A. Terms and Conditions for Regulated Services.
1. Tariffs.
The terms and conditions of regulated service provided to Customer under this Agreement are contained in tariffs on file with state and/or federal regulatory authorities. These tariffs shall govern the provision of regulated service, and Citizens may amend such tariffs and regulated service shall be subject to such tariffs, as amended. Customer must disclose to Citizens if Customer intends to use the Services in connection with payphone service.
2. Telephone Numbers.
The Customer has no property right in the telephone number associated with the telephone service provided by Citizens; provided, however, if Customer ports a telephone number from another carrier to Citizens, Citizens will use such number with Customer’s telephone Service. Any telephone number designated by Citizens in advance of the activation of Citizens telephone service is subject to change by Citizens. Additional terms and conditions regarding telephone numbers are contained in Citizens tariff(s) on file with regulatory authorities.
State-to-State and International Services. If Customer subscribes to or uses state-to-state and/or International telecommunications Services from Citizens, such Services shall be provided pursuant to the terms and conditions contained in Citizens Customer Service Agreement.
PBX Usage and Modem Equipment. If Customer uses a Private Branch Exchange (PBX) in connection with the Services, Customer is responsible for programming the PBX to ensure that agencies receiving E911 emergency calls through the PBX will receive appropriate information about the location of the caller. If the modem installed by Citizens is disconnected or the battery is not charged, or if a Customer moves to the modem to another address, telephone services including 911 emergency services will not be available.
B. Terms and Conditions of Data, Internet, Web Hosting, Web Conferencing, Video and unregulated Services.
1. Payment.
Customer shall pay for all monthly service charges, plus one-time set-up, installation and/or construction charges. Citizens may change video and music Service prices periodically during the Term of this Agreement. Unless stated otherwise herein, monthly charges for Services shall begin upon installation of Service, and installation charges, if any, shall be due upon completion of installation. Any amount not received by the due date shown on the applicable bill will be subject to interest or a late charge at the maximum rate allowed by law. If applicable to the Service, Customer shall pay sales, use, gross receipts, excise, access, universal service fund assessments, 911 fees, franchise fees, bypass or other local, state and Federal taxes or charges imposed on the use of the Services. Taxes will be separately stated on the Customer’s invoice. No interest will be paid on deposits.
2. Service and Installation.
Citizens shall provide Customer with the Services and Equipment identified on the first page of this Agreement; provided, however, if Citizens determines that Customer’s location is not serviceable under Citizens’ normal installation guidelines, Citizens may terminate this Agreement. Customer is responsible for damage to any Citizens equipment. Customer may use the Services for any lawful purpose, provided that such purpose (a) does not interfere or impair the Citizens network, equipment or facilities and/or (b) complies with the applicable Acceptable Use Policy (“AUP”) which are incorporated herein by reference. Customer shall use the equipment only for the purpose of receiving the Services. Customer shall not make any connections to the equipment, which are not expressly authorized in writing by Citizens or permit tampering, altering or repair of the equipment by any person other than Citizens’ authorized personnel. Unless provided otherwise herein, Citizens shall use reasonable efforts to maintain the Services in accordance with applicable performance standards, however, Citizens shall have no responsibility for the maintenance or repair of facilities and equipment it does not furnish. For Citizens Internet Services, bandwidth speed options may vary. Customer may not always receive or obtain optimal bandwidth speeds and Citizens network management needs may require Citizens to modify upstream and downstream speeds. Use of the data, Internet, web conferencing/web hosting Services shall be subject to the Citizens AUP. The AUPs may be amended from time to time during the Term of this Agreement. Customer’s continued use of the Services following an amendment shall constitute acceptance. Citizens is not responsible for the networks or facilities of third parties, which may be necessary to provide Service. For video and music Services, Citizens reserves the right to change channel line-up at any time.
3. Service Date and Term.
This Agreement shall be effective upon execution by the parties. Services shall be provided for the applicable term set forth on the first page of this Agreement. Citizens shall use reasonable efforts to make the Services available by the requested service date. Citizens shall not be liable for any damages whatsoever resulting from delays in meeting any service dates due to delays resulting from construction or for reasons beyond its control.
4. Customer Responsibilities.
Customer is responsible for arranging all necessary rights of access for Citizens within the Customer’s premises, including space for cables, conduits, and equipment as necessary for Citizens-authorized personnel to install, repair, inspect, maintain, replace or remove any and all facilities and equipment provided by Citizens. Customer shall provide a secured space with electrical power, climate control and protection against fire, vandalism, and other casualty for Citizens’ equipment. Customer shall use the Services in compliance with all applicable laws and ordinances, as well as applicable leases and other contractual agreements between Customer and third parties. If Customer engages in a public performance of any copyrighted material contained in any of the Services provided under this Agreement, the Customer, and not Citizens, shall be responsible for obtaining any public performing licenses. Customer is responsible for ensuring that Customer’s equipment is compatible for the Services selected and with the Citizens network.
5. Equipment.
Unless otherwise provided herein, Customer agrees that Citizens shall retain all rights, title and interest to facilities and equipment installed by Citizens thereunder and that Customer shall not create or permit to be created any liens or encumbrances on such equipment. Internal Wiring shall not be considered equipment and shall become the property of Customer upon initiation of Service. Citizens shall install equipment necessary to furnish the video Services to Customer. Customer shall not modify or relocate equipment installed by Citizens or install any other equipment, including servers in connection with data/Internet without the prior written consent of Citizens. For Citizens-owned equipment, Customer shall, at the expiration or termination of this Agreement, return the equipment in good condition, ordinary wear and tear resulting from proper use excepted. In the event the equipment is not returned to Citizens in good condition, Customer shall be responsible for the value of such equipment. Citizens shall repair any equipment owned by Citizens at no charge to Customer provided that damage is not due to misuse, abuse or other disaster including acts of God. If additional equipment, including but not limited to, monitors, computers, circuits, software or other devices, are required by Customer to use the Services, Customer shall be responsible for such equipment.
6. Resale of Service.
Except for Web Hosting, Customer may not resell any portion of the Service to any other party. Customer shall be responsible for any software and content displayed and distributed by Customer or Customer’s web hosting customers, if any.
7. Default.
If Customer fails to comply with any material provision of this Agreement, including, but not limited to failure to make payment as specified, then Citizens, at its sole option, may elect to pursue one or more of the following courses of action upon proper notice to Customer as required by tariff or applicable law: (i) terminate service whereupon all sums then due and payable shall become immediately due and payable, (ii) suspend all or any part of Services, and/or (iii) pursue any other remedies, including reasonable attorneys’ fees, as may be provided at law or in equity, including the applicable termination liabilities.
8. IP Address and Domain Name Registration.
Citizens will allocate IP addresses to Customer according to InterNIC guidelines. All IP addresses assigned by Citizens must be relinquished by Customer upon the expiration, termination or cancellation of this Agreement. IP address shall be subject to the IP policy in the AUP. If Customer requests, Citizens will register an available domain name on behalf of Customer, and such registration shall be subject to rules promulgated by the domain name registrar, which may be amended from time to time. Customer is responsible for payment and maintenance of domain name registration.
9. Termination.
Customer may terminate video, data, Internet, web hosting and/or web conferencing Services before the end of the term selected by Customer on the first page of this Agreement; provided, however, if Customer terminates Service before the term selected by Customer (except for breach by Citizens), or Citizens terminates Services for Customer’s breach of this Agreement or the AUPs, Customer may be subject to a termination liability. The termination liability shall equal 20% of the monthly recurring charges for the terminated Services multiplied by the number of full months remaining in the initial term commitment and is due upon termination. After the initial term, this Agreement shall automatically renew on a month-to-month basis and shall be subject to terms of this Agreement. Any termination by Customer must be in writing.
10. LIMITATION OF LIABILITY.
CITIZENS SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL CITIZENS BE RESPONSIBLE FOR FAILURE OR ERRORS IN SIGNAL TRANSMISSION, LOST DATA, FILES OR SOFTWARE DAMAGE REGARDLESS OF THE CAUSE. CITIZENS SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION OR REMOVAL OF EQUIPMENT UNLESS CAUSED BY THE NEGLIGENCE OF CITIZENS. UNDER NO CIRCUMSTANCES WILL CITIZENS BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT. CITIZENS’ MAXIMUM LIABILITY TO CUSTOMER ARISING UNDER THIS AGREEMENT SHALL BE THE LESSER OF $5,000.00 OR THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SERVICES HEREUNDER.
11. Assignment.
Customer may not assign, in whole or in part, this Agreement without the prior written consent of Citizens, which consent may be withheld in Citizens’ discretion. Citizens may assign this Agreement and Service may be provided by one or more legally authorized Citizens affiliates.
12. WARRANTIES
EXCEPT AS PROVIDED HEREIN, THERE ARE NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND CITIZENS DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. CITIZENS MAKES NO WARRANTY AS TO TRANSMISSION OR UPSTREAM OR DOWNSTREAM SPEEDS OF THE NETWORK.
13. INDEMNITY.
Customer shall indemnify and hold Citizens and its respective affiliates, subcontractors, employees or agents harmless (including payment of reasonable attorneys fees) from and against any claim, actions or demands relating to or arising out of Customer’s use of the Service including without limitation (i) any content or software displayed, distributed or otherwise disseminated by the Customer, its employees, or users of the Services, (ii) any claim that Customer’s use of the Service including the registration and maintenance of Customer’s selected domain name(s), infringes on the patent, copyright, trademark or other intellectual property right of any third party; (iii) any malicious act or act in violation of any laws committed by Customer, its employees or users using the Services; and/or (iv) violation by Customer, its employees or authorized users of the Citizens AUPs.
14. Viruses, Content, Customer Information.
Software or content obtained from the use of Service may contain viruses or other harmful features and Customer is solely responsible for protecting its equipment and software from such matters. Through the use of the Service, Customer may obtain or discover content that is offensive or illegal and Customer assumes the risk and is solely responsible for its access to such content. Citizens may disclose Customer information to law enforcement or to any Citizens affiliate.
15. Miscellaneous.
This Agreement, the tariffs, the documents referenced herein, and the AUPs constitute the entire agreement between Citizens and Customer for the Services and equipment provided herein. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the validity or enforceability of any other provision. This Agreement may be modified, waived or amended only by a written instrument signed by the parties; provided Citizens may modify the AUP and if Customer continues to use the Service, Customer shall be bound by such AUP as modified. The rights and obligations of the parties under this Agreement shall be governed by the laws of the Commonwealth of Virginia. The failure by either party to exercise one or more rights provided in this Agreement shall not be deemed a waiver of the right to exercise such right in the future. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the parties at the addresses on the first page of this Agreement, or as specified by subsequent written notice delivered by the party whose address has changed.
16. Regulatory Authority-Force Majeure.
This Agreement and the obligations of the parties shall be subject to modification to comply with all applicable laws, regulations, court rulings, and administrative orders, as amended. In no event shall either party have any claim against the other for failure of performance if such failure is caused by acts of God, natural disasters including fire, flood, or winds, civil or military action, including riots, civil insurrections or acts of terrorists or the taking of property by condemnation.
17. Software License.
Citizens grants Customer a limited, nonexclusive, nontransferable and non-assignable license to install and use as provided herein (i) Citizens access software, as well as software from our licensors that Citizens incorporates into its access software), (ii) all associated user documentation and (iii) any updates thereto (the “Software”). Customer’s use of the Software is governed by these terms and conditions. All rights title and interest to the Licensed Software, including associated intellectual property rights, are and will remain with Citizens and Citizens’ licensors. Customer may not decompile, reverse engineer, distribute, translate any part of Software. Customer acknowledges that the Software, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. Customer agrees not to export or re-export the Software, directly or indirectly, to any countries that are subject to USA export restrictions.
18. Web Hosting Servers.
Citizens reserves the right to select the server for Customer’s web site for best performance. The Customer understands that the Services provided by Citizens may be provided on a shared server. This means that one web site cannot be permitted to overwhelm the server with heavy CPU usage, for example from the use of highly active CGI scripts or chat scripts. If the Customer’s web site overwhelms the server and causes complaints from other users, the Customer has outgrown the realm of shared services and will be required by Citizens to relocate its web site. If the Customer refuses to comply with this Section, then Citizens has the right to terminate the Services. Citizens will use reasonable efforts to maintain a full time Internet presence for the Customer. The Customer hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, maintenance equipment failure, natural disaster, acts of God, or human error and Citizens shall not be liable to customer for such outages or server downtime.
19. Digital Millennium Copyright Act.
Citizens is registered under the Digital Millennium Copyright Act of 1998. Pursuant to 17 U.S.C. Section 512(c)3, if you believe that a Web page hosted by Citizens is violating your rights under U.S. copyright law, you may file a complaint with Citizens’ designated agent. Please contact DMCA@citizens.coop for information necessary to file your complaint with Citizens.
20. E-Rate Customers.
This paragraph applies only to educational institutions or libraries seeking reimbursement under the Federal Universal Service Fund. Customer shall apply annually to the Schools and Libraries Division, “SLD” for E-Rate funding and Customer shall designate Citizens as its provider of Services. Customer shall also provide Citizens with all documentation that is in response to all queries, inquires and requests as part of the Program Integrity Assurance (PIA) process within three (3) business days of receipt and/or delivery thereof. Customer also acknowledges that increases and decreases in funding for Services may occur from the SLD. If Customer is denied SLD funding for any reason, Citizens may then elect to decrease the level of Services provided to Customer. If full E-Rate funding is not received within 6 months of application date, or by the opening of the application window for the following funding year, then Citizens may terminate the Agreement without further liability to Citizens or the Customer. Additionally, if full E-Rate funding is not received and Citizens elects to terminate the Services during the contract term, then Customer may be subject to termination liabilities.
Revised: 8/19/09