TERMS AND CONDITIONS
This Customer Service Agreement (“Agreement”) sets forth the terms and conditions under which LD Eufonico, LLC or one or more of its subsidiaries or affiliates authorized by applicable regulatory, franchise or license authority (each subsidiary hereafter “LDE”) agrees to provide Services to you, and under which you, the Customer, agree to accept the Service. In this Agreement, “you” and “your” mean the “Customer” who subscribes to and receives one or more Services. “LDE,” “we,” “our,” and “us” means the LDE entity that is providing you with Service. LDE Services include but are not limited to radio service (“LDE Radio”), B•Vision service (“LDE B•Vision), Self-broadcasting service (LDE B•Live) , and associated features or applications, are collectively referred to in this Agreement as the “Service” or “Services”). Subject to Section 17(f), this Agreement shall remain in effect at all times you are subscribed to and/or receive the Service(s), to include following any changes you or LDE make to the Service(s) you receive or to the LDE Equipment, Customer Equipment or other equipment (as defined in Sections 6 and 7 below) you use.
A. Our Agreement:
You will be bound by the terms and conditions in this Agreement applicable to the services provided, including the additional terms and conditions contained in the Addenda to this Agreement related to LDE Radio, LDE B•Vision and LDE B•Live. Your use of the Services is also subject to any license agreements relating to any software used in connection with the Services. Each Service is provided subject to federal, state and local laws, statutes, regulations, and ordinances applicable to such Service (“Applicable Law”).
B. Minimum Term Service Agreements:
If you have entered into an Agreement with LDE for a minimum term for services (for example, a 12, 18 or 24 month Agreement) (“Minimum Term Agreement”) the terms and conditions of this Agreement are incorporated by reference into the Minimum Term Agreement. To the extent any term or condition of your Minimum Term Agreement expressly conflicts with any term or condition of this Agreement, your Minimum Term Agreement will govern.
C. Entire Agreement:
This Agreement and all of the documents specifically incorporated herein constitute the entire Agreement between you and LDE for the Services. No prior agreement and no written or oral statement, advertisement, or Service description will contradict, explain or supplement it.
D. Acceptance of Agreement:
Your Agreement with LDE starts when you accept and continues until your subscription to the Services is terminated, except as otherwise stated herein. Certain provisions of this Agreement will survive termination. You accept this Agreement when you first do any of the following (“Acceptance”) upon or after the Effective Date of this Agreement: (i) sign this Agreement by written or electronic signature, (ii) inform us electronically or orally of your acceptance of this Agreement, (iii) activate any Service provided under this Agreement through a method provided by LDE, or (iv) use or pay for, in whole or in part, your Service.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS AND CONDITIONS AND THE RATES AND CHARGES AS LISTED ON THE LDE WEBSITE, IN YOUR WELCOME KIT, ON YOUR TRANSACTION SUMMARY OR, IF APPLICABLE, THE APPLICABLE TARIFFS ON FILE AT STATE AND FEDERAL REGULATORY AGENCIES AND/OR SERVICE GUIDES. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT USE THE SERVICES AND IMMEDIATELY TERMINATE YOUR SUBSCRIPTION TO THE SERVICES AND THIS AGREEMENT BY CALLING LDE AT THE CUSTOMER SERVICE NUMBER ON YOUR BILL OR ON LDEUFONICO.COM AND RETURN ALL LDE EQUIPMENT, SOFTWARE, AND ASSOCIATED MATERIALS TO LDE.
E. Changes to the Agreement or Service:
LDE reserves the right to modify any of the terms and conditions of this Agreement including any aspect of the Services in its sole discretion at any time with or without notice. Such changes may include for example, changes to rates, the rate plan structure, or payment policies for the Services, rearrangement, deletion or addition of programming, changes to the features and content of the Services, configuration and capacity of Services, changes in the features, functionality and technical requirements for LDE Equipment and Customer Equipment, use of vendors to provide Services, limitations of liability, procedures for disputes and policies for termination. In order to receive the Services, you may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
F. Notice of Material Changes:
LDE will provide you with written notice of any changes that we determine are material to your Services or this Agreement consistent with Applicable Law. You agree that we may provide you with such written notice (i) by sending it via U.S. Mail or commercial overnight mail to your last known billing address in LDE’s account records, (ii) by including the notice on or with your LDE bill, (iii) by sending notice to your email address on LDE’s account records, (iv) by hand delivery, or (v) by other lawful means, and you agree that any of the foregoing will constitute sufficient notice and you waive any claims that these forms of notice are insufficient or ineffective. All such changes will become effective as of the date specified on the written notice and will be posted on the LDE Website and you agree to regularly check your postal mail, e-mail and all postings on the Website or an another website about which you have been notified or you bear the risk of failing to do so. The updated version of this Agreement on the LDE Website will supersede any prior version of this Agreement. You agree that your sole recourse if you do not accept any such material change to your Services or this Agreement is to terminate this Agreement within thirty (30) days of our notice to you. If you receive services under a Price Lock Guarantee or other Minimum Term Agreement that requires you to pay an early termination fee and you terminate Services subject to that Minimum Term Agreement as provided in this Agreement upon express written notice from us of a material change in this agreement, you will not be charged an early termination fee under that Minimum Term agreement. Your continued use of the Services after such thirty (30) day period will constitute your Acceptance of this Agreement as modified.
G. Copy of Agreement or Rates: A copy of this Agreement and the rates for the Services may be obtained by visiting the LDE Website or the LDE office listed on LDE Website.
H. Your Subscription:
You represent to LDE that you are at least 18 years old or the age of majority in your state. Your Acceptance of this Agreement entitles you to use the Services. Your use of the Services is personal to you. If you permit other persons to use the Services, you agree that you are solely responsible and liable for any and all breaches of this Agreement, whether such breach results from your use or use by another person using the Services provided to you, LDE Equipment, or Licensed Software. You are responsible for contacting the LDE customer service number listed on LDE website immediately upon the occurrence of any change in the status of your account, such as, without limitation, a change in individuals authorized to use your account (“Authorized Users”), any changes to your contact information such as name, email address, wireline or wireless phone number, or if you move or any of your Services become subject to a bulk agreement. You agree to keep your contact information, including email address or contact telephone number, up to date and current.
I. Consent to Contact You:
In order to contact you more efficiently, LDE and our affiliates may at times contact you using autodialer technology, prerecorded or artificial voice message calls, or text messages at the telephone number(s) you have provided us. You agree that we and our service providers or agents may place such calls or texts to communicate with you about your account, service(s) and equipment, and service agreements, including (but not limited to): (i) providing notices related thereto, (ii) resolving technical or billing issues, (iii) informing of installation or other service appointments, (iv) data usage, (v) investigating or preventing fraud, and/or (vi) collecting a debt or outstanding balance (“Informational Communications”). Also, we may share your phone number(s) with such service providers or agents with whom we hire to assist us in carrying out these Informational Communications, but will not share your phone number(s) with any third parties for their own purposes without your consent. Applicable standard telephone minute, data and/or text charges may apply. We and our service providers or agents, however, will not use autodialer technology, or texts to contact you for marketing purposes at the wireless telephone number(s) you designate nor send you prerecorded or artificial voice message marketing calls at the wireless or landline telephone number(s) you designate unless we receive your prior express written consent as required under federal law. Prior express written consent is not required in order to obtain or use LDE’s products and services or to receive Informational Communications from LDE. If LDE is required by law to obtain your prior express consent—either verbal or written—to receive autodialed calls, prerecorded or artificial voice message calls, or text messages and you have provided LDE such consent, you may revoke this consent at any time by contacting LDE and informing us of your desire to stop receiving such calls or text messages for Informational Communications purposes and/or for marketing purposes.
2.0 CREDIT CHECKS/DEPOSITS
A. Credit Checks:
In accordance with Applicable Law, LDE will rely on credit bureau reports, other data available from commercial credit reference services, any credit information you furnish, or internal credit information to determine whether or not to provide Services to you, to continue to provide Services to you or whether or not a deposit is required. You expressly authorize LDE to make inquiries and to receive information about your credit experience from others, to enter this information in your file, and to disclose this information concerning you to appropriate third parties for reasonable business purposes.
As permitted by Applicable Law, based on the information we received from the credit reporting agency, credit information you furnish, or internal credit information, and our assessment of the risk associated with that information, LDE require a security deposit from you before providing services or an increase in any deposit for any Service already provided to you. The terms offered to you may be less favorable than the terms offered to consumers who have better credit histories and the amount of deposit will vary. The deposit will remain on your account for up to 12 months or longer, depending upon your payment performance and Applicable Law. The deposit may be refunded to you or applied as a credit to your bill in accordance with Applicable Law. Upon termination of Service, the deposit will be posted to your account and applied to any unpaid balance for any Service. If there is no balance, you will be refunded the amount of the deposit. Except if required by law, regulation, franchising authority or any applicable tariff, no interest will be paid on deposits.
3.0 CHARGES, BILLING AND PAYMENTS
A. Charges, Taxes and Fees:
1. Charges and Rates:
You agree to pay by the due date on your LDE bill all charges associated with the Services and that you or anyone using your account or services incurs including without limitation all recurring and non-recurring fees. Non-recurring charges may include but are not limited to (i) installation, activation, and reactivation fees, (ii) equipment fees. Rates and charges may vary depending upon the Services rendered and LDE may change the rates for the Services from time to time. If you received Service(s) under a promotion, after the promotional period ends, the then-current regular retail rate for the Service(s) will apply. The retail rates for LDE Services and LDE Equipment may be found on the LDE Website, in your Welcome Kit, by calling your LDE office, visiting your LDE office, or, for phone, in the applicable tariff or state Telephone Service Guide. All fees do not apply to all Services.
2. Governmental Taxes and Fees:
You must pay all federal, state and local taxes, franchise fees and any other fees or payment obligations imposed by government or quasi-governmental bodies however described, levied or assessed which are applicable to the Services or LDE Equipment we provide you. Unless required by Applicable Law, we may elect not to provide notice of a change in fees or taxes. You will be responsible for paying any government imposed Surcharges that become applicable retroactively.
3. Other LDE or Third Party Surcharges and Fees:
You must pay all other LDE imposed or third party surcharges and fees we may assess in connection with the Services or the LDE Equipment (collectively “Surcharges”).
4. Third-Party Charges That Are Your Responsibility:
You acknowledge that you may incur charges with third-party providers such as for accessing on-line services, purchasing or subscribing to other offerings via the Internet, or interactive options on your service that are separate and apart from amounts charged by us. You are solely responsible for all such charges payable to third parties, including all applicable taxes, fees or surcharges. In addition, you are solely responsible for protecting the security of credit card, debit card, other financial information, or other personal information provided to others in connection with such transactions.
5. Unreturned Equipment Charges:
If you downgrade or disconnect LDE Service and do not promptly return the LDE Equipment or if it is returned damaged or encumbered (“Unreturned Equipment”), the damages LDE will incur will be difficult to ascertain. Therefore, you agree to pay, and LDE may charge your account, a liquidated damages amount equal to LDE’s reasonable estimates of the replacement costs and incidental costs that LDE incurs; provided, however, that such amount will not exceed the maximum amount permitted by law (“Unreturned Equipment Charge”).
6. Unauthorized and Disputed Charges:
If you do not agree with a charge on your bill or you believe it is an unauthorized charge you must (i) pay undisputed amounts by the due date listed on your bill and (ii) notify LDE no later than thirty (30) days after the date of the bill (or such later date as required by law) of the disputed or unauthorized charges by calling or writing to us at the number and address specified on your bill and submit any documentation or other information to substantiate your claim of unauthorized charges. You waive any disputes or credits that you do not report within this 30 day period. LDE will investigate any disputed charges and will use reasonable efforts to advise you of the results of our investigation within thirty (30) days after LDE’s receipt of your notice of dispute. LDE may, in its sole discretion, waive such charges. You will be responsible for charges or other obligations or liabilities associated with any improper, illegal or unauthorized use of the Services, Licensed Software and LDE Equipment as described in Section 13 below.
B. Payments and Billing:
1. Authorized Payment Methods:
All payments must be made in U.S. currency only and via LDE-authorized payment channels. LDE-authorized payment methods include: (i) mailing payment to the bill payment address listed on your monthly bill; (ii) automated electronic drafts from your checking account; (iii) delivering cash, a check or money order payable to LDE, or paying by credit or debit card at a LDE office; (iv) delivering cash, a check or money order payable to LDE, or paying by credit or debit card at a LDE-authorized payment center (which may charge a convenience fee); (v) providing a credit or debit card payment to a LDE customer service representative or LDE authorized automated payment system over the telephone; or (vi) paying by credit or debit card through the LDE website. You agree not to make any notations or restrictions on your checks or on other forms for payment such as “paid in full” and you agree that any such restriction has no legal effect. If you use a credit or debit card to pay for any charges, taxes, fees or Surcharges, you acknowledge that use of the card is governed by the card issuer agreement, and you must refer to that agreement for your rights and liabilities as a cardholder. If LDE does not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you make payment by check, you authorize LDE to process your check electronically.
2. Billing and Late Payments:
Unless you are subject to a Minimum Term Agreement, Service(s) are provided to you on a month-to-month basis. Recurring charges and taxes are due in advance once Service is initiated. Charges accrue through a full billing period. LDE may prorate or adjust a bill if the billing period covers less than or more than a full month (for this purpose, each month is considered to have 30 days). We will determine the billing period and may change the billing period from time to time. LDE will determine and may change the billing format from time to time. If you fail to make full payment by the payment due date set forth on your bill statement, LDE reserves all rights it may have, subject to Applicable Law, to terminate Service or place the Service(s) in Soft Disconnection, remove LDE Equipment, collect the full amount due, including, without limitation, any applicable interest, costs of collection (including attorneys’ fees and third party agent collection fees), late fees (subject to state law and regulations), door collection fees, bank fees and any other applicable fees, charges or payments. Any balance amount that remains delinquent may be referred to a third party for collections. Once the debt is referred to a third party for collection, you may be subject to and agree to reimburse LDE for additional fees, including reasonable attorneys’ fees, and fees related to costs and expenses, which may be based on a percentage of up to 25% of the balance owed (subject to state law and regulations). For past due balances assigned to a field collector for payment, a fee of up to $25.00, or up to the maximum amount allowed by law or regulation, will be charged to your LDE account, regardless of how you make your payment. You may be required to pay a reactivation or reinstallation fee and/or a deposit in addition to all past dues charges before Service may be reconnected or restored.
3. Returned Payment:
If your payment by check is returned, your payment via credit card is denied, or your electronic funds transfer is denied due to insufficient funds, or a closed account, you authorize LDE to make a one-time electronic fund transfer from your account to collect the amount of the payment plus any applicable returned payment fees of up to $25.00 or up to the maximum amount allowed by law or regulation. When payment is made by credit or bank card, the payment may also be subject to the terms and conditions required by the bank or credit card issuer.
4. Soft Disconnection:
If your account has been delinquent or if LDE has a reason to believe you have otherwise violated this Agreement, subject to Applicable Law, you may be prevented from using certain of your Services prior to full termination of service. This restriction will be lifted once you have made acceptable payments to us or otherwise meet LDE’s minimum financial requirements, or you have communicated with LDE Customer Service and resolved any concerns about your account, Services or compliance with the terms of this Agreement.
4.0 DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION; CLASS ACTION WAIVERV
A. IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 4(b) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF THE EFFECTIVE DATEOF THIS AGREEMENT; PROVIDED HOWEVER IF YOU BECOME A NEW LDE CUSTOMER AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THIS AGREEMENT AS DEFINED IN SECTION 1(d) ABOVE (THE “OPT-OUT PERIOD”). OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH LDE THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
B. Opt Out:
You may opt out of this dispute resolution provision (except for the jury trial waiver contained in Section 4(g) below) by notifying LDE of that intent during the Opt-Out Period by sending an email to LDE at email@example.com or a letter via U.S. mail to LDE Legal Department, Attn.: Litigation Counsel, 1221 E. Dyer Road Unit 110, Santa Ana, CA92705 stating that you are opting out of this dispute resolution provision. Exercising this right, should you choose to do so, will not affect any of the other terms of this Agreement with LDE, and you may remain a LDE customer. If you opt out of the dispute resolution provision, that opt out will remain in effect if LDE modifies this section in the future or you agree to a new term of service under this Agreement. If you enter into a new agreement with LDE that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out.
C. Class Action Waiver:
You and LDE agree that all Disputes between you and LDE will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration. If you or LDE brings a claim in small claims court, the class action waiver will apply, and neither of us can bring a claim on a class or representative basis. Furthermore, neither you nor LDE may participate in a class or representative action as a class member if the class action asserts Disputes that would fall within the scope of this arbitration agreement if they were directly asserted by you or LDE. We both agree that this class action waiver is an essential part of our arbitration agreement and that if this class action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 4 will not apply to any Dispute between you and LDE, except for the provisions of Section 4(g) waiving the right to jury trial. This class action waiver may not be severed from our arbitration agreement.
D. Arbitrator Authority:
The arbitration between you and LDE will be binding. In arbitration, there is no judge and no jury. Instead, our disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. You and LDE agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. An arbitrator may award attorneys' fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with LDE. Review of arbitration decisions in the courts is very limited.
E. Informal Dispute Resolution:
You and LDE agree that you will try to resolve disputes informally before resorting to arbitration. If you have a dispute, first call LDE Customer Service at the number listed on LDE Website. If the LDE representative is unable to resolve your dispute in a timely manner, you agree to then notify LDE of the dispute by sending a written description of your claim to LDE Customer Service, ATTN: Customer Support Team, 1221 E. Dyer Road Unit 110, Santa Ana, CA92705 so that LDE can attempt to resolve it with you. If LDE does not satisfactorily resolve your claim within 30 calendar days of receiving written notice to LDE Customer Service of your claim, then you may pursue the claim in arbitration. Neither you nor LDE may initiate arbitration without first following the informal dispute resolution procedure provided in this paragraph and thereafter, if the dispute is still not resolved, the party who desires to initiate arbitration must provide the other written notice of the intent to file for arbitration.
F. Arbitration Procedures:
You and LDE agree that this Agreement and the services LDE provides to you affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitrations shall be conducted by the American Arbitration Association ("AAA"). The AAA's rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the claim asserted in arbitration is for less than $75,000, the AAA's Consumer Arbitration Rules will apply. If the claim asserted is for $75,000 or more, the Commercial Arbitration Rules will apply. If there is a conflict between the AAA's rules and this dispute resolution agreement, this dispute resolution agreement shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to LDE at firstname.lastname@example.org or via U.S. mail to LDE Legal Department, Attn: Support Counsel, 1221 E. Dyer Road Unit 110, Santa Ana, CA92705. You must also comply with the AAA's rules regarding initiation of arbitration. LDE will pay all filing fees and costs for commencement of arbitration, but you will be responsible for your own attorneys' fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Agreement or Applicable Law. LDE will not seek to recover its fees and costs from you in the arbitration, even if allowed under the law, unless your claim has been determined to be frivolous. If you are successful in the arbitration, LDE will pay your reasonable attorney's fees and costs. If you obtain an award from the arbitrator greater than LDE's last written settlement offer, LDE will pay you $100 in addition to what you have been awarded in the arbitration. The arbitration will be held in the county of the billing address where LDE provided you service and either party may appear either in person or by telephone.
G. Jury Trial Waiver:
If for any reason this arbitration agreement is found to be unenforceable, or if you opt out of this dispute resolution agreement, you and LDE expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and LDE if, for any reason, the arbitration agreement is not enforced.
This dispute resolution provision survives the termination of your Services with LDE. If you bring a claim against LDE after termination of your Services that is based in whole or in part on events or omissions that occurred while you were a LDE customer, this dispute resolution provision shall apply.
5.0 ACCESS TO YOUR PREMISES
A. Access to Premises:
You agree to allow LDE and/or our agents to enter the property at which the Service(s) and/or LDE Equipment will be provided to you (the “Premises”), upon your request, to install, configure, upgrade, maintain, inspect, change, repair and/or remove the Service and/or LDE Equipment. You warrant that you are either the owner of the Premises or, if you are not the owner of the Premises that you have obtained the consent of the owner for LDE or its agents to access the Premises for the purposes described herein including, without limitation, consent to attach LDE Equipment to the outside of the Premises. In addition, you agree to supply us or our agent, if we ask, the owner’s name, address and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises. If installation of Services or LDE Equipment by LDE at your Premises is required, LDE will schedule one or more installation and/or service appointments with you as needed and you agree to be present or to have a responsible representative, 18 years or older, present at the Premises during such appointments. Failure to schedule required installation of Services or LDE Equipment at your Premises may result in the disconnection of Services.
B. Charges for Visits:
You will be responsible for payment of any charges assessed by LDE for visits to your Premises to install, maintain, inspect, repair or remove any Services, LDE Equipment or Your Equipment, including, without limitation, in response to any difficulty caused, in whole or in part, by Your Equipment, or other equipment, services or facilities not provided by LDE, for service calls at times other than normal business hours, and for any non-routine installation or maintenance. Charges for visits to your Premises can be found on the LDE Website or by calling LDE Customer Service at the number located on LDE Website.
C. Safe Working Environment: You agree to provide LDE's employees and representatives with a safe working environment while on the Premises.
6.0 LDE Equipment
“LDE Equipment” means any equipment provided or leased to you by LDE or our agents with or without a separate charge or fee in connection with the Services. LDE Equipment also includes any software, firmware, or other programs contained within the LDE Equipment and Customer Equipment. Examples of LDE Equipment includes, HDMI cables, remote controls, etc., LDE Equipment does not include equipment you may purchase at retail or from LDE directly that may perform some or all of the functions of LDE Equipment. You agree that LDE Equipment will remain the property of LDE and you will not acquire any ownership or other interest in any LDE Equipment or any network facilities, cabling or software by virtue of any payment made pursuant to this Agreement or by any attachment of the LDE Equipment to the Premises. You agree that LDE Equipment will not be deemed fixtures or in any way part of the Premises. You agree to use LDE Equipment only for receiving and/or using the Service(s) pursuant to this Agreement.
B. Changes and Upgrades to LDE Equipment:
LDE may upgrade, replace, remove, add or otherwise change the LDE Equipment at our discretion at any time any Service is active (including Soft Disconnection) or following the termination of your Service(s). You consent to such changes including software, firmware and other code updates or downloads, with or without notice to you, which may alter, add to, or remove features or functionalities of the LDE Equipment or Service. You acknowledge and agree that our addition or removal of or change to the LDE Equipment may interrupt your Service(s). LDE may, at its option, install new or reconditioned LDE Equipment, including replacing your existing LDE Equipment, for which you may incur a fee. You agree that such changes may be performed within LDE’s sole discretion at any time and in any manner. If LDE requests that you replace, or offers to replace your equipment in order to provide you with better Service or stronger security, and you do not do so, LDE is not responsible for any resulting degradation of service or security vulnerabilities. If LDE requires that you add or replace LDE Equipment and you do not do so, your Services may be disconnected.
C. Unauthorized Use and Prohibition on Tampering:
You are responsible and may be liable for all LDE Equipment on your Premises and in your possession. You may not sell, lease, abandon, or give away the LDE Equipment.
D. Payment for Damage to or Loss of LDE Equipment:
You agree to pay the full retail cost for the repair or replacement of any LDE Equipment or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by LDE in obtaining or attempting to obtain possession of any LDE Equipment.
E. Return of LDE Equipment:
You agree that in the event you terminate your Service, you will return, in person, all LDE Equipment to any LDE office or your local LDE representative within thirty (30) days of notifying LDE of your decision to terminate your Service, unless otherwise instructed in writing by a LDE representative. If you downgrade your Service(s) and the LDE Equipment that you possess is no longer required to support your new LDE Service(s), you must promptly return such LDE Equipment The returned LDE Equipment must be in good condition and without any encumbrances, except for ordinary wear and tear resulting from proper use. If you fail to return such Equipment as provided herein, charges applicable to that LDE Equipment may continue to apply until such Equipment is returned and your security deposit will not be returned. Notwithstanding anything to the contrary contained herein, the provisions of this Section 6(e) shall apply to any LDE Equipment. If you return your LDE Equipment to LDE by mail, you will be responsible for (i) any damage to the Equipment as assessed by LDE upon receipt, (ii) the replacement cost of such Equipment if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs, unless LDE provides written notice in advance that it will pay such costs. This provision shall survive the termination or expiration of this Agreement.
7.0 CUSTOMER EQUIPMENT
“Customer Equipment” means any equipment, software, hardware or services supplied by you to use in conjunction with the Services or the LDE Equipment. You warrant that you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment. Customer Equipment is your sole responsibility including all costs of installation, maintenance and repair. You agree to allow us and our agents the rights to insert cable cards and other hardware in the Customer Equipment, send software, firmware, and/or other programs to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You are responsible and liable for any degradation or any interruption of Service, damage to LDE Equipment, loss of data, loss of your stored content or other consequences that you, LDE or any third party may suffer resulting from your use of Customer Equipment, including any Customer Equipment to which LDE or its agents has sent software, firmware or other programs. LDE has no responsibility or liability for any loss of stored content or any damage to Customer Equipment.
B. Technical Requirements for Customer Equipment:
All Customer Equipment must comply with LDE’s technical requirements which we may post on the LDE Website and change from time to time (“Technical Requirements”). We will not be obligated to provide Service or support where your Customer Equipment fails to conform to LDE’s Technical Requirements. NEITHER LDE NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS WARRANT THAT CUSTOMER EQUIPMENT NOT MEETING LDE’S TECHNICAL REQUIREMENTS WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICE(S). YOU ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, YOU, YOUR PREMISES OR LDE EQUIPMENT. NEITHER LDE NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. LDE reserves the right to deny you customer support for the Service(s) and/or terminate Service(s) if you use Customer Equipment not meeting the Technical Requirements.
8.0 PHONE NUMBER, E-MAIL ADDRESS AND LDE IDENTIFIERS
You do not have any proprietary rights to any identification serial number that LDE assigns to you or your account. We may change or reassign them, but if we do, we will notify you.
9.0 POWER SUPPLY, INTERRUPTIONS AND EMERGENCY SERVICES
A. Power Supply:
The Services do not have their own power supply and you are required to provide power for your use of the Service. LDE will not be liable for any interruption of Service or other damage resulting from a power outage disruption or fluctuation (such as a power surge). The Services are not intended to be used for activities requiring absolute reliability and accuracy. You assume complete responsibility for any damages or injuries resulting from any interruption or other failure of the Services due in whole or in part to a failure of power supply. Additional limitation of LDE’s liability for the Services is found in Section 15.
B. Scheduled Interruptions:
LDE may schedule and interrupt Service for maintenance, repairs, upgrades, testing, or other administrative purposes at any time except as limited by any Applicable Law or tariff.
10.0 SOFTWARE AND INTELLECTUAL PROPERTY
A. Licensed Software:
LDE grants you a limited, nonexclusive, nontransferable and nonassignable license to install and use LDE’s software which includes software from third party licensors (“Licensed Software”) solely in order for you to access and use the Services. LDE may modify the Licensed Software at any time, for any reason, and without providing notice of any such modification to you. The Licensed Software constitutes confidential and proprietary information and contains trade secrets and intellectual property of LDE and its licensors which is protected under Applicable Law. All right, title, and interest in and to the Licensed Software will remain with LDE and its licensors. You agree not to translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Licensed Software or any part thereof. You have a license to use the LDE Equipment, content, Service, Licensed Software and/or applications provided by LDE and/or third party providers (collectively “Suppliers”). You agree, however, that all such content and Licensed Software will remain the sole property of LDE or its Suppliers and that no additional rights arise from this grant of use. By subscribing to Services, You waive any claim against LDE or its Suppliers in connection with this Agreement and agree that LDE and its Suppliers have the right to enforce this provision. You acknowledge and agree that neither LDE nor its Suppliers can provide uninterrupted or error-free service and that LDE’s and its Supplier’s liability is limited as described in Section 15 below. You also agree to comply with the terms and conditions of all end user software license agreements provided to you in order for you access and to use the Services, particularly LDE Internet. Your right to use the Licensed Software, Service, or content ends upon termination of this Agreement.
B. Posting Your Material:
You are solely responsible and liable for all material that you upload, post, broadcast, transmit or otherwise make available via the Services, including, without limitation, material that you post to any LDE website, third party website, or any third party vendor’s service (such as a social media site) that is used by LDE. LDE does not claim ownership of material you submit or make available for inclusion on the Service. However, with respect to material you submit or make available for inclusion on publicly accessible areas of the Service, you grant LDE a world-wide, royalty free and non-exclusive license to use your material in connection with LDE’s businesses including, but not limited to, the rights to copy, distribute, publicly perform, publicly display, transmit, publish your name or identifier in connection with the material, and to prepare derivative works. No compensation will be paid with respect to the use of your material.
C. Links to Third Party Websites:
In your use of the Services and/or LDE Websites, you may encounter various types of links that enable you to visit Websites operated or owned by third parties (“Third Party Site(s)”). These links are provided to you as a convenience and are not under the control or ownership of LDE. The inclusion of any link to a Third Party Site is not an endorsement by LDE of the Third Party Site, an acknowledgement of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer on the Third Party Site. Your use of any Third Party Site is governed by the various legal agreements and policies posted at that website.
11.0 CUSTOMER PRIVACY NOTICE AND ACCOUNT SECURITY
A. Customer Privacy Notice:
B. Security of your Account:
You are responsible for protecting the information required to access or make modifications to your account (for example, passwords, PINs, secret answers to security questions, etc.). If someone else acquires this information (through no fault of ours), we will assume that you have authorized that person’s use of the information and access to your account. Please report any suspected incidents of unauthorized access to your account or unauthorized disclosure of your account information to LDE promptly by calling the LDE Customer Service number listed on LDE Website, visiting LDE office, or writing to us at the address listed on your bill statement.
12.0 USE OF SERVICES
A. Compliance with the Law:
You agree that you will comply with all current and future laws regarding the Services. If you violate the law in connection with your use of the Services, LDE Equipment, or Licensed Software, LDE may suffer harm and will have all remedies available at law or in equity, including injunctive relief. Content derived from the Service, LDE Equipment, the Licensed Software, and any accompanying information is subject to applicable export control laws and regulations of the United States. You agree not to export or re-export such content, to any countries that are subject to restrictions or upload through the Services any material in violation of such restrictions.
B. Non Commercial Use Only:
You agree to use the Services only for personal, noncommercial purposes and not business activities. You may not rebroadcast, retransmit, redistribute, perform, or charge admission to view or listen to any of the LDE Services unless you obtain and pay for any applicable public performance licenses.
C. Misuse of the Services:
You agree to not misuse the Services, LDE Equipment, or Licensed Software. Such misuse includes but is not limited to: (i) violation of Applicable Law and any commercial use as described above; (ii) use in a manner that adversely interferes with LDE’s network or reputation; (iii) any unauthorized or fraudulent use of or access to the Services such as to avoid paying for Services; (iv) use in a manner that infringes the intellectual property or other rights of any third party including copying, modifying, reverse engineering, uploading, downloading or reselling any content or Licensed Software; (v) sending content or messages or otherwise engaging in communications that are abusive, obscene, lewd, lascivious, filthy, excessively violent, harassing, illegal, fraudulent, threatening, defamatory or an invasion of privacy; (vi) modifying or tampering with LDE Equipment in any manner other than as expressly authorized by LDE; (vii) engaging in telemarketing, fax broadcasting, spam, junk or other unsolicited email; (viii) intercepting a third party’s communications or accessing or attempting to access another party’s account or otherwise circumvent any security measures; (ix) uploading any virus, worm or malicious code; (x) using automated connections that allow web broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing; (xi) using as a substitute or back-up for private lines, or full-time or dedicated data connections; (xii) networking hacking and “denial of service” attacks; (xiii) using unauthorized software or devices to maintain continuous active Internet connection when the connection would otherwise have entered idle mode; or, (xiv) engaging in continuous or extensive call forwarding or long distance abuse.
D. Customer Responsibilities for Improper Use:
You acknowledge that you are accepting this Agreement on behalf of all persons who use the Service(s) and LDE Equipment at the Premises and that you shall have the responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable policies, including, but not limited to the Customer Privacy Notice, and any other applicable privacy notices or other policies. You will take reasonable precautions to prevent others from gaining unauthorized access to the Services. Except as otherwise specified in this Agreement, you are responsible for any unauthorized use and for controlling access to the Services, LDE Equipment, Customer Equipment, and Licensed Software including payment of any charges incurred as a result of any such unauthorized use.
E. Monitoring Compliance with the Law and this Agreement:
Although LDE is not obligated to monitor the Services, LDE may perform tests and inspections to confirm that you are complying with this Agreement. LDE may, without notice, suspend, restrict access to or terminate your Service, or remove or make unavailable any content and/or monitor, review, retain and/or disclose any content or other information in LDE’s possession about or related to you or your use of the Services as LDE deems necessary to satisfy any Applicable Law, regulation, legal process or governmental request.
F. Theft of Service:
Tampering with or altering a cable system or converter to receive unauthorized services is a Federal crime punishable by fines and/or imprisonment. We may conduct periodic system checks and audits to detect the unauthorized receipt of Service.
G. Call Recording; Use of Recording Devices:
You consent to LDE recording phone conversations between you and LDE for quality assurance and analytics purposes. Your use of recording devices to record telephone conversations transmitted over the Services is at your own risk provided that your use complies with all federal, state and local laws.
You hereby indemnify and hold harmless LDE and its parent companies, subsidiaries, affiliates, Suppliers and other suppliers, contractors, distributors, licensors and business partners, as well as the officers, directors, employees, agents and representatives of each of these (each a “LDE Related Party”, and collectively, the “LDE Related Parties”) from any third-party claims, actions, proceedings, damages and liabilities, including attorneys’ fees, arising out of (i) your use, or other users use, of your Services or LDE Equipment; (ii) any act in violation of any law committed by you including any use of the Services that may infringe on the patent, copyright, trademark or other intellectual property right or privacy right of any third party; (iii) any breach by you of this Agreement; (iv) any content or software displayed, distributed, or otherwise disseminated by you or other users of your Services; (v) your failure to safeguard your PIN, passwords or other account information, and (vi) your failure to replace Equipment when requested by LDE. This Section will continue in effect after this Agreement terminates.
14.0 DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE THAT THE SERVICES, LDE EQUIPMENT, AND LICENSED SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES. LDE MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT AS TO THE SERVICES, LDE EQUIPMENT, AND/OR THE LICENSED SOFTWARE PROVIDED TO YOU. LDE DOES NOT MANUFACTURE THE LDE EQUIPMENT, DEVICES OR LICENSED SOFTWARE AND IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS ON THE PART OF ANY MANUFACTURER, SPECIFICALLY INCLUDING A MANUFACTURER OF CUSTOMER EQUIPMENT OVER WHICH YOU RECEIVE THE SERVICES. UNLESS OTHERWISE RESTRICTED OR PROHIBITED BY APPLICABLE LAW, LDE DOES NOT WARRANT THAT THE SERVICES, LDE EQUIPMENT OR LICENSED SOFTWARE WILL BE ACCURATE, COMPLETE, ERROR-FREE, WITHOUT INTERRUPTION, FREE FROM VIRUSES OR OTHER MALICIOUS AGENTS EVEN IF ANTI-VIRUS MECHANISMS ARE DEPLOYED. LDE DOES NOT WARRANT THAT ANY COMMUNICATION WILL BE TRANSMITTED UNCORRUPTED OR AT ANY UPSTREAM OR DOWNSTREAM SPEED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THOSE PROVISIONS MAY NOT APPLY TO YOU. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
15.0 LIMITATION OF LIABILITY
THIS SECTION DESCRIBES THE FULL EXTENT OF LDE’S AND THE LDE RELATED PARTIES’ RESPONSIBILITY FOR ANY CLAIMS FOR DAMAGES CAUSED BY OUR ACTS OR OMISSIONS OR THE FAILURE OF THE SERVICES, LDE EQUIPMENT, OR LICENSED SOFTWARE, OR ANY OTHER CLAIMS IN CONNECTION WITH THE SERVICES, LDE EQUIPMENT, LICENSED SOFTWARE, OR THIS AGREEMENT. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
Neither LDE nor any of the LDE Related Parties will be liable for damages for failure to furnish or the degradation or interruption of any Services, for a problem with the interconnection of Services, for any loss of data or stored content, for identity theft, or for any files or software damage, regardless of cause, or for a problem with the service or equipment of a third party.
B. Damage to Person or Property:
Neither LDE nor any of the LDE Related Parties will be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of LDE Equipment, Licensed Software, from use of Services or any content contained therein including interactive or 3D, radio Services, from support for the Services, or from inclusion, omission, or error relating to information about you in any published or electronic directory we may offer. You recognize that you have an obligation to exercise caution and personal responsibility including adhering to all manufacturers’ warranties accompanying any LDE or Customer Equipment or any other equipment used in connection with the Services and to make sure that your use of the Services and LDE Equipment does not subject you or others to danger.
Neither LDE nor any of the LDE Related Parties is obligated to monitor your use of the Services. Neither LDE nor any of the LDE Related Parties will be liable, however, for any action we take such as restricting access to obscene content or blocking email considered to be “spam” to assure your use of the Service is in compliance with Applicable Laws and this Agreement.
D. Third-Party Acts:
You expressly agree that neither LDE nor any of the LDE Related Parties is responsible or liable for any content, act or omission of any third party including, without limitation, any threatening, defamatory, obscene, offensive, or illegal conduct, or any infringement of another’s rights including, without limitation, privacy and intellectual property rights, and you hereby release LDE and each of the LDE Related Parties for any such claims based on the activities of third parties.
E. No Indirect or Consequential Damages:
YOU AGREE THAT FOR ANY CLAIMS YOU ASSERT AGAINST LDE OR THE LDE RELATED PARTIES AND FOR ANY CLAIMS THAT LDE OR THE LDE RELATED PARTIES ASSERT AGAINST YOU, THERE SHALL BE NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUE OR INCREASED COSTS OF OPERATION, OR FOR PUNITIVE DAMAGES, RELIANCE DAMAGES, OR SPECIAL DAMAGES. THESE LIMITATIONS APPLY EVEN IF THE DAMAGES WERE FORESEEABLE OR WE WERE TOLD THEY WERE POSSIBLE, AND THEY APPLY WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
F. Limitations Period:
We each agree that any Claims must be brought within two (2) years of their accrual notwithstanding any otherwise applicable statute of limitations.
Unless you have entered into a Minimum Term Agreement and unless prohibited by Applicable Law, either you or LDE may terminate this Agreement at any time without cause by providing the other party with no less than twenty-four (24) hours written notice of such termination. LDE may also terminate Service without notice to you if you fail to pay for Service or otherwise breach this Agreement, if you violate the law or LDE policies, or if you misuse the Services or LDE Equipment. You may terminate any particular Service and this Agreement will remain in effect for any Services you continue to subscribe to, use or pay for. In the event of termination by you, you must notify LDE as instructed in Section 17(d). In the event of termination by LDE, LDE may notify you of such termination by electronic or other means.
B. Minimum Term Agreements:
If you have entered into a Minimum Term Agreement with LDE, termination of Service will be controlled by the terms and conditions of your Minimum Term Agreement and may include an early termination fee.
C. Customer Obligations Upon Termination:
You expressly agree that upon termination of this Agreement:
(i) You will either return LDE Equipment to LDE or permit LDE to access your Premises at a reasonable time to remove any LDE Equipment and other material provided by LDE; (ii) You will ensure the immediate return to LDE of any LDE Equipment in good condition without any encumbrances, except for ordinary wear and tear or you agree to pay LDE’s reasonable estimates of the repair, replacement and/or incidental costs that LDE incurs as set forth in Section 6 of this Agreement; (iii) You will return or destroy all copies of any Licensed Software provided to you pursuant to this Agreement; (iv) You are responsible for storing or retrieving any favorites, histories; (v) You will cease use of any Services terminated; (vi) LDE is authorized to delete any files, programs and data associated with any terminated account.
D. Proration of Charges Upon Termination:
If Services are terminated charges will accrue through the date that LDE fully processes the termination. You agree to pay LDE on a pro-rated basis for any use by you of any LDEEquipment or Services for a part of a month. You must pay all outstanding charges, including payment of any bills that remain due. You must reimburse us for any reasonable costs we incur; including attorneys’ fees, to collect charges owed to us. If you want us to renew the Services after termination, we may require that you pay a deposit. For some Services, LDE may require a minimum thirty (30) day charge regardless of the activation or cancellation date.
E. Refunds Upon Termination:
If you terminate Service, LDE will refund the prorated unused portion of any fees and charges you have paid in advance. If the pro-rata unused portion is less than $5.00 LDE will make the refund on your request.
Except as described in this Agreement, you may not assign or transfer any part of this Agreement or the Service(s), LDE Equipment or Licensed Software (including transfer to any other occupant of the Premises or to any other location) without the prior written consent of LDE. LDE may assign all or part of this Agreement without notice to you and without your consent.
B. Force Majeure:
LDE will not be liable for any delay, interruption of Service, failure of performance of LDE or Customer Equipment, or any loss, liability or damage directly or indirectly caused by circumstances beyond our control, including but not limited to acts of God, flood, explosion or other catastrophes, causes attributable to you, Your Equipment or your property, acts of third parties, national emergencies, acts of terrorism, insurrections, riots, wars, unavailability of rights-of-way, loss of use of poles or other utility facilities, material shortages, power outages or reductions, failure of any cable signal at the transmitter, failure of a satellite, strikes, lockouts, or work stoppages, or any law, order, regulation, or request of the federal, state or local governments having jurisdiction over LDE. The use and restoration of Services in emergencies will in all cases be subject to the priority system specified by federal regulations.
C. Governing Law:
This Agreement will be governed by the laws of the state in which you receive the Services and applicable federal law.
When this Agreement requires notice from you to LDE, you agree to provide us with written notice to the address specified on your bill or as instructed on the Website or by calling us. Notice by calling us will be effective as of the date our records show that we received your call. Notices to you shall be provided as stated in Section 1(f) above.
In the event that any portion of this Agreement is held to be unenforceable in a jurisdiction, the unenforceable portion will be construed in accordance with Applicable Law in that particular jurisdiction as nearly as possible to reflect the original intentions of the parties and the remainder of this Agreement will remain in full force and effect.
F. Surviving Obligations:
Certain provisions will survive the termination of this Agreement including Arbitration, Indemnification by Customer, Disclaimer of Warranties, Limitation of Liability, Payment Obligations and all other provisions which by their nature would be expected to survive.
G. How to Contact Us:
For any questions regarding this Agreement, billing, your Services, technical support or other, please contact LDE by visiting the Website and obtaining the contact information located under “Contact Us.”