Last Updated: 11/01/203
These Terms of Service constitute the agreement (“Agreement”) between Falcon Broadband, Inc. of 555 Hathaway Drive, Colorado Springs, CO. 80915 (“FBB”) and the customer (“Customer”) who is receiving residential voice, video, and/or data services (“Services”) at a particular Residence (“Service Premises”) on the following terms.
By allowing activation of FBB Services at the Service Premises, the Customer acknowledges that they have read, understood, and agreed to the terms and conditions of this Agreement, and that the Customer is of legal age to enter the Agreement and become bound by its terms.
1.1 Regular Service Terms. Regular Services are offered on a monthly basis for a term which begins on the first day of the month in which FBB activates Services at the Service Premises. Charges for Services are prorated to the date of activation or deactivation within the monthly term. Subsequent terms of the agreement automatically renew on a monthly basis without further action from the Customer. Customer must request termination of the Services in writing and is responsible for all for all charges to the date in which FBB deactivates Services at the Service Premises. Expiration of the term or termination of the Services does not excuse the Customer from paying all unpaid charges, taxes, and fees due in relation to the agreement.
1.2 Promotional Terms. Services offered as promotions are offered under a promotional term which may vary by promotion but will be subject to early cancellation fees.
2. Change of Services: Customer may add or remove different aspects of FBB’s residential Services under the terms of this agreement. Additional fees will apply for changing or cancelling of services offered under promotions prior to the end of the Promotional Term.
3.1 Service Deposit. Customer agrees to pay FBB a service deposit determined by FBB’s internal credit check and guidelines. FBB is not obligated to disclose the information returned from the credit check or the internal guidelines which determine deposit amounts or whether deposits are required. Additional service deposits may be required if customer upgrades services beyond the initial Services activation to the Service Premises. If Customer meets FBB’s standards for creditworthiness, and Customer pays each of Customer’s first six bills when due, then Customer’s service deposit will be credited to Customer’s account on the seventh bill. If any of Customer’s payments are not made by the dates due, or if any actions of Customer require FBB to charge against Customer’s deposit, then Customer’s service deposit will be retained by FBB.
Customer understands and agrees that failure to make payments by the due dates or termination of Services for any reason within six months of installation will result in FBB retaining the service deposit. FBB will credit the service deposit against unpaid service charges at its sole discretion, and the customer is still obligated to pay all unpaid equipment replacement charges, service charges, taxes, and fees in relation to this Agreement.
3.2 Equipment Deposit. If Customer is leasing or using FBB equipment for receiving the Services, Customer agrees to pay FBB an equipment deposit determined by FBB’s internal credit check and guidelines. FBB is not obligated to disclose the information returned from the credit check or the internal guidelines which determine deposit amounts or whether deposits are required. Additional equipment deposits may be required if customer upgrades Services beyond the initial Services activation to the Service Premises. The equipment deposit will be retained by FBB until the all equipment is returned undamaged and with all external components including, but not limited to, remote controls, power cables, and cables for communicating to other devices.
Customer understands and agrees that failure to return all equipment undamaged for any reason will result in FBB retaining the equipment deposit. FBB will credit the equipment deposit against the equipment replacement charges for damaged or unreturned equipment at its sole discretion, and the customer is still obligated to pay all unpaid equipment replacement charges, service charges, taxes, and fees in relation to this Agreement.
4. Termination. This Agreement shall automatically renew on a monthly basis unless Customer gives FBB written notice to discontinue Services at the Service Premises, and returns any equipment belonging to FBB. FBB reserves the right to suspend or discontinue providing all or portions of its residential services in general, or to terminate all or portions of the Customer’s Services, at any time in its sole discretion. If FBB discontinues providing the Services, the Customer is responsible for pro-rated service charges accrued through the date that Services were deactivated at the Service Premises, and all unpaid equipment replacement charges, service charges, taxes, and fees, to include early termination fees for Promotional Services, in relation to this Agreement.
5. Payment Terms. Customer agrees to pay all monthly fees and installation charges, including applicable franchise fees, taxes, customer service fees, late fees, collection fees, and Metro District Fees or HOA fees when they apply to FBB services. Monthly fees will be billed one month in advance. If payment is not received by the due date, late fees and collection charges may be assessed, and the Services may be disconnected and a disconnect fee assessed. In the event that FBB must disconnect Customer Services due to non-payment, Customer will be required to pay a reconnect fee and all past due charges before Services are reconnected.
6. Contact. For any inquiries, complaints or notices required under this Agreement, Customer should contact FBB in writing at 555 Hathaway Drive, Colorado Springs, CO 80915, via e-mail at firstname.lastname@example.org, or by telephone at (719) 573-5343.
7. Equipment. All equipment provided by FBB to Customer for the reception of Services, including any cables used to connect the equipment to power sources or to connect to the Customer’s owned equipment, (“Equipment”), shall be and remain the sole property of FBB. Customer agrees not to sell, loan, abuse, tamper with, repair, alter or damage the Equipment, and further agrees not to move, disturb, or change the location of any of the Equipment from the Service Premises. Any connection to, relocation of, or use of the Equipment or reception of Services except as allowed by this Agreement, is a violation of federal and/or state law, subject to fine or imprisonment or both, and FBB has the right to impose liquidated damages in an amount equal to three times the normal service charge for the period of such unauthorized use together with all collection, court, and attorneys fees incurred thereby. If Service premises are leased by Customer, or are under the control of a Homeowner’s Association or other such entity (“HOA”), it is Customer’s sole responsibility to ensure that the placement of FBB’s Equipment is within any guidelines set by Customer’s Landlord or HOA.
Relocation of Equipment, which shall be done only by FBB personnel, shall be subject to a charge by FBB. Upon termination of this Agreement, Customer agrees to return all Equipment to FBB during normal business hours within 14 days of termination notice, or to promptly grant FBB all access necessary to remove the Equipment from the Service Premises. Failure by FBB to remove the equipment shall not be deemed abandonment by FBB. In the event that the Equipment supplied by FBB is not returned to FBB for any reason, whether due to Customer acts or accidents, theft, loss, fire, casualty or other causes beyond Customer’s control, Customers shall forfeit any deposit made and shall pay FBB up to the replacement value of the equipment not returned as shown on the FBB website (www.falconbroadband.net) as damages for the unreturned equipment in addition to such other costs, including attorneys’ fees, cost of collection and court costs, as may result to FBB. Customer further agrees to pay FBB additional charges in the event the Equipment is repaired or replaced due to the Customer’s acts or omissions. By signing this Agreement Customer authorizes FBB to charge replacement value or repair cost, as applicable, to any credit card or debit card number Customer provided to FBB.
8. FBB Content Rights. FBB has no obligation to monitor the content of the Services and expressly disclaims any responsibility for any offense or injury arising out of Customer’s access to or dissemination of such content. Customer agrees that FBB has the right to monitor content electronically at any time and to disclose any information necessary to satisfy any law, regulation or governmental request to operate the Service properly, or to protect itself or its subscribers. FBB reserves the rights to refuse to post and remove information or materials that, in its sole discretion, are unacceptable or in any way violate this Agreement.
9. Customer Information. Customer expressly grants FBB permission to disclose personally identifiable information relating to Customer or Customer’s account in response to (a) a subpoena issued in a civil or criminal investigation or litigation; (b) a civil investigative demand issued by a government entity; or (c) a court order.
10. Customer Service . FBB expressly reserves the right to institute fees for providing certain customer support services if, at its sole discretion, it determines such fees are warranted. FBB shall not be liable for any damage to Customer’s equipment resulting from or in connection with its provision of Service and technical support, even if such damage results from the negligence or gross negligence of the FBB installer, technician, or customer service representative.
12. FBB Rights. Nothing contained herein shall be construed to limit FBB’s rights and remedies available at law or in equity.
13. Limited Warranty. ALL FBB RESIDENTIAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. FBB DOES NOT WARRANT UNINTERRUPTED USE OF THE SERVICE OR THAT ANY DATA OR ANY FILES SENT BY OR TO CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE TIME PERIOD. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE HEREBY EXCLUDED AND DISCLAIMED.
14. FBB Performance and Reliability Rights . FBB reserves the right to manage its network for the greatest benefit of its subscribers including, but not limited to rate limiting, traffic prioritization, and protocol filtering. Customer expressly acknowledges and accepts that such action by FBB may affect the Service performance. FBB reserves the right to enforce limits on specific Services features, including, but not limited to, e-mail storage and usage maximums.
15. Maintenance and Repair. FBB will at all times during the term of this Agreement keep the Service and systems that provide the Services in a good state of repair and maintenance subject to actions by others or circumstances beyond FBB’s control, including but not limited to “Acts of God.” It may be necessary for FBB to temporarily interrupt Service to repair or upgrade the systems and equipment that provide Services. If possible, FBB will notify Customer prior to interruption, and will conduct repairs or upgrades in a manner to minimize interruption of service and inconvenience to the Customer.
16. Viruses and SPAM . FBB does not represent, warrant or covenant that its e-mail virus check service or SPAM provention service will detect or correct any or all viruses and/or SPAM. Software or other content downloaded from the Services may contain viruses. It is Customer’s sole responsibility to take appropriate precautions to protect his/her computer from damage to software, files and data. Neither FBB, nor any of their subcontractors, employees or agents, shall have any liability whatsoever for any damage to or loss or destruction of any software, files or data resulting from any virus, lock, key, bomb, worm, Trojan horse or other harmful feature.
17. No Liability For:
A. Content. There may be some content on the Internet or Services which may be offensive to some individuals, or which may not be in compliance with all local laws, regulations and other rules. FBB assumes no responsibility for the content contained on the Internet or otherwise available through the Services. All content accessed by Customer through the Services is accessed and used by Customer at Customer’s own risk, and FBB, shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings relating to access to such content by Customer. FBB specifically disclaims any responsibility for the accuracy, quality and confidentiality of information obtained through the Service.
B. Confidential Information. Any sensitive or confidential information (such as credit card numbers or other financial information, medical information or trade secrets) sent by Customer is sent at Customer’s sole risk, and neither FBB nor any of their subcontractors, employees or agents, shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or relating to such actions by Customer.
C. FTP/HTTP/Proxy/Gateway Server Setup. Customer is aware that when using the Service to access the Internet or any other online service, there are certain applications, such as FTP, HTTP, proxy, or gateway server applications, which may be used to allow other Service and Internet users to gain access to Customer’s computer. Neither FBB, nor any of its respective agents, subcontractors, or employees, shall have any liability whatsoever for any claims, losses, actions, damages, proceedings or suits resulting from, arising or otherwise relating to the use of such applications by Customer, including, without limitation, damages resulting from others accessing Customer’s computer or from any loss of data maintained on the Network.
18. Limitation of Liability . In no event will FBB or any of its respective subcontractors, employees or agents, be liable to Customer or to any third party for any direct, indirect, incidental, special, exemplary, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly from the Customer’s use of the Services, including, without limitation, any damage resulting from Customer’s reliance on or use of the Services, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, non-deliveries, mis-deliveries, transmission, or any failure of performance of the Services. These limitations apply to the acts, omissions, negligence and gross negligence of FBB, and each of its employees and agents. Customer’s sole and exclusive remedies under this Agreement are expressly set out in this Agreement.
19. Multiple Users. Customer is executing this Agreement on behalf of all persons who use the Services at the Service Premises. Customer is solely responsible for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer agrees that he/she is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of the Services and/or Equipment by Customer or by any other user of the Services at the Customer’s Service Premises.
20. Right of Access. Customer hereby grant to FBB the exclusive right, so long as FBB holds all necessary authority to provide Services to the Service Premises, to enter upon and over the Service Premises at any time to install, connect, disconnect, inspect or acquire the Equipment for the purpose of providing, maintaining or disconnecting Services. If Customer is not the owner of the Service Premises, Customer agrees to indemnify and hold FBB harmless from all claims arising by or through the owner as a result of FBB’s performance under this Agreement.
21. Governing Law . This Agreement shall be exclusively governed by, and construed in accordance with, the laws of Colorado. Venue for any legal action concerning this Agreement shall be in the county in which the Service Premises is located. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
22. General . This Agreement is the entire agreement and understanding between the parties with respect to the subject matter herein and supersedes any and all prior written or verbal agreements. If any portion of this Agreement is held unenforceable, that portion shall be construed to reflect the Parties’ original intentions. The remaining provisions shall remain in full force and effect. FBB’s failure to insist upon or enforce strict performance of any provision shall not constitute a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision herein. This Agreement may not be assigned or transferred by Customer, but is freely assignable by FBB to third parties.
23. Changes to this Agreement. FBB may change the terms and conditions of this Agreement from time to time. Such changes will become binding on Customer, on the date posted to the FBB Web site and no further notice by FBB is required. If Customer does not agree to any such modification, Customer must immediately stop using the Services and notify FBB that the customer is terminating this Agreement and discontinuing Services. This Agreement supersedes all previously agreed to electronic and written terms of service, including without limitation any terms provided to the customer at the time Services were activated.