental charges (excluding income taxes), contributions to government programs such as the Federal Universal Service Fund and surcharges that Stimulus is permitted by applicable law to collect from its customers, as they may change from time to time.  These may include but are not limited to surcharges for programming, license, copyright, retransmission of broadcast signals, and to recover Stimulus’s reasonable costs for complying with applicable government regulations.  A copy of the Customer’s tax exemption document, if applicable, must be provided in a format reasonably acceptable to Stimulus to certify tax-exempt status.  Tax-exempt status shall not relieve Customer of its obligation to pay any applicable franchise fees or certain fees and surcharges.

(c)        Invoicing Errors.  Customer must provide written notice to Stimulus of any statement errors or disputed charges within thirty (30) days of the statement date on which the errors and/or disputed charges appear or any right to dispute such charges shall be waived.  In the case of a billing dispute between the Customer and Stimulus that cannot be settled to their mutual satisfaction, the undisputed portion and subsequent bills must be paid on a timely basis, or the Service may be subject to disconnection.  During the period that the disputed amount is under investigation, Stimulus shall not pursue any collection procedures with regard to the disputed amount.  The Customer shall be required to pay the undisputed part of the bill, and if not paid, Stimulus may discontinue service.  Stimulus will investigate customer complaints promptly and thoroughly.

(d)        Due Date and Late Fees.  All payments for Services are due and payable 7 days from the invoice date of the bill.  Customer cannot settle amounts owed us by writing “paid in full” or any other message on a check or other communication.  If Customer fails to pay an invoice by the due date Customer will be charged a late fee on any outstanding past-due balance, and Stimulus reserves the right to terminate or suspend all Services.

(e)        Non-Payment.  If Services are terminated because Customer does not pay for Service, Stimulus may, in its sole discretion, require that Customer pay all past due charges, a reconnect fee, and a minimum of one month’s Monthly Service Fees in advance before Stimulus will reconnect Services.  Customer shall be responsible for all expenses, including reasonable attorneys’ fees and collection costs, incurred by Stimulus in collecting any unpaid past due amounts due under this Agreement.

(f)         Returned Checks, Bankcard or Credit Card Charge-Backs and Collection Fees.  Stimulus may charge a reasonable service fee for all returned checks and bankcard, credit card or other charge card charge-backs.  Customer agrees that Stimulus has the right to present to Customer’s banking institution for payment via electronic funds transfer, any returned check or declined card amount and the applicable NSF Fee.

(g)        Payment by Credit or Debit Card.  All payments made by credit or debit card will incur an additional charge per transaction.

(h)        Payment by Check.  By sending your check to us, you authorize us to send the information from your check electronically to your bank for payment or to present an image copy of your check for payment.  Your bank account will be debited in the amount of your check as early as the same day we receive your payment, and the transaction will appear on your bank statement.  Your original check may be destroyed, and you will not receive your cancelled check back.

(i)         Deposits.  We may require you to pay a refundable deposit when you activate a Service, if you add Stimulus Equipment, or if you fail to pay any amounts when they are due.  If we disconnect your Service(s) or are otherwise required under applicable law to refund the deposit, we shall within forty-five (45) days or as otherwise specified by applicable law return a sum equal to the deposit(s) you paid (without interest unless otherwise required by law) minus any amounts due on your account (including without limitation, any amounts owed for Services or for any Stimulus Equipment that is damaged, altered, or not returned).

(j)         Prior Accounts.  Customer warrants that no monies are owing to Stimulus from previous Customer accounts with Stimulus.  If Stimulus finds a prior account with Customer with monies owed to Stimulus, then Stimulus may apply any funds received from Customer to that prior account before the funds are applied to the new account.  Stimulus is not required to furnish its service or to continue its service to any applicant who, at the time of application, is indebted under an undisputed bill to Stimulus for Service previously furnished to such applicant or any other member of the applicant’s household.

  1. PREMISES ACCESS AND INSTALLATION

(a)        Premises Access and Installation.  Customer shall provide Stimulus, its employees, contractors, and agents with reasonable access to Customer’s home, business, property, rooftop, exterior walls, utility areas, crawl spaces, attics, garages, easements, rights-of-way, and any other location where Services have been requested or are provided (“Customer Premises”) as reasonably necessary to survey, design, install, inspect, test, maintain, repair, replace, upgrade, relocate, disconnect, or remove any Equipment, Materials, facilities, wiring, cabling, antennas, radios, mounts, masts, conduit, service drops, pedestals, handholes, grounding equipment, or other facilities used to provide the Services.

Customer authorizes Stimulus to perform reasonable installation and construction activities necessary to provide the Services, which may include attaching Equipment or Materials to the exterior of buildings or structures, accessing or working on rooftops, installing aerial or underground service drops, routing cable or fiber, installing conduit or protective materials, mounting fixed wireless equipment, and performing trenching, boring, hand-digging, or other excavation where reasonably necessary.  Stimulus will use commercially reasonable care when performing such work, but Customer acknowledges that installation may require physical alteration to the Customer Premises. Stimulus is responsible for making reasonable efforts to restore property to preexisting conditions.

If Customer owns or controls the Customer Premises, Customer grants Stimulus permission to enter and perform the activities described above.  If Customer does not own or control the Customer Premises, Customer represents and warrants that Customer has obtained all necessary permissions from the owner, landlord, property manager, homeowners’ association, condominium association, governmental authority, or other person or entity with authority over the Customer Premises for Stimulus to enter the Customer Premises and perform the activities described above.  Customer is responsible for any required permissions, approvals, consents, or access rights that are not controlled by Stimulus.

Customer shall identify and disclose to Stimulus the location of any private utilities, facilities, or conditions that may affect installation or maintenance, including irrigation systems, septic systems, private electrical lines, propane or fuel lines, landscape lighting, invisible pet fences, private water lines, drainage systems, or other underground or concealed facilities not identified through standard utility locating services.  Stimulus shall not be responsible for damage to undisclosed or incorrectly identified private facilities.

Customer authorizes any adult resident, employee, agent, representative, or guest present at the Customer Premises to grant Stimulus access to the Customer Premises if Customer is not present when Stimulus visits.  Customer shall ensure that the Customer Premises are reasonably safe and accessible, including securing pets, removing obstructions, and providing access to areas where Equipment or Materials are located.  If Customer fails to provide required access, permissions, or safe working conditions, Stimulus may delay, suspend, or terminate installation, maintenance, repair, or Services, and Customer may be responsible for applicable service call, missed appointment, construction, or restoration charges.

(b)        Installation Review.  Stimulus may perform an installation review of each Customer Premises prior to installation of Services at that Customer Premises.  Customer may be required to provide Stimulus with accurate site and/or physical network diagrams or maps of a Customer Premises prior to the installation review.  Stimulus may directly or through its agents inspect the Customer Premises before beginning installation. In the event that during the course of installation Stimulus determines additional work is necessary to enable Stimulus to deliver the Services to the Customer Premises, Stimulus will notify Customer of any new or additional one-time charges that may be necessary.  In the event the Customer does not agree to pay such one-time charges, Stimulus shall have the right to terminate the applicable request for Service.

(c)        Site Preparation.  Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the Stimulus Equipment and the installation and ongoing provision of Services, including, but not limited to, the relocation of Customer’s equipment, furniture and furnishings as necessary to access the Equipment and/or Services.  Stimulus shall not be liable for any damage, loss or destruction to Customer’s home or Premises or Customer’s computer or other equipment whatsoever during installation or repair, including but not limited to any damage to, or loss or destruction of, any hardware, software, files or data.  Stimulus is also not responsible for returning Customer’s computer or other equipment to its original configuration.  If Customer is not the owner of the Premises, Customer shall indemnify and hold Stimulus harmless from and against any claims of the owner of the Premises arising out of the provision or use of Services or the performance of this Agreement.

(d)        Site Visits and Repairs.  If Customer’s misuse, abuse or modification of the Services, Equipment or network facilities supplied by Stimulus necessitates a visit to the Customer site for inspection, correction or repair, Customer is liable to Stimulus for a site visit fee as well as charges for any Equipment or network repair or replacement necessary to restore Services.

 

 

  1. EQUIPMENT AND MATERIALS

(a)        Responsibilities and Safeguards.  Except as otherwise agreed by the Parties herein or in separate writing, neither party shall be responsible for the maintenance or repair of cable, electronics, structures, equipment or materials owned by the other party, provided, however, that subject to the limitations set forth in the indemnification requirements set forth in this Agreement, each party shall be responsible to the other for any physical damage or harm such party causes to the other party’s personal or real property through the damage-causing party’s negligence or willful misconduct.  Customer shall: (i) safeguard Stimulus Equipment; (ii) not modify, disturb, alter, remove, nor otherwise tamper with any portion of the Stimulus Equipment; (iii) not hire nor permit anyone other than personnel authorized by Stimulus acting in their official capacity to perform any work on the Equipment; and (iv) not move nor relocate Stimulus Equipment to another location or use it at an address other than the Service location without the prior written consent of Stimulus.  Any unauthorized connection or other tampering with the Services, Stimulus Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and/or legal action, and Stimulus shall be entitled to recover damages, including, but not limited to, the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs and attorneys’ fees.  Customer shall be liable for: (i) loss due to theft, fire, flood, or other destruction of Stimulus Equipment or its facilities on Customer’s Premises; and (ii) reimbursing Stimulus for damages to Stimulus’s network, facilities or equipment caused by the negligence or willful acts of the Customer.

(b)        Ownership.  Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by Stimulus are and shall always remain the property of Stimulus, shall not become a fixture to the Customer Premises, and must be returned to Stimulus at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear.  Customer will not sell, lease, or assign the Stimulus Equipment and shall keep such Equipment free and clear of all liens, encumbrances and security interests.

(c)        Equipment Return.  Immediately upon termination of a Service, Customer shall return the Stimulus Equipment that Customer leased from Stimulus (such as router, optical-network access terminal, antennas, radios, voice access devices, telephones, set-top boxes, modems, CableCARDs, remote control devices, and associated cabling), in good condition.  Failure of Customer to return, or allow Stimulus to retrieve, such Equipment within ten (10) days after Services are terminated will result in a charge to Customer’s account equal to the full retail cost of replacement of the unreturned Equipment.  Stimulus shall have the right to leave any Equipment or components of its network in place at the premises, and Customer will permit Stimulus to retrieve such Equipment during reasonable hours.  Customer agrees to pay for the repair or replacement of any damaged Stimulus Equipment (whether or not caused by Customer’s negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects), together with any costs incurred by Stimulus in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attorneys’ fees.

(d)        Software.  Any software provided by Stimulus is the property of Stimulus and/or its suppliers and licensors.  Stimulus hereby grants Customer a nonexclusive, nontransferable license to use the software for use solely in connection with the Service.  Customer’s license to use any software is contingent upon Customer’s compliance with all use and other restrictions established by this Agreement.  It is a material breach for Customer to copy, duplicate, reverse engineer or in any way modify, change, or interfere with any software provided by Stimulus.  Upon any termination of this Agreement or the disconnection of Customer’s Service, this license will terminate and Customer agrees to then destroy or return to Stimulus all copies of the software that were delivered to Customer.  We reserve the right to alter software in the Stimulus equipment, and provide content to DVR products, through periodic downloads.  We will use commercially reasonable efforts to schedule these downloads in a manner that result in the least amount of interference with or interruption to your Service.

  1. DISPUTE RESOLUTION AND ARBITRATION

(a)        Binding Arbitration.  YOU AND STIMULUS AGREE THAT ANY DISPUTE (AS DEFINED BELOW) WITH STIMULUS THAT CANNOT BE RESOLVED INFORMALLY WILL BE RESOLVED BY ARBITRATION BY A SINGLE ARBITRATOR BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”)  IN THE COUNTY OF YOUR SERVICE ADDRESS, EXCEPT FOR ANY (i) CLAIM FOR INJUNCTIVE RELIEF; OR (ii) CLAIM THAT IS NOT AGGREGATED WITH THE CLAIMS OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A SMALL CLAIMS COURT.  ARBITRATIONS FOR DISPUTES WITH COMMERCIAL USERS SHALL BE IN ACCORDANCE WITH THE AAA’S COMMERCIAL ARBITRATION RULES; ARBITRATIONS FOR DISPUTES WITH RESIDENTIAL USERS SHALL BE IN ACCORDANCE WITH THE AAA’S CONSUMER ARBITRATION RULES Arbitration means you will have a 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.  This Arbitration Provision will survive the termination of your Services with Stimulus and termination of the Agreement.

(b)        Dispute.  The term “Dispute” means any dispute, claim or controversy between you and Stimulus regarding any aspect of your relationship with Stimulus 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.  “Dispute” is to be given the broadest possible meaning that will be enforced. The arbitrator has the exclusive authority to resolve any and all threshold arbitrability issues, including whether this arbitration agreement is applicable and/or enforceable.”

(c)        Right to Opt Out.  IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST SEND A WRITTEN REQUEST TO OPT-OUT, INCLUDING YOUR NAME, ADDRESS, STIMULUS ACCOUNT NUMBER, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH STIMULUS THROUGH ARBITRATION, WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT AND DELIVER TO STIMULUS, ARBITRATION OPT-OUT REQUEST, PO BOX 50563, HENDERSON, NV 89016.  YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH STIMULUS OR THE DELIVERY OF SERVICES TO YOU BY STIMULUS.  IF YOU HAVE PREVIOUSLY NOTIFIED STIMULUS OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.

(d)        Restrictions.  (i) ALL CLAIMS BROUGHT IN ARBITRATION OR OTHERWISE MUST BE FILED WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (OR ANY EARLIER DEADLINE ESTABLISHED BY THIS AGREEMENT OR APPLICABLE LAW), OR THE PARTY WAIVES ITS RIGHT TO PURSUE SUCH CLAIM. (ii) 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.

(e)        Arbitration Procedure.  The party seeking arbitration must first notify the other party of the Dispute in writing at least 30 days in advance of initiating the arbitration.  Such notice must describe the nature of the claim and the relief being sought.  If we are unable to informally resolve our Dispute within 30 days, either party may then proceed to file a claim for arbitration.  AAA may be contacted at 120 Broadway, Floor 21, New York, NY 10271, www.adr.org.  AAA will apply its Commercial Arbitration Rules for disputes involving commercial Users, or the Consumer Arbitration Rules  for disputes involving residential Users (“AAA Rules”).  The Services provided to you by Stimulus 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 where you receive the Services from Stimulus, however, shall apply to and govern the substance of any Disputes.  If there is a conflict between this arbitration provision and the rules of the arbitration organization, this Arbitration Provision shall govern.  If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.  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.

(f)         Payment of Arbitration Fees and Expenses.  Payment of all arbitration fees and expenses will be governed by the AAA Rules.  You are responsible for paying your filing fee.  Stimulus will pay its own filing fee, and will pay all administration, and arbitrator fees and arbitrator expenses for the Dispute.  You are responsible for paying fees and expenses for your attorneys, witnesses, and experts in arbitration, unless applicable law requires otherwise.

(g)        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 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 STIMULUS EACH HEREBY AGREE TO WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY TRIAL BY JURY.

  1. NO THIRD-PARTY HARDWARE OR SOFTWARE SUPPORT

Customer is responsible for the installation, maintenance, repair and use of Customer-supplied third-party hardware and/or software.  Any questions concerning third-party hardware or software should be directed to the manufacturer of that product.  Stimulus assumes no liability or responsibility for the installation, maintenance, compatibility, performance, or technical assistance or other support of third-party software, any Customer-supplied hardware or software with the Services.  If such third-party equipment or software impairs the Services, Customer shall remain liable for payments for Services without recourse for credit or prorated refund for the period of impairment.  Stimulus has no responsibility to resolve the difficulties caused by such third-party equipment or software.  If, at Customer’s request, Stimulus should attempt to resolve difficulties caused by such third-party equipment or software, such efforts shall be performed at Stimulus discretion and at then-current commercial rates and terms.  Should any antenna, or signal amplification system or other third-party device interfere with the Services provided by Stimulus hereunder, Customer acknowledges and agrees that Stimulus shall not be obligated to distribute a quality signal to the Premises better than the highest quality which can be furnished as a result of such interference, until such time as the interference is eliminated or corrected by Customer or a third party.

  1. CUSTOMER USE

Customer is responsible for all use of the Services provided to their service location whether authorized by Customer or not.  Customer agrees not to re-sell or re-distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of Stimulus.  Customer agrees not to use or permit third parties to use the Service(s), including but not limited to the Equipment and software provided by Stimulus, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material.  Customer agrees not to interfere with other customers’ use of the Equipment or Services or disrupt the Stimulus network, backbone, nodes or other Services.

  1. TERM OF THIS AGREEMENT

Except for those provisions which by their nature survive the termination of this Agreement, this Agreement will be in effect from the time that Services are activated until (1) it is terminated as provided for by this Agreement or by any addendum to this Agreement or (2) it is replaced by a revised Agreement.  You also agree that, unless you have a term commitment agreement, the term of your Agreement shall be one month as of the start date of the billing cycle for your account, which may be the same date as the installation or a few days later. The term of your agreement if you have a term commitment agreement is stated in the term commitment agreement, and at the expiration of the stated term commitment, will renew automatically for periods of one month.  For all Customers not subject to an initial term commitment agreement, this Agreement shall renew automatically for periods of one month.  You may cancel the Agreement at any time after any term commitment without any penalty and said cancellation shall be effective at the end of the billing cycle in progress at the time of cancelling. At our election, and subject to applicable law, we may change our policy to continue all Services (or any part of them) through the end of the billing cycle in which we received your notice, which means those Services will terminate at the end of the applicable billing cycle. We may refund all prepaid monthly service fees charged for the Services after the effective date of termination, and we reserve the right to subtract from your refund any outstanding amounts due to us for the Services, for any affiliate or third-party services, or for other applicable fees and charges. Certain fees and charges are non-refundable and are also excluded.

  1. DEFAULT; SUSPENSION OF SERVICE; TERMINATION

(a)        Termination of Service by Customer.  Customers not subject to any term commitments may terminate Service at any time by calling Stimulus, effective upon the later of Stimulus’s termination of the Service or Customer’s return of all Stimulus Equipment.  Customers who have a term commitment agreement may terminate service at any time but will remain responsible for full payment of sums due under the term commitment agreement. Stimulus may be allowed a reasonable period of time after the receipt of Customer’s request to terminate Services and to render a final bill, which Customer agrees to pay.  Except for customers who have a term commitment agreement, the Monthly Service Charges, plus associated taxes, shall be pro-rated for the actual number of days in which service has been provided, with non-used portion being refunded to the Customer.

(b)        Termination or Suspension of Service by Stimulus.  Stimulus may terminate this Agreement and/or refuse, suspend, or discontinue any Service with or without notice in the event of: a condition determined by Stimulus to be hazardous or dangerous or that  adversely affects Stimulus or its other customers; any violation by Customer of the terms of this Agreement; use of Service that appears to be unauthorized, unlawful, fraudulent (including unusual or excessive usage), or in violation of this Agreement; Customer files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief  under any bankruptcy, insolvency or other similar law; Customer fails to pay a required amount when due or threatens or harasses any Stimulus employee or contractor.  If Customer is disconnected for any reason and/or service is suspended in accordance with this agreement, Customer may be charged (i) a reasonable disconnection and/or a reconnection fee and/or (ii) for service during the period of suspension in accordance with applicable federal and state law.  In the event that Customer’s account is suspended, disconnected, and/or terminated, no refund will be credited to Customer, including any fees Customer paid to Stimulus or to third parties.  Stimulus will not be responsible for the return of data stored on Stimulus’s servers or Stimulus Equipment.  Customer agrees that Stimulus has no obligation to visit Customer’s Premises upon termination to reconfigure Customer’s Equipment.

(c)        Default by Stimulus.  Customer may terminate this Agreement in the event that Stimulus fails to comply with the terms of this Agreement and fails to remedy such noncompliance or occurrence within thirty (30) days of receipt of written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance.  If Termination is due to Stimulus’s default, Stimulus shall reimburse Customer for any pre-paid, unused Monthly Service Fees attributable to such terminated Service plus any installation charge billed to Customer within the preceding thirty days.

  1. LIMITATIONS OF WARRANTIES AND LIABILITY

PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY.  Customer acknowledges and agrees that Stimulus has priced its Services and entered into this Agreement in reliance upon the limitations of liability set forth herein, and that the same form an essential basis of the bargain between the parties.  Customer understands and agrees that the limitations and exclusions of liability and disclaimers in the agreement will survive and apply even if found to have failed of their essential purpose.  If any of the exclusions in this Agreement is found invalid, Stimulus’s liability is limited to the maximum extent permitted by law.

(a)        NO WARRANTIES.  CUSTOMER AGREES THAT CUSTOMER USES THE SERVICE AND ANY SOFTWARE AND EQUIPMENT SUPPLIED BY STIMULUS AT CUSTOMER’S SOLE RISK.  THE SERVICE AND STIMULUS EQUIPMENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, STIMULUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  Stimulus does not warrant that transmissions sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time.  You assume the risk of high-risk activities.  The Services are not represented as fail-safe.  They are not designed for use in situations where error-free or uninterrupted service is essential.  You expressly assume the risk of any damages from high-risk activities involving vital communications in which an error or interruption in the Services could lead to material injury to business, persons, property, or the environment.

(b)        Limitations of Liability/Exclusive Remedy.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, STIMULUS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICE AND EQUIPMENT, OR ANY BREACH BY STIMULUS OF ANY OBLIGATION STIMULUS MAY HAVE UNDER THIS AGREEMENT, SHALL BE CUSTOMER’S ABILITY TO TERMINATE THE SERVICE.  STIMULUS SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH, OR THE DEGRADATION OR INTERRUPTION OF, ANY SERVICES, FOR ANY LOST DATA OR CONTENT, IDENTIFY THEFT, FOR ANY DAMAGE TO CUSTOMER EQUIPMENT REGARDLESS OF CAUSE.  STIMULUS SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT, SOFTWARE, WIRING OR THE PROVISION OF SERVICES.  IN NO EVENT SHALL STIMULUS’ LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO ACCESS AND USE THE SERVICES FOR A PERIOD OF THREE MONTHS.  CUSTOMER HEREBY RELEASES STIMULUS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.  WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND/OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

(c)        Limitations of Liability For Service Failure; Outage Credits.  Customer understands and agrees that the Service may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons that may be beyond Stimulus’s reasonable control.  Temporary service interruptions/outages for such reasons, as well as service interruptions/outages caused by the Customer, its agents and employees, or by a Force Majeure Event, shall not constitute a failure by Stimulus to perform its obligations under this Agreement.  Customer’s sole remedy for any outage is a pro-rated credit for monthly recurring service charges for complete failure of a Service of at least twenty-four consecutive hours not caused by Customer or any person Customer permits to enter his property or use a Service, Customer’s Equipment, or by loss of power at Customer’s premises, for 24 consecutive hours or more.  TO QUALIFY FOR A CREDIT, YOU MUST REQUEST IT WITHIN 30 DAYS OF THE FAILURE.

(d)        No Liability Arising from Content, Communications, or Third Party Services.  Customer acknowledges that content, communications, or applications that Customer may access or transmit through any Service is provided by independent content providers, over which Stimulus does not exercise and disclaims any control.  Stimulus neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any Service; and assumes no responsibility for content or other material received from a third party.  Stimulus specifically disclaims any responsibility for the accuracy or quality of the information obtained using the Service.  Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature.  Customer and their authorized users accessing other parties’ content, communications, or applications through the Services do so at Customer’s own risk, and Customer holds harmless Stimulus from any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content, communications, or applications, and from any damage to or loss or destruction of any of Customer’s hardware, software, files, data or peripherals which may result from Customer’s use of any Service or from the installation, maintenance or removal of any Service, network, or related Equipment or software.

(e)        Force Majeure Event.  Customer agrees that Stimulus shall not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of Services or other inability to perform any obligations under this Agreement, directly or indirectly caused by circumstances beyond Stimulus’s control, including but not limited to denial of use of or damage to poles, cables, or other facilities, labor disputes, acts of war or terrorism, criminal, illegal or unlawful acts, natural causes, acts of God, fire, flood, earthquake, explosion, power blackout, cable cut, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, mechanical or power failures, or any order, law or ordinance in any way restricting the operation of the Services.

(f)         Interference.  Customer waives all claims against Stimulus and its service providers, for interference, disruption, or incompatibility between the Stimulus Equipment or the Services and any other service, systems, or equipment.  In the event of such interference, disruption, or incompatibility, your sole remedy shall be to terminate the Services in accordance with the Agreement.

  1. INDEMNIFICATION

Customer agrees, at its own expense, to indemnify, defend and hold harmless Stimulus and its directors, employees, representatives, officers and agents (the “Indemnified Parties”) against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Indemnified Parties, including but not limited to, reasonable attorneys and witness fees and court costs incurred by Indemnified Parties under this Agreement, to the full extent that such arise from: Customer’s misrepresentation with regard to or noncompliance with the terms of this Agreement (including but not limited to Stimulus’s Acceptable Use Policy (“AUP”)); Customer’s failure to comply with applicable law; any use of the Services or Equipment provided to Customer whether authorized or not, including but not limited to claims of libel, slander, or the infringement of patent, copyright, unauthorized use of any trademark, trade name, service mark, or any other intellectual property right of any third party, arising from the material transmitted over a Service or the use of a Service or Equipment; for damages to property or injury or death of any person arising from the installation and provision of Service, except to the extent caused by the negligence or willful misconduct of Stimulus or its authorized employees or agents; and/or Customer’s negligent acts or omissions or willful misconduct.  Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customer’s cost and Customer agrees to cooperate with Indemnified Parties in such case.

  1. PRIVACY

Stimulus treats private communications using any Service as confidential and does not access, use or disclose the contents of private communications, except in limited circumstances and as permitted by law.  Stimulus also maintains a Privacy Policy in order to protect the privacy of its customers, posted at https://www.stimulusbroadband.com/privacy-policy/.  Customer represents and warrants that Customer has read the Privacy Policy and agrees to be bound by its terms.  Customer expressly understands and agrees that the Privacy Policy may be updated or modified from time to time by Stimulus, with or without notice to Customer.  Customer consents to Stimulus calling the phone numbers and emailing any email addresses Customer has supplied to Stimulus, including mobile and wireless numbers, for any purpose, including the marketing of its current and future Services.  If Customer’s wireless or mobile provider charges Customer for receipt of such messages, Customer acknowledges and agrees that Customer is responsible for paying such charges.  Stimulus reserves the right at all times and without notice to remove, restrict access to, or collect, monitor, review, retain and/or disclose, any content or other information in Stimulus’s possession about or related to Customer, Customer’s use of the Service or otherwise as necessary to satisfy any applicable law, or otherwise to protect Stimulus’s interests.  For additional information, please see Stimulus’s Privacy Policy.

  1. GENERAL CUSTOMER REPRESENTATIONS AND OBLIGATIONS

Customer represents that Customer is at least 18 years of age and has the authority to execute, deliver and carry out the terms of this Agreement.  Customer also represents that any person who accesses any Services through Customer’s equipment or through the network facilities in Customer’s Premises will be an authorized user, will use the Service in an appropriate and legal manner, and will be subject to the terms of this Agreement.  Customer shall be responsible for ensuring that all such users understand the Agreement and comply with its terms.  Customer shall be responsible for all access to and use of the Service, whether or not the Customer has knowledge of or authorizes such access or use.  The Customer shall be solely liable and responsible for all charges incurred and all conduct through either authorized or unauthorized use of the Service.  Stimulus expressly prohibits using the Service for the posting or transferring of sexually explicit images, material inappropriate for minors, or other offensive materials.  By signing, Customer expressly acknowledges that Customer will not post or transfer or permit others to post or transfer such materials using the Service.  Except in the case of Services purchased at our commercial rates, the Services and the Stimulus Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same address.  Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Stimulus Equipment and/or Service by means of the Customer Equipment.  The identifying information that Customer has provided and will provide to Stimulus during the term of this Agreement, including without limitation Customer’s legal name, address, telephone number(s), the number of computers on which the Service is being accessed and payment data (including without limitation information provided when authorizing recurring payments) is accurate, complete and current.  Customer agrees to promptly notify Stimulus, in accordance with the terms of this Agreement, upon the occurrence of any change in the status of Customers’ account (e.g., change in individuals authorized to use Customer’s account) or if there is any change in the information that Customer has provided to Stimulus.  Failure to provide and maintain accurate information constitutes a breach of this Agreement.

  1. NOTICES

Any notices to be given under this Agreement to Customer shall be provided in writing by U.S. mail or hand-delivery to their billing or service address.  Notices to be given to Stimulus shall be sent in writing to PO Box 50563, Henderson, NV 89016.

  1. MISCELLANEOUS

(a)        Entire Agreement.  This Agreement, including all Stimulus policies and rate information referenced herein, constitutes the entire Agreement with respect to the Services and Equipment.  This Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.

(b)        No Assignment or Transfer.  Customer may not assign, transfer, resell or sublicense Customer’s rights (directly or indirectly) this Agreement or their rights or obligations hereunder, or any Service provided hereunder, to any other entity, including but not limited to any successor tenant or occupant, without first obtaining written consent from Stimulus.

(c)        Severability.  If any portion of this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law.

(d)        Section Headings.  The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Agreement.

(e)        Governing Law.  This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Nevada, without regard to conflicts of law provisions.  Customer agrees that the federal and state courts of Nevada alone have jurisdiction over all disputes arising under this Agreement (subject to the binding arbitration provisions set forth herein), and Customer consents to personal jurisdiction of those courts with respect to any disputes arising under this Agreement.  IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND STIMULUS EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY.

(f)         No Third Party Beneficiaries.  The parties agree that the terms of this Agreement and the parties’ respective performance of obligations as described are not intended to benefit any person or entity not a party to this Agreement, that the consideration provided by each party under this Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Agreement shall have any rights under this Agreement nor the right to require the performance of obligations by either of the parties under this Agreement.

(g)        Waiver.  Except as otherwise provided herein, the failure of Stimulus to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

ADDITIONAL TERMS APPLICABLE TO VIDEO SERVICES

  1. USE OF VIDEO SERVICES

Except for Services purchased at our commercial rates, Customer may not make available any Video Services at any commercial establishment or charge any fee to any person to enter the Customer Premises where such Services are available or to view or hear such Services.  Commercial Customers shall not exhibit nor assist in the exhibition of any pay-per-view video programming unless explicitly authorized to do so, in advance and in writing, by Stimulus and the applicable program or event distributor.  In requesting such explicit authorization, Customer agrees to identify itself as a commercial establishment.  Customer shall not and nor authorize or permit any other person to (i) copy, record, dub, duplicate, alter, make or manufacture any recordings or other reproductions of the Services (or any part thereof); (ii) transmit the Services (or any part thereof) by any television or radio broadcast or by any other means or use the Services (or any part thereof) outside the Customer Premises.  Customer acknowledges that such duplication, reproduction or transmission may subject Customer to criminal penalties and/or civil liability and damages under applicable copyright and/or trademark laws.  Customer shall not, and shall not authorize or permit any other person to (i) charge a cover charge or admission fee to any Customer Premises at the time the Services (or any part thereof) are being performed or are to be performed or (ii) insert any commercial announcements into the Services or interrupt any performance of the Services for the making of any commercial announcements.  Certain Services transmitted by us, including but not limited to some subscription Services, sporting events and broadcast network Services, may be blacked out in your area of reception.  If you circumvent or attempt to circumvent any of these blackouts, you may be subject to legal action.  You must be at least 18 years of age, or the applicable age of majority where you reside, in order to receive adult-oriented programming services.  If Customer fails to abide by these restrictions in this Section, Customer accepts liability for any and all claims made against Customer or Stimulus due to such violation and Customer agrees to indemnify and hold Stimulus harmless from any damages, loss, cost, liability, or expense, including reasonable attorneys’ fees, arising from a breach of these restrictions.

  1. EQUIPMENT USED WITH VIDEO SERVICES

Video Service is subject to the limitations and conditions set forth in Stimulus’s Equipment Compatibility Notice in our annual notice to customers posted at https://www.StimulusBroadband.com.  Depending on the Video Services selected by Customer, receipt of Video Services may require the use of equipment approved or provided by Stimulus, which may include, without limitation, set-top boxes, digital adapters, streaming devices, CableCARDs, remote controls, or other compatible equipment. The equipment, installation requirements, purchase or rental options, applicable charges, and equipment return obligations, if any, will be identified in the applicable Service Order or other service documentation executed by Customer at the time Services are ordered. Installation may be performed by Stimulus or, where offered and approved by Stimulus, through self-installation. Any applicable installation fees, equipment charges, monthly recurring charges, activation fees, or other one-time charges will be disclosed in the applicable Service Order or other service documentation provided to Customer. Unless otherwise stated in the applicable Service Agreement or Service Order, recurring service charges are billed in advance and non-recurring charges are billed as incurred.

ADDITIONAL TERMS APPLICABLE TO INTERNET ACCESS SERVICES

  1. NETWORK PERFORMANCE AND MANAGEMENT

Customer understands and agrees that our Internet Services do not guarantee a specific speed or capability and are advertised as providing “up to” a particular speed.  Stimulus may use various tools and techniques in order to efficiently manage and protect its networks and the quality of service available to other customers, and to ensure compliance with this Agreement.  Stimulus may utilize any lawful network management practice, including detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code, and managing network resources through techniques such as limiting the aggregate bandwidth available and such other network management tools as Stimulus may from time to time determine appropriate in situations where Stimulus believes, in its sole discretion, that Customer may harm the Stimulus network or disrupt the performance of the Service for other users or where Customer is transmitting or is otherwise connected with what Stimulus considers in its sole discretion to be spam.  For more information regarding network management and performance, see Stimulus’s Network Management Practices Policy Disclosure posted at https://www.stimulusbroadband.com/isp-transparency-disclosures/.

  1. ACCESS AND USE

Customer is responsible for anyone using Customer’s computer system, password or user name in connection with the Service and for ensuring that anyone who does use the Service through Customer’s computer or access to the Service, does so in accordance with the terms and conditions of this Agreement.  Customer agrees to take all reasonable measures necessary to ensure that the Service is not used by another without Customer’s consent.  Customer is required to assure that all users of its service comply with the terms of this Agreement and the applicable Stimulus AUP, found at https://www.stimulusbroadband.com/acceptable-use-policy/ and those policies are incorporated by reference into this Agreement.  Customer represents and warrants that Customer has read the applicable AUP and agrees to be bound by its terms.  Customer expressly understands and agrees that the AUP may be updated or modified from time to time by Stimulus, with or without notice to Customer.  Stimulus may discontinue or disconnect Services immediately for any violation of the Stimulus AUP with or without notice to Customer.  Customer shall be responsible for all charges incurred and all conduct, whether authorized or unauthorized, caused by use of Customer’s computers, equipment, service locations, facilities or account using the Internet Services.

  1. EQUIPMENT AND SOFTWARE REQUIREMENTS

Customer shall maintain certain minimum equipment and software to receive the Service, including that Customer must have a personal computer or other compatible receiving device, an Ethernet network interface, a cable modem, and operating system software meeting Stimulus’s then-applicable minimum requirements.  Please contact us for the current specifications minimum configuration standards may change, and Stimulus will make reasonable efforts to support previously acceptable configurations; however, Stimulus is not obligated to continue to provide such support.  Stimulus may supply equipment such as modems, gateways, or routers, for a fee, to operate the Service.  Customer acknowledges that such Stimulus Equipment may require updates and/or changes to the software resident in the equipment and that Customer may be required to perform such updates and/or changes.  Customer hereby authorizes Stimulus to perform updates and/or changes, on-site or remotely from time to time as Stimulus deems necessary, in Stimulus’s sole discretion.  Customer will not connect any equipment, other than equipment authorized by Stimulus, to the cable modem outlet.  If Customer wishes to purchase a modem, you must contact us for a list of compatible options and only install such equipment.  Customer understands that failure to comply with this restriction may damage the Stimulus network and subject Customer to liability for damages.  If Customer purchases the cable modem, Stimulus reserves the right to download firmware to meet current requirements.  Stimulus provides a limited one year warranty against any defect in materials or workmanship of the modem purchased directly from Stimulus.  This limited warranty shall supersede any and all manufacturer warranties.  In the event there is a problem with the modem that cannot be corrected, Stimulus will replace the equipment with either a new or refurbished unit at Stimulus’s option.  Stimulus does not guarantee that the equipment it replaces will be the same make or model as the originally purchased equipment.  This warranty expressly excludes defects in the modem caused by acts of nature or for which the Customer is responsible, such as, but not limited to, lightning or water damage or damage from misuse or neglect.  To obtain warranty service, please contact Stimulus.

  1. IP ADDRESSES

All IP addresses (“Electronic Addresses”) provided by Stimulus are and shall remain the property of Stimulus.  Customer may not alter, modify, sell, lease, assign, encumber or otherwise tamper with the Electronic Addresses.  Customer acknowledges and understands that Stimulus may utilize anti-spam software or other network management tools that may block incoming and outgoing electronic mail.  Stimulus does not warrant that such feature will block all unwanted mail/spam or that all mail that is blocked constitutes unwanted mail/ spam or that such feature will be error-free.  Customer agrees that Stimulus is entitled to damages if Customer is transmitting or is otherwise connected with spam.

  1. CUSTOMER SECURITY RESPONSIBILITIES

Stimulus does not warrant that data or files sent or received by the Customer will not be subject to unauthorized access by others, that other users will not gain access to the Customer’s data, nor that the data or files will be free from computer viruses or other harmful components.  Stimulus has no responsibility and assumes no liability for such acts or occurrences.  Customer is solely responsible for taking and should take all appropriate security measures when using the Service, including but not limited to any recommended by Stimulus.  Customer shall be responsible for procuring, installing, configuring and maintaining security software and methods, including but not limited to anti-virus, firewall, software/hardware and operating system updates or supplements that may be necessary for the protection and maximum functionality of Customer’s computer and related equipment and the protection of Stimulus’s network and other customers.

 

  1. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY STIMULUS DOES NOT WARRANT UNINTERRUPTED USE OF SERVICE OR THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS.

Stimulus does not warrant that any data or files customer sends or receives via the Service will be transmitted in uncorrupted form, within a reasonable time, or free from unauthorized access by others or that other users will be unable to gain access to Customer’s computer, other devices, or information.  Through use of the Service, Customer may access certain information, products and services of others.  The Customer shall be solely liable and responsible for all fees or charges for these online services, products or information.  When Customer uses the Service and/or accesses Stimulus web sites, Customer may encounter links allowing Customer to visit web sites operated or owned by third parties.  Stimulus provides these links as a convenience.  The presence of a link to any Third Party Site is not an endorsement by Stimulus of the third party site, an acknowledgment of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer.

THE FOLLOWING TERMS ARE APPLICABLE TO ANY
STIMULUS CUSTOMER SUBSCRIBING TO STIMULUS VOICE SERVICES

  1. LIMITATIONS OF 911/E911 DIALING

(a)        Limitations.  The Services include 911/Enhanced 911 functions (“911”) that differ from 911/E911 functions furnished by traditional telephone service providers.  As such, the 911 Services may have certain limitations.  CAREFULLY READ THE INFORMATION BELOW.  YOU ACKNOWLEDGE AND ACCEPT ANY LIMITATIONS ON 911.  YOU AGREE TO CONVEY THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER THE SERVICES.  If you have any questions about 911, call Stimulus at (866) 571-8671.

(b)        Correct Address.  In order for your 911 calls to be properly directed to emergency services, we must have your correct service address.  If you move the Services to a different address without our approval (which in any event would be a violation of this Agreement), 911 calls may be directed to the wrong emergency authority, may transmit the wrong address, or the Services (including 911) may fail altogether.  Therefore, you must contact us before you move the Services to a new address.  You acknowledge that Stimulus may need several business days to update your service address in the 911 system so that your 911 calls can be properly directed.

(c)        Network congestion or failures.  Calls, including calls to 911, may not be completed if there is a problem with network facilities, including network congestion, network or network equipment failure, or another technical problem.

(d)        Service interruptions.  Access to 911 requires that your Phone Service is active and that you have electrical power connected to your MTA.  YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY LOSE ACCESS TO AND USE OF THE SERVICES, INCLUDING 911, UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE FOLLOWING:  (i)  IF OUR NETWORK OR FACILITIES ARE NOT OPERATING; (ii)  IF ELECTRICAL POWER TO THE MTA IS INTERRUPTED AND THE MTA DOES NOT HAVE A BATTERY BACKUP; (iii) IF THE ELECTRICAL POWER TO THE MTA IS INTERRUPTED AND ANY BATTERY BACKUP IS EXHAUSTED OR FAILS; or (IV) YOUR SERVICE HAS BEEN SUSPENDED OR IS NOT PROPERLY FUNCTIONING.  NOTE REGARDING BATTERY BACK-UP:  Some but not all of the MTAs we provide have battery backups installed.  If no battery is installed, we recommend that you obtain one from a third-party provider.  If you have any questions regarding the back-up battery status of your MTA or compatible batteries, please contact us.  Battery backup will provide power for only up to several hours, and its performance is not guaranteed. If the battery is exhausted, the Services will not function until normal power is restored.

(e)        LIMITATION ON LIABILITY.  YOU ACKNOWLEDGE AND AGREE THAT STIMULUS AND ITS SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO COMPLETE A CALL TO 911 OR ANY OTHER PARTY USING THE SERVICES, OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL.  YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS STIMULUS AND ITS SERVICE PROVIDERS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911 SERVICES PROVIDED TO YOU IN CONNECTION WITH THE SERVICES.

  1. INCOMPATIBLE EQUIPMENT AND SERVICES

Phone Services may not support or be compatible with (i) certain non-voice communications equipment, including but not limited to alarm or home security systems that make automatic phone calls; medical monitoring devices; certain fax machines; and certain “dial-up” modems; (ii) rotary-dial phone handsets, pulse-dial phone handsets, and models of other voice-related communications equipment such as answering machines and traditional Caller ID units; (iii) dial around (10-10) calling; 976, 900, 700, or 500 number calling; (v) 211, 311, 511, or 811 calling; and (vi) other call types not expressly set forth in our product literature (e.g., shore-to-ship calling and outbound satellite calling).

  1. ACCEPTABLE USE OF PHONE SERVICE

Unless you subscribe to a Service purchased at our Commercial rates, you agree to use the Phone Services only for personal and non-commercial purposes; however, you are permitted to use the Phone Services to make business calls that are incidental to your personal and non-commercial use of the Phone Services.  You expressly agree not to use the Services for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for any other use that results in excessive usage inconsistent with normal residential calling patterns.  If we determine, in our sole discretion, that your Phone Services are being used for any of the aforementioned activities, we reserve the right (i) immediately and without notice to terminate or modify the Services and (ii) to assess additional charges for each month in which excessive usage occurred.

  1. CHARGES

(a)        Charges.  For billing of monthly charges, service is considered to be established upon the confirmation of third party verification processes.  Usage charges will be billed monthly in arrears.  Customer will be billed for all usage accrued beginning immediately upon access to the service.  The Customer is responsible to pay Stimulus for all toll calls or other third party charges resulting from the origination of calls and for charges or calls billed to the Customer’s number.  The Customer shall be responsible for securing its telephone equipment against being used to place fraudulent calls using the Service.  The Customer shall be responsible for payment of all applicable charges for services provided by Stimulus and charged to the Customer’s accounts, even where those calls are originated by fraudulent means either from Customer’s premises or from remote locations.

(b)        Per-call and measured-call charges.  Calling plans billed on a flat monthly fee basis may not include certain call types.  These call types will instead be charged on a per-call (e.g., directory assistance, operator services) or a measured basis (e.g., international calls).  For billing purposes, a measured call begins when the carrier of the receiving party returns Answer Supervision to our network, and it ends when one of the parties disconnects the call.  Measured calls are recorded in whole minutes, with partial minutes rounded up to the next whole minute.  If the computed charge for a measured call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent.  Please contact us for information on per-call charges.

(c)        Third-party charges.  Phone Services may allow you to access information and other service providers (e.g., services accessible through 800, 888, and 877 numbers), and other third-party providers.  You acknowledge that you may incur charges with such providers that are separate and apart from the amounts charged by us.  You agree that all charges payable to third parties, including all applicable taxes, are your sole responsibility.

  1. EQUIPMENT FOR PHONE SERVICE

In order to use the Phone Services, you are required to provide certain Customer Equipment such as a phone handset or equivalent, phone inside wire and outlets, and a powered electrical outlet.  If we cannot get access to your inside phone wiring, you will need a cordless phone to use our Services throughout your dwelling.  In addition, to use the Phone Services, you will also need to purchase and have us install a MTA certified by us as compatible with the Services.

 

  1. TRANSFERRING YOUR PHONE NUMBER

(a)        Switching to Stimulus from another provider.  If you are switching to our Services from another service provider, you may be able to transfer your existing phone number (if any) to our Services, provided that (i) you request the phone number transfer when you place your order for our Services; (ii) your current service provider releases your existing phone number without delay or charge; (iii) transfer of your existing phone number to our Services would not, in our view, violate applicable law or our processes and procedures.  If your MTA is set up before the date that the number transfer becomes effective (“Port Effective Date”), you may only be able to make limited outgoing calls over the phone that you have connected to the MTA.  In that event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able both to make and to receive calls using our Services.  To avoid an interruption in your phone service, it is extremely important that you have the MTA installed on or before the Port Effective Date.  Your existing phone service for the number you are transferring will be disconnected on the Port Effective Date; if your MTA is not yet activated, you will not have access to service for that phone number.  Stimulus will bill you for services rendered up until the date of successful transfer of your phone number to your new service provider, or termination of the Agreement, whichever occurs last.

(b)        Switching to another provider.  To transfer your phone number from Stimulus to another service provider, you must terminate the Services and place the transfer order through your new service provider.  We will release your phone number to your new service provider, provided that (i) your new service provider requests the transfer upon termination of your account; (ii) your new service provider is willing to accept transfer of the phone number without delay or charge; and (iii) transfer of your existing phone number to the new service provider would not, in our view, violate applicable law or our processes and procedures.

  1. LIMITATIONS ON LIABILITY FOR DIRECTORIES AND DIRECTORY ASSISTANCE

If (i) any phone number for which you have requested unlisted or nonpublished status is included in any directory, any directory assistance database, or is otherwise disclosed to any unauthorized person; (ii) any phone number which you requested be published or listed in any directory or directory assistance database is not so published or listed, or (iii) any published or listed phone number contains errors or omissions, then the total liability of Stimulus and its service providers in connection with the described error or omission shall not in the aggregate exceed the monthly charges, if any, which you have actually paid to us to list or not to list or to publish or not publish the number for the affected period.  You shall hold Stimulus and its service providers harmless against any and all claims for damages caused or claimed to have been caused, directly or indirectly, by the errors and omissions described above.