Commercial Services Agreements
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San Bruno Cable provides a variety of Internet Services (the Services) to residences and businesses (the Customer, also “user”, “you”, “your”). All Customers and all users of the Services must comply with this Acceptable Use Policy (Policy), the applicable Services agreement and federal, state and local laws and regulations. This Policy is in addition to any restrictions contained in your Services agreement. In the event of any conflict between this Acceptable Use Policy and your agreement for Services, the terms of this Acceptable Use Policy will govern.
San Bruno Cable may modify this Acceptable Use Policy at any time without notifying its users. Revised versions of this Policy are effective immediately upon posting. For this reason, users should consult the San Bruno Cable website (www.sanbrunocable.com/policy/) regularly to ensure that their actions are in compliance with the most recent version of the Acceptable Use Policy.
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.
1.1 This Acceptable Use Policy is designed to foster an online environment of mutual respect in which everyone is able to enjoy the benefits of San Bruno Cable. We believe that the restrictions set out in this Acceptable Use Policy represent a fair balance between the freedom of the individual and the need for some basic rules to ensure that San Bruno Cable’s Services are not used in an abusive or illegal way.
1.2 San Bruno Cable users are responsible for ensuring that their accounts are used in accordance with this Acceptable Use Policy. If San Bruno Cable has reason to suspect that a Customer, or anyone using a Customer’s account, is violating this Policy, then the account in question may be suspended pending an investigation. If, after an investigation, San Bruno Cable determines that an account has been used in violation of this Policy, San Bruno Cable may, in its discretion, terminate the user account.
If you do not agree to abide by this Acceptable Use Policy please notify San Bruno Cable Customer Service immediately at firstname.lastname@example.org so that your account can be closed.
1.3 San Bruno Cable does not actively monitor its user’s use of its services. We rely on our users to govern themselves and to protect the integrity of the network by reporting any violations of this Acceptable Use Policy to email@example.com
1.4 San Bruno Cable has the right, but not the obligation, to investigate any violation or alleged violation of this Acceptable Use Policy, including the right to examine any information or material on San Bruno Cable’s servers.
1.5 San Bruno Cable has the right, but not the obligation, to remove any content that it deems, in its sole discretion, to be in violation of any part of this Acceptable Use Policy.
1.6 San Bruno Cable has the right, but not the obligation, to take any steps it deems necessary to prevent violations of this Acceptable Use Policy from occurring.
1.7 San Bruno Cable may take any actions it deems appropriate under the circumstances, with or without notice to you, to respond to any inappropriate activities or uses of the Services in violation of this Policy. Neither San Bruno Cable, nor its suppliers or agents shall have any liability for any responsive actions. You expressly authorize and consent to San Bruno Cable and its suppliers cooperating with (i) law enforcement authorities in the investigation of suspected legal violations, and (ii) system administrators at other internet service providers or other network or computing facilities in order to enforce this Policy.
1.8 The failure of San Bruno Cable to enforce this Policy, for whatever reason, shall not be construed as a waiver of any right to do so at any time.
1.9 You agree to indemnify and hold harmless San Bruno Cable, its suppliers and agents against all claims and expenses (including reasonable attorneys fees) resulting from any violation of this Policy.
2.0 Illegal Activities
San Bruno Cable users must not use San Bruno Cable to encourage, facilitate or engage in any illegal activities, including, without limitation:
- defamation: posting or transmitting any material which is defamatory under any applicable law;
- fraud: posting or transmitting any information that you know or ought to know is false, and that you intend others to rely on;
- unlawful material: posting or disseminating unlawful material
- false advertising: posting or transmitting any advertising or promotional materials that contain false, deceptive or misleading statements, claims or representations;
- intellectual property infringement, including copyright violation: storing, posting, disseminating or transmitting any information, software, photograph, video, graphic, music, sound and other material in any manner that constitutes an infringement of third party intellectual property rights, including violation of another person’s copyright; and
- trade-mark violation: posting, transmitting, displaying or using any words or symbols that violate any other person’s rights in its trade-mark or trade-name.
3.0 Electronic Mail
3.1 San Bruno Cable users must not use San Bruno Cable e-mail to:
- send unsolicited bulk e-mail (so-called “Spam”);
- send, or cause to be sent, large volumes of unsolicited e-mail to a single or multiple people or entities (so-called “E-Mail Bombing”);
- repeatedly send e-mail to any person or entity that does not wish to receive it. If a recipient asks to stop receiving e-mail from a San Bruno Cable user, then that San Bruno Cable user must not send that person further e-mail; and
- subscribe to any e-mail list or service on behalf of a third party without that third party’s consent.
- impersonate any person or entity, engage in sender address falsification, forge anyone else’s signature, or perform any other similar fraudulent activity (for example, “phishing”)
3.2 San Bruno Cable users must not engage in any of the activities described in paragraph 3.1 from another provider’s e-mail service and use a San Bruno Cable account as an e-mail return address or “drop” for responses.
3.3 San Bruno Cable users must not forge, alter or remove any e-mail header.
3.4 Any e-mail address at the sanbrunocable.com domain is property of San Bruno Cable and may be terminated or re-assigned without notice.
4.0 Security, Privacy and “Hacking”
The Customer is responsible for any misuse of the Services that originate from their account, even activities committed by any friend, family, co-worker, employee, guest or anyone with access to the account. Customers must ensure that others not gain unauthorized access to the Services.
4.1 San Bruno Cable users must not:
- disrupt or interfere with the normal operation of San Bruno Cable systems, networks, or activities in any way that adversely affects the ability of other people, or systems to use San Bruno Cable services or the Internet, including, but not limited to:
- denial of service attacks;
- flooding of networks;
- attempts to overload a service; and
- attempts to cause system crashes,
or attempt to do so; or
- use any unauthorized program to connect the user to any San Bruno Cable Internet Relay Chat (“IRC”) server, including, but not limited to, IRC bots or clonebots;
- gain access or attempt to gain access to the private systems or data of San Bruno Cable, without the prior consent of San Bruno Cable.
- Interfere with San Bruno Cable’s ability to control or block ports for safety and security purposes and as part of overall network management.
- Interfere with San Bruno Cable’s use and control of its domain name server (DNS) used in connection with the Services.
4.2 San Bruno Cable users must not use their San Bruno Cable accounts to:
- circumvent or attempt to circumvent security or authentication systems on any host, network hardware, or user accounts, including, but not limited to, logging into any server, account or network without authorization and electronically probing the security of any system or network; or
- disrupt or interfere with the normal operation of any system or network operated by any third party, or attempt to do so.
- gain access or attempt to gain access to the private systems or data of San Bruno Cable, or any third party without the prior consent of San Bruno Cable or the third party.
5.0 Usenet Newsgroups
5.1 San Bruno Cable users must not:
- post a single article or substantially similar articles to an excessive number of newsgroups, or cross-post to an excessive number of newsgroups;
- post articles on a newsgroup which are off-topic according to the newsgroup charter;
- post binary or encoded binary files to newsgroups not specifically designated for that purpose;
- post commercial messages on a non-commercial San Bruno Cable newsgroup without prior approval from San Bruno Cable;
- engage in any of (a), (b), (c) or (d) from a provider other than San Bruno Cable and use an account on San Bruno Cable as an e-mail return address or “drop” for responses, or
- engage in any of (a), (b), (c) or (d) from a provider other than San Bruno Cable for the purpose of drawing attention to a service hosted by or on San Bruno Cable’s network.
San Bruno Cable reserves the right to discontinue access to any Usenet newsgroup at any time and for any reason.
6.0 Censorship and Adult Materials
San Bruno Cable believes in freedom of expression and the right of individuals to decide for themselves what they want to see and listen to. We do not believe it is the place of an ISP to censor or regulate the Internet. However, users must not use San Bruno Cable to transmit or post any information or image that is criminally obscene or otherwise prohibited under any applicable law.
San Bruno Cable assumes NO responsibility for Internet content available through the Services. Customers are responsible for restricting access to sexually explicit material on the Internet, by purchasing the appropriate filtering software, or by monitoring Internet use. Content questions or complaints should be addressed to the content provider.
7.1 False Pretences. Users must not use San Bruno Cable to impersonate any person or use a fictitious user name with any of San Bruno Cable’s services, including in any e-mail, Usenet posting, or Internet Relay Chat (“IRC”) site. This restriction does not preclude the use of nicknames in IRC, the use of anonymous remailer services, or postings to any site that permits pseudonyms.
7.2 Unsolicited Advertising. Users must not use San Bruno Cable to post or transmit any unsolicited advertising, promotional materials or other forms of solicitation to any person except in those areas and on those websites that are designated for such a purpose.
7.3 Harassment, Threats and Abuse. Users must not use San Bruno Cable to harass, threaten, or abuse any person or group of people by any means.
7.4 Crude or Offensive Postings. Users must not use San Bruno Cable to post offensive or crude messages or images on publicly accessible pages or sites, except where such messages or images are appropriate having regard to the nature of the site. San Bruno Cable has the right, but not the obligation, to remove messages or images that San Bruno Cable, in its sole discretion, determines are offensive.
7.5 Multiple access. Unless authorized in writing by San Bruno Cable, users must not maintain more than one simultaneous connection to San Bruno Cable or any San Bruno Cable service, IRC Chat group, or newsgroup.
7.6 Disruptive Conduct. Users must not use San Bruno Cable to disrupt the normal flow of online dialogue, or otherwise act in a manner that negatively affects other users, individuals or entities.
8.0 Bandwidth/Network Traffic and Other Limitations
8.1 You must comply with the current bandwidth/network traffic, data storage and other limitations on the Services, set out below and/or in your Service package, plan or agreement.
Users must ensure that their activity does not improperly restrict, inhibit or degrade any other customer’s use of the Services, nor represent (in the sole judgment of San Bruno Cable) an unusually large burden on the network itself.
The guidelines for Bandwidth/Network Traffic Usage/month for each service package are the following:
Residential Business Customers:
Basic Internet Service - totaling 25 Gigabytes;
Level I Internet Service - totaling 200 Gigabytes;
Level II Internet Service - totaling 350 Gigabytes;
Level III Internet Service - totaling 500 Gigabytes;
All levels of DOCSIS 3.0 Internet Services – totaling 500 Gigabytes .
Users exceeding the Bandwidth/Network Traffic amounts specified for their Service Package may be charged $0.25 for each Gigabyte used in excess of their specified amount.
Refer to your Services agreement for applicable consumption limitations.
8.2 San Bruno Cable’s determination as to your actual usage level is final. If you use the Services in violation of the restrictions referenced in 8.1 above, that is a violation of this Policy and San Bruno Cable may, at its option: (i) suspend or terminate your Service; or (ii) request that you subscribe to a different version of the Services if you wish to continue to use the Services at higher usage levels.
8.3 San Bruno Cable reserves the right to limit the storage of e-mail messages on San Bruno Cable’s systems to a set number of days and may set a fixed upper limit on the size and/or number of messages that you may send or receive through the Services. In addition, San Bruno Cable may, in its sole discretion, employ various tools to detect and remove viruses and other unwanted material from messages. These tools may scan incoming and outgoing e-mail traffic to identify and block spam and other unwanted or harmful code or content. Neither San Bruno Cable, nor any of its suppliers shall have any liability for the deletion of, or failure to store, messages or for the mis-delivery of, failure to deliver or the untimely delivery of messages.
8.4 Users must ensure that their activity does not improperly restrict, disrupt, inhibit, degrade or impede San Bruno Cable’s ability to deliver the Services and monitor the Services, backbone, network nodes, and/or other network services.
8.5 Customers may not resell, share, or otherwise distribute the Services or any portion thereof to any third party without the prior written consent of San Bruno Cable. For example, you cannot provide Internet access to others through a wireless or dial-up connection, host shell accounts over the Internet, provide email or news service, or send a news feed unless express permission is granted by the Customer agreement.
8.6 You may not provide network services to others via the San Bruno Cable network.
9.1 This Acceptable Use Policy is subject to change without notice and revised versions are effective immediately upon posting.. The current version of the Acceptable Use Policy is always available at www.sanbrunocable.com/policy/.
10.0 Questions and Complaints
10.1 Questions and General Complaints. Please direct any questions you may have regarding this Acceptable Use policy and complaints regarding violations of this Policy by other San Bruno Cable users to firstname.lastname@example.org
10.2 Digital Millennium Copyright Policy. Owners of copyrighted works who in good faith believe that their rights under U.S. copyright law have been infringed may take advantage of provisions of the Digital Millennium Copyright Act of 1998 to report alleged infringements of their works by sending San Bruno Cable a notification of claimed infringement that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act. The notice must include the following information:
- The name, address, and electronic signature of the complaining party
- The infringing materials and their Internet location
- Sufficient information to identify the copyrighted works
- A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner
- a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed right
The notification of alleged infringement must be sent to
City of San Bruno d/b/a San Bruno Municipal Cable TV
Attn: Steve Firpo, Business Manager
567 El Camino Real
San Bruno, CA 94066-4299
Fax (650) 871-5526
Upon receipt of a satisfactory notice, San Bruno Cable will respond expeditiously to remove or disable the allegedly infringing work or disable access to it, and to notify the affected Customer or user of the Services of the removal or disabling of access.
It is San Bruno Cable’s policy to reserve the right to terminate the Services provided to any Customer or user who is either found to infringe third party copyright or other intellectual property rights, including repeat infringers, or who San Bruno Cable, in its sole discretion, believes is infringing such rights.
If you receive a notification of alleged infringement as described above, and believe in good faith that that the alleged infringing works have been removed or blocked by mistake or misidentification, then you may send a counter-notification that complies with Section 512(g)(3) of the U.S. Copyright Act to San Bruno Cable at the address listed above. A proper counter-notice must contain the following information:
- The Customer or user's name, address, phone number and physical or electronic signature
- Identification of the material and its location before removal
- A statement under penalty of perjury that the material was removed by mistake or misidentification
- Customer or user consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
Upon receipt of a satisfactory counter-notice, San Bruno Cable will promptly provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the Digital Millennium Copyright Acts’s procedures with respect to a received counter notification. Consistent with the requirements of the U.S. Copyright Act, if the copyright owner does not bring a lawsuit in district court within 14 days, San Bruno Cable will restore the material to its location on its network.
REVISED AND EFFECTIVE: AUGUST 1, 2010
COMMERCIAL SERVICES AGREEMENT
|SAN BRUNO MUNICIPAL CABLE TV – COMMERCIAL SERVICES
GENERAL TERMS & CONDITIONS AGREEMENT
The Customer named on the applicable Service Order and the City of San Bruno, d/b/a San Bruno Municipal Cable Television (“SBMCTV”) agree that this General Terms and Conditions Agreement ("Agreement") is applicable to all Commercial Services provided by SBMCTV to Customer. Capitalized terms have the meanings defined herein.
- 1. General. This Agreement describes the general terms and conditions applicable to Customer’s purchase of communications services (“Service(s)”) from SBMCTV. This Agreement together with any Service Orders, Service Schedules, and SBMCTV’s Acceptable Use Policy constitutes the entire agreement between the parties. In the event of a conflict between the terms of this Agreement and of a Service Schedule, the terms of the Service Schedule prevail.
- 2. Service Orders. Customer must submit requests for Service in a manner and on a form designated by SBMCTV (“Service Order”). Each Service Order shall state the Service, the term for which Service is requested (the “Service Term”) and the pricing for the Service. A Service Order is not binding upon SBMCTV unless signed by an authorized SBMCTV representative.
3. Installation, Acceptance, Access and Equipment. SBMCTV will attempt to provide Service by any requested installation date, but will not be liable for any delays in Service delivery. The Service is delivered on the date the Service first becomes operational (“Service Commencement Date”). Unless Customer notifies SBMCTV in writing within 2 business days of the Service Commencement Date that Service is not operational, then the Service will be deemed accepted by Customer, the Service Term will commence and Customer will be liable to pay for the Service as of the Service Commencement Date. If access to non-SBMCTV facilities (including inside wiring) is required for delivery of Service or the installation, maintenance or removal of SBMCTV equipment used to deliver Service, Customer will, at its expense, secure rights for SBMCTV to access and the use of such facilities, power and HVAC as needed for Service delivery. Title to equipment (including software) provided by SBMCTV will remain with SBMCTV. Customer will not create or permit to be created any encumbrances on SBMCTV’s equipment. Customer will not access or attempt to perform maintenance on SBMCTV equipment and will pay for any equipment damage caused by Customer. None of the SBMCTV equipment shall be deemed fixtures or part of Customer’s realty. Customer shall have no right to pledge, sell, mortgage, give away or remove, relocate, alter or tamper with the SBMCTV equipment (or any notice of SBMCTV ownership thereon) at any time. Any reinstallation, return of or change in location of the SBMCTV equipment must be approved by SBMCTV and performed by SBMCTV at the service rates in effect at the time of service. Customer shall not attach any electrical or other devices to or otherwise alter the SBMCTV equipment without SBMCTV’s prior written consent. SBMCTV shall have the right to make such filings as are necessary to evidence its ownership rights in the SBMCTV equipment, and Customer agrees to execute any and all documents as are necessary for SBMCTV to make such filings. Customer shall notify SBMCTV promptly of any defect in, damage to, or accident involving SBMCTV equipment, or if SBMCTV equipment is stolen or otherwise removed from Customer’s premises without Customer’s authorization. Upon termination of the Services, Customer must notify SBMCTV to schedule the return the associated SBMCTV equipment.
4. Credit Inquiries/Deposits. SBMCTV may seek and acquire credit and related Customer information from reporting agencies for the purpose of ascertaining Customer’s credit and payment history. Customer authorizes SBMCTV to make such inquiries and receive information about Customer’s credit from others, to enter this information in Customer’s file, and to disclose this information concerning Customer to appropriate third parties for reasonable business purposes. SBMCTV may require a security deposit at any time as a condition of activation or continuation of Service.
5. Invoices and Disputes. Invoices are delivered monthly and payment is due 30 days after the invoice date (the “Due Date”). Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. If a computed charge includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law, whichever is less. Customer is responsible for all Service charges, even if incurred as the result of unauthorized use. If partial payments are made, they will be applied first to the oldest outstanding bill. If Customer send checks or money orders marked "payment in full" SBMCTV can accept them without losing any of its rights to collect any other amounts owed by Customer, notwithstanding Customer’s characterization of the payment. If Customer reasonably disputes an invoice, Customer must pay the full amount by the Due Date and submit written notice of the disputed amount (detailing the nature of the dispute, the Services and invoice(s) disputed). Disputes must be submitted in writing within 90 days of the date of the invoice or the right to dispute the invoice is waived. If a dispute is resolved in favor of Customer, SBMCTV, at its option, will reimburse the disputed amounts by check or as a credit on the Customer’s next invoice. Customer will be liable to SBMCTV for all costs and expenses incurred in collecting amounts due to SBMCTV, including legal fees. SBMCTV may implement electronic systems for invoice delivery, submission and resolution of disputes and/or requiring electronic invoice payment; Customer will use such systems if implemented by SBMCTV. Customer acknowledges that in the case of late payment or nonpayment for any Services ordered by Customer, SBMCTV may report such late payment or nonpayment to credit reporting agencies.
6. Taxes and Fees. Charges for Service are exclusive of Taxes and Fees, defined below. Customer will be responsible for all taxes and fees arising in any jurisdiction, including but in no way limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges (including regulatory and universal service fees, 911/E911 surcharges, telecommunications relay service surcharges,) imposed on or incident to the provision, sale or use of Service (collectively, “Taxes and Fees”). Such charges may be shown on invoices as cost recovery fees. If Customer presents SBMCTV a valid exemption certificate, SBMCTV will give effect thereto prospectively.
- 7. Use of Service. Except as provided herein, Customer may use the Services (and any SBMCTV equipment provided to Customer in connection with the Services) for any lawful purpose consistent with this Agreement, the Service Schedules and SBMCTV’s then current Acceptable Use Policy and privacy policies available at www.sanbrunocable.com provided such use does not interfere with any services being provided on or impair the privacy of communications on the SBMCTV network. SBMCTV may update its Acceptable Use Policy from time to time, and such updates shall be deemed effective seven days after the update is posted online, with or without actual notice to Customer. Accordingly, Customer should check the above web address on a regular basis to ensure that its activities conform to the most current version of the Acceptable Use Policy. SBMCTV reserves the right to act immediately and without notice to terminate or suspend the Services and to remove any information transmitted by or to Customer (or any other person whether authorized by Customer or not to use the Services provided to Customer) if SBMCTV determines that such use or information does not conform with the requirements set forth in this Agreement or the applicable Service Schedule, interferes with SBMCTV’s ability to provide Services to Customer or others, or reasonably believes that such use or information may violate any laws or regulations.
- 8. Maintenance and Network Modifications. The fees for Service include maintenance by SBMCTV, unless such maintenance is necessitated by acts or omissions attributable to Customer, in which case SBMCTV will bill Customer and Customer will pay SBMCTV for such maintenance. In addition to Service maintenance, SBMCTV may make certain network modifications and changes to the Customer’s Service which changes will not materially and adversely affect Service performance. In the event of such network modifications and changes, Customer acknowledges that these may limit Customer’s ability to retain existing codes and/or necessitate other changes or modifications to Customer’s Services. Customer will reasonably cooperate with SBMCTV to facilitate such modifications.
- 9. Expiration of Service Term. Upon expiration of the Service Term (including any renewal terms) specified in the Service Order, Service will continue on a month to month basis at the then current month to month rates posted on SBMCTV’s website: www.sanbrunocable.com, and either SBMCTV or Customer may terminate Service upon 30 days prior written notice. Customer will pay SBMCTV’s then current charges for any moves, additions or changes agreed to by SBMCTV to any Service Order or Service.
- 10. Termination. If (i) Customer fails to make any payment when due and such failure continues for 10 business days after written notice from SBMCTV, or (ii) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (a) terminate this Agreement and/or any Service Order, in whole or in part, and/or (b) subject to the limitations of this Agreement, pursue any remedies it may have at law or in equity.
- 11. Termination Liability. If prior to installation of a Service, Customer cancels a Service Order for convenience or SBMCTV terminates this Agreement for cause, Customer will pay SBMCTV a cancellation charge (which Customer acknowledges is a reasonable approximation of SBMCTV’s damages and is not a penalty) equal to all out-of-pocket expenses which will be incurred by SBMCTV as a result of the cancellation, including, but not limited to, third party liability. If prior to expiration of the Service Term, Customer terminates Service for convenience or SBMCTV terminates Service for cause, Customer will pay SBMCTV a termination charge (which Customer acknowledges is a reasonable approximation of SBMCTV’s damages and is not a penalty): (a) all unpaid amounts for Service provided through the date of termination; plus (b) all previously waived charges for the Services(s); plus (c) 100% of the remaining monthly recurring charges (if any) for months 1-12 of the Service Term; plus (d) 50% of the remaining monthly recurring charges for month 13 through the end of the Service Term; plus (e) if not recovered by the foregoing, any termination liability payable to third parties resulting from the termination.
12. Indemnification and Limitations on Liability. Customer will indemnify, defend and hold SBMCTV and each of its respective owners, directors, officers, employees and agents, harmless from and against any and all claims, suits, expenses, losses, demands, actions, causes of action, judgments, fees and costs, of any kind or nature whatsoever (Claims), arising from or related to any use, attempt to use or resale of Service or otherwise arising in connection with any Service or this Agreement. Customer is responsible and acknowledges 100% liability and responsibility for all customer network security systems, firewalls and any other network security necessary to protect Customer’s data, systems or networks. In no event will SBMCTV be liable FOR ANY DAMAGES WHATSOEVER FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY SERVICE ORDER. SBMCTV WILL HAVE NO LIABILITY FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY IN CONNECTION WITH OR FOR RESPONDING TO EMERGENCY 911 OR OTHER EMERGENCY REFERRAL CALLS.
- 13. Force Majeure. Neither party will be liable, nor will any remedy provided by this Agreement be available, for any failure of any Service due to causes beyond such party’s reasonable control which shall include without limitations, acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or other similar occurrences (“force majeure”). Customer will not be obligated to pay SBMCTV for Service not delivered as the result of force majeure.
- 14. Service Schedules and Service Levels. The “Service Level” commitments applicable to each Service are found in SBMCTV’s Service Schedule for each Service. Service Levels do not apply to off-net services (unless otherwise stated on a Service Schedule) or during periods of force majeure or Service maintenance. SBMCTV’s contractors may perform some or all of SBMCTV’s duties and obligations under the Service Schedules and this Agreement. Customer's sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels (if any) applicable to the affected Service.
- 15. Assignment/Resale. Customer may not assign its rights or obligations under this Agreement or any Service Order without the prior written consent of SBMCTV. This Agreement will apply to any permitted transferees or assignees. Customer may not resell any Services provided under this Agreement without the express written consent of SBMCTV. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party any right, benefit or remedy under or by reason of this Agreement.
16. Warranties. THE SERVICES AND EQUIPMENT PROVIDED BY SBMCTV ARE PROVIDED "AS IS." SBMCTV MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, RESPECTING THE SERVICES OR EQUIPMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- 17. Amendments. This Agreement may be amended from time to time by SBMCTV by providing 30 days prior written notice to Customer and making the revised version of the Agreement available on SBMCTV’s website: www.sanbrunocable.com. Continued use of the Services after the effective date of any such amendment constitutes Customer’s acceptance of the Agreement, as amended.
- 18. Confidentiality. All knowledge and information of a confidential nature acquired in performing this Agreement is confidential. Each party and its agents will keep such information confidential and not disclose such information to third parties, other than to its affiliates.
- 19. Notices. SBMCTV may provide notices under this Agreement to any address or fax number identified in a Service Order. Notices to SBMCTV must be made to the following address: San Bruno Municipal Cable TV, 398 El Camino Real, San Bruno, CA 94066, Attn: Cable Television Director.
20. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. The parties hereto consent to and agree to submit to the jurisdiction of the courts of the State of California for any action or proceeding arising under or by reason of this Agreement and agree that such courts are a convenient venue for all issues, matters and claims arising out of or relating to the Services and this Agreement.
21. Miscellaneous. This Agreement does not create any agency, joint venture, or partnership between SBMCTV and Customer, each of which are independent business entities. No prior agreements, understandings, statements, proposals or representations, either oral or written, respecting the subject matter hereof apply. If any provision of this Agreement is held to be illegal or unenforceable, this Agreement’s unaffected provisions will remain in effect. The terms of this Agreement, which either are expressly stated to survive or by their nature would logically be expected to survive termination, shall continue thereafter until fully performed. Customer may not use SBMCTV’s name, trademarks, trade names or other proprietary identifying symbols without the prior written approval of SBMCTV. . If either party fails to enforce any right or remedy under this Agreement, such failure will not waive the right or remedy.
IP ETHERNET SERVICE AGREEMENT
|SAN BRUNO MUNICIPAL CABLE TV – COMMERCIAL SERVICES
IP ETHERNET SERVICES
THIS SERVICE SCHEDULE APPLIES ONLY TO IP ETHERNET SERVICES PROVIDED TO COMMERCIAL CUSTOMERS OF THE CITY OF SAN BRUNO, D/B/A SAN BRUNO MUNICIPAL CABLE TV (“SBMCTV”). THIS SERVICE SCHEDULE DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH SBMCTV WILL PROVIDE ITS IP ETHERNET SERVICES (“IP ETHERNET SERVICES”) TO CUSTOMER. THIS SERVICE SCHEDULE TOGETHER WITH THE COMMERCIAL SERVICES AGREEMENT, ANY SERVICE ORDERS, OTHER SERVICE SCHEDULES AND SBMCTV’S ACCEPTABLE USE POLICY CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
1. IP ETHERNET SERVICES
IP Ethernet Services are dedicated (non-switched), high-speed connections between a router located at a site specified by Customer (“Connection Point”) to a port on SBMCTV’s Internet access network using an Ethernet interface. Advanced features such as Domain Name Service (DNS) hosting (SBMCTV hosts Customer’s domain name and domain aliases) and public IP addresses (SBMCTV provides Customer with public IP addresses which may be assigned to specific Customer equipment connected to the Internet through the IP Ethernet Services) are also available with this service.
In all instances, the SBMCTV Domain Name and TCP/IP Addresses provided in connection with IP Ethernet Services remain the property of SBMCTV and upon the termination of IP Ethernet Services, Customer’s right to use SBMCTV Domain Name and TCP/IP Addresses will cease. Unless otherwise mutually agreed in writing, Customer at all times is responsible for maintaining its own Domain Name when purchasing IP Ethernet Services and for paying all charges associated with the Domain Name, including charges billed to Customer for Domain Name registration by third parties. SBMCTV will have sole and exclusive discretion with regard to the Internet routing of SBMCTV-provided public IP addresses.
2. SERVICE PLANS AND CHARGES FOR IP ETHERNET SERVICES
Customer must select a service plan for IP Ethernet Services. Additional features such as DNS Hosting and public IP addresses are optional.
a. Available Service Plans and Rates Per Mbps
IP Ethernet Services:
|6 – 10 Mbps
|11 – 20 Mbps
|21 – 50 Mbps
|51 – 100 Mbps
Optional Features (available at additional cost):
Public IP addresses
b. Non-recurring Charges. Non-recurring charges are one-time installation charges including labor and materials for installing and activating services.
c. Third-Party Charges That Are Customer’s Responsibility. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by SBMCTV. These may include, without limitation, charges resulting from accessing on-line services, purchasing or subscribing to other offerings via the Internet, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3. ETHERNET INTERFACE REQUIREMENTS
a. 10 Mbps Interface Requirements. The interface is an IEEE 10BaseT port connection on the Service Provider transport CPE.
b. 100 Mbps Interface Requirements. The interface is an IEEE 100BaseTX port connection on the Service Provider transport CPE.
c. 1000 Mbps Interface Requirements. The interface is an IEEE 1000BaseSX/LX port connection on the Service Provider transport CPE.
d. IP Ethernet Service will support Ethernet access ports of the following types:
Full/Half-duplex 100 Mbps Ethernet over Category 5 Copper Twisted Pair
4. SERVICE COMMENCEMENT DATE
SBMCTV will notify Customer when: (a) IP Ethernet Services are installed or connected, successfully tested, and available for Customer use; and (b) if SBMCTV is installing Customer router, that the Customer router has been installed and is operational.
5. MAINTENANCE AND REPAIR OF IP ETHERNET SERVICES
a. Maintenance. SBMCTV shall provide routine maintenance and trouble repair for IP Ethernet Services, twenty-four (24) hours per day, seven (7) days per week. Scheduled maintenance will be performed during specified maintenance windows, except in emergencies in which instances as much notice as is practicable under the circumstances will be given to Customer.
b. Reporting Outages. If Customer experiences an IP Ethernet Services outage, Customer must notify SBMCTV by calling 650-616-3100 to open a Trouble Ticket. SBMCTV shall maintain a twenty-four (24) hours a day, seven (7) days a week point-of-contact for Customer to report outages and open a Trouble Ticket.
c. Maintenance Notifications. SBMCTV maintenance personnel will make reasonable efforts to notify Customer before beginning scheduled maintenance and upon the completion of scheduled maintenance.
d. Access to Equipment and Facilities. Employees, agents or contractors of SBMCTV shall have escorted access to any SBMCTV equipment or facilities at Customer premises, subject to Customer access and security regulations. SBMCTV employees, agents or contractors, while on Customer premises, shall comply with all applicable plant rules and regulations. If SBMCTV is unable to access Customer premises, and such access is required to fulfill SBMCTV’s obligations hereunder, SBMCTV shall be excused from performing such obligations until such time as appropriate access is provided to SBMCTV.
6. EQUIPMENT REQUIREMENTS
IP Ethernet Services must terminate into a router on the Customer premises approved by SBMCTV. A Customer premises router may be furnished by Customer or provided by SBMCTV for an additional monthly recurring charge. If provided by SBMCTV, SBMCTV will maintain, manage and support the router, including all associated device configurations and operational usernames and passwords. Customer must ensure that SBMCTV has unrestricted access to such router for purposes of testing, upgrading, and other maintenance activities. Customer will provide continuous electrical service to such router. SBMCTV will not be responsible for management of such router if Customer has modified it in any way, including making any configuration changes.
If Customer chooses to provide its own router, Customer will be solely responsible for all router maintenance, management, and support. In addition, Customer must provide a single Layer-3 (IP) interface on such router for the termination of the IP Ethernet Service. SBMCTV will configure a single IP address on the single Layer-3 IP interface.
7. SERVICE LEVEL AGREEMENT
a. Service Level Criteria
i. Network Availability Guarantee per month: 99.99%
ii. Latency Guarantee: 55 milliseconds average transit time within the SBMCTV network. The average latency is measured as the average of 15-minute samples across the SBMCTV network taken throughout the calendar month.
iii. Packet Loss Guarantee: maximum average packet loss of less than 1% over a calendar month. The packet loss is measured as the average of 15-minute samples across the SBMCTV network taken throughout the calendar month.
iv. Network Jitter Guarantee: The average network jitter delay caused by the SBMCTV network not to exceed 1ms during any calendar month.
b. Speed. SBMCTV makes no representation regarding the speed of the IP Ethernet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
a. Requests. If SBMCTV does not achieve a Service Level, a credit will be issued to Customer upon Customer’s request. SBMCTV’s maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Customer must contact SBMCTV Customer Service or deliver a written request with sufficient detail necessary to identify the affected Service within 60 days after the end of the month in which the credit was earned. In no event will the total credits issued to Customer per month exceed the non-recurring and monthly recurring charges for the affected IP Ethernet Service for that month. Credit allowances, if any, shall be deducted from the charges payable by Customer hereunder and shall be expressly indicated on a subsequent bill to Customer.
b. Exclusions. Credit allowances do not apply to outages (i) caused by or contributed to, directly or indirectly, by any act or omission of Customer and/or its affiliates, agents or representatives; (ii) due to failure of power; (iii) the failure or malfunction of non-SBMCTV equipment or systems; (iv) circumstances or causes beyond the control of SBMCTV or its agents; (v) during any period in which SBMCTV is not given access to the Customer premises or IP Ethernet Services Connection Point; or (vi) a planned service outage, unscheduled emergency maintenance, scheduled maintenance, alteration or implementation as described herein.
c. Credits Allowances. Customer may be entitled to credits for affecting IP Ethernet Services as follows:
i. If the Network Availability guarantee is not met in a calendar month, Customer will receive a credit of 1/30th of the Monthly Recurring Charge for that month for each full hour of outage in excess of the 99.99% guaranteed hereunder.
ii. If the Latency guarantee is not met in a calendar month, the customer will receive a credit of 1/30th of the Monthly Recurring Charge for that month for each full 1ms above the 55ms average maximum guaranteed hereunder.
iii. If the Packet Loss guarantee is not met in a calendar month, the customer will receive a credit of 1/30th of the Monthly Recurring Charge for that month for each full 1% above the 1% average maximum guaranteed hereunder.
iv. If the Jitter guarantee is not satisfied during a calendar month, the customer will be credited 1/30th of the Monthly Recurring Charge for each full millisecond (1ms) exceeding the 1ms average guaranteed hereunder.
d. Monthly Credit Limits. Total Customer credits available hereunder are limited to the Monthly Recurring Charge for the affected IP Ethernet Services for the month in which the IP Ethernet Services do not meet the service level criteria set out above.
SBMCTV exercises no control over, and therefore accepts no responsibility for information or content passing through its host computers, network hubs and points-of-presence. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, SBMCTV MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE IP ETHERNET SERVICES OR EQUIPMENT IT PROVIDES, AND IT DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SBMCTV expressly denies any responsibility for the accuracy or quality of information obtained by Customer through the use of IP Ethernet Services. The use of any information obtained via the SBMCTV network is at Customer's own risk.
SBMCTV will not be liable for any action it takes to remove or restrict access to obscene, indecent or offensive content made available by Customer, nor for any action taken to restrict access to material made available in violation of any law, regulation or rights of a third party including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy.
10. SOFTWARE LICENSE
a. Customer will not reproduce, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine, or attempt to determine, source code from any SBMCTV or third party software, nor will it permit or authorize any third party to do so. Title to such software, and all related technical know-how and intellectual property rights therein, will remain the exclusive property of SBMCTV and/or its suppliers. Customer must not take any action to jeopardize, limit or interfere in any manner with SBMCTV’s or a supplier's ownership rights with respect to any licensed software.
b. SBMCTV PROVIDES, AND CUSTOMER HEREBY ACCEPTS, ANY SBMCTV OR THIRD PARTY SOFTWARE PROVIDED TO OR USED BY CUSTOMER IN CONNECTION WITH THE IP ETHERNET SERVICES "AS IS," WITH NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NOTHING HEREIN MAY BE INTERPRETED TO ENHANCE OR CREATE ANY WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE. SBMCTV DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, SUPPORT OR USE OF ANY SOFTWARE AND ASSUMES NO OBLIGATION TO CORRECT ERRORS IN ANY SOFTWARE. CUSTOMER UNDERSTANDS AND ACCEPTS ALL RESPONSIBILITY FOR ANY SOFTWARE MEETING CUSTOMER'S REQUIREMENTS OR EXPECTATIONS.
Customer will indemnify, defend and hold SBMCTV and its officers, directors, employees, agents, affiliates and suppliers harmless from and against any claims, actions, demands, losses, damages and expenses, including attorney's fees, relating to any violation including, but not limited to, a breach by Customer, or other users of its account of their obligations with regard to IP Ethernet Services, the placement or transmission of any message, information, software or other materials on the Internet by Customer, its End Users or other users of its account, a violation of the Acceptable Use Policy, or Customer's traffic being processed through SBMCTV’s switch, port or node. This indemnification will survive the termination of the IP Ethernet Services.
SIP VOIP SERVICE AGREEMENT
|SAN BRUNO MUNICIPAL CABLE TV – COMMERCIAL SERVICES
SIP VOICE OVER INTERNET PROTOCOL (VOIP) SERVICE
THIS SERVICE SCHEDULE APPLIES ONLY TO SIP VOICE OVER INTERNET PROTOCOL SERVICE PROVIDED TO COMMERCIAL CUSTOMERS OF THE CITY OF SAN BRUNO, D/B/A SAN BRUNO MUNICIPAL CABLE TV (“SBMCTV”). THIS SERVICE SCHEDULE DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH SBMCTV WILL PROVIDE ITS SIP VOICE OVER INTERNET PROTOCOL SERVICE (TOGETHER WITH 911/E911 AND OTHER RELATED SERVICES “SIP VOIP SERVICES”) TO CUSTOMER. THIS SERVICE SCHEDULE TOGETHER WITH THE COMMERCIAL SERVICES AGREEMENT, ANY SERVICE ORDERS, OTHER SERVICE SCHEDULES AND SBMCTV’S ACCEPTABLE USE POLICY CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
1. SIP VOIP SERVICES
a. Services Defined. SIP VoIP Services convert voice communications into Internet protocol ("IP") for two-way calling, and provide a range of other related features and functionalities.
b. SIP VoIP Services versus traditional telephone services. The SIP VoIP Services are not traditional telephone services, and SBMCTV provides them on an as-is basis. Important distinctions exist between traditional telephone services and the SIP VoIP Services. Some but not all of these distinctions are outlined in this Service Schedule. The SIP VoIP Services are subject to different regulatory treatment than traditional telephone services. This treatment may limit or otherwise affect Customer’s rights and remedies before regulatory agencies and courts.
c. Changes in Services offered. SBMCTV reserves the right to change the SIP VoIP Services that SBMCTV offers, and its prices or fees related to such SIP VoIP Services at any time. If the change affects Customer, SBMCTV will provide Customer notice of the change and its effective date. Changes in prices will become effective upon the earlier of 30 days’ notice, or 30 days from posting on SBMCTV’s website at www.sanbrunocable.com.
d. Service outages. At SBMCTV’s sole option, it may credit Customer for any outages of the SIP VoIP Services in an amount to be determined by SBMCTV. The maximum amount of credit in any calendar month shall not exceed the monthly recurring fee and Installation Charge, which, absent the credit, would have been charged for the SIP VoIP Services that month.
e. MTA/EMTA. To use the SIP VoIP Services, Customer will need a multimedia terminal adaptor or enhanced multimedia terminal adaptor (“MTA/EMTA”). If the MTA/EMTA is provided by SBMCTV, it will be deemed SBMCTV equipment. If the MTA/EMTA is not provided by SBMCTV, it must be approved in writing by SBMCTV, and will be deemed Customer Equipment (as defined below). Customer may have the option to self-install an MTA/EMTA, which is subject to availability and the terms of this Service Schedule.
f. Directory listing. The phone number(s) that Customer uses with the SIP VoIP Services will not be listed in any directories.
2. SERVICE PLANS AND CHARGES FOR THE SIP VOIP SERVICES
Customer must select a service plan for SIP VoIP Services.
a. Available Service Plans and Monthly Recurring Charges
Commercial Phone Service (Monthly Rates do not include taxes and fees.)
|Business Line (Unlimited)
|Line Activation (Business Line or Fax)
|SIP Trunk (per)
|IP PBX (per Extension)
|Minutes (per outbound minute)
|1-800 Service (per line)
|1-800 Minutes (per inbound minute)
|Virtual Numbers (per)
THIS SERVICE SCHEDULE INCORPORATES BY REFERENCE ANY PRICING INCLUDED ON THE www.sanbrunocable.com WEBSITE.
b. Usage Requirements. Customer represents and warrants that it will use the SIP VoIP Services in conformance and compliance with the federal Telephone Consumer Protection Act and other laws or regulations pertaining to "do not call" lists or registries. SIP VoIP Services may not be used in connection with call center or similar operations, auto-dialers, foreign exchange services, public telephone services, calls to Internet Service Providers, broadcast facsimile applications, or aggregated end-user traffic such as that undertaken by educational institutions, nor may SIP VoIP be deployed at any Customer collocation space. SIP VoIP Service requires a minimum of five (5) analog lines or equivalents at all times. SBMCTV reserves the right either to discontinue furnishing SIP VoIP or to move the Customer to an alternative usage plan or product if Customer's usage, in SBMCTV's sole discretion, is deemed not to be that of a typical business user or if the service is being used by Customer for any prohibited application, or if Customer falls below the minimum required number of analog lines or equivalents. Customer shall remain responsible for any applicable early termination charge if it chooses to terminate service as a result of SBMCTV's discontinuation of service or its modification of the Customer's usage plan or product.
c. Third-Party Charges That Are Customer’s Responsibility. The SIP VoIP Services may allow Customer to access "dial-up" Internet service providers, other enhanced service providers (e.g., information services accessible through 800, 888, and 877 numbers), and other third-party providers. Customer acknowledges that Customer may incur charges with such providers that are separate and apart from the amounts charged by us. Customer agrees that all charges payable to third parties, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3. CUSTOMER EQUIPMENT, DOWNLOADS, RESTRICTIONS ON SOFTWARE
a. "Customer Equipment" That Customer Must Provide. In order for Customer to receive the SIP VoIP Services Customer are required to provide certain equipment such as a phone handset or equivalent, phone inside wire and outlets, and a powered electrical outlet. Equipment provided by Customer will be deemed “Customer Equipment” under this Service Schedule.
b. MTA/EMTA. To use the SIP VoIP Services, Customer will also need a multimedia terminal adapter or enhanced multimedia terminal adapter ("MTA/EMTA"). If Customer provides the MTA/EMTA it will be deemed Customer Equipment under this Service Schedule and its use must be approved in writing by SBMCTV. Customer agrees to keep any MTA/EMTA used with the SIP VoIP Services plugged into a working electrical power outlet at all times.
c. Downloads. To optimize the performance of its network, SBMCTV reserves the right to alter software in the SBMCTV Equipment and Customer Equipment (as defined above) through periodic downloads. SBMCTV will use commercially reasonable efforts to schedule these downloads in a manner that results in the least amount of interference with or interruption to Customer’s SIP VoIP Services.
d. Restrictions on software. The SBMCTV Equipment and MTA/EMTA contain certain components and software which are proprietary to SBMCTV or its licensors. Customer agrees that Customer will not try to reverse-engineer, decompile or disassemble any software or hardware contained within the SBMCTV Equipment or MTA/EMTA. Such actions are strictly prohibited and may result in the termination of Customer’s SIP VoIP Services and legal action.
e. Ownership and specifications of Customer Equipment
i. Ownership. Customer represent that Customer either owns the Customer Equipment or has the right to use that equipment in connection with the SIP VoIP Services. SBMCTV shall have no obligation to provide, maintain, or service the Customer Equipment (including but not limited to any MTA/EMTA that Customer have purchased).
ii. Specifications for Customer Equipment and Internet connection. Any Customer Equipment that Customer uses in connection with the SIP VoIP Services must meet SBMCTV’s current minimum technical and other requirements. Customer may not use the SIP VoIP Services without an SBMCTV broadband Internet connection.
iii. Non-Recommended Configurations. If Customer installs or uses in connection with the SIP VoIP Services Customer Equipment or an Internet connection that does not comply with Section 3.e.ii above (a "Non-Recommended Configuration"), Customer agrees that (i) Customer will not be entitled to customer support relating to any issues other than the quality of the signal delivered to the MTA/EMTA; and (ii) the following limitation of liability shall apply: SBMCTV, ITS EMPLOYEES, OFFICERS, AGENTS, AFFILIATES, CONTRACTORS, REPRESENTATIVES
AND THIRD-PARTY PROVIDERS (COLLECTIVELY “SBMCTV PARTIES”) MAKE NO WARRANTY THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SIP VOIP SERVICES. CUSTOMER ACKNOWLEDGES THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT. NONE OF THE SBMCTV PARTIES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH DAMAGE, NOR FOR ANY INJURIES OR DAMAGES RESULTING THEREFROM, INCLUDING INJURIES OR DAMAGES RESULTING FROM FAILURE OF 911/E911, OR DIALING ASSOCIATED WITH A SECURITY SYSTEM. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Service Schedule.
f. Retention of Rights. SBMCTV and its third-party providers reserve the right both during the provision of SIP VoIP Services under this Service Schedule and upon the termination of SIP VoIP Services to delete Customer’s voicemail, data, files, or other customer information that is stored on SBMCTV’s or its suppliers' servers or systems, in accordance with their storage policies. Customer understands and acknowledges that SBMCTV shall have no liability whatsoever as a result of the loss or removal of any such voicemail, data, files, or other customer information.
4. LIMITATIONS ON 911/E911 SERVICES
The SIP VoIP Services include 911/Enhanced 911 functions (“911/E911”) that may differ from the 911 or Enhanced 911 functions furnished by other providers. As such, it may have certain limitations. CAREFULLY READ THE INFORMATION BELOW. CUSTOMER ACKNOWLEDGES AND ACCEPTS ANY LIMITATIONS ON 911/E911. CUSTOMER AGREES TO EXPLAIN THESE LIMITATIONS TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS USING THE SIP VOIP SERVICES. IF CUSTOMER HAS ANY QUESTIONS ABOUT 911/E911, CALL SBMCTV AT 650-616-3100.
a. Correct address necessary. In order for Customer’s 911/E911 calls to be properly directed to emergency services, SBMCTV must have Customer’s correct service address. SIP VoIP Services will be installed at the Customer address(es) specified in the Service Order. Customer expressly agrees, represents and warrants that no calls will be made via use of SIP VoIP Services from any location, including but not limited to remote and virtual direct dial locations, other than the actual Customer premises specifically designated by Customer on the Service Order and at which SIP VoIP Service is installed. If Customer moves the SIP VoIP Services to a different address without SBMCTV’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, or the SIP VoIP Services and 911/E911 services may totally fail to function. Accordingly, Customer must obtain SBMCTV’s authorization before the SIP VoIP Services are moved to a new service address.
b. Delays in updating location information in emergency database. SBMCTV will need several business days to update Customer’s service address in the emergency database so that Customer’s 911/E911 calls can be properly directed. In the meantime, 911/E911 calls may be directed to Customer’s former address.
c. Power outages. SBMCTV’s SIP VoIP Services use the electrical power in Customer’s premises. If there is an electrical power outage, 911/E911 calling will not function.
d. Broadband outages. All calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network/equipment/power failure, or another technical problem.
e. Network congestion; reduced speed for routing or answering 911 calls. There may be a greater possibility of network congestion and reduced speed in the routing of a 911 call made with the SIP VoIP Services as compared to traditional telephone services. The MTA/EMTAs provided by SBMCTV have warning stickers summarizing the above limitations. If Customer provides Customer’s own MTA/EMTA, SBMCTV will provide Customer with warning stickers that summarize the above limitations. It is Customer’s responsibility to place the warning stickers on each MTA/EMTA that Customer uses with the SIP VoIP Services. If Customer does not receive the warning stickers at the time of installation, or if Customer requires additional warning stickers, please contact SBMCTV’s customer service department at 650-616-3100.
f. LIMITATION ON LIABILITY: CUSTOMER ACKNOWLEDGES AND AGREES THAT THE
SBMCTV PARTIES WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY
TO DIAL 911/E911 USING THE SIP VOIP SERVICES, AND/OR INABILITY TO ACCESS
EMERGENCY SERVICE PERSONNEL. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE SBMCTV PARTIES 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,
CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING TO THE
FAILURE OR OUTAGE OF THE SIP VOIP SERVICES, INCLUDING THOSE RELATED TO
911/E911 SERVICES PROVIDED TO CUSTOMER IN CONNECTION WITH THE SIP VOIP SERVICES.
5. INCOMPATIBILITY OF THE SIP VOIP SERVICES WITH CERTAIN EQUIPMENT, SERVICES, AND ACTIVITIES
a. Incompatible Equipment and Services.
Customer acknowledges and understands that the SIP VoIP Services may not support or be compatible with:
i. Non-Recommended Configurations as defined in Section 3.3.iii (including but not limited to MTA/EMTAs not provided by SBMCTV);
ii. 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;
iii. 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;
iv. Casual/dial around (10-10) calling; 976, 900, 700, or 500 number calling;
v. 311, 511 or other x11 calling (other than 411, 611, 711, and 911); and
vi. Other call types not expressly set forth in our product literature (e.g., outbound shore-to-ship calling and outbound satellite calling).
BY ACCEPTING SIP VOIP SERVICES UNDER THIS SERVICE SCHEDULE, CUSTOMER WAIVES ALL CLAIMS AGAINST THE SBMCTV PARTIES FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN SBMCTV’S EQUIPMENT OR THE SIP VOIP SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, CUSTOMER’S SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH THE COMMERCIAL SERVICES AGREEMENT.
b. Customer Assume the Risk of High-Risk Activities. As further described in Section 8, the SIP VoIP Services are not represented as fail-safe. They are not designed for use in situations where error-free or uninterrupted service is essential. Customer expressly assumes the risk of any damages from high-risk activities involving vital communications in which an error or interruption in the SIP VoIP Services could lead to material injury to business, persons, property, or the environment.
6. CUSTOMER PROPRIETARY NETWORK INFORMATION. To inform Customer of SBMCTV services that may be of interest to Customer, SBMCTV may wish to use information derived from the provision of SIP VoIP Services to Customer, particularly information known as Customer Proprietary Network Information (CPNI). CPNI is information about the quantity, technical configuration, type, destination, location, and amount of Customer’s use of SBMCTV’s SIP VoIP Services; and information contained on Customer bills related to the SIP VoIP Services received. 47 U.S.C. § 222 and Federal Communications Commission regulations provide certain privacy protections for CPNI and authorize certain uses. SBMCTV’s CPNI Policy describes what CPNI SBMCTV collects, how it is protected, and how it may be used. The Policy (Subscriber Privacy Notice) is available on SBMCTV’s website, or by calling SBMCTV at 650-616-3100. SBMCTV may use your CPNI and disclose to and allow access to your CPNI by its agents and any affiliates that provide communications-related services to market communications-related services (such as Internet services and services related to the provision or maintenance of customer premises equipment) to you unless you contact SBMCTV to deny or restrict your approval. Please note that you may deny or restrict your approval at any time by calling SBMCTV at 650-616-3100.
7. LOCAL NUMBER PORTABILITY.
a. If Customer is switching to the SIP VoIP Services from another service provider, Customer may not be able to transfer Customer’s existing phone number to the SIP VoIP Services. If Customer is able to transfer (“port in”) Customer’s existing phone number to the SIP VoIP Services, Customer may be charged a fee by SBMCTV to complete the transfer.
b. To transfer Customer’s phone number from SBMCTV to another provider, Customer must place the order to transfer the SIP VoIP Services with Customer’s new service provider. Customer cannot place the order with SBMCTV. SBMCTV will release Customer’s phone number to Customer’s new service provider, provided that:
(i) Customer’s new service provider submits a properly completed transfer request to SBMCTV;
(ii) Customer’s new service provider will accept transfer of the phone number without delay or charge to SBMCTV; and
(iii) Transfer of Customer’s existing phone number to the new service provider will not violate applicable law or SBMCTV’s policies and procedures.
Customer may be charged a fee by SBMCTV to complete the transfer (“port out”) of Customer’s number to a new service provider.
8. LIMITATION OF LIABILITY; INDEMNIFICATION; NO WARRANTIES; WARNINGS
a. Limited warranty. THE SERVICES AND EQUIPMENT PROVIDED BY SBMCTV ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NONE OF THE SBMCTV PARTIES WARRANT THAT THE SBMCTV EQUIPMENT, MTA/EMTAs PROVIDED BY SBMCTV, OR THE SIP VOIP SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NONE OF THE SBMCTV PARTIES
WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY EXCLUDED.
b. Limitation of SBMCTV Parties’ liability. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SERVICE SCHEDULE, IN NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY (INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, OR OTHERWISE), SHALL THE SBMCTV PARTIES HAVE ANY LIABILITY TO CUSTOMER OR TO ANY PERSON OR ENTITY FOR (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, OR PERSONAL INJURIES (INCLUDING DEATH), RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, REMOVAL, OR USE OF THE SIP VOIP SERVICES, INCLUDING BUT NOT LIMITED TO: LACK OF 911/E911 SERVICES OR DIALING ASSOCIATED WITH A SECURITY SYSTEM OR SBMCTV EQUIPMENT OR CUSTOMER’S RELIANCE ON OR USE OF SBMCTV EQUIPMENT OR THE SIP VOIP SERVICES, INCLUDING BUT NOT LIMITED TO ANY MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURES OR MALFUNCTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, LOSS OF INFORMATION OR DATA, OR FAILURE OF PERFORMANCE OF SBMCTV EQUIPMENT OR THE SIP VOIP SERVICES; OR (ii) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR COSTS (INCLUDING
LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE
ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT, OR OTHER
PROCEEDING BASED UPON A CONTENTION THAT THE USE OF SBMCTV EQUIPMENT OR THE SIP VOIP SERVICES BY CUSTOMER 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.
c. Customer's Indemnification of SBMCTV Parties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SERVICE SCHEDULE, CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD THE SBMCTV PARTIES HARMLESS FROM CLAIMS OR
DAMAGES RELATING TO OR ARISING OUT OF CUSTOMER’S BREACH OF THIS
SERVICE SCHEDULE OR CUSTOMER’S AND CUSTOMER’S USERS' USE OF THE SIP VOIP SERVICES OR ANY SBMCTV EQUIPMENT OR MTA/EMTA PROVIDED BY SBMCTV, INCLUDING BUT NOT LIMITED TO ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 SERVICES OR DIALING ASSOCIATED WITH A SECURITY SYSTEM.CUSTOMER AGREES THAT NONE OF THE SBMCTV PARTIES SHALL BE RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS THAT ARISE FROM CUSTOMER’S USE OF THE SIP VOIP SERVICES, SBMCTV EQUIPMENT, OR ANY MTA/EMTA PROVIDED BY SBMCTV. FURTHER, CUSTOMER AGREES TO REIMBURSE SBMCTV FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS.
d. Limitations on SBMCTV’s liability for Customer Equipment and software.
Customer Equipment may be damaged or suffer service outages as a result of the installation, use, inspection, maintenance, repair, and removal of the SBMCTV Equipment and the SIP VoIP Services, and upgrades to firmware or software embedded in the SBMCTV Equipment or the MTA/EMTA used with the SIP VoIP Services. Except for gross negligence or willful misconduct by us, none of the SBMCTV Parties shall have any liability whatsoever for any damage, loss, or destruction to the Customer Equipment. Use of certain features of the SIP VoIP Services may require special software, applications, or access to SBMCTV's portals. SBMCTV makes no representation or warranty that any software or application installed on Customer’s computer or web portal does not contain a virus or other harmful feature. It is Customer’s sole responsibility to take appropriate precautions to protect any computer and other hardware of Customer from damage to its software, files, and data as a result of any such virus or other harmful feature. SBMCTV are not required to provide Customer with any assistance in removal of viruses. If SBMCTV decide, in our sole discretion, to install or run virus check software on Customer’s computer, SBMCTV make no representation or warranty that the virus check software will detect or correct any or all viruses. Customer acknowledge that Customer may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on Customer’s system. NONE OF THE SBMCTV PARTIES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT. SBMCTV does not represent, warrant, or covenant that the installation of the special software or applications described in the preceding paragraph or access to our web portals will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including but not limited to Customer’s computer. FOR THESE AND OTHER REASONS, CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES.CUSTOMER UNDERSTANDS AND ACCEPTS THE RISKS IF CUSTOMER DECIDES NOT TO BACK UP FILES.
e. Limitations on SBMCTV’s liability for third parties. Notwithstanding anything
to the contrary in this Service Schedule, Customer acknowledge and understand that SBMCTV may use third parties to provide components of the SIP VoIP Services, including without limitation their services, equipment, and infrastructure. SBMCTV is not responsible for the performance or non-performance of third-party services, equipment, or infrastructure, whether or not they constitute components of the SIP VoIP Services. SBMCTV shall not be bound by any undertaking, representation, or warranty made by an agent or employee of SBMCTV or of any third-party provider in connection with the installation, maintenance, or provision of the SIP VoIP Services, if that undertaking, representation, or warranty is inconsistent with the terms of this Service Schedule. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of SBMCTV and its third-party providers (and their respective officers, employees, officers, agents, affiliates, contractors and representatives) which, but for that provision, would give rise to a cause of action in contract, tort, or any other legal doctrine.
f. Rights and remedies. Nothing contained in this Service Schedule shall be construed to limit SBMCTV’s rights and remedies available at law or in equity. Customer’s sole and exclusive remedies under this Service Schedule are as expressly set forth in this Service Schedule.