Terms and Conditions.
YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND YOU ARE LEGALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT.
Your agreement with “Big River Communications ” (defined as Big River Broadband, LLC, and its controlled subsidiaries, assignees, and agents) includes these Terms and Conditions (“T&Cs”), federal and state tariffs, your Service Agreement, applicable supplemental terms and conditions, and your Rate Plan terms, which are available at www.bigrivercom.com (collectively “Agreement”). Your Rate Plan includes your Service allotments for minutes or data (“Allotments”), rates, coverage and other terms (“Rate Plan”). To the extent any term in your Rate Plan expressly conflicts with these T&Cs, the term in your Rate Plan will govern. Your Agreement applies to each line of Service, although different T&Cs may apply to different lines of Service on your account, i.e. telephone and data.
Please read these T&Cs carefully. They cover important information about Big River Communications services provided to you (“Service”); your authorized phone, device, SIM card, data card, or other equipment or third party device for which Big River Communications provides Service (collectively “Device”); and any access and usage charges, taxes, fees, and other charges Big River Communications bills you and/or were accepted or processed through your Device (“Charges”). These T&Cs include, but are not limited to, information on fees for early termination (if applicable to your Rate Plan), Rate Plan changes, late payments, limitations of liability, privacy information, and resolution of disputes by arbitration instead of in court.
In order for someone other than yourself to access and manage your account, you must call Big River Communications and add them as an authorized user. When you establish “Authorized Users” to manage your account, you or any Authorized User will have access to your account information, and each will be able to:
- Make changes to your account;
- Add services or features to your account;
- Remove services or features from your account;
- Receive notices and disclosures on your behalf; and
- Purchase Devices for use with Big River Communications’ Service.
All of these activities may result in additional fees, payments due, or Charges to your account, a new minimum term for the line(s) of Service, and/or a new agreement or payment terms that will apply to the account. You agree that you will be bound by all such notices, disclosures, changes and terms of agreement, and obligated to pay any resulting fees, payments or Charges arising out of changes made by you or an Authorized User. Authorized changes may subject you to new T&Cs.
YOUR AGREEMENT WITH BIG RIVER COMMUNICATIONS STARTS WHEN YOU ACCEPT THESE TERMS AND CONDITIONS. You accept your Agreement and these Terms and Conditions by doing any of the following: (a) giving Big River Communications a written or electronic signature, or telling Big River Communications orally that you accept; (b) activating Service; (c) using the Service; (d) using your service after you make a change or addition; (e) paying for the Service or a “Big River Communications’ Device”; or (f) opening the Big River Communications’ Device box or failing to activate Service within 30 days after the purchase of your Big River Communications’ Device, unless the Device is returned within the Cancellation Period (as defined in Section 3). ANY OF THESE ACTIONS BY YOU OR AN AUTHORIZED USER CONSTITUTES ACCEPTANCE OF THIS AGREEMENT AND THESE TERMS AND CONDITIONS.
2. * Your Term of Service and Early Termination Fees
A. Some Rate Plans are month-to-month (also know as “No Contract Plans”) and some Rate Plans require a Service Term. Your “Term” is the period of time for which you have agreed to maintain Service with Big River Communications. After your Term ends, you will become a month-to-month customer. Except for month-to-month customers, AN EARLY TERMINATION FEE WILL APPLY TO EACH LINE OF SERVICE IF YOU DO NOT MAINTAIN YOUR AGREED-UPON SERVICES THROUGH THE END OF YOUR TERM FOR THAT LINE OF SERVICE, OR IF BIG RIVER COMMUNICATIONS TERMINATE YOUR SERVICE EARLY (see Section 16). THE EARLY TERMINATION FEE IS: $250 IF TERMINATION OCCURS WITH MORE THAN 180 DAYS REMAINING ON YOUR TERM; $150 IF TERMINATION OCCURS WITH 91 TO 180 DAYS REMAINING ON YOUR TERM; $100 IF TERMINATION OCCURS WITH 31 TO 90 DAYS REMAINING ON YOUR TERM; AND THE LESSER OF $100 OR YOUR MONTHLY RECURRING CHARGES (including any applicable taxes and fees) IF TERMINATION OCCURS IN THE LAST 30 DAYS OF YOUR TERM. The Early Termination Fee is part of our rates and is not a penalty. The Early Termination Fee applies only to the extent permitted by law. If you terminate your Service, your termination will be effective as of the date the termination was requested, and you will remain responsible for all fees and Charges for your Service through the termination date. If Big River Communications terminates your Service, Big River Communications will determine the date of termination, and you will be responsible for all Charges through the termination date as well as any applicable Termination Fee. Residential telephone customers on a Service Term that terminate their telephone service before the term has ended will not be charged an Early Termination Fee for canceling their phone service if their Data Plan remains active.
B. Service Term Plans: Big River offers several different Service Term Plans and they are: Select – Contract, Select – Contract w/ Auto Pay Discount, Prime – Contract, Prime – Contract w/ Auto Pay Discount, Ultra – Contract, Ultra – Contract w/ Auto Pay Discount, Select Business – Contract, Prime Business – Contract, Ultra Business – Contract. To sign up for any of the Service Terms Plans you must enter into a 24-month contract.
3. * Cancellation and Returns
A. Service Cancellation: You can cancel a new line of Service, and avoid any applicable Early Termination Fee, if you cancel WITHIN 30 DAYS of activating that new line of Service (“Trial Period”). You remain responsible for all Charges incurred through the date of cancellation. To cancel Service during the Trial Period, you may be required to return any Big River Communications’ Device the place where you activated Service. You must return your Big River Communications’ Device in its package with all original contents, undamaged and in good working condition with no material alterations to the Device’s hardware or software (see section 14). If you do not return your Big River Communications’ Device or if you return your Big River Communications’ Device in a damaged, altered or destroyed condition, Big River Communications may take one or more of the following actions: (a) prevent your Big River Communications’ Device from working on any network; (b) charge you the Early Termination Fee(if your line of Service is subject to an early termination fee); (c) elect not to process your Service cancellation; or (d) charge you the suggested retail price or the cost to repair a damaged, destroyed, or non-returned Big River Communications’ Device, plus any shipping and handling charges.
B. Device Refunds and Restocking Fees: For Big River Communications’ Device and accessory returns and exchanges, see the applicable return policy, which is available at your place of purchase. Some Big River Communications’ Devices and accessories may not be refunded or exchanged. You may be required to pay a restocking fee for returns or exchanges that are accepted.
C. Relocation out of Network:You acknowledge that Big River Communications does not provide services beyond specific service boundaries. If you move beyond such boundaries, you may terminate the Services provided pursuant to this Agreement upon payment of a $50 fee per line of service and upon a showing by you the reason for terminating Service is due exclusively to your move (i.e., new lease, etc).
D. Service Order Terminations/Installation Delays
If you terminate this Agreement within thirty (30) days (Trial Period) of accepting this Agreement, but prior to installation, you may be entitled to a refund of activation fees, if any. If you cancel this agreement after the thirty (30) day Trial Period but prior to installation of equipment by Big River Communications or prior to your installation of a self-installation kit and Big River Communications has incurred any costs in installing the service or in preparing to install the service that it otherwise would not have occurred, a charge equal to the costs Big River Communications has incurred shall apply and you agree to pay Big River Communications for those charges. This charge will not exceed the sum of the charges for the minimum period of service ordered, including installation charges. You also acknowledge and agree that if you cause an installation delay of any of Big River Communications’ services that lasts longer than thirty (30) days past your original installation due date and Big River Communications has incurred charges from its vendors, you agree to pay all applicable monthly recurring charges for all your services as if all services were installed on the thirty-first (31st) day past the original installation due date. Additionally, in the event installation delays occur for any reason, Big River Communications shall not be responsible for charges imposed on you by your previous service provider(s) and/or the difference between such charges and the charges that Big River Communications would have imposed pursuant to this Agreement. In any case if you have equipment leased or purchased in connection with this Agreement, you must return the equipment see Section 14 for more details.
4. Changes to Your Service
You may request a change to another Rate Plan during your Term. You are eligible to make up to 3 package changes in a 12-month period without a migration fee. If Big River Communications authorizes any additional changes within the twelve month period, you may be charged a migration fee of at least $30 or the amount of the Early Termination Fee for each line of service, and you will continue to be bound to your existing Term or an extended Term. If you are currently in a Service Term you are not eligible to move to a month-to-month plan until (a) you have completed your Service term or (b) you have paid an early termination fee. If you are currently in a month-to-month plan you may be eligible to move to a Service Term plan, but it will require a credit check (See Section 11).
5. Big River Communications’ Rights to Make Changes
This section describes how changes may be made to your Agreement, is subject to requirements and limitations imposed by applicable law, and will not be enforced to the extent prohibited by law. Your Service is subject to our business policies, practices, and procedures, which Big River Communications can change without notice. BIG RIVER COMMUNICATIONS CAN CHANGE ANY TERMS IN THE AGREEMENT AT ANY TIME. YOU MAY CANCEL THE AFFECTED LINE OF SERVICE WITHOUT AN EARLY TERMINATION FEE (if applicable) IF: (A) BIG RIVER COMMUNICATIONS CHANGES YOUR PRICING IN A MANNER THAT MATERIALLY INCREASES YOUR RECURRING CHARGE(S) (the amount you agreed to pay for voice and data which does not include overage, pay-per-use or optional services (such as 411, or downloads), or taxes and fees); (B) BIG RIVER COMMUNICATIONS MATERIALLY DECREASES THE SERVICE ALLOTMENTS BIG RIVER COMMUNICATIONS AGREED TO PROVIDE TO YOU FOR YOUR RECURRING CHARGE; OR (C) BIG RIVER COMMUNICATIONS MATERIALLY CHANGES A TERM IN THESE T&Cs OTHER THAN PRICING IN A MANNER THAT IS MATERIALLY ADVERSE TO YOU. BIG RIVER COMMUNICATIONS WILL PROVIDE YOU WITH AT LEAST 30 DAYS’ NOTICE OF ANY CHANGE WARRANTING CANCELLATION OF THE AFFECTED LINE OF SERVICE AND YOU MUST NOTIFY BIG RIVER COMMUNICATIONS OF YOUR INTENT TO CANCEL SERVICE WITHIN 14 DAYS AFTER YOU RECEIVE THE NOTICE, OR AS OTHERWISE PROVIDED IN THE NOTICE. IF YOUR RATE PLAN IS SUBJECT TO AN EARLY TERMINATION FEE, YOUR ONLY REMEDY FOR ANY CHANGE THAT WARRANTS CANCELLING SERVICE FOR THE AFFECTED LINE WITHIN THE RELEVANT TIMEFRAME IS THAT YOU WILL NOT BE CHARGED THE EARLY TERMINATION FEE. IF YOU FAIL TO CANCEL SERVICE WITHIN THE RELEVANT TIMEFRAME, YOU ACCEPT THE CHANGES.
6. Service Availability
Coverage maps only approximate our anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice depending on a variety of factors including network capacity, terrain and weather. Outages and interruptions in Service may occur, and speed of Service varies. You agree Big River Communications is not liable for problems relating to Service availability or quality.
7. Important Emergency and 9-1-1 Information
When making a 9-1-1 call, always state the nature of your emergency and provide both your location and phone number, as the operator may not automatically receive this information. Big River Communications is not responsible for failures to connect or complete 9-1-1 calls or if inaccurate location information is provided. The emergency provider may use a variety of information and methods to determine the location of a 9-1-1 call, including the street address you have provided Big River Communications as your primary use location (“Primary Address”) or the location of a known Wi-Fi access point. Even with this information, an emergency operator may not be able to locate you in order to provide emergency services. Other third party entities are involved in connecting a 9-1-1 call and Big River Communications does not determine the public safety agency to which your 9-1-1 call is routed. If you are porting a phone number to or from Big River Communications’ network, Big River Communications may not be able to provide you with some Services, such as 9-1-1 location services, while the port is in process. VoIP and 9-1-1 Service: Calling 9-1-1 via VoIP devices such as an ATA (analog terminal adapter) uses the Internet and operates differently than traditional 9-1-1. For example, VoIP 9-1-1 service may not work during power or internet (e.g., cable service) outages or disruptions. You must provide Big River Communications with a Primary Address to use VoIP services. If the location at which you primarily use VoIP service changes, either temporarily or permanently, you must register the new address with Big River Communications by contacting Big River Communications’ Customer Care; it may take 24 hours or more to update the address information. Failure to inform Big River Communications of an address change may result in emergency services being misdirected and/or delayed.
8 * Billing
A. You agree to pay all Charges for services provided to you by Big River Communications. For disputed Charges, see Section 12. You agree to provide Big River Communications with accurate and complete billing information and to report all changes within 30 days of the change. Unless otherwise specified in your Rate Plan, the rate for a call is determined by the time the call starts, and that rate applies to the entire call. You may be charged for more than one call when you use certain features resulting in multiple inbound or outbound calls (such as call forwarding, call waiting, voicemail and conference calling). Most usage and Charges incurred during a billing cycle will be included in your bill for that cycle. Some usage and Charges may be delayed to a later billing cycle. Unused Rate Plan Allotments expire at the end of your billing cycle. You may be billed additional Charges or fees for certain features and services such as operator or directory assistance.
B. Data Usage: Depending upon your Rate Plan, data usage may be rounded to the nearest one-hundredth at the end of each data session, at the end of your billing cycle, and/or at the time you switch data plans. See www.bigrivercom.com for your Rate Plan details. Once your Rate Plan Data Allotment is reached your Rate Plan speed will be reduced. See www.bigrivercom.com for reduced speed for your particular Rate Plan. Additional Data can be purchased to return speeds back to Rate Plan speed. Unused Additional Data Allotments expire at the end of your billing cycle.
C. 900 Access: At your or an Authorized User’s request, Big River Communications will permit you dial-up access to 900 service number provided by third-party vendors by removing the “blocking” that Big River Communications typically applies to those services. If such a request is made by you or an Authorized User, you shall be liable for all charges associated with 900 number services dialed from the your premises, regardless of whether such use (1) is authorized by you; (2) is initiated by anyone using your service; or (3) constitutes or involves fraudulent activity of any nature. You agree that Big River Communications assumes no liability of any kind with respect to its providing access to 900 services, the use of 900 services, or the content or use of the information provided via 900 services, via connections from your premises and locations where you use Big River Communications service. You shall indemnify, defend and hold Big River Communications harmless against any and all claims made by the third party vendor of 900 services or information services providers that subscribe to services provided by such third party providers of information services. You acknowledge that, pursuant to government regulation, failure to make proper payment to third party vendors of 900 services could result in suspension or interruption of long distance and/or local services provided by Big River Communications. Big River Communications assumes no liability of any kind with respect to such potential suspensions or interruptions.
9 * Data Plans and Other Features
A. Permissible and Prohibited Uses. Your Device may not be able to access data, or you may be charged for data usage on a pay per use basis, unless data Service is included in your Rate Plan (collectively “Data Plan”). Your Data Plan is intended for Web browsing, messaging, and similar activities. Examples of other uses that are not permitted because they are a misuse of your Device or your Service can be found in Section 15.
B. Protective Measures: To provide the best possible experience for the most possible customers and minimize capacity issues and degradation in network performance, Big River Communications takes certain steps to manage its network, including, but not limited to, de-prioritizing the data usage of Unlimited LTE high-speed data customers who use more than 100 GB of data during a billing cycle below that of other customers in times and locations where there are competing customer demands for network resources for the remainder of their billing cycle. Where the network is lightly loaded in relation to available capacity, a customer whose data is de-prioritized will notice little, if any, effect from having lower priority. This will be the case in the vast majority of times and locations. At times and locations where the network is heavily loaded in relation to available capacity, however, these customers will likely see significant reductions in data speeds, especially if they are engaged in data-intensive activities. Big River Communications constantly works to improve network performance and capacity, but there are physical and technical limits on how much capacity is available, and in constrained locations the frequency of heavy loading in relation to available capacity may be greater than in other locations. When network loading goes down, the customer’s speeds will likely improve. In addition, if you exceed the amount specified in your Data Plan during a billing cycle, Big River Communications may reduce your data speed for the remainder of that billing cycle. If you use your Data Plan in a manner that could interfere with other customers’ service, affect Big River Communications’ ability to allocate network capacity among customers, or degrade service quality for other customers, Big River Communications may suspend, terminate, or restrict your data sessions, or switch you to a more appropriate Data Plan. Big River Communications also manages its network to facilitate the proper functioning of services that require consistent high speeds, such as video services, which may, particularly at times and in areas of network congestion, result in reduced speeds for other services. Additionally, Big River Communications may implement other network management practices, such as deploying streaming video optimization technology. This technology is intended to manage data usage on the network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumption used for streaming video. Streaming video optimization improves streaming video reliability as well makes room for other users to enjoy higher browsing speeds. The streaming video optimization process is agnostic as to the streaming video content itself and to the website that provides it. While most changes to streaming video files are likely to be indiscernible, the optimization process may minimally impact the appearance of the streaming video as displayed on a user’s device. These practices operate without regard to the content itself or the source of the content, and do not discriminate against offerings that might compete against those offered by Big River Communications on the basis of such competition.
C. LTE Speed:The term “LTE Speed” is commonly used as a shorthand way to describe the rate at which a particular broadband Internet access service can transmit data. This rate (or LTE Speed) is typically measured in the number of kilobits (Kbps) or megabits (Mbps) transmitted in one second. Some applications like email or basic web browsing do not require a high-data speed to function well, while other activities like video streaming or transferring large data files are better experienced with higher data speeds.
Based on our internal testing and subject to the notes below, Big River Communications expects customers will experience the following speeds on our network:
- 4G (LTE) network: typical download speeds of 2 – 7 Mbps and upload speeds of 500 Kbps to 2 Mbps dependent on package, geographical location, customer device, customer’s Wi-Fi network and current tower capacity
D. Reduced Speed:The term “Reduced Speed” is commonly used as a shorthand way to describe the rate at which a particular broadband Internet access service can transmit data after they have reached their data cap limit. This rate (or Reduced Speed) is typically measured in the number of kilobits or megabits transmitted in one second. Some applications like email or basic web browsing do not require a high-data speed to function well, while other activities like video streaming or transferring large data files are better experienced with higher data speeds.
Based on our internal testing and subject to the notes below, Big River Communications expects customers will experience the following speeds on our network:
- Reduced Speeds vary by package. Typical download speeds on a Reduced Speed are 256 Kbps – 1 Mbps and upload speeds of 256 Kbps to 1 Mbps dependent on package, geographical location, customer device, customer’s Wi-Fi network and current tower capacity.
E. Speed Test: Your LTE Speed and Reduced Speed is the rate at which Big River Communications delivers Internet traffic to and from your home. Many factors affect the Internet service you purchased from Big River Communications and influence the actual Internet speed you experience at any given time. For best results, connect the device running the speed test directly to the Big River Communications gateway/router with an Ethernet cable. Wi-Fi connection speeds may be slower than the Internet plan you purchased.
Things you should do before testing your speed:
- Connect your laptop or computer directly to the router using an Ethernet cable
- Disconnect from any proxy connection, such as Virtual Private Network (VPN)
- Stop running all video and music streaming services, such as Netflix® and Pandora®
Things that can affect your test results:
- All your connected and active devices share your Internet
connection. The more devices downloading, streaming, or gaming, the more
likely you are to notice slower speeds. To get a higher speed on the
speed test, try cutting back the number of connected devices, such as:
- Apple TV
- A Wi-Fi connection gives you the flexibility to move throughout your home but isn’t as fast as a wired connection. You get the best Wi-Fi signal closest to your gateway and with fewer devices running.
10. * Taxes, Fees, and Surcharges
A. You agree to pay all taxes and fees imposed by governments or governmental entities. Big River Communications may not give advance notice of changes to taxes & fees. To determine taxes & fees, Big River Communications will use the street address you identified as your Place of Primary Use (“PPU”). If you did not identify the correct PPU, or if you provided an address (such as a PO box) that is not a recognized street address, does not identify the applicable taxing jurisdictions or does not reflect the Service area associated with your telephone number, you may be assigned a default location for tax purposes. In the event of a disputed tax jurisdiction location or with respect to any disagreement regarding the taxes and fees assessed on your bill, you must request a tax refund within 60 days of our notification to you that the tax has been assessed.
B. Surcharges. You agree to pay all Surcharges. Surcharges are not government taxes. Surcharges include, but are not limited to, charges, costs, fees and certain taxes Big River Communications incurs to provide Services. Examples include general and administrative fees (such as certain costs Big River Communications incurs to provide Service) as well as governmental-related Surcharges (such as Federal or State Universal Service fees, regulatory fees, and gross receipts taxes).The components and amounts of these Charges are subject to change without notice. Surcharges will apply whether or not you benefit directly from the programs, activities or services included in the Surcharge. You can find the Surcharges in either the “Taxes, Fees & Surcharges” or the “Other Charges” section of your bill.
11. *Payments, Late Fees, Deposits, and Credit Checks
A. Payments and Late Fees: If Big River Communications does not receive payment in full by the due date on your bill, you may be charged a late fee of 1.5% of the past due amount per month subject to the maximum allowed by law. Big River Communications may use a collection agency, and you agree to pay collection agency fees. If Big River Communications accepts late or partial payments, Big River Communications does not waive its right to collect all amounts you owe, including late fees. Big River Communications will not honor limiting notations you make on or with your checks. Late payment, non-payment or collection agency fees are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments by our customers; these costs are not readily ascertainable and are difficult to predict or calculate at the time that these fees are set. For attempts to collect unpaid charges, you agree that in addition to individual persons attempting to communicate directly with you, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
B. Electronic Payments /Automatic Payments: By making payments using electronic formats such as, but not limited to, Credit Card or Automatic Credit Card Payments, you represent and agree that you have the authority to make charges on the bank or account numbers that you provided to Big River Communications. You authorize Big River Communications to draw or otherwise process funds on the electronic format provided in the amount you authorized. By signing up for Automatic Payments (“Autopay”) you agree that Big River Communications will process funds for the balance due, “Authorized Amount”, on your account on or after the due date, unless other arrangements have been previously made.
C. Payment Failures: All credit card chargebacks, declined credit card charges, returned checks or any other payment that is returned or dishonored will be subject to a $25 Payment Failure Fee per transaction. Big River Communications may also require you to use another payment method, and/or immediately suspend or cancel your Service. You are responsible for updating, or notifying Big River Communications, of any changes to your credit card (including, but not limited to card number, expiration date, billing address, or card status). Three Payment Failures, consecutive or non-consecutive, in a six-month period may disqualify your account for Autopay. Being disqualified from Autopay will increase your monthly rate by $5 for Payment Processing. If you are able to make six consecutive payments by the due date and without any additional Payment Failures, you will be eligible to sign back up for Autopay. Once your account is back on Autopay, the $5 Payment Processing Fee per month will be removed.
D. Credit Checks: You authorize Big River Communications to obtain information about your credit history from credit-reporting agencies at any time. You understand that a credit inquiry could adversely affect your credit rating. You authorize Big River Communications to report your payment record to credit-reporting agencies. If you receive a low credit score based, Big River Communication may require a deposit, which will be disclosed to you at the time of sign up.
E. Deposits: Big River Communications may require a deposit. You agree that Big River Communications can apply deposits, payments, or prepayments in any order to any amounts you owe Big River Communications on any account and that you may be required to increase or replace your deposit amount. The deposit will be credited back to you after 13 months of service (with simple interest at the rate required by law) and the account must have remained in good standings for the continuous 13 months.
12. * Your Right to Dispute Charges
A. Unless otherwise provided by law, you agree to notify Big River Communications in writing of any dispute regarding your bill or Charges to your account (the “Notice”) within 60 days after the date you first receive the disputed bill or Charge. You waive any disputes or credits that you do not report within sixty (60) days.. The Notice must be in writing and sent to the address in Section 13 below and must: (1) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”) If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or Charge, you agree that the issue is fully and finally resolved. The Parties agree to negotiate all claims in good faith. If the Parties are unable to resolve the claim within 60 days after we receive the Notice, you or Big River Communications may pursue your claim in arbitration in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator shall be bound by the terms of this Agreement.
B. The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and the arbitration shall be administered by the AAA.
BIG RIVER COMMUNICATIONS SHALL BEAR THE COST OF ANY ARBITRATION FILING FEES.
The AAA Rules and fee information are available at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS.
C. If the arbitrator’s award exceeds $75,000, either party may appeal such award to a three-arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within 30 days after the date of entry of the arbitration award. The appealing party must provide the other party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act.
D. If the amount in dispute is less than $15,000, the arbitration shall be conducted solely on the basis of the documents submitted to the arbitrator. In the event the amount in dispute is more than $15,000, BIG RIVER COMMUNICATIONS agrees that you may choose whether the arbitration shall be conducted solely on the basis of documents submitted to the arbitrator, via a telephonic hearing, or by an in-person hearing as established by AAA rules.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BIG RIVER COMMUNICATIONS ARE WAIVING THE RIGHT TO A TRIAL BY JURY.
E. Unless BIG RIVER COMMUNICATIONS and you agree otherwise in writing, all hearings conducted as part of the arbitration shall take place in the county of your billing address.
The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the specific relief warranted by that party’s individual claim. The arbitrator must give effect to the limitations on BIG RIVER COMMUNICATIONS’s liability as set forth in this Agreement.
F. YOU AND BIG RIVER COMMUNICATIONS AGREE THAT YOU AND BIG RIVER COMMUNICATIONS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless both you and BIG RIVER COMMUNICATIONS agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person’s claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions shall be null and void and rendered of no further effect with respect to the specific claim at issue.
G. Right to Opt Out. If you do not wish to be bound by these arbitration provisions, you must notify BIG RIVER COMMUNICATIONS in writing within 30 days of the date that you first subscribe to the underlying service(s) under this Agreement by mail to the address in Section 13 below. Your written notification to BIG RIVER COMMUNICATIONS must include your name, address, and BIG RIVER COMMUNICATIONS account number as well as a clear statement that you do not wish to resolve disputes with BIG RIVER COMMUNICATIONS through arbitration. Your decision to opt out of this arbitration provision will have no adverse effect on your relationship with BIG RIVER COMMUNICATIONS or the delivery of services to you by BIG RIVER COMMUNICATIONS.
H. Severability. If any clause within these arbitration provisions, other than 12(F), is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.
I. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT THE ENTIRETY OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE ILLEGAL OR UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS WITH RESPECT TO THE SPECIFIC CLAIM AT ISSUE, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.
J. EXCLUSIONS. YOU AND BIG RIVER COMMUNICATIONS AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION:
(1) ANY INDIVIDUAL ACTION BROUGHT BY YOU OR BY BIG RIVER COMMUNICATIONS ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS.
(2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.
(3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
K. The Parties agree that if you fail to timely pay amounts due, Big River Communications may assign your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or this Agreement. To contact or notify Big River Communications, see Section 13.
THE FOREGOING ARBITRATION PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13 * Notices and Customer Communications
You expressly consent to be contacted, by Big River Communications or anyone calling on its behalf, for any and all purposes, at any telephone number, or physical or electronic address where you may be reached, including any wireless telephone number. You agree that Big River Communications may contact you in any way, including, pre-recorded or artificial voice or text messages delivered by an automatic telephone dialing system, or e-mail messages delivered by an automatic e-mailing system. You agree that Big River Communications also has the consent to contact any authorized users on your account in any manner set forth in this Section. You expressly acknowledge that this consent cannot be revoked without prior written agreement and acceptance by Big River Communications. Notices from Big River Communications to you are considered delivered when Big River Communications sends them to your Device or by email or fax to any email or fax number you provided to Big River Communications, or 3 days after mailing to your billing address. You may contact our Customer Service department by calling 1-855-554-6244 or by writing to: email@example.com
14. *Device Lease
A. In cases which Big River Communications provides you lease equipment (the “Big River Communications Equipment”) to access the Service, the Big River Communications Equipment shall, at all times, remain the property of Big River Communications or its designee. You agree to return the Big River Communications’ Equipment to Big River Communications if your services is terminated or cancelled by either you or Big River Communications. The equipment installed at your premise is the property of Big River Communications and must be returned within seven (7) days of service termination or service order termination. If the equipment is not returned within this timeframe, you agree to reimburse Big River Communications for the full MSRP of the Big River Communication Equipment as well as any attorney’s fees and costs incurred by Big River Communications related to Big River Communications’ retrieval of the equipment. You acknowledge and agree that if you use the functionality of Big River Communications’ equipment, you shall pay a monthly maintenance charge. You agree to pay Big River Communications the full MSRP of the Big River Equipment if it is lost, stolen, unreturned, damaged (excluding normal wear and tear), sold, transferred, leased, encumbered, assigned or if for any other reason you fail to return the Big River Communications Equipment at the end of your Service.
B. Relocating Leased Equipment: You will not relocate the Big River Communications Equipment unless told to do so by a Big River Communications representative. If you change service location, you must contact Big River Communications for information on whether the Big River Communications Equipment and Services can be transferred to your new location and what the relocation will cost. If you wish to disconnect the Services, you must contact Big River Communications for information on the necessary procedures. If you violate this Agreement by moving the Big River Communications Equipment from the physical location where it was originally installed, emergency 911/E911 communications may be misdirected to an incorrect emergency services responder or the emergency responder may be directed to the wrong address.
C. Installation of Equipment: You authorize Big River Communications and its employees, agents, contractors, and representatives to enter your Premises at which the Service will be accessed (the “Premises”) in order to install, maintain, inspect, repair and remove the Big River Communications Equipment and the Service, and any Big River Communications provided equipment used in connection with the Service. Big River Communications will arrange access at times agreeable to you. You warrant and represent that: You are the owner of the Premises or have permission of the owner and the authority to grant access to the Premises.
15. * Misuse of Service or Device
By activating or renewing Service with Big River Communications, you agree that you do so because you want Service from Big River Communications and not for any other purposes. You agree not to misuse the Service or Device, including but not limited to: (a) reselling or rebilling Big River Communications’ Service; (b) using the Service or Device to engage in unlawful activity, or in conduct that adversely affects Big River Communications’ customers, employees, business, or any other person(s), or that interferes with Big River Communications’ operations, network, reputation, or ability to provide quality service, including, but not limited to, the generation or dissemination of viruses, malware or “denial of service” attacks; (c) tampering with or modifying your Big River Communications’ Device; (d) “spamming” or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes; (e) reselling Big River Communications’ Devices for profit, or tampering with, reprogramming or altering Big River Communications’ Devices for the purpose of reselling the Big River Communications’ Device; (f) using the Service in connection with server devices or host computer applications; (g) using applications which automatically consume unreasonable amounts of available network capacity; or (h) assisting or facilitating anyone else in any of the above activities. Unless authorized by Big River Communications, you agree that you won’t install, deploy, or use any regeneration equipment or similar mechanism (for example, a repeater or signal booster) to originate, amplify, enhance, retransmit or regenerate a transmitted RF signal and, unless authorized by Big River Communications, you agree that you will not use a telephone number on the Big River Communications network for any purpose but for access to the public switched telephone network. You agree that a violation of this section harms Big River Communications, which cannot be fully redressed by money damages, and that Big River Communications shall be entitled to immediate injunctive relief in addition to all other remedies available.
16. Our Rights to Limit or End Service or the Agreement.
BIG RIVER COMMUNICATIONS MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Device, or any user on your account: (a) breaches the Agreement; (b) incurs Charges greater than any billing or credit limitation on your account (even if Big River Communications has not yet billed the Charges); (c) provides inaccurate information or credit information; (d) lives in an area where Big River Communications does not provide Service, (e) transfer(s) Service to another person without Big River Communications’ consent; (f) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (g) misuses your Service or Device as described in Section 15, above; (h) uses your Service or Device in a manner that is excessive, unusually burdensome, or unprofitable to us; or (i) are on a Rate Plan that Big River Communications determines is no longer available to you. Big River Communications may impose credit, usage or other limits to your Service, suspend your Service, or exclude certain types of calls or sessions (such as international, 900 or 976 calls), in our sole discretion and without notice. If Big River Communications limits, suspends or terminates your Service and later reinstates your Service, you may be charged a fee.
17. Copyright Infringement & Digital Millennium Copyright Act
You are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity), or other proprietary right of any party unless you own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through the Site or Service(s). Big River Communications assumes no responsibility, and you assume all risks, regarding the determination of whether material is in the public domain, or may otherwise be used by you for such purposes.
Big River Communications respects the intellectual property rights of others. If you believe that your work has been copied and has been posted, stored or transmitted to the Site in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the Big River Communications’ Copyright Agent the following written information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a specific description of where the material that you claim is infringing is located on the Site; (d) your address, telephone number, and email address; (e) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and, (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The Big River Communications’ Copyright Agent for notice of claims of copyright infringement on the Site can be reached as follows:General Manager, 24 S Minnesota St, Cape Girardeau, MO 63703. Phone: 855.244.7483 Email: firstname.lastname@example.org.
18. * Privacy Information
19. * Disclaimer of Warranties
EXCEPT FOR ANY WRITTEN WARRANTY THAT MAY BE PROVIDED WITH A BIG RIVER COMMUNICATIONS’ DEVICE YOU PURCHASE FROM BIG RIVER COMMUNICATIONS, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND DEVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. BIG RIVER COMMUNICATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. BIG RIVER COMMUNICATIONS CANNOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DOES NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON ITS BEHALF. THIS DOESN’T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE. BIG RIVER COMMUNICATIONS DOES NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.
20. * Waivers and Limitations of Liability
UNLESS PROHIBITED BY LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST BIG RIVER COMMUNICATIONS TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. THIS MEANS THAT NEITHER PARTY WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT BIG RIVER COMMUNICATIONS WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. YOU AGREE BIG RIVER COMMUNICATIONS IS NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 2 YEARS OF THE DATE THE CLAIM ARISES.
You agree to defend, indemnify, and hold Big River Communications harmless from any claims arising out of use of the Service or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you, any person on your account or that you allow to use your Service or Device.
22. * Enforceability and Assignment
A waiver of any part of the Agreement in one instance is not a waiver of any other part or any other instance and must be expressly provided in writing. If Big River Communications does not enforce its rights under any provisions of the Agreement, Big River Communications may still require strict compliance in the future. Except as provided in Section 2, if any part of the Agreement is held invalid that part may be severed from the Agreement. You cannot assign the Agreement or any of your rights or duties under it without Big River Communications’ written consent. Big River Communications may assign all or part of the Agreement, or your debts to Big River Communications, without notice. The Agreement is the entire agreement between the Parties and defines all of the rights you have with respect to your Service or Device, except as provided by law, and you cannot rely on any other documents or statements by any sales, service representatives or other agents. If you purchase a Device, services or content from a third party, you may have a separate agreement with the third party; Big River Communications is not a party to that agreement. The original version of the Agreement is in English. To the extent there are conflicts between the English version and any other language version, the English version will control. Any determination made by Big River Communications pursuant to this Agreement, shall be in our sole reasonable discretion. Paragraphs 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22 and 23, (marked “*”) continue after termination of our Agreement with you.
23. * Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which your billing address in our records is located, without regard to the conflicts of laws rules of that state. Foreign laws do not apply. Arbitration or court proceedings must be in: (a) the county and state in which your billing address in our records is located, but not outside the U.S. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction.
24. Additional Terms for No Contract Customers
No Contract Customers are required to sign up for Automatic Payments, (“Autopay”), as defined in Section 11.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.