8. Use and Control of Information; Service Provider Communication; Ads. NHTC may, without obligation, liability or notice, except to the extent prohibited by applicable law, distribute, loan, sell or otherwise share with other persons or entities user lists, (Your account information that does not identify customer by name, address or similar personally-identifiable information), as well as aggregate information. Aggregate information includes information constituting or descriptive of demographic information, habits, usage patterns, preferences, survey data or other descriptive or related data which do not rely on providing to recipients the identity of any particular user of the Service. This shall not be construed to limit NHTC’s use of other information not addressed in this Section. NHTC will be free, in its reasonable good faith discretion, and without notice, to provide Subscriber and user information and records to (i) the courts, (ii) law enforcement agencies, (iii) government agencies, or (iv) authorized persons or entities involved in enforcing compliance with the law or prosecuting claims or investigations for conduct or conditions alleged or believed to be illegal or to violate or threaten the rights of any person or entity. In addition, NHTC may maintain and use internally such information and records. Information generated by or in connection with our administration of the Service shall be and remain NHTC’s exclusive property. You acknowledge that communications with NHTC, our representatives and our contractors may be monitored or reviewed for quality control and other reasonable business purposes. You also acknowledge that advertising and promotion may occur on the Service and also that neither You nor any user shall have any claim with respect to any proceeds from such activities. NHTC’s Customer Proprietary Network Information (“CPNI”) policy can be found at https://nhtc.coop/your-cooperative/important-documents/.
9. Limited Warranty; Disclaimer of Warranties; Limitation on Damages (Including Service Credits). THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BROADBAND SPEEDS, VIDEO AND TELECOMMUNICATION TRANSMISSION QUALITY, AND ACCURACY OF ANY DIRECTORY LISTINGS OR INFORMATION ARE NOT GUARANTEED. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY OUR EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. NHTC MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, CONTENT, ACCURACY OR VALIDITY OF THE INFORMATION, VIDEO AND/OR DATA RESIDING ON OR PASSING THROUGH AND/OR OVER THE NETWORK.
WITH RESPECT TO CLAIMS ARISING OUT OF PROVISION OF THE SERVICES SET OUT IN THIS AGREEMENT, LIABILITY OF NHTC AND ITS EMPLOYEES, AFFILIATES, SUBSIDIARIES, ASSIGNEES, OR AGENTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE GREATER OF TOTAL CHARGES APPLICABLE TO THE SERVICE FOR ONE YEAR OR THE THEN CURRENT TERM OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL NHTC OR ITS EMPLOYEES, AFFILIATES, SUBSIDIARIES, ASSIGNEES, OR AGENTS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, NOTWITHSTANDING THEIR FORESEEABILITY OR DISCLOSURE BY YOU TO NHTC, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM DELAY, LOSS OF DATA, PROFITS, OR GOODWILL. SHOULD NHTC PROVIDE ADVICE, MAKE RECOMMENDATIONS, OR SUPPLY OTHER ANALYSIS RELATED TO THE SERVICES, THIS LIMITATION OF LIABILITY SHALL APPLY TO PROVISION OF SUCH WORK. WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY AGREE THAT NHTC SHALL NOT BE LIABLE FOR ANY ACCIDENT OR INJURY CAUSED BY THE SERVICES. YOU ACKNOWLEDGE THAT THE PRICING OF SERVICES UNDER THIS AGREEMENT REFLECTS THE INTENT OF THE PARTIES TO LIMIT NHTC’S LIABILITY AS PROVIDED HEREIN. UNLESS OTHERWISE PROVIDED IN THE SERVICE ORDER OR PRICE LIST, IF THERE IS AN INTERRUPTION OR FAILURE OF SERVICES IN EXCESS OF FORTY-EIGHT (48) HOURS, CAUSED SOLELY BY US AND NOT BY YOU, A THIRD PARTY, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL, YOU MAY BE ENTITLED TO A SERVICE CREDIT, THE AMOUNT OF WHICH SHALL ACCRUE FROM THE TIME THAT WE ARE NOTIFIED OF AN INTERRUPTION OR FAILURE OF SERVICES UNTIL WE HAVE RESTORED YOUR SERVICES OR OTHERWISE REMEDIED THE REPORTED PROBLEM. SUCH CREDIT SHALL BE CALCULATED AS ONE THIRTIETH (1/30) OF THE APPLICABLE FIXED MONTHLY CHARGES FOR EACH PERIOD OF TWENTY FOUR (24) HOURS OR MAJOR FRACTION THEREOF. FOR PURPOSES OF THIS SECTION, TWELVE (12) HOURS OR MORE CONSTITUTES A MAJOR FRACTION OF A TWENTY-FOUR (24) HOUR PERIOD. YOU SHALL FORFEIT ANY ENTITLEMENT TO SUCH CREDIT IF YOU EITHER DENY US, OR FAIL TO PROVIDE US WITH, LAWFUL ACCESS TO ANY PART OF YOUR PREMISES TO WHICH ACCESS IS NECESSARY IN ORDER TO REPAIR THE PROBLEM. NOTWITHSTANDING THE PROVISIONS CONTAINED WITHIN THIS SECTION, WE SHALL NOT BE LIABLE FOR ANY REFUND IF THE INTERRUPTION OR FAILURE OF SERVICES IS CAUSED BY ANY OF THE EVENTS DESCRIBED OR REFERRED TO IN SECTION 15 BELOW OR IF THE INTERRUPTION OR FAILURE OF SERVICES IS CAUSED BY ANY MAINTENANCE, SERVICE REARRANGEMENT, OR CHANGE TO YOUR ORDER OR SERVICES WHICH WAS SCHEDULED OR NEGOTIATED PRIOR TO THE INTERRUPTION OR FAILURE OF SUCH SERVICES. THIS SECTION 9 SURVIVES AND WILL CONTINUE TO APPLY AFTER THIS AGREEMENT ENDS.
10. Dispute Resolution. The Alabama Public Service Commission (“APSC”) has jurisdiction over the following complaints arising from Alabama intrastate residential telecommunications services: inaccurate billing, billing of telecommunications services not ordered on your behalf and the establishment or disruption of telecommunications service. You may contact the APSC to file a complaint through its web page at http://www.psc.state.al.us or by telephone at 1-800-392-8050.
IT IS IMPORTANT THAT YOU READ THIS PARAGRAPH CAREFULLY. IT PROVIDES FOR RESOLUTION OF DISPUTES (WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL OR EQUITABLE THEORY), THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. ALL DISPUTES ARISING OUT OF THIS AGREEMENT (OTHER THAN ACTIONS FOR THE COLLECTION OF DEBTS YOU OWE NHTC), INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BASED ON ANY SERVICE OR ADVERTISING OF THE SERVICE RELATED THERETO, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, WHICH SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”), 9 U.S.C. §1-16. ANY QUESTION REGARDING WHETHER A PARTICULAR CONTROVERSY, OR THE PROCEDURES THEREIN, IS SUBJECT TO ARBITRATION SHALL BE DECIDED BY THE ARBITRATOR. YOU HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL IN THE ARBITRATION. THE ARBITRATOR SHALL BE BOUND BY AND STRICTLY ENFORCE THE TERMS OF THIS AGREEMENT AND MAY NOT LIMIT, EXPAND OR OTHERWISE MODIFY THE TERMS OF THIS AGREEMENT IN CONDUCTING THE ARBITRATION AND MAKING ANY AWARD. THE ARBITRATION WILL BE BASED SOLELY ON THE WRITTEN SUBMISSIONS OF THE PARTIES AND THE DOCUMENTS SUBMITTED RELATING TO THE DISPUTE, UNLESS EITHER PARTY REQUESTS THAT THE ARBITRATION BE CONDUCTED USING THE AAA’S TELEPHONIC, ON-LINE, OR INPERSON PROCEDURES, FOR WHICH ADDITIONAL CHARGES MAY APPLY. ANY IN-PERSON ARBITRATION WILL BE CONDUCTED AT A LOCATION THAT THE AAA SELECTS IN THE STATE OF YOUR PRIMARY RESIDENCE. ARBITRATIONS UNDER THIS AGREEMENT SHALL BE KEPT CONFIDENTIAL TO THE EXTENT PERMITTED BY LAW.
THE ARBITRATION OF ANY DISPUTE UNDER THIS AGREEMENT SHALL BE CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL OR CONSUMER, AS APPLICABLE, ARBITRATION RULES AND FEE SCHEDULE OF THE AAA, AS MODIFIED BY THIS AGREEMENT. THE APPLICABLE AAA RULES SHALL BE THOSE RULES WHICH GOVERN THE AMOUNT AND TYPE OF DISPUTE INVOLVED AND WHICH ARE IN EFFECT ON THE DATE A DISPUTE IS SUBMITTED TO THE AAA. A COPY OF THE AAA’S ARBITRATION RULES IS AVAILABLE BY WRITING TO NHTC AT P.O. BOX 452, NEW HOPE, AL 35760. DISPUTES UNDER THIS AGREEMENT MAY NOT BE JOINED WITH ANOTHER PROCEEDING, INCLUDING ANY INDIVIDUAL OR CLASS LAWSUIT. THE ARBITRATOR MAY NOT AWARD, AND YOU AND NHTC WAIVE ANY CLAIMS FOR AWARDS FOR PUNITIVE OR CONSEQUENTIAL DAMAGES OR ATTORNEYS’ FEES OR ANY DAMAGES THAT ARE BARRED BY THIS AGREEMENT, UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A RELEVANT STATUTE. ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE DATE THE BASIS FOR THE DISPUTE OR CLAIM FIRST ARISES, OR WITHIN SUCH OTHER TIME PERIOD AS MAY BE PRESCRIBED BY RELEVANT STATUTE. BEFORE EITHER PARTY TAKES A DISPUTE TO ARBITRATION, SUCH PARTY MUST FIRST ATTEMPT TO RESOLVE THE DISPUTE BY CONTACTING THE OTHER PARTY. TO DO THIS YOU SHOULD CONTACT THE CUSTOMER SERVICE NUMBER ON YOUR NHTC BILL, OR WRITE TO US AT THE ABOVE ADDRESS OR CONTACT US THROUGH THE WEB AT WWW.NHTC.COOP. IF WE ARE NOT ABLE TO SATISFACTORILY RESOLVE THE DISPUTE WITHIN SIXTY (60) CALENDAR DAYS FROM THE DATE OF THE INITIAL NOTIFICATION OF THE DISPUTE, EITHER PARTY MAY CONTACT THE AAA IN WRITING AT AAA SERVICE CENTER, 2200 CENTURY PARKWAY, SUITE 300,ATLANTA, GA 30345- 3203 (TEL 404-325-0101; FAX: 404-325-8034) AND REQUEST ARBITRATION. THE AAA’S FILING FEE AND ADMINISTRATIVE EXPENSES FOR DOCUMENT ARBITRATION WILL BE ALLOCATED ACCORDING TO THE RULES OF THE AAA, EXCEPT, AS STATED HEREIN, FOR CLAIMS OF LESS THAN $10,000, NHTC WILL PAY ALL OF THE AAA’S COSTS AND FEES OTHER THAN A FILING FEE OF $20, WHICH YOU MUST PAY. FOR CLAIMS BETWEEN $10,000 AND $75,000, NHTC WILL PAY ALL OF THE AAA’S COSTS AND FEES, EXCEPT THAT YOU WILL PAY A FEE TO THE AAA OF NO MORE THAN $375. IF YOU ELECT AN ARBITRATION PROCESS OTHER THAN A DOCUMENT (“DESK”) OR TELEPHONE ARBITRATION, YOU MUST PAY YOUR ALLOCATED SHARE OF ANY HIGHER ADMINISTRATIVE FEES AND COSTS FOR THE PROCESS YOU SELECT. ADDITIONAL INFORMATION ABOUT THE AAA’S RULES AND POLICIES IS AVAILABLE AT THE AAA’S WEBSITE, WWW.ADR.ORG, INCLUDING INFORMATION REGARDING THE AVAILABILITY OF A PRO BONO ARBITRATOR AND/OR A WAIVER OR DEFERMENT OF FEES AND EXPENSES FROM THE AAA. SUBJECT TO APPLICABLE SUBSTANTIVE LAW THAT MAY PROVIDE OTHERWISE, EACH PARTY WILL PAY ITS OWN EXPENSES TO PARTICIPATE IN THE ARBITRATION, INCLUDING ATTORNEYS’ FEES AND EXPENSES RELATED TO THE PRESENTATION OF EVIDENCE, WITNESSES, AND DOCUMENT PRODUCTION. IF YOU PREVAIL IN THE ARBITRATION, YOUR ARBITRATION FILING FEE WILL BE REIMBURSED BY NHTC. IF WE PREVAIL IN THE ARBITRATION, AND WE SHOW THAT YOU ACTED IN BAD FAITH IN BRINGING YOUR CLAIM AGAINST US, THEN WE MAY SEEK TO RECOVER THE AAA’S FEES AND REASONABLE EXPENSES OF THE ARBITRATION FROM YOU. IF ANY PROVISION OF THIS DISPUTE RESOLUTION SECTION IS DETERMINED TO BE UNENFORCEABLE, THEN THE REMAINDER SHALL BE GIVEN FULL FORCE AND EFFECT. THIS SECTION 10 SHALL NOT APPLY TO ACTIONS FOR THE COLLECTION OF DEBTS YOU OWE NHTC.
11. Indemnification. You shall indemnify and hold NHTC harmless from and against any and all claims, losses, damages, liabilities, fees and expenses incurred by NHTC (including attorneys’ fees and expenses) or You resulting from, arising out of, or connected with any breach or violation by You of any terms and conditions set forth in this Agreement and Your use of the Service in any manner whatsoever.
12. Notices; Facsimile Signatures. All notices required by this Agreement may be made by any reasonable means, including, but not limited to, email or publication over the Service. The delivery of any party to the other of a telecopy or facsimile signature to the Broadband Services Application this Agreement or any notice hereunder shall have the same effect as the delivery of an original signature; provided however, that the party thereafter shall promptly deliver an original signature page to the other (although any failure or delay in the delivery of an original signature shall not vitiate or impair the legally binding effect of a telecopy of facsimile signature).
13. Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their successors and permitted assigns of You; provided, however, that neither the equipment nor this Agreement nor any of the rights, interests or obligations of You hereunder or to the equipment may be transferred, assigned or delegated without Our (NHTC’s) prior written consent.
14. Governing Law and Forum/Collection Costs. Subject to the arbitration and dispute resolution requirements of Paragraph 10, this Agreement is governed by and construed in accordance with the laws of the State of Alabama and You consent to the jurisdiction of the federal District Courts of Alabama and the Circuit and District Courts of Dekalb County, Alabama with respect to any dispute arising under this Agreement. Any final arbitration award or judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. You agree to pay all costs of collection, including all reasonable attorney’s fees and expenses, incurred by NHTC arising from or related to the collection of any amounts due under this Agreement. The right to such attorney’s fees and expenses shall be deemed to have accrued from the commencement of any such activities and shall be enforceable whether such action is filed or prosecuted to judgment. Nothing herein contained shall be construed to preclude or in any way prohibit NHTC from instituting and otherwise prosecuting to judgment a lawsuit in any court of competent jurisdiction to effect the collection of any sums due it. The printed or electronic version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative hearing based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
15. Force Majeure. We are excused from performance hereunder for any period, to the extent that it is prevented from such performance, in whole or in part, as a result of delays caused by an act of God or other cause beyond Our control, including, without limitation, weather, acts of third parties, or outages on other systems.
16. Reformation; Severability. If any term, covenant or condition of this Agreement to any person or circumstance shall, to any extent, be invalid or unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, and the remainder of this Agreement shall not be affected thereby and each term, covenant or condition of the Agreement shall be valid and be enforced to the fullest extent permitted by law.
17. Waiver. Any failure by either party to insist upon the strict performance by the other party of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions of this Agreement, and each party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement.
18. Web Service (Broadband Only). NHTC grants you non-exclusive, non-transferable, limited license to store documents on a NHTC Internet World Wide Web server in accordance with this Agreement. NHTC will bill for usage in accordance with rate and prices published online or in the Price List at the time of use. Personal web space may not be used for commercial purposes. Commercial web space is available as an optional service. You are responsible for domain name registration with the appropriate organizations and/or authorities and for any associated fees charged heretofore. Provided however, that if selected by you as an optional service, NHTC will register an available domain name on your behalf and charge you a registration fee and the initial term fee charged for owning the domain name. NHTC charges an initial nonrecurring setup fee for adding your registered name on the NHTC domain name server and a monthly recurring fee for each month the site is hosted.
19. Miscellaneous. (a) The prices and charges for particular Service may depend on various factors including the length of a call, the time of day when a call is placed, the day of week when a call is placed, and/or the distance called. “Ring-busy” and “ring-no-answer” calls will not knowingly be charged to you and if charged in error, will be credited by Us to you. Timing begins at the “starting event” and ends at the “terminating event.” Time between the starting event and the terminating event is the call duration. There shall be no charge for unanswered calls. When a percentage discount is applied, the resulting discount will be rounded down to the nearest cent; (b) Where charges for Service vary due to time of day, time periods are determined by the local time of the location where you make the call. When a call is established in one rate period and ends in another rate period, the rates are based on the portion of your call that occurs within each rate period; (c) This Agreement, along with the Service Application or the Price List and any other documents incorporated by reference herein, constitutes the entire agreement of the parties with respect to the Services and/or Equipment provided hereunder, above, and cannot be amended or modified except as provided in this Agreement.
Last Revised December 17, 2006