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Commercial Service Agreement

 

TERMS OF SERVICE APPLICABLE TO ANY AND ALL SERVICE(S)

Customer, identified in the Service Order (defined in paragraph 1 below), understands and agrees that this Commercial Service Agreement, together with the Annex,(collectively, the "Agreement") applies to each and every communication service provided to Customer by Deep East Texas Communications and any affiliate of Deep East Texas Communications to the extent such affiliate provides Services to you under this Agreement ("det-Com") ("Service(s)"), which may include, without limitation, high speed data service ("High Speed Internet Service") and related equipment ("Equipment").  This Commercial Service Agreement, along with the Annex, each as may be updated from time to time, can be found on our website at www.det-com.com.

1.  Agreement.  This Agreement shall be effective upon execution by the parties, and Services shall be provided for the term set forth Commercial Service Order. Customer agrees to be bound to this Agreement by: (i) executing a copy of the Commercial Service Order presented to Customer at the time of installation ("Service Order"), (ii) ordering a Service, or (iii) using one or more Services at Customer's location. det-Com may, in its sole discretion, change, modify, add or remove portions of this Agreement at any time by giving Customer notice in accordance with this Agreement. Customer's continued use of the Services following such notice shall be deemed as Customer's acceptance to any revision in this Agreement. If Customer does not agree to the revised Agreement, Customer must immediately notify det-Com of Customer's intent to terminate Service and return all Equipment.

2.  Services and Use.  det-Com shall use reasonable efforts to make the Services available by any requested service date.  det-Com 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. The parties acknowledge and agree that, except for Web hosting, if applicable, and as otherwise set forth in the Commercial Services Order, Customer may only use the Services for its own commercial purposes and not that of any third party. Customer shall not resell the Services.  Customer shall be responsible for any software and content displayed and distributed by Customer or Customer's web hosting customers, if any. Unless otherwise expressly set forth in the Commercial Service Order, Customer acknowledges that pay per view events and premium video and audio services may not be available, and, if provided, may be subject to additional charges beyond the base rate. det-Com shall provide Customer with the Services and Equipment identified on Customer's Commercial Service Order; provided, however, if det-Com determines that Customer's location is not serviceable under det-Com's normal installation guidelines, det-Com may terminate this Agreement. Unless provided otherwise herein, det-Com shall use reasonable efforts to maintain the Services in accordance with applicable performance standards, however, det-Com shall have no responsibility for the maintenance or repair of networks, facilities and equipment not furnished by det-Com.

3.  Payment.  Customer shall pay all monthly service charges, plus non-recurring, one-time set-up, installation and/or construction charges as set forth on the Commercial Service Order. Unless stated otherwise on the Commercial Service Order, Monthly Recurring Charges/Access Charges ("MRCs") for services provided hereunder ("Services") shall begin upon, and Non Recurring Charge/One-time Activation and Set-up Fees ("NRCs") if any shall be due upon, the commencement of Services.  Any amount not received by the due date will be subject to additional fees as set forth below.  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. Unpaid balances shall be subject to interest or late charges at the maximum rate allowed by law. Failure to pay the total balance when due may be grounds for det-Com to impose an administrative fee ("Administrative Fee") in accordance with applicable law.  Any Administrative Fee imposed on Customer is intended to be a reasonable advance estimate of costs of managing past due accounts.  det-Com does not extend credit to det-Com's Customers and the Administrative Fee is not interest, a credit service charge or a finance charge. Failure to receive a bill does not release Customer from Customer's obligation to pay.  Failure to pay the total balance when due shall constitute a breach of this Agreement and may be grounds for termination of Service, removal of Equipment from Customer's premises and/or imposition of an administrative fee ("Administrative Fee") in accordance with applicable law.

4. Additional Fees.  In addition to MRCs, NRCs, late charges, interest, and any Administrative Fee, additional fees may be imposed, including fees for returned checks, charge card chargeback, early termination, reconnection and service calls.  Additional charges, including attorney fees, may also be imposed if collection activities are required to recover past due balances.  A list of fees is available on det-Com's website (www.det-com.com) ("Schedule of Fees").  det-Com reserves the right to amend or change the Schedule of Fees from time to time by posting the changes on det-Com's website.

5.  Term, Early Termination.  The term of the Service Order shall commence on the date that any Service commences and shall terminate upon the expiration or earlier termination of the Agreement Term set forth on the Service Order. If a Service Order does not specify a term of service, the Agreement Term shall be one (1) year from the date that any Service commences. Upon the expiration of the Term, each Service Order(s) shall automatically renew for successive periods of one (1) year each ("Renewal Term(s)"), unless prior notice of non-renewal is delivered by either party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term. Effective at any time after the end of the initial Service Term and from time to time therein, det-Com may, modify the charges for HSI and/or Video Services to reflect then-current prevailing pricing subject to thirty (30) days prior notice. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing for the remainder of the Renewal Term. If Customer cancels, terminates or downgrades the Service before the completion of the term shown on the Commercial Service Order (the "Term"), or prior to the term of any promotional offer, Customer agrees to pay det-Com all sums, which shall become due and owing as of the effective date of the cancellation or termination, including: (i) all non-recurring charges reasonably expended by det-Com to establish service to Customer and not remunerated, (ii) any disconnection, early cancellation or termination charges reasonably incurred and paid by det-Com to third parties on behalf of Customer, and (iii) all recurring charges for the remaining balance of the Term or term of the promotional offer.

6.  Disputed Charges.  Customer must notify det-Com in writing of billing errors disputes or requests for credit within thirty (30) days after Customer receives the bill for which correction of an error or credit is sought.  The date of the dispute shall be the date det-Com receives sufficient documentation to enable det-Com to investigate the dispute.  The date of the resolution is the date det-Com completes its investigation and notifies the Customer of the disposition of the dispute.

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 det-Com, 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  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.  LIMITATION OF LIABILITY.  EXCEPT FOR ANY REFUNDS OR CREDITS AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SUDDENLINK, ITS OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AFFILIATES, VENDORS, CARRIER PARTNERS, CONTENT PROVIDERS AND OTHER PERSONS OR ENTITIES INVOLVED IN PROVIDING THE SERVICES OR EQUIPMENT (COLLECTIVELY, THE "SUDDENLINK PARTIES") SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, COST OR EXPENSE INCLUDING DIRECT, SPECIAL, INDIRECT, INCIDENTAL, TREBLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EARNINGS, BUSINESS OPPORTUNITIES, LOSS OF DATA, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR LEGAL FEES AND EXPENSES, SOUGHT BY CUSTOMER OR ANYONE ELSE USING CUSTOMER"S SERVICE ACCOUNT, AND/OR USE OF THE EQUIPMENT OR OTHERWISE ARISING IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE OF SERVICES AND/OR EQUIPMENT OR CUSTOMER"S RELIANCE ON THE SERVICES AND/OR EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY LIABILITY THAT ARISES DIRECTLY OR INDIRECTLY OUT OF THE USE OR INABILITY TO USE THE SERVICES (INCLUDING THE INABILITY TO ACCESS EMERGENCY 911 OR E911 SERVICES), MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURE OR MALFUNCTION, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN INSTALLATION, FAILURE TO MAINTAIN PROPER STANDARDS OF OPERATION, FAILURE TO EXERCISE REASONABLE SUPERVISION, DELAYS IN TRANSMISSION, BREACH OF WARRANTY OR FAILURE OF PERFORMANCE OF THE SERVICES AND/OR EQUIPMENT; OR RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING RELATING TO SERVICES AND/OR EQUIPMENT, OR THE INFRINGEMENT OF THE COPYRIGHT, PATENT, TRADEMARK , TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY. SUDDENLINK"S 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 FOR THE RESPECTIVE REGULAR BILLING PERIOD.

9.  WARRANTIES. CUSTOMER AGREES THAT THE SERVICES AND EQUIPMENT ARE PROVIDED BY SUDDENLINK ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, 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 TITLE, NON-INFRINGEMENT MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES.  SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND SUDDENLINK DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION.  SUDDENLINK MAKES NO WARRANTY AS TO TRANSMISSION OR UPSTREAM OR DOWNSTREAM SPEEDS OF THE NETWORK. ALL USE OF THE SERVICES ARE PROVIDED AT CUSTOMER'S SOLE RISK AND CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR CUSTOMER'S OR ANY USER'S USE OF THE SERVICES. THE SUDDENLINK PARTIES MAKE NO WARRANTIES THAT THE SERVICE, EQUIPMENT OR SOFTWARE ARE COMPATIBLE WITH ANY CUSTOMER EQUIPMENT AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR IMPAIRMENT OF SERVICE DUE IN WHOLE OR IN PART TO CUSTOMER EQUIPMENT. THE SUDDENLINK PARTIES MAKE NO WARRANTY AS TO THE SECURITY OF CUSTOMER'S COMMUNICATIONS VIA SUDDENLINK'S FACILITIES OR SERVICES, OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR CUSTOMER'S COMMUNICATIONS. CUSTOMER AGREES THAT CUSTOMER HAS THE SOLE RESPONSIBILITY TO SECURE CUSTOMER'S COMMUNICATIONS AND THAT THE SUDDENLINK PARTIES WILL NOT BE LIABLE FOR ANY LOSS ASSOCIATED WITH SUCH UNAUTHORIZED ACCESS.

10. Indemnity. Customer shall indemnify and hold det-Com 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 or related in any way to Customer's use of the Service, any other person's use of the Customer's account, the placement or presence or removal of det-Com's Equipment, facilities and associated wiring on Customer's premises 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 det-Com’s Acceptable Use Policy ("AUP").

11. Miscellaneous. This Agreement, any document referenced herein, and the AUP constitute the entire agreement between det-Com 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 det-Com 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 State of New York. 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 overnight mail service with proof of receipt; 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. det-Com may also deliver any required or desired notice hereunder to Customer by contacting the telephone number on Customer's account. The failure of det-Com to enforce this Agreement and any of its components, for whatever reason, shall not constitute a waiver of any right of det-Com or the ability to assert or enforce such right at any time in the future. All representations, warranties, indemnifications, dispute resolution provisions and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination (including legal conditions, payment, and det-Com rights and the rights of others).

12. 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. det-Com may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects det-Com's ability to provide the Services herein.

13. ARBITRATION.  CUSTOMER AND SUDDENLINK AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING ANY OF ITS COMPONENTS, THE SERVICES OR EQUIPMENT PROVIDED BY SUDDENLINK OR ANY ORAL OR WRITTEN STATEMENTS, ADVERTISEMENTS OR PROMOTIONS RELATING TO THIS AGREEMENT OR TO THE SERVICES OR EQUIPMENT (COLLECTIVELY, "CLAIM") SHALL BE RESOLVED THROUGH ARBITRATION. ALL ARBITRATION SHALL BE INITIATED AND CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE AAA SHALL APPOINT THE ARBITRATOR. ARBITRATION MUST BE INITIATED BY CUSTOMER WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO THE DISPUTE (EXCEPT FOR BILLING DISPUTES WHICH MUST BE INITIATED WITHIN THIRTY (30) DAYS). CUSTOMER WAIVES ANY CLAIM NOT FILED IN ACCORDANCE WITH THE PREVIOUS SENTENCE. THE PARTY INITIATING ARBITRATION SHALL GIVE NOTICE TO THE OTHER PARTY BY MAILING A COPY OF THE REQUEST FOR ARBITRATION TO THE OTHER PARTY AT THE ADDRESSES ON THE SERVICE ORDER. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED AND THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR THROUGH A REPRESENTATIVE, UNLESS APPLICABLE STATE LAW MANDATES OTHERWISE. ARBITRATION OF CLAIMS WILL BE CONDUCTED IN SUCH FORUM AND PURSUANT TO SUCH LAWS AND RULES RELATED TO COMMERCIAL ARBITRATION IN THE STATE OF NEW YORK THAT ARE IN EFFECT ON THE DATE OF THE NOTICE TO ARBITRATE.


Commercial Service Agreement -  Annex

This Annex, together with the Commercial Service Agreement, shall be referred herein as the Agreement ("Agreement").  This Annex applies to the applicable Services used by the Customer.  Sections 1-17 shall apply generally to all Services. Sections 19-25 shall apply specifically to Video Service, Sections 26-48 shall apply to High Speed Internet Service and Sections 49-53 shall apply to Phone Service.       

1.  Access to Customer Premises.  Customer grants det-Com and its employees, representatives and/or agents the right to enter Customer's premises and access Equipment, the wiring within Customer's premises and Customer's computer(s) to install, connect, inspect, maintain, repair, replace, disconnect, remove or alter the Equipment, check for signal leakage, or install or deliver det-Com provided software ("Software"). Customer shall cooperate in providing such access upon request of det-Com.  If Customer is not the legal owner of the premises, Customer warrants that Customer has obtained or possesses the legal authority of the owner to authorize det-Com personnel and/or its agents to enter the premises for the purposes described herein.

2.  Creditworthiness and Security Deposits.  At any time during the Term, Customer agrees that det-Com may verify Customer's credit standing with credit reporting agencies in accordance with applicable laws and require a deposit based on Customer's credit standing or past payment history with det-Com.  A deposit does not relieve the Customer of the responsibility for the prompt payment of bills on presentation.  Security deposits paid by Customer for Equipment or Services may be used, to the extent permitted by law, to offset any unpaid balance or charges after termination of Service.  Customer shall remain liable for any outstanding balances after the security deposit has been applied.  Further terms and conditions of the security deposit may be contained in the deposit receipt given to Customer at the time the security deposit is collected.  No interest shall be paid on any security deposits.

3.  Adjustments or Refunds.  Adjustments or refunds, if any, to Customer's bill shall be an amount no greater than the pro-rata part of the monthly charges applicable to the interrupted Service and associated Equipment charges for the period of time during which the Service is interrupted.  Such adjustment or refund will be accomplished by a credit on a subsequent bill for Service.  Unless otherwise required by applicable law, in the event any amounts owed by det-Com to Customer are not claimed by Customer within one year of the date on which the amount became payable to Customer, Customer shall forfeit all rights to the refund and all such amounts shall become the property of det-Com. In addition, no credit allowance will be made for:

interruptions of Service due to the negligence of or noncompliance with the provisions of the Agreement by Customer or any person authorized by customer to use the Service;
interruptions of Service due to the negligence of any person other than det-Com including, but not limited to, the other common carriers connected to the det-Com's facilities;
interruptions of Service due to the failure or malfunction of Customer owned equipment or third party equipment;
interruptions of Service during any period in which det-Com is not given full and free access to its facilities and Equipment for the purpose of investigating and correcting interruptions,
interruptions of Service during a period in which Customer continues to use the Service on an impaired basis;
interruptions of Service less than thirty (30) minutes' duration;
interruptions during any period when the interruption is due to implementation of a Customer order for a change in Service arrangements;
interruptions of Service due to circumstances or causes beyond the control of det-Com.

4.  Equipment And Software.  Any network facilities, Software, cabling or Equipment installed or provided by det-Com will remain the property of det-Com.  Customer will acquire no ownership or other interest in the network facilities, cabling, Software or Equipment by virtue of payments made pursuant to this Agreement or by the attachment of any portion of the network facilities, cabling or Equipment to Customer's premises.

4.1. Misuse of Equipment.  Customer will not open, alter, misuse, or tamper with the Equipment. Customer will not remove Equipment from the location where Equipment was installed.  Customer will not remove any markings or labels from the Equipment.  Customer agrees to safeguard the Equipment from loss or damage of any kind, and (except for any self installation procedures approved by det-Com) will not permit anyone other than a det-Com authorized representative to perform any work on the Equipment.
4.2. Return of Equipment.  If Customer's Service is terminated or cancelled (for whatever reason), Customer agrees that Customer no longer has the right to keep or use the Equipment and Customer must promptly return the Equipment.  The Equipment must be returned to det-Com in the same condition as when received, ordinary wear and tear excepted. If Customer fails to return the Equipment, Customer will pay any expenses det-Com incurs in retrieving the Equipment.  Failure of det-Com to remove the Equipment does not mean that det-Com has abandoned the Equipment.  det-Com may continue to charge Customer a monthly Service fee until any remaining Equipment is returned, collected by det-Com or fully paid for by Customer.
4.3. Damaged or Lost Equipment.  If the Equipment is damaged by Customer, destroyed, lost or stolen while in Customer's possession, Customer is responsible for the cost of repair or replacement of the Equipment.
4.4. Operation of Equipment.  The Customer agrees to operate any Equipment in accordance with instructions of det-Com or det-Com"s agent.  Failure to do so will relieve the det-Com Parties of liability for interruption of Service and may make the Customer responsible for damage to Equipment.
4.5. Tests and Inspections.  Upon reasonable notification to the Customer, and at a reasonable time, det-Com may make such tests and inspections as may be necessary to determine that the Customer is complying with the requirements set forth herein.
4.6. Software.  Customer agrees to comply with the terms and conditions of any Software license agreement provided with the Software.  The Software shall be used solely in connection with the Services and Customer will not modify, disassemble, translate or reverse engineer, the Software.  If Customer's Service is terminated, Customer will promptly return or destroy all Software provided by det-Com and any related written materials.  det-Com will have the right to upgrade, modify and enhance the Equipment and Software from time to time through "uploads."

5.  Service Date and Term. This Agreement shall be effective upon execution by the parties.  Services shall be provided for the applicable term set forth Commercial Service Order.  det-Com shall use reasonable efforts to make the Services available by the requested service date.  det-Com 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.

6.  Access/Customer Responsibilities. Customer grants det-Com and its employees, representatives and/or agents all necessary rights of access within the Customer's premises, including space for cables, conduits, and equipment, and Customer's computer(s), as necessary to install, repair, inspect, maintain, replace or remove any and all facilities, equipment and software provided by det-Com.  Customer shall provide a secured space with electrical power, climate control and protection against fire, vandalism, and other casualty for det-Com's equipment.  Customer is responsible for ensuring that Customer"s equipment is compatible for the Services selected and with the det-Com network.

7.  Equipment. det-Com shall install equipment necessary to furnish the Services to Customer. 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 det-Com or permit tampering, altering or repair of the equipment by any person, including removing markings or labels, other than det-Com' authorized personnel. Customer shall not modify or relocate equipment installed by det-Com or install any other equipment, including servers in connection with data/Internet without the prior written consent of det-Com.  Unless otherwise stated in the Commercial Service Order, Customer agrees that det-Com shall retain all rights, title and interest to facilities and equipment installed by det-Com hereunder and that Customer shall not create or permit to be created any liens or encumbrances on such equipment. At the expiration or termination of this Agreement, Customer shall return det-Com's equipment in good condition, ordinary wear and tear resulting from proper use excepted. If Customer fails to return the Equipment, Customer will pay any expenses det-Com incurs in retrieving the Equipment.  Failure of det-Com to remove the Equipment does not mean that det-Com has abandoned the Equipment.  det-Com may continue to charge Customer a monthly Service fee until any remaining Equipment is returned, collected by det-Com or fully paid for by Customer. Customer is responsible for damage to any det-Com equipment.  Internal Wiring shall not be considered equipment and shall become the property of Customer upon initiation of Service.

8.  Equipment And Software.  Any network facilities, Software, cabling or Equipment installed or provided by det-Com will remain the property of det-Com.  Customer will acquire no ownership or other interest in the network facilities, cabling, Software or Equipment by virtue of payments made pursuant to this Agreement or by the attachment of any portion of the network facilities, cabling or Equipment to Customer's  premises.

Customer agrees to comply with the terms and conditions of any Software license agreement provided with the Software.  The Software shall be used solely in connection with the Services and Customer will not modify, disassemble, translate or reverse engineer, the Software.  If Customer's Service is terminated, Customer will promptly return or destroy all Software provided by det-Com and any related written materials.  det-Com will have the right to upgrade, modify and enhance the Equipment and Software from time to time through "uploads."

9.  Resale of Service. Except for Web Hosting and as expressly provided in the Commercial Service Order, Customer may not sell, resell sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof 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. Customer acknowledges that pay per view events will not be available, and if provided, may be subject to additional charges beyond the base rate. Customer may not sell, resell, sublease,

10. 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 det-Com), or det-Com terminates Services for Customer"s breach of this Agreement or the  det-Com's Acceptable Use Policy ("AUP"), Customer may be subject to a termination liability.  The termination liability shall equal 100% 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.  Any termination by Customer must be in writing. det-Com may terminate this Agreement immediately at any time, without prior notice, if Customer or a User fails to fully comply with the terms of this Agreement, including failure to pay any amounts when due, its components and, to the extent not allowed or contemplated under this Agreement or the AUP or for any other reason or no reason.  If det-Com terminates Service due to a violation of this Agreement or det-Com's policies, Customer may be subject to additional fees and charges, including disconnect and termination fees and det-Com may also exercise other rights and remedies available under law. Failure to pay the total balance when due shall constitute a breach of this Agreement and may be grounds for termination of Service and removal of Equipment from Customer's premises.

11. Assignment. Customer may not assign, in whole or in part, this Agreement without the prior written consent of det-Com, which consent may be withheld in det-Com's discretion. det-Com may assign, in whole or in part, this Agreement, and Service may be provided by one or more legally authorized det-Com affiliates.

12. 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.  det-Com may disclose Customer information to law enforcement or to any det-Com affiliate.  

13. IP Address and Domain Name Registration. det-Com will allocate IP addresses to Customer according to InterNIC guidelines.  All IP addresses assigned by det-Com 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, det-Com will register an available domain name on behalf of Customer, and such registration shall be subject to rules promulgated by the applicable domain name registrar, which may be amended from time to time. Customer is responsible for payment and maintenance of domain name registration.

14. Software License. det-Com grants Customer a limited, nonexclusive, nontransferable and nonassignable license to install and use as provided herein (i) det-Com access software, as well as software from our licensors that det-Com 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 Software, including associated intellectual property rights, are and will remain with det-Com and det-Com's 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, may be subject to applicable export control laws and regulations of the . Customer agrees not to export or re-export the Software, directly or indirectly, to any countries that are subject to export restrictions.

15. Web Hosting Servers. det-Com reserves the right to select the server for Customer's web site for best performance.  The Customer understands that the Services provided by det-Com 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 det-Com to relocate its web site.  If the Customer refuses to comply with this Section, then det-Com has the right to terminate the Services. det-Com will use reasonable efforts to maintain a full time Internet presence for the Customer. 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 det-Com shall not be liable to customer for such outages or server downtime.

16. 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 det-Com as its provider of Services. Customer shall also provide det-Com 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, det-Com 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 det-Com may terminate the Agreement without further liability to det-Com or the Customer.  Additionally, if full E-Rate funding is not received and det-Com elects to terminate the Services during the contract term, then Customer may be subject to termination liabilities.

17. Bundled Packages. In consideration for Customer's purchase of the bundled package of two or more services and only with respect to that period time during which Customer continues to purchase such bundle, det-Com shall continue to apply a discount to the Services ordered under this Service Order. Such discount has been applied to the Services included in bundled pricing offer and is reflected in the monthly services fees for such Services contained in this Service Order. For purposes of clarification, in the event det-Com's provision to Customer of one or more of the bundled Service components is discontinued or otherwise terminated for any reason, the pricing for the remaining Service components listed above shall revert to det-Com's a la carte pricing for such Services in effect at the time of the discontinuation or termination. Termination liabilities applicable to the Services under the Service Agreement shall otherwise remain unchanged.

TERMS OF SERVICE APPLICABLE ONLY TO THE PROVISION OF HIGH SPEED INTERNET SERVICE.  In addition to all other relevant terms provided in this Agreement, a Customer who uses det-Com's High Speed Internet Service, which may include Internet access services, on line video services, e-mail services, e-commerce, online content, features and other online services under the control of det-Com or its affiliates understands and agrees that:

25. Additional Services.  The High Speed Internet Service provided to customer allows access to certain det-Com proprietary Services, in addition to other services or features available over the Internet.  Customer understands that he/she may incur additional charges while using these other services or while engaging in forms of e-commerce.  All such charges shall be paid by Customer and are not the responsibility of det-Com.

26. Authorized Connections.  det-Com agrees to provide Customer with the number and type of High Speed Internet Service connection(s), e-mail addresses, and other appurtenances at the Customer Locations as stated on the Commercial Service Order.  Customer shall not exceed the number, types or location of such authorized connections.

27. Peripheral Equipment.  Customer understands and agrees that, to be operational, the High Speed Internet Service may require additional equipment, whether wired or wireless.  If det-Com is providing Customer with a modem and/or antenna, the radio and/or antenna shall remain Equipment. Customer agrees not to use the Equipment for any purpose other than to use the High Speed Internet Service pursuant to this Agreement.

28. Minimum Equipment.  Customer agrees that the Customer Equipment utilizing the High Speed Internet Service must meet the minimum computer requirements outlined in the informational literature det-Com has provided and as may be amended from time to time.  If Customer proceeds with the installation of or uses the High Speed Internet Service utilizing Customer Equipment that does not meet the minimum requirements (a "Non-Recommended Configuration"), Customer agrees that (i) Customer will not be entitled to customer support from det-Com relating to any issues other than the quality of the signal delivered to the Customer's receptacle, and (ii) Customer understands and agrees that Customer may not be able to successfully install, access, operate, or use the High Speed Internet Service with the Non-Recommended Configuration. CUSTOMER ACKNOWLEDGES THAT ANY INSTALLATION, ACCESS, OPERATION OR USE OF NON-RECOMMENDED CONFIGURATIONS COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT, INCLUDING, WITHOUT LIMITATION, CUSTOMER"S COMPUTER, PERIPHERALS, SOFTWARE, OR DATA. NEITHER SUDDENLINK NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.

29. Upgrades.  Customer acknowledges that the Equipment is merely a means through which the High Speed Internet Service is provided by det-Com and may be removed or changed by det-Com at its discretion as it deems appropriate, including through "uploads" to Customer’s computer(s) or otherwise. det-Com shall have the unrestricted right, but not the obligation, to upgrade the firmware in the modem at any time that det-Com, in its sole discretion, determines it is necessary or desirable. Customer assumes all responsibility for any degradation in or problems from the failure to upgrade. det-Com does not represent, warrant or covenant that installation and modifications of peripheral devices, including Network cards, computer equipment, software, computer files and other system configuration files necessary to operate the High Speed Internet Service will not disrupt or delay the normal operations of Customer's computer device(s) or associated equipment.  det-Com shall have no liability whatsoever for any loss, damage or outage resulting from the above. Upon Customer request and, at det-Com's sole discretion, for an additional charge, det-Com or its agents may install certain software, an extra Ethernet receptacle, a modem and associated equipment for operation of the High Speed Internet Service. If installed by det-Com, det-Com shall use reasonable efforts to install the High Speed Internet Service to a fully operational status.

30. Back-Up.  Customer agrees to either back-up all existing computer files prior to installation of any Equipment to Customer's computing device or accept sole responsibility for lost or damaged files, data or programs.  In all events, det-Com shall have no liability whatsoever for any damage or loss or destruction of any of Customer's software, files, data or peripherals.

31. Prohibited Uses.  Customer shall not and shall not allow others to use the High Speed Internet Service to: (i) violate det-Com's AUP posted on det-Com's web site and as modified from time to time, or, unless expressly provided in the Customer Service Order, (ii) operate a server in connection with the Services, including FTP, IRC, SMTP, POP, HTTP, SOCKS, SQUID, DNS or any multi-user forums.

32. Termination.  In addition to det-Com's termination rights set out elsewhere in this Agreement, det-Com may terminate all Services, including the High Speed Internet Service if det-Com reasonably believes that Customer has engaged in or is engaging in any of these prohibited activities and det-Com reserves the right to pursue any damages or remedies from such activities, including any direct or indirect costs, expenses or fees incurred by det-Com and/or its affiliates. Following the termination of Customer's High Speed Internet Service account for any reason, det-Com is authorized to delete any files, programs, data, e-mail addresses and e-mail messages associated with such account.  Such deletion may include Customer forfeiting his/her account user names, all e-mail, IP and web space addresses.  Any incoming e-mail to Customer's canceled account(s) will not be forwarded to another account.  det-Com shall have no liability whatsoever as the result of the loss or destruction of any information, data, names or addresses.

33. Network.  det-Com utilizes a network that allows bi-directional access to the Internet.  The network is not intended to protect Customers from hackers, viruses or other harmful elements that may result from participation in High Speed Internet Service, and as such, Customer should not rely on the network to provide such protection.  det-Com may run third party virus check software or other protection measures over its network to scan e-mails or Internet activity; however, det-Com does not represent, warrant or covenant that such software will detect, repair or correct any or all viruses or other harmful code or software.

34. E-mail.  Customer must adhere to the e-mail policies provided in the AUP. As part of the subscription to High Speed Internet Services, Customer will be provided with the ability to set up mail addresses for the number of e-mail addresses specified on Customer's Service Order. Customer is responsible for the set-up and proper usage of these addresses. All e-mail accounts within Customer's account are limited to 2.5 megabytes of storage space on the network. det-Com reserves the right to modify, delete or correct any accounts that exceed the megabyte limitation, and modify the size of Customer's storage space, at det-Com's sole discretion and without notice. To preserve e-mail for longer periods, Customer can set its e-mail account so that e-mail is automatically stored on Customer's computer's hard-drive when Customer opens it. Please check the Help section on Customer's e-mail access program (e.g., Outlook Express). det-Com reserves the right to place additional limitations on Customer’s e-mails on the det-Com network, including without limitation, maximum message size, maximum number of recipients per message, and maximum number of messages per server connection. det-Com reserves the right to reclaim any and all inactive e-mail addresses and accounts from Customer at det-Com's sole discretion and without notice, whether such are inactive as a result of the termination or cancellation of High Speed Internet Service regardless of the reason for such cancellation or termination, or inactive as a result of a lack of access by Customer to the account and/or e-mail address for a period of twelve months or greater.

35. Security.  det-Com may provide, offer for sale or subscription, or otherwise make available, software or services for e-mail filtering, anti-virus scanning and other e-mail security solutions for the convenience of Customers.  det-Com shall not be responsible for nor have any liability with regard to the e-mail that Customer or its authorized Users receive, nor for any loss or filtered e-mail, nor for the failure to prevent virus delivery or infection.  det-Com Parties are not responsible or liable for the forwarding or inability to forward e-mail sent to any other e-mail account.  E-mails sent to suspended or terminated accounts may be returned to sender, ignored, deleted or stored temporarily at det-Com's sole discretion.

36. Personal Web Pages and Content.  Customer may create personal web pages. On such personal web pages, Customer can design, maintain, and publish texts, diagrams, illustrations, audio clips and related materials for access by a global audience. Customer is solely responsible for any information, materials or content that Customer publishes on its web pages or otherwise makes available on the Internet.  Customer should take appropriate precautions to prevent minors from receiving inappropriate content.  det-Com reserves the right to refuse to post and/or to remove any information, materials or content, in whole or in part, that it deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful.

37. Accuracy of Content.  Customer understands and agrees that by using the High Speed Internet Service, Customer and/or User may be exposed to materials or content that is offensive, indecent, sexually explicit, objectionable, or that may violate federal, state or local laws, rules or regulations or may violate the protected rights of the Customer or others. Customer also understands that the technical processing and transmission of the High Speed Internet Service, including Customer's content or material, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices; and that under no circumstances will the det-Com Parties be liable in any way for any claims, losses, actions, suits, proceedings, or any damages relating to any content, including, but not limited to, any errors or omissions in any content, access to such content or material by Customer or others, or incurred as a result of the use of any content posted, or otherwise transmitted via the High Speed Internet Service. Customer acknowledges that software programs claiming to be capable of restricting access to sexually explicit material on the Internet are commercially available.  The det-Com Parties make no representation or warranty regarding the effectiveness of such programs.

38. Scheduled Service repair, maintenance or upgrade.  det-Com may from time to time schedule Service repair, maintenance or upgrades to provide Customer with High Speed Internet Service.  Customer shall not receive High Speed Internet Service credits for such scheduled repairs, maintenance or upgrades.   If there is a known and unscheduled High Speed Internet Service interruption in excess of 24 consecutive hours (or in excess of such lesser time period pursuant to local law), det-Com, upon prompt notification of such failure to interruption by Customer, may provide Customer with a pro-rata credit relating to such failure or interruption.  det-Com Parties will not be liable for any direct, incidental or consequential damages or losses from any interruption in High Speed Internet Service.

39. Changes to High Speed Internet Service.  det-Com may also, at any time and in its sole discretion, without notice, change, add to or remove portions of the High Speed Internet Service (including, without limitation, content, functionality, hours of availability, Equipment requirements, speed, upstream and downstream limitations, Service features, storage capacity, and protocol filtering) and/or institute or otherwise change fees and charges for the High Speed Internet Service.  If Customer is dissatisfied with such changes or the High Speed Internet Service after such changes, Customer"s only right and remedy is to cancel his/her subscription to the High Speed Internet Service.

40. Service Usage.  det-Com has no obligation to track High Speed Internet Service usage of Customer; however, as a part of the provision of Service and in order to protect from unauthorized reception of Service, det-Com may track certain usage, usage patterns and/or selections indicated by Customer or other information necessary to satisfy any law or regulation to properly operate the High Speed Internet Service and/or to protect det-Com, network, Services, Equipment and/or Customers.

41. Network Integrity.  det-Com reserves the right to protect the integrity of its network and resources by any means it deems appropriate.  This includes, but is not limited to: port blocking, e-mail virus scanning, denying e-mail access or transmission, and putting limits on bandwidth and e-mail usage.

42. Bandwidth, Data Storage and Other Limitations.  Customer agrees to comply with det-Com's bandwidth, data storage and other limitations of the High Speed Internet Service as established and modified by det-Com from time to time.  Customer agrees that its bandwidth usage activity will not improperly restrict, inhibit or degrade any other user's use of the High Speed Internet Service, nor represent (in det-Com's sole judgment) an unusually large burden on the network.  Customer also agrees that its activity will not restrict, inhibit, disrupt, degrade or impede det-Com's ability to deliver and track its High Speed Internet Service, backbone, network nodes and/or other network services.

43. Sole Risk.  Use of the High Speed Internet Service provided by det-Com, in addition to third-party products or services provided by or accessed through the High Speed Internet Service or the Internet is at Customer's sole risk and Customer acknowledges that the High Speed Internet Service are provided "AS IS."  Accordingly, any information sent through or over the network is sent at Customer's sole risk.

44. Customer Security.  When Customer's computer device is connected to a modem, it constitutes a "local" segment of the network.  All of Customer's traffic to or from this local segment will be reflected by the modem in an unencrypted format onto the network (unless separate encryption technology is utilized) and will be subject to eavesdropping by third parties.  Further, through the use of file and print sharing features, third parties outside of Customer's premises may be able to access Customer's computer devices across the network and access Customer's software, files and data.  Any Customer who chooses to subscribe to the det-Com's High Speed Internet Service and enables capabilities such as file sharing, print sharing or other capabilities that allow third party computer access, does so at his/her own sole risk.  Customer is solely responsible for any security devices Customer chooses to connect or install on his/her computer device, in addition to any transmissions to or from Customer or its authorized Users. det-Com Parties shall not be liable or responsible for any unauthorized sharing, access, eavesdropping or any associated risks.

45. Enforcement of Policy and AUP.  Customer authorizes det-Com and its affiliates to cooperate with law enforcement authorities in the investigation or prosecution of criminal violations, and with system administrators at other Internet service providers or other network computing facilities to enforce this Agreement, the AUP and other applicable terms and conditions of the High Speed Internet Service.  Such cooperation may include providing certain Customer identifying information to these parties.

46. CUSTOMER'S AGREEMENT TO INDEMNIFY FOR MISUSE.   MISUSE OR CERTAIN USE OF THE HIGH SPEED INTERNET SERVICE MAY RESULT IN CLAIMS BY THIRD PARTIES AGAINST SUDDENLINK AND/OR ITS AFFILIATES, MEMBERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND CONTRACTORS.  AS A PRACTICAL MATTER, SUDDENLINK CANNOT MONITOR OR CONTROL THE ACTIVITIES OF CUSTOMERS OR USERS TO PREVENT THESE CLAIMS. CUSTOMER AND EACH USER, JOINTLY AND SEVERALLY, AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS SUDDENLINK, ITS AFFILIATES AND THIRD PARTIES WHO CONTRIBUTE TO THE HIGH SPEED INTERNET SERVICE FROM ANY AND ALL CLAIMS, SUITS, PROCEEDINGS, INVESTIGATIONS, LIABILITIES, JUDGMENTS, LOSSES, DAMAGES, EXPENSES OR COST (INCLUDING ATTORNEYS" FEES AND INVESTIGATION EXPENSES) THAT DIRECTLY OR INDIRECTLY RESULT FROM, ARISE OUT OF OR RELATE TO: (I) ANY VIOLATION OF THIS AGREEMENT OR ANY APPLICABLE LAW BY THE CUSTOMER OR USER; (II) THE USE OF THE SERVICE, INTERNET OR THE POSTING, PLACEMENT OR TRANSMISSION OF ANY CONTENT, SOFTWARE OR OTHER MATERIALS BY THE CUSTOMER OR USER; (III) INFRINGEMENT OR VIOLATION OF ANY PERSON"S PROPERTY, CONTRACTUAL OR OTHER PROPRIETARY RIGHTS, INCLUDING COPYRIGHT, PATENT TRADE SECRET AND TRADEMARK RIGHTS; OR (IV) ANY ACTIVITY, OMISSION OR USE RELATED TO CUSTOMER"S HIGH SPEED INTERNET SERVICE ACCOUNT.

47. Tracking Devices and Viruses.  Customer acknowledges that accessing certain websites through the High Speed Internet Service may result in "cookies" and other tracking devices to be entered in Customer's computer equipment and stored on Customer's browser.  It is Customer's responsibility to disable the entry of "cookies" or other tracking devices following procedures, if available, on Customer's browser.  Customer further acknowledges that using the High Speed Internet Service may result in harmful viruses being downloaded and stored on Customer's computer.  It is Customer's responsibility to protect Customer's computer and data from harmful viruses by installing firewall and other anti-virus software on Customer's computer.


 

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Acceptable Use Policy

Deep East Texas Communications ("det-Com") has adopted this acceptable use policy applicable to all users of det-Com's high speed Internet service, including det-Com's web sites. This acceptable use policy is intended to advance det-Com's goal of providing reliable and high quality Internet service to its subscribers. More info

Service Agreement

This is where our level of service is formally defined. Service Agreements below are defined by service type.

Support Center

You may contact us by phone, e-mail or visit the Members Portal to submit a trouble ticket. The Members Portal also provides access to our Knowledgebase and FAQ.