Terms and Conditions
TERMS AND CONDITIONS FOR SERVICES AND/OR EQUIPMENT PROVIDED BY Xiber LLC
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IT IS ESPECIALLY IMPORTANT FOR YOU TO READ SECTION 10 (DISPUTE RESOLUTION) CAREFULLY, AS SECTION 10 PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU WILL CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM FEDERAL OR STATE AGENCIES.
These terms and conditions do not apply to any wholesale carrier arrangement with Xiber.
“You” or “Customer” means the person or entity that subscribes to Services or purchases or leases Equipment and anyone who accesses the Services and Equipment provided to you.
“We,” “us,” “our,” “Company,” and “Xiber” refer to the Xiber LLC legal entities providing Services to you and as identified on your bill.
“Service(s)” refer to any services you have agreed to obtain from us.
“Equipment” means any equipment or accessories you purchase or lease from us or those provided by us for use in any manner in connection with your Services. For ease of reference, Services and Equipment provided by Xiber shall be referred to in this document collectively as “Services.”
“Promotional Terms” mean terms that apply to special offers from time to time. Promotional terms will be specified in your first bill message. Promotional terms may include a term commitment and an early termination fee in the event the Service is not installed or maintained, or in the event you disconnect Service prior to the end of the term.
“Service Order” means the form (whether paper or electronic, including online order forms), if any, in which you apply for or make changes to Services and may include the length of time you will subscribe to a Service, rate plans, access charges, fees, taxes and surcharges, choice of long distance carrier, and the Equipment you have selected.
You accept this Agreement when you do any of the following: (a) give us your written or electronic signature; (b) tell us orally or electronically that you accept (i.e., by clicking the “I Accept” button for online purchases or account changes); or (c) use any Services. If you have never used the Services before, and do not wish to be bound by this Agreement, then do not begin using them, and notify us immediately. By accepting this Agreement, you acknowledge that you are 18 years of age or older, are competent to enter into a contract with us, and are authorized to obtain Services or make changes to an existing account. You may obtain a copy of these Terms and any product-specific Terms and Conditions by visiting www.Xiber.com, or calling a service representative at 317-565-6010. This Agreement supersedes any and all statements or promises made to you by any of our employees or agents. If you are a business customer with an existing contract, then those contract terms will control.
3. Charges for Services and Taxes, Fees, and Surcharges. You are responsible for paying all charges applicable to Services provided to you including, but not limited to, monthly recurring charges (“MRCs”), access charges, features, changes and moves to Services, Service repair visits and no-show charges, installation charges, IP-address charges, billing charges, credit-card surcharges, toll, long distance, and directory assistance, equipment fees, and any other usage-based charges at our current rates when used. In addition to the monthly recurring and usage-based charges, other charges (such as taxes, fees, surcharges, and assessments) apply to all Services and Equipment, including how those may change in the future. In certain service areas, paper bills are available for a monthly charge.
To determine whether certain taxes, fees, and surcharges are applicable to Services provided to you, we are required by federal law to obtain your street address, which must be within our service area. You represent and warrant that the address you provide us to obtain Service is correct, and you acknowledge that we are relying on this information to determine which taxes, fees, or surcharges are applicable to your Service. You agree to notify us if your address changes. In the event you do not provide us with a valid address or address change, you may be responsible for additional taxes, fees, surcharges, and penalties associated with failure to pay taxes based on the proper address, and we may terminate your Services.
As a convenience to you, Company may include charges for third-party services on your monthly bill. You should always review your bill carefully, and contact the Company if you are unsure about a charge on your bill. Company also offers the ability to block third-party charges from your monthly bill. This Service is optional and free of charge. If you are interested in adding a third-party block to your account, then call a Company representative at the number found at the top-right-hand corner of your statement to determine if your account is eligible. The block does not apply to Services provided by Xiber or its affiliates to which you subscribe.
4. Billing and Payment; Rate Increases. We will bill you the recurring and installation rates you were quoted for Services or those associated with the Services you currently use or previously ordered, with increases on notice. All recurring charges are billed one month in advance. Billing at a location will begin upon the earlier of either (i) the Installation Date (which may be the date administrative access to certain software-based Services are granted to Customer), or (ii) 30 days after delivery of the applicable facility and/or equipment to Customer’s premises (if the delay in connection of the facility and/or equipment is due to Customer or its agent). Company may choose to bill in full monthly increments with no proration for partial service periods, when Service either starts or ends in the middle of a billing cycle.
We reserve the right to back-bill you for Services actually used, but not previously billed.
Payment in full is due no later than the due date indicated on your bill and we may apply a late fee, interest, and other charges (including, but not limited to, collection fees) up to the maximum amount permitted by law. Returned checks, payment by phone, paper bills, and other fees due to your choice of payment method or billing receipt may also be subject to fees. You agree to pay costs and fees, including, but not limited to, attorney fees we incur to collect an unpaid balance from you.
Company may require you to authorize payment for Services by credit card or by debiting a bank account, and no additional notice or consent is required before we invoice the credit card or debit the bank account for all amounts due to us for any reason.
5. Credits, Deposits, and Advanced Payments. Our agreement to provide you Services is subject to credit approval, and, as such, you authorize us to ask credit-reporting agencies for credit information about you. We may require you to submit an initial deposit and/or an advanced payment as security for payment of charges. In the future, an additional deposit or advanced payment may be required if either the amount/number of Services is increased, you are late on payment or your credit rating changes. Simple interest will be paid on the cash deposit for the period it is held by us, and will be refunded if satisfactory credit has been established or upon termination of Service (if no balance is due). We reserve the right to apply the deposit to any amount due and unpaid, and the payment of a deposit in no way relieves you of paying your bills in a timely manner. Regarding advanced payments, any advanced payment will appear as a credit to your first-month's bill. If you cancel Services before installation, or we cannot install your Services for some reason, then we may refund the advanced payment. We will not refund any advanced payment made after installation of Services.
6. Termination by You.
Pre-Installation. If you are a business customer, and you terminate your order prior to the installation of Services, then you will be required to pay a pre-installation cancellation charge equal to the greater of (i) three (3) months of MRCs; or (ii) our costs to other providers. You agree that this charge is a reasonable measure of the administrative costs and other fees, incurred by us, to prepare for installation.
After Installation. If you cancel your Services or a portion thereof after installation, then you remain liable for payment of all outstanding charges for all Services you used and Equipment you purchased from us prior to termination. If you terminate Services prior to the last day of your billing cycle, then you will be charged for the full last month of Service with no proration or credit.
Fixed-Term Agreements. When you purchased your Service(s), you may have been required to commit to a term or a minimum purchase. Either you or we may elect not to renew your service by providing notice to the other no later than thirty (30) days prior to expiration of the fixed term. If neither you nor we deliver a timely notice not to renew, THEN the Services will renew on a month-to-month basis. IF YOU TERMINATE SERVICES AFTER INSTALLATION OR DURING THE INITIAL OR RENEWAL TERM FOR ANY REASON OTHER THAN FOR CAUSE, OR WE TERMINATE FOR CAUSE PURSUANT TO SECTION 7 BELOW, THEN YOU WILL BE REQUIRED TO PAY TO US AS LIQUIDATED DAMAGES AN AMOUNT EQUAL TO 100% OF THE MONTHLY RECURRING CHARGES (“MRCS”) MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE THEN CURRENT TERM. IF YOU TERMINATE OR DISCONNECT LESS THAN THE ENTIRETY OF YOUR SERVICES SUCH THAT YOUR ACTUAL USAGE AT A LOCATION FALLS BELOW ANY MINIMUM MONTHLY CHARGE (“MMC”) OR MINIMUM MONTHLY FEE (“MMF”) FOR THAT LOCATION, THEN YOU AGREE TO PAY AN AMOUNT EQUAL TO THE MMC OR MMF FOR EVERY MONTH REMAINING IN THE THEN CURRENT TERM (“LIQUIDATED DAMAGES”).
You agree that in the event of termination by you, the actual damage to Xiber is difficult to ascertain, and that the early termination fee represents liquidated damages, not a penalty, and is a reasonable estimate of the actual reduction in the value of this Agreement that we will sustain.
Month-to-Month Agreements. If no length of time is identified on the Service Order or you were not otherwise required to commit to a term, then the term is month-to-month, and you or we may terminate at any time by providing notice at least thirty (30) days prior to the effective date of termination. You remain liable for payment of all outstanding charges for all Services you used and Equipment you purchased from us prior to termination. If you terminate Service prior to the last day of your billing cycle, then you will be charged for the full last month of Service with no proration or credit.
Bundled Services. Some plans may offer a discount, if you sign up for bundled Services, and may require a term commitment. If you sign up for bundled Services, then you agree to maintain the bundled Services for the applicable term. If you receive bundled Services, and you subsequently unbundle, terminate, or disconnect any of these Services, or we disconnect any of the Services, then we may adjust the rates for the remaining Service(s) to the then current price.
Change in Location. A change in your service address or location to which any Service is provided to you may constitute, at our sole discretion, termination of the Services or result in an increase in the prices you must pay for the Services.
Change to Another Carrier. We may deem a request by you to port your numbers as a request by you to terminate your Agreement. If you choose to port less than all of your numbers, or you leave any Services connected, then we will continue to bill you for the numbers and/or Services still connected.
7. Termination by Us. Provisioning of the Service is subject to the availability of the requisite equipment and facilities. We may limit, interrupt, suspend, terminate, or refuse to provide a Service if: (a) you do not honor any provision of this Agreement; (b) you use a Service in an adverse manner that affects Xiber’s network or other customers, you have used a Service fraudulently or unlawfully or are suspected of doing so, or there occurs an event for which Xiber reasonably believes that the suspension or termination of Services is necessary to protect Xiber or Xiber’s other customers from an imminent and significant operational, financial or security risk, in which case Xiber will provide advance notice if practicable; (c) you modify your phone, or any software residing thereon, from the original manufacturer specifications, including for the purpose of accessing non-Xiber services; (d) you use a Service in a manner that is excessive or unreasonable when compared to the predominant usage patterns of other customers, on a similar service plan, in your geographic area (and we may, also, implement charges or change you to the appropriate rate plan consistent with such use); (d) resell any Service; (f) for any other reason set forth in the relevant tariffs and price lists or terms and conditions; (g) you do not pay any amount due to us or billed by us on behalf of others, including disputed amounts that Xiber determines are valid charges on your bills and any deposits or advanced payments that Xiber may require; (h) facilities or property associated with providing the Services have been condemned, or use has been prohibited by the government in any manner; (i) you fail to acquire and maintain the right-of-way or property access necessary for installation or maintenance of Services; (j) you are insolvent, have made an assignment for the benefit of credits, or you have filed or had filed against you a petition for bankruptcy; or (k) we determine in our sole discretion that facilities are not technically or economically feasible, including if copper or fiber facilities are no longer available to Xiber at reasonable rates or are not available for any reason, including, but not limited to, regulatory changes or retirement of copper plant pursuant to FCC rules; or (l) you make nuisance calls, impersonate another person, use obscene or profane language or are abusive or harassing when communicating with Xiber representatives, and fail to stop the behavior after receiving a written or verbal warning from Xiber; or (m) you fail to comply with any law, or regulation, including but not limited to any applicable regulations and do not cure such failure of compliance within ten (10) days of receiving notice from Xiber. We may restore such interrupted or terminated Service, in our sole discretion, following your correction of the violation and payment of any amounts due (including any restoration charge we assess for restoring your Service).
8. Personal Identifiers. We assign telephone numbers, e-mail addresses, IP addresses, and other personal identifiers in connection with the Services. You have no proprietary right to any such identifiers, and we reserve the right to change them upon notice to you. In the event that we allow you to transfer a personal identifier to another party to obtain any Services we provide you, we reserve the right, prior to honoring the request for transfer, to charge a fee for the transfer, and to collect any money owed for the Services.
9. Disputed Bills. You must review bills in a timely manner. To dispute a bill, you must comply with the dispute resolution provisions in Section 10, and submit your dispute, in writing, within 60 days after the date on the bill. You must pay any undisputed portion while your dispute is investigated. You accept all charges on your bill not disputed within 60 days, and must pay those charges.
10. Dispute Resolution. By utilizing Xiber’s Services and agreeing to these Terms, you agree to the following dispute resolution procedures. You and Xiber agree to waive any right to a trial by jury in a court of general jurisdiction and any right to participate in a class action or consolidated action regarding a dispute as defined below. Specifically, you and Xiber agree to waive any right to pursue a dispute by joining a disputed claim with the disputed claim of any other person or entity or to assert a disputed claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration, or other proceeding.
If you have a dispute with Xiber, you should notify Xiber’s Customer Care department at the number listed on your invoice. If the Customer Care department is unable to resolve your dispute, you must submit your dispute to us in writing at the following address: Xiber Communications, Inc., 1720 Galleria Boulevard, Charlotte, NC 28270, Attn: Executive Customer Relations. You must describe your dispute and provide enough detail to allow us to understand it. You must provide any supporting documentation with your written dispute. Click here http://www.Xiber.com/Legal-Notices/ for a form that you may, but are not required to, use to submit your written dispute to us. If we have a dispute with you, we will send you a written notice to your billing address to attempt to resolve the dispute. You and Xiber agree that a dispute is any claim or controversy related in any way to Xiber’s Services, including charges for Services, Equipment, Service Order(s), or our agreements pursuant to these Terms or any other agreements, whether the dispute: arises in tort, contract, by statute, or any other legal theory; arises under this or any prior agreement with us; or arises after your Services with Xiber are terminated.
If you and Xiber are unable to resolve the dispute after 60 days from the date of receipt of the written dispute, you agree that either you or Xiber shall resolve the dispute in only one of two possible ways: (1) by seeking relief in small claims court, if appropriate under the applicable court’s rules, in the city or county of the billing address reflected on your bill; or (2) by arbitration. This Section does not prohibit you from submitting any issue you have with Xiber to any federal, state, or local governmental agency or public service commission which may be able to seek relief from Xiber on your behalf. If the dispute is regarding the charges for Services, you agree that if you do not seek relief in small claims court or by arbitration following the 60 day dispute period, then you will immediately begin paying the disputed amount that Xiber determines is valid, plus any charges that were not paid during the 60 day dispute period, or Xiber may terminate the Services.
Regarding arbitration, you and Xiber specifically agree to finally resolve all disputes not filed in small claims court by arbitration that will be final and binding on both you and Xiber, subject to any exceptions required by applicable law. The following provisions shall apply to arbitration:
Notice: If you want to arbitrate a dispute with Xiber after expiration of the 60 day dispute period noted above, you must file a claim with the American Arbitration Association (“AAA”). Click here http://www.Xiber.com/Legal-Notices/ for a form that you may, but are not required to, use. The claim must include a description of the dispute, a brief outline of previous efforts to resolve the dispute, all supporting documentation, and a proposed resolution. A copy of the claim and proof of payment of the filing fee, such as a copy of the check or money order, should be sent to Xiber at: 4001 Rodney Parham, Little Rock, Arkansas 72212, Mailstop B1F03-71A, Attn: Legal Department (“Arbitration Notice Address”). Xiber will reimburse you for the filing fee if your claim does not exceed $75,000. If Xiber wants to arbitrate a dispute with you after expiration of the 60 day dispute period noted above, Xiber will send a copy of its claim to your billing address.
Applicable Law: The interpretation and enforceability of the arbitration provisions, and whether a dispute is subject to arbitration, is subject to the Federal Arbitration Act (“FAA”) only and not state law.
Applicable Rules: Xiber and you agree that the arbitration will be conducted by the AAA. The rules governing the arbitration proceeding will be the current Consumer Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (“AAA Rules”) from the American Arbitration Association. The AAA rules can be found at www.adr.org, or can be obtained by calling 1.800.778.7879.
Method of Arbitration: If your claim is for $10,000 or less, Xiber agrees that you may choose whether the arbitration will be conducted solely on the written documents submitted, by telephone, or in person in the city or county of the billing address reflected on your bill. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA rules. The written documents can be the notice to arbitrate that either of us send to the other regarding arbitration and referenced above.
Arbitration Costs and Attorney Fees: If you properly file a claim with AAA pursuant to these arbitration provisions, and the amount of your dispute does not exceed $10,000, Xiber agrees to pay for all AAA filing, administrative and arbitrator fees (“Arbitration Costs”), and your reasonable attorney’s fees (with reasonable hourly rates and expenses to be determined by the location of the arbitration) (“Attorney Fees”) incurred by you regardless of the decision of the arbitrator, unless your claim is found to be frivolous or improper (as set forth in the Federal Rules of Civil Procedure Rule 11) by the arbitrator. A portion of the payment of Arbitration Costs may be in the form of reimbursement, as you may be required to place a deposit when your notice of arbitration is filed. If the claim is found to be frivolous or improper, the AAA Rules will apply regarding payment of Arbitration Costs. If your dispute exceeds $10,000 but not $75,000, Xiber agrees to pay all the Arbitration Costs and 50% of your Attorney Fees. For disputes of $75,000 or more, the AAA rules regarding Arbitration Costs will apply. However, Xiber agrees to pay 50% of the Arbitration Costs, and each party will pay its own Attorney Fees incurred for disputes of $75,000 or more. Notwithstanding the foregoing, if your claim is found to be frivolous or improper (as set forth in the Federal Rules of Civil Procedure Rule 11) by the arbitrator, Xiber will have no obligation to pay any of your Attorney Fees. If Xiber disputes the reasonableness of any Attorney Fees, you agree that the presiding arbitrator shall determine what is a reasonable fee, and his/her decision regarding Attorney Fees will be binding on both you and Xiber. In no event shall Xiber be entitled to an award of its Attorney Fees.
Awards: If the arbitrator’s award is in your favor and is greater than the value of Xiber’s last settlement offer made to you prior to selection of the arbitrator, Xiber will pay you the amount of the arbitrator’s award or $3,000, whichever amount is greater. Xiber also will pay your attorney’s reasonable fees, including expenses, or $2,500, whichever amount is greater.
Injunctive Relief: If you seek declaratory or injunctive relief in the arbitration, the arbitrator may award such relief only to the extent necessary to provide relief warranted by your individual claim.
Consolidation: The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Confidentiality: Any arbitration shall remain confidential. During the arbitration, the amount of any settlement offer made by Xiber or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Xiber is entitled. Neither you nor Xiber may disclose the existence, content, or result of any arbitration or award, except as may be required by law, or to confirm and enforce an award.
Exceptions: Nothing in this Section shall prevent Xiber from issuing notices, including: takedown notices for alleged trademark or copyright infringement pursuant to the Digital Millennium Copyright Act; or termination of Service pursuant to Xiber’s Acceptable Use Policy for your abuse of your Internet access Services. Nothing in this Section shall prohibit Xiber from filing a lawsuit in a court of general jurisdiction to collect outstanding balances for unpaid Services or Equipment, any other type of charge owed on your account, or for the theft of any Services or Equipment by you. This Section is intended to resolve outstanding disputes between us, and not to collect a debt owed by you to Xiber.
Limitation of Liability: This Section is subject to the Limitation of Liability Section in these Terms and Conditions.
l. Limitations Period: Any dispute must be brought by you or Xiber within two years after the date the basis for the claim or dispute first arises.
Notwithstanding any provision in these Terms and Conditions to the contrary, you and Xiber agree that if Xiber makes any future change to this arbitration provision (other than a change to the notice addresses), you may reject any such change by sending Xiber written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any such change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
If the provisions concerning the waiver of the class or consolidated actions, or the provisions regarding mandatory arbitration, are deemed unenforceable or void as a matter of law, you and Xiber agree that all claims will be brought in a court of general jurisdiction, and not resolved through arbitration. YOU AND Xiber WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR THE SERVICES PROVIDED BY US.
11.Services Provided by Third-Parties. The Services will be provided either by us or by our third party vendors or contractors. We reserve the right to change or modify the source of any Services provided to you without notice.
12.Company Provided and Owned Equipment. Any Equipment installed by us, on your premises, that is not the subject of a sale or lease to you (such as the CSU/DSU interface cards, Channel Bank, and router, if applicable) shall remain at all times our property. It shall remain in good condition, less normal wear and tear. If we do not have access to your premises within 30 days after Services are terminated, then you shall reimburse us for the full purchase price of the equipment, as well as any attorney’s fees and costs. You are responsible for all security measures over the Services, including, but not limited to, access to authorization codes or encryption you deem necessary or required. Once the Equipment is delivered to you, you bear the risk of loss.
13.Disconnection of Current Provider; Special Construction; Third-Party Charges. You are solely responsible for disconnecting Services with your current service provider, and we are not responsible for any charges assessed against you by such provider. You shall pay all charges if we or a third-party provider is required to extend the demarcation point, undertake special construction, or non-routine installation for you. Unless we specifically agree—in writing—to undertake equipment installation and maintenance work, you are responsible for all charges assessed by your phone-system vendor and other third-parties in connection with the Services, and we shall have no responsibility for maintenance or repair of same.
14.Access to Third-Party Services. You agree that the telephone line, on which your Services are activated, may not be used to access any third-party services equivalent to Services we provide or can make available, even if you declined to purchase such Services from us. Your telephone line contains programming designed to enable access to our Services only. You may not use any manual or electronic means to circumvent any restrictions placed on your telephone line to modify, without authorization, any programming supplied by us.
15.Access and Installation; Repair and Maintenance. You agree that you are responsible for acquiring and maintaining the right-of-way necessary to allow installation and maintenance of Services. Failure to acquire and maintain necessary right-of-way may result in delay of installation or termination of Services by Xiber. Upon notice, we may make tests and inspections to determine you are complying with the requirements of these terms, or for routine and emergency maintenance of the equipment and facilities. We may take action to protect our facilities and equipment. We may substitute, change, or rearrange any Equipment or facility at any time. We may limit or allocate use of existing facilities, when necessary, due to a lack of facilities or a cause beyond our reasonable control.
16.Privacy and Customer Proprietary Network Information. You authorize us to monitor and record communications, from you to us, regarding your account or the Services, for purposes of quality assurance. For online orders, we may implement reasonable procedures, including, but not limited to, validating information provided by you or restricting the amount of Services purchases online. We reserve the right to cancel or reject online orders at any time for security or privacy reasons.
To provide Services to you, we maintain certain customer proprietary network information (“CPNI”). CPNI includes information that relates to the quantity, technical configuration, type, destination, location, and amount of use of any telecommunications Service we provide to you, and which we obtain because of the carrier-customer relationship between us. CPNI also includes information contained in your bill. We may use and share your CPNI without your permission for the following purposes:
To protect our rights or property, or those of other customers or carriers, from fraudulent, abusive, or unlawful use of or subscription to the Services you get from us;
To initiate, render, bill, and collect for your Services;
To provide information telemarketing, referral, or administrative services to you, when you call us, if you give us permission to do so;
To provide call location information regarding the user of a wireless mobile Service to certain other parties in an emergency situation;
To provide information requested by law enforcement or a third-party pursuant to a subpoena or other method of requesting information. We will not give you notice of any subpoena or court or administrative orders related to your account, IP address, contact information, or use of Services unless required to do so by law.
If you do not want us to provide your information to other Xiber entities, please notify us by calling Support at 317-565-6010.
When you view your account information or shop for Services online, you agree that we may display your CPNI online, after proper verification by you, to fill orders or allow you to make account changes.
17. Theft and Fraud. You agree to keep all passwords, Member ID’s, IP addresses, and computer names confidential. If your Services are lost, stolen, or fraudulently used, then you are responsible for all usage incurred before we receive notice from you of such loss or theft. If we choose to pursue investigation or prosecution of the loss or theft, you agree to cooperate in the investigation of fraud or theft, and to provide us with such information and documentation as we may request (including affidavits and police reports).
18. LIMITATION OF LIABILITY. FOR PURPOSES OF THIS SECTION AND THE DISCLAIMER OF WARRANTIES AND EMERGENCY/CRITICAL LINES SECTIONS, “OUR” OR “WE” INCLUDES Xiber’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS, AND ANY ENTITY ON WHOSE BEHALF THE COMPANY RESELLS SERVICES. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR: ANY ACCIDENT OR INJURY CAUSED BY SERVICES; ANY DAMAGE OR LOSS RESULTING FROM THE INSTALLATION, MAINTENANCE, OR REMOVAL OF THE SERVICES; ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, AND LOSS OF BUSINESS DATA); ANY PUNITIVE OR EXEMPLARY DAMAGES; THE COST OF ALTERNATIVE SERVICE; OR FOR ANY SERVICE INTERRUPTIONS, DELAY, OR FAILURE TO PERFORM UNDER THIS AGREEMENT DUE TO CAUSES BEYOND OUR REASONABLE CONTROL. SUCH CAUSES INCLUDE, BUT ARE NOT LIMITED TO, STRIKES, LOCKOUTS, OTHER LABOR UNREST, NATURAL DISASTERS, ACTS OF GOD, CABLE CUTS, OR COMMON CARRIER DELAYS. YOU AGREE THAT THE PRICING OF SERVICES REFLECTS THE INTENT OF BOTH YOU AND US TO LIMIT OUR LIABILITY AS PROVIDED HEREIN.
19. DATA SERVICES. YOU ACKNOWLEDGE THAT THE INTERNET IS A VOLATILE ENVIRONMENT AND WE ARE NOT LIABLE FOR CONFIDENTIAL INFORMATION STORED ON OR TRAVERSING OUR NETWORK. YOU MUST TAKE ALL APPROPRIATE PRECAUTIONS TO SECURE CONFIDENTIAL INFORMATION, INCLUDING ENCRYPTING, IF YOU DEEM NECESSARY.
20. DISCLAIMER OF WARRANTIES. THE SERVICES 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 OR NON-INFRINGEMENT; IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WARRANTY ARISING BY COURSE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE; ANY WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR ANY WARRANTY REGARDING THE QUALITY, CONTENT, ACCURACY, OR VALIDITY OF THE INFORMATION OR DATA RESIDING ON, PASSING THROUGH, OR OVER THE NETWORK. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, BROADBAND SPEEDS, TRANSMISSION QUALITY, NETWORK SECURITY OR RELIABILITY, AND ACCURACY OF ANY DIRECTORY LISTINGS ARE NOT GUARANTEED. NO ORAL OR WRITTEN ADVICE OR INFORMATION BY COMPANY’S EMPLOYEES, AGENTS, OR CONTRACTORS SHALL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION. Xiber DOES NOT GUARANTEE YOUR SERVICE CAN OR WILL BE INSTALLED BY A PARTICULAR DATE. ANY INSTALLATION DATE PROVIDED IS ONLY AN ESTIMATE.
21.Indemnification. You agree to indemnify and hold Xiber and its subsidiaries, affiliates, officers, agents, co-branders, licensors or other partners, and employees harmless from any claim or demand, including those for reasonable attorneys' fees or those made by any third-party due to or arising out of: content you submit; post; transmit; or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, including, without limitation, the Acceptable Use Policy, or your violation of any rights of another.
You acknowledge that you are responsible for all use of the Service, by your account (including use by subaccounts), and that this Agreement (including, without limitation, the Acceptable Use Policy and Privacy Policies, as amended from time to time) applies to any and all usage of your account. You agree to abide by these terms, and you agree to defend, hold harmless, and indemnify Xiber from and against any and all claims stemming from usage of this account and any subaccounts, whether or not such usage is expressly authorized by you.
22.Emergency/Critical Lines. CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES MAY NOT PROVIDE ACCESS TO 911, OR TRANSMIT THE LOCATION OR EXTENSION, IF CUSTOMER ATTEMPTS TO ACCESS 911 IN AN EMERGENCY. Examples include voice over Internet protocol (VoIP), Centrex, and private branch exchange. Additionally, because T1s and VoIP can cease operating during a power outage, you should have a basic business or copper line for elevator, alarm, E911, and other critical functions. By proceeding with use of Services, you assume all responsibility and risk of harm, loss, or damage in the event that 911 access fails, is not possible, or does not provide the address, correct address, extension, or other information to emergency authorities.
23. Changes to these Terms and Conditions. We may change these Terms, including any change in any charge or fee, and the imposition of a new charge or fee, at any time, if we give you notice of the change. If we make a change to these Terms and Conditions that is material, and you do not wish to accept such material change, then you may terminate the affected Service by giving us 30-days’ notice, in which case you will not be subject to an early cancellation fee. You will, however, still be responsible for all charges for Services provided before you terminated your Agreement. A material change is ONLY a change that (a) terminates or substantially reduces the availability of a Service for you or (b) results in the increase of any charge by more than 10% of the monthly access charge for that Service. Material changes in your Service DO NOT include the increase in or imposition of (1) any charge required to be collected by any governmental authority (such as taxes or surcharges) or (2) any charge not prohibited by any governmental authority to recoup our expense incurred to comply with a governmental requirement.
As noted in Section 10, if Xiber makes future changes to the arbitration provision in that Section (other than a change to the notice addresses), you may reject this change by sending Xiber written notice within 30 days of the change to the Arbitration Notice Address. By rejecting the change, you agree that you will arbitrate any dispute between us in accordance with the language in Section 10, existing prior to the change.
24. Applicable Law. Your Agreement and our provision of Services to you are subject to (a) the laws of the state identified in the billing address that you have provided us and (b) any applicable federal laws, including, but not limited to, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. In the event of an inconsistency between any governmental requirement and these Terms regarding the provision of a Service that is subject to the governmental requirement, the provisions of the governmental requirement will apply to the extent necessary to avoid the inconsistency.
25. Assignment. We may assign this Agreement to another entity without any advance consent from or notice to you. You may not assign this Agreement without our consent.
26. No Waiver; Severability. If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver. If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in force.
27.Product Bundles - Specific Terms and Conditions (alphabetically).
Product Descriptions, generally, can be found at www.Xiber.com. Some Services have certain system requirements (i.e.,Managed Security, Managed Wifi). Please see the relevant product description for details.
IPTV. Channels available to customer as part of any select packages of programming through Xiber IPTV are subject to change, and customer is not guaranteed any particular channel or number of channels. All prices, packages, and programming are subject to availability based on location and Xiber's agreements with content providers and credit approval. A Cable-TV-service-activation fee may apply. Taxes and fees, including applicable franchise and FCC regulatory fees may apply. Some promotions may require minimum programming. Certain promotions have an optional or mandatory term-commitment period, and if the customer cancels Services prior to the optional or mandatory term-commitment period, certain termination or cancellation fees may apply. In some packages, hardware and programming are sold separately. Other restrictions may apply.
Hosted Voice. Within 30 days of subscribing, you and Xiber will agree on the specific features, functions, and minimum lines and groups to be provisioned. We will base charges on the agreed minimum lines. We will have the right to bill you at hourly rates for all programming, installation, or other labor associated with any adjustments to features and functions at initial installation and when changes are made later.
DISH Network Services. All prices, packages, and programming are subject to change without notice including, without limitation, any term commitment to which you have agreed. All DISH Network programming and any other services that are provided by DISH Network are subject to the terms and conditions of the Promotional Agreement and Residential Customer Agreement, which are available online at www.dishnetwork.com or upon request. Some promotions may require minimum programming. Certain promotions have an optional or mandatory term commitment period, and if you cancel your Services prior to the optional or mandatory term commitment period, certain termination or cancellation fees may apply. Hardware and programming are sold separately.
High-Speed Internet. High-Speed Internet Service is subject to the Broadband Network Statement. Customers must agree to all terms of service prior to installing and using this Service. Speeds are distance sensitive, and availability by address varies. We strive to provision the line up to the maximum speed required to support the qualified and subscribed Service, but actual speed and performance may vary based on factors such as the condition of wiring inside a specific location;customer proximity to equipment supporting the service; computer configuration; network or Internet congestion, particularly during peak hours very generally defined as 7p.m. – 11p.m. weeknights (peak hours may vary depending on the customer location); and the server speed of the websites accessed. We cannot guarantee speeds or uninterrupted error-free Service.
Managed Network Security CPE. This Service requires a minimum commitment and subscription to Xiber Data Services. Security-gateway equipment must be returned upon Service termination.
Modem Rental Program. This Program covers lifetime support of new modems provided by Xiber on or after December 1, 2014. Customer is responsible for payment of a monthly recurring equipment fee that will cover repair or replacement by Xiber of damaged modems; repair or replacement will occur as Xiber deems necessary. Modems provided by Xiber shall at all times remain the property of Xiber, and you agree not to mishandle, abuse, misuse, or improperly store or operate the modem. Any Xiber-provided modem will either be new or a fully inspected and tested refurbished unit. Any Xiber-provided modem will be capable of wireless networking, but devices supported by in-home wireless networking connections may experience speeds that do not equal speeds referenced in your High Speed Internet purchased plan or advertised speeds. With wireless networking, actual throughput speed may be impacted by several environmental factors including but not limited to, interference from other equipment or devices in the home, distance from the modem, modem location, types of devices connected, physical obstructions, and time of day. Connecting your device directly to the modem may optimize speed. Modems must be returned to Xiber within thirty (30) days of cancellation or your account will be automatically charged the fair market value of the modem or a $100 fee and Xiber will retain any advance payment or deposit, or portion thereof that previously had not been refunded, if you fail to return the modem within this time period. The equipment return requirements also apply if your existing modem is replaced or upgraded for any reason.
Unlimited Long Distance (Residential). Intended for personal, residential voice calls within the U.S. Calling restrictions include, but are not limited to, business use, Internet services, telemarketing, auto-dialing, multi-party conferences, party or chat lines, adult-entertainment lines, and voicemail- or information-services access. If usage is inconsistent with residential voice calling, then Xiber may: (1) charge 10 cents per minute for each call that violates this policy; (2) restrict use or convert the plan to Xiber 10; and/or (3) void the price guarantee, and convert rates to then current monthly rates.
Voice Over Internet Protocol (VoIP)-Based Services. In order to access or use any VoIP Services, you must sign the 911 Disclosure form, which warns of and has you acknowledge certain 911 limitations for VoIP Services.
Wi-Fi Service. Wi-Fi service provided by a Xiber-provided modem may vary. Speeds provided via Wi-Fi are based on speeds available in real-world conditions. Once a device is connected to the internet via Wi-Fi, the performance experienced and the available speed may vary based on any number of factors, including maximum bandwidth allocated for Wi-Fi services, interference from other equipment or devices in the home, number of other users attempting to use or using the Wi-Fi at the same time, customer’s computer or wireless devices, quantity and quality of content being downloaded or uploaded, Wi-Fi receiving antenna, and the distance between the device and the modem. Connecting several wireless devices to a network at once can reduce available bandwidth, and impact speed, for each individual device. Reducing the number of devices connected to a network wirelessly may improve performance.
Xiber Service Agent. Xiber partners with a third-party vendor to provide this Service. As a result, you may be required to accept certain terms and conditions of this Service as required by the third-party. Xiber reserves the right to alter this Service in any way, including, but not limited to, changing the third-party provider of this Service or discontinuing this Service at any time. The use of this Service requires that you are an active Xiber, residential or small-business, High-Speed Internet customer. This Service is free to all Xiber High-Speed Internet subscribers. This Service is available for use only via laptop or PC, and requires a software download.
Schedule 1 – Yondoo TV Specific Terms of Service
Yondoo TV includes digital channels (including local channels), one receiver and up to four standard direct video streams to the customer residence. Of the four standard direct video streams per residence, customer’s location will determine both high definition (“HD”) availability and the maximum number of HD video streams (between one and four) a customer can view and record in HD at any one time, regardless of the number of receivers in the residence. The remaining streams will be standard definition.
For Yondoo TV service, nonrecurring and usage-based charges that are billed following the transaction include, but are not limited to, Video on Demand and Pay For View. As long as payments are current, you will have a maximum limit of $200 per bill cycle on one-time orders billed to your account. As permitted by applicable law, in addition to other rights granted under these Terms and Conditions, in the event a payment is past due, Xiber may restrict your account, including your access to Video on Demand and Pay For View and other usage-based services and content.
Equipment for Yondoo TV service includes one Yondoo TV receiver. You may request additional receivers and a monthly fee of $7.00 per receiver will apply. Xiber may limit the number of available receivers for a household. Additional equipment fees or other fees may apply to Yondoo TV equipment, including, but not limited to, the receiver. Receivers are subject to all applicable taxes, fees, and surcharges. Yondoo TV services include a Xiber gateway, which will be assessed a separate monthly charge. Equipment may be new or fully inspected and tested. If receiver(s) and gateway are not returned to Xiber within thirty (30) days of termination of services, a fee will be assessed for each receiver and gateway not returned.
Some programming may not be available in certain areas because of legal, regulatory, or contractual prohibitions, including restrictions of the Federal Communications Commission and sports blackouts. If you also purchase Xiber voice service, Caller ID information for Xiber voice calls can be displayed on your TV screen.
Xiber’s Yondoo TV is provided for your non-commercial, personal viewing, use and enjoyment in a private residential dwelling. You agree that the Xiber Yondoo TV service will not be viewed in areas open to the public or in commercial establishments, and that admission will not be charged for listening to or viewing the Service. Your Xiber Yondoo TV Service may not be copied, transmitted, reproduced, published, broadcast, rewritten, redistributed, or performed except as permitted by the “fair use” provisions of the U.S. copyright laws. You agree that you will not try to tamper, modify, reverse-engineer, decompile or disassemble any software or hardware contained within your Xiber receiver or gateway.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Xiber MAKES NO WARRANTY THAT THE SERVICE WILL ALLOW YOU TO RECORD, VIEW, OR TRANSFER ANY PARTICULAR PROGRAM OR CONTENT.
When Xiber provides you with service, we may obtain and use information about programming watched, recorded, or accessed through your account. We may use this data to (1) make general recommendations to all customers, and (2) make specific recommendations to customers based upon their individual viewing habits. Pricing, programming, and features are subject to change.
Yondoo may be purchased along with High-Speed Internet. When the two services are purchased together, this product description applies instead of the High-Speed Internet Description at Product Bundles – Specific Terms and Conditions. Xiber cannot guarantee speeds or uninterrupted, error-free service. Internet speed claims represent maximum network service capability speeds. Actual customer speeds may vary based on factors including simultaneous use of multiple devices, use of other Xiber services, customer device capabilities, Internet and Network congestion, website traffic, content provider service capacity, customer location, network conditions, and bandwidth devoted to carriage or protocol and network information.
October 9, 2015