Hammer Fiber Agreement for Services
PLEASE READ THIS AGREEMENT CAREFULLY. ALL OF THE TERMS OF THIS AGREEMENT AFFECT YOUR LEGAL RIGHTS, INCLUDING A BINDING ARBITRATION PROVISION IN SECTION 11 APPLICABLE TO ALL SERVICES
1. Introduction. This Agreement for Services (“Agreement”) sets forth the terms and conditions under which Hammer Fiber Optic Investments, LLC or one or more of its subsidiaries or affiliates by applicable regulatory, franchise or license authority (“Hammer” or “us”) agrees to provide Services to you (“Customer” or “you”), and under which you, the Customer, agree to accept the Service. For the purpose of this Agreement, “affiliate” means any entity that controls, is controlled by or is under common control with Hammer. Hammer Services may include, but are not limited to, residential cable television service (“Hammer Video”), high speed Internet service including Wi-Fi (“Hammer Internet”), and telecommunications service (“Hammer Phone”) (Hammer Video, Hammer Internet and Hammer Phone are collectively referred to in this Agreement as the “Service” or “Services”).
You will be bound by the terms and conditions in this Agreement applicable to the Services provided. Your use of the Services is also subject to any license agreements relating to any software used in connection with the Services. This Agreement incorporates by reference the terms and conditions of all other service agreements, tariffs and other documents applicable to the Hammer Services including without limitation: (i) the Customer Privacy Notice, and (ii) if you subscribe to Hammer Phone, the terms and conditions contained in your state tariff or state Telephone Service Guide, as applicable, and (iii) if you subscribe to Hammer Internet, the Acceptable Use Policy. Each Service is provided subject to federal, state and local laws, statutes, regulations, and ordinances applicable to such Service (“Applicable Law”).
2. Entire Agreement. This Agreement and all of the documents specifically incorporated herein constitute the entire Agreement between you and Hammer for the Services. No prior agreement and no written or oral statement, advertisement, or Service description will contradict, explain or supplement it.
3. Acceptance of Agreement. Your Agreement with Hammer starts when you accept and continues until your subscription to the Services is terminated, except as otherwise stated herein. Certain provisions of this Agreement will survive termination. You accept this Agreement when you first do any of the following (“Acceptance”): (i) sign this Agreement by written or electronic signature, (ii) inform us electronically or orally of your acceptance of this Agreement, (iii) activate any Service provided under this Agreement through a method provided by Hammer, or (iv) use or pay for, in whole or in part, your Service.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS AND CONDITIONS AND THE RATES AND CHARGES AS LISTED ON THE HAMMER WEBSITE, IN YOUR WELCOME KIT, ON YOUR TRANSACTION SUMMARY OR, IF APPLICABLE, THE APPLICABLE TARIFFS ON FILE AT STATE AND FEDERAL REGULATORY AGENCIES AND/OR SERVICE GUIDES. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT USE THE SERVICES AND IMMEDIATELY TERMINATE YOUR SUBSCRIPTION TO THE SERVICES AND THIS AGREEMENT BY CALLING HAMMER AT THE CUSTOMER SERVICE NUMBER ON YOUR BILL OR ON HAMMERFIBER.COM AND RETURN ALL HAMMER EQUIPMENT, SOFTWARE, AND ASSOCIATED MATERIALS TO HAMMER.
4. Changes to Agreement. Hammer reserves the right to modify any of the terms and conditions of this Agreement including any aspect of the Services in its sole discretion at any time with or without notice. Such changes may include for example, changes to rates, the rate plan structure, or payment policies for the Services, rearrangement, deletion or addition of programming, changes to the features and content of the Services, configuration and capacity of Services, changes in the features, functionality and technical requirements for Hammer Equipment and Customer Equipment, use of vendors to provide Services, limitations of liability, procedures for disputes and policies for termination.
Unless this Agreement or applicable law specifies otherwise, Hammer will give you thirty (30) days prior notice of any significant change to this Agreement. If you find the change unacceptable, you have the right to cancel your Services. However, if you continue to receive Services after the end of such thirty (30) day period, you will be considered to have accepted the changes. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
5. Your Subscription. You represent to Hammer that you are at least 18 years old. Your use of the Services is personal to you. If you permit other persons to use the Services, you agree that you are solely responsible and liable for any and all breaches of this Agreement, whether such breach results from your use or use by another person using the Services provided to you, Hammer Equipment, or Licensed Software. You are responsible for contacting the Hammer customer service number listed on your monthly Hammer bill immediately upon the occurrence of any change in the status of your account, such as, without limitation, a change in individuals authorized to use your account (“Authorized Users”) and any changes to your contact information such as name, email address, or phone number. Failure to do so is a breach of this Agreement.
6. Consent to Contact You. In order to contact you more efficiently, Hammer and our affiliates may at times contact you using autodialer technology, prerecorded or artificial voice message calls, or text messages at the phone number(s) you have provided us. You agree that we and our service providers or agents may place such calls or texts to communicate with you about your account, service(s) and equipment, and service agreements, including (but not limited to): (i) providing notices related thereto, (ii) resolving technical or billing issues, (iii) informing of installation or other service appointments, (iv) data usage, (v) investigating or preventing fraud, and/or (vi) collecting a debt or outstanding balance (“Informational Communications”). Also, we may share your phone number(s) with such service providers or agents with whom we hire to assist us in carrying out these Informational Communications, but will not share your phone number(s) with any third parties for their own purposes without your consent. Applicable standard telephone minute, data and/or text charges may apply. We and our service providers or agents, however, will not use autodialer technology, or texts to contact you for marketing purposes unless we receive your prior express written consent as required under federal law. Prior express written consent is not required in order to obtain or use Hammer’s products and services or to receive Informational Communications from Hammer. If Hammer is required by law to obtain your prior express consent—either verbal or written—to receive autodialed calls, prerecorded or artificial voice message calls, or text messages and you have provided Hammer such consent, you may revoke this consent at any time by contacting Hammer and informing Hammer of your desire to stop receiving such calls or text messages for Informational Communications purposes and/or for marketing purposes.
You consent to Hammer recording phone conversations between you and Hammer for quality assurance and analytics purposes. Your use of recording devices to record telephone conversations transmitted over the Services is at your own risk provided that your use complies with all federal, state and local laws.
7. Charges and Billing.
- How We Bill You. Services are provided to you on a month-to-month basis. You will generally be billed monthly, in advance, for recurring service charges, equipment charges, and fees. Your first bill will include any Hammer equipment charges, deposits, and installation charges, as well as pro-rated charges from the date you first begin receiving Services, monthly recurring charges for the next month and charges for non-recurring services you have received. You may be billed for some Services individually after they have been provided to you; these include charges for pay-per-view movies or events, interactive television, and e-commerce. If you receive Services under a promotion, after the promotional period ends, the then-current regular retail rate for the Service(s) will apply. The retail rates for Hammer Services and Hammer Equipment may be found on the Hammer Website, in your Welcome Kit, by calling your local Hammer office, or, for phone, in the applicable tariff or state Telephone Service Guide. You may cancel your Services at the end of the promotional period by contacting Hammer.PLEASE NOTE that some accounts may not be subject to the monthly billing cycle. If your account is not subject to the monthly billing cycle, please defer to your Hammer bill to provide information regarding your due date and the amount due to Hammer by such date.We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to the outstanding charges in the amounts and proportions that we determine.
- Charges and Rates. You agree to pay by the due date on your Hammer bill all charges associated with the Services and that you or anyone using your account or services incurs including, without limitation, all recurring and non-recurring fees. Non-recurring fees may include but are not limited to (i) installation, activation, and reactivation fees, (ii) certain equipment fees (iii) charges for pay-per-use services such as pay-per-view, on demand, events and adult programming, (iv) charges for certain premium channels or tiers, or (v) charges for telephone features or phone usage charges such as, per-minute long distance calls, directory assistance, or operator-assisted calls. Rates and charges may vary depending upon the Services rendered and Hammer may change the rates for the Services from time to time.All fees do not apply to all Services.
- Governmental Taxes and Fees. You must pay all federal, state and local taxes, franchise fees and any other fees or payment obligations imposed by government or quasi-governmental bodies however described, levied or assessed which are applicable to the Services or Hammer Equipment we provide you. Unless required by Applicable Law, we may elect not to provide notice of a change in fees or taxes. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES OR SURCHARGES THAT BECOME APPLICABLE RETROACTIVELY.
- Other Surcharges and Fees. You must pay all surcharges and fees we may assess in connection with the Services or the Hammer Equipment (collectively “Surcharges”). These Surcharges may include, but are not limited to, broadcast surcharges, federal Universal Service fees, carrier cost recovery fees, FCC Access Fees, subscriber line charges, network interface fees, network access charges, and any other regulatory and administrative costs we incur to provide the Services and comply with governmental programs.
- Third-Party Charges. You acknowledge that you may incur charges with third-party providers such as for accessing on-line services, calling parties who charge for their telephone-based services, purchasing or subscribing to other offerings via the Internet, or interactive options on your video service that are separate and apart from amounts charged by us. You are solely responsible for all such charges payable to third parties, including all applicable taxes, fees or surcharges. In addition, you are solely responsible for protecting the security of credit card, debit card, other financial information, or other personal information provided to others in connection with such transactions.
- Unreturned Equipment Charges. If you downgrade or disconnect Hammer Service and do not promptly return the Hammer Equipment or if it is returned damaged (“Unreturned Equipment”), the damages Hammer will incur will be difficult to ascertain. Therefore, you agree to pay, and Hammer may charge your account, a liquidated damages amount equal to Hammer’s reasonable estimates of the replacement costs and incidental costs that Hammer incurs; provided, however, that such amount will not exceed the maximum amount permitted by law (“Unreturned Equipment Charge”).
- Unauthorized and Disputed Charges. If you do not agree with a charge on your bill or you believe it is an unauthorized charge you must (i) pay undisputed amounts by the due date listed on your bill and (ii) notify Hammer no later than sixty (60) days after the date of the bill (or such later date as required by law) of the disputed or unauthorized charges by calling or writing to us at the number and address specified on your bill and submit any documentation or other information to substantiate your claim of unauthorized charges. You waive any disputes or credits that you do not report within this 60 day period. Hammer will investigate any disputed charges and will use reasonable efforts to advise you of the results of our investigation within thirty (30) days after Hammer’s receipt of your notice of dispute. Hammer may, in its sole discretion, waive such charges. You will be responsible for charges or other obligations or liabilities associated with any improper, illegal or unauthorized use of the Services, Licensed Software and Hammer Equipment as described in Section 21 below.
- Payment by Credit Card or Check. If you use a credit card to pay for the Services, use of the card is governed by the card issuer agreement, and you must refer to that agreement for your rights and liabilities as a cardholder. If Hammer does not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you make payment by check, you authorize Hammer to collect your check electronically. You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on or accompanying checks or other payments accepted by Hammer and any such notations shall have no legal effect.
- Late or Non-Payments. If you fail to make full payment by the payment due date set forth on your bill statement, Hammer reserves all rights it may have, subject to Applicable Law, to terminate Service or place the Services in Soft Disconnection (defined below), remove Hammer Equipment, collect the full amount due, including, without limitation, any applicable interest, costs of collection (including attorneys’ fees and third party agent collection fees), late fees (subject to state law and regulations), door collection fees, bank fees and any other applicable fees, charges or payments. Any balance amount that remains delinquent may be referred to a third party for collections. Once the debt is referred to a third party for collection, you may be subject to and agree to reimburse Hammer for additional fees, including reasonable attorneys’ fees and arbitration fees, and fees related to costs and expenses.If you resume Services after any suspension, we may require you to pay a reconnection fee. If you reinstate any or all Services after disconnection, we may require you to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
- Soft Disconnection. If your account has been delinquent or if Hammer has a reason to believe you have otherwise violated this Agreement, subject to Applicable Law, you may be prevented from using certain of your Services including, for Hammer Phone customers, making outbound calls except to 911 and Hammer Customer Care (“Soft Disconnection”) prior to full termination of service. This restriction will be lifted once you have made acceptable payments to us or otherwise meet Hammer’s minimum financial requirements, or you have communicated with Hammer Customer Care and resolved any concerns about your account, Services or compliance with the terms of this Agreement.
- Returned Payment. If your payment by check is returned, your payment via credit card is denied, or your electronic funds transfer is denied due to insufficient funds, or a closed account, you authorize Hammer to make a one-time electronic fund transfer from your account to collect the amount of the payment plus any applicable returned payment fees of up to the maximum amount allowed by law or regulation.
- Our Right to Make Credit Inquiries. YOU AUTHORIZE HAMMER TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION IN YOUR FILE, AND TO DISCLOSE THIS INFORMATION CONCERNING YOU TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES. Hammer will not discriminate in the application of its credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by either Hammer or its third party credit bureau will be done in conformance with the requirements of all applicable state or federal laws.
8. Access to Your Premises. You agree to allow Hammer and/or our agents to enter the property at which the Services and/or Hammer Equipment will be provided to you (the “Premises”), upon your request, to install, configure, upgrade, maintain, inspect, change, repair and/or remove the Service and/or Hammer Equipment. You warrant that you are either the owner of the Premises or, if you are not the owner of the Premises that you have obtained the consent of the owner for Hammer or its agents to access the Premises for the purposes described herein including, without limitation, consent to attach Hammer Equipment to the outside of the Premises. In addition, you agree to supply us or our agent, if we ask, the owner’s name, address and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises. If installation of Services or Hammer Equipment by Hammer at your Premises is required, Hammer will schedule one or more installation and/or service appointments with you as needed and you agree to be present or to have a responsible representative, 18 years or older, present at the Premises during such appointments. You will be responsible for payment of any charges accessed by Hammer for visits to your Premises to install, maintain, inspect, repair or remove any Services, Hammer Equipment or Customer Equipment, including, without limitation, in response to any difficulty caused, in whole or in part, by Customer Equipment, or other equipment, services or facilities not provided by Hammer, for service calls at times other than normal business hours, and for any non-routine installation or maintenance. Charges for visits to your Premises can be found on the Hammer Website or by calling Hammer Customer Care at the number located on your bill statement.
9. Customer Equipment.
- Definition. “Customer Equipment” means any equipment, software, hardware or services supplied by you to use in conjunction with the Services or the Hammer Equipment. You warrant that you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment. Customer Equipment is your sole responsibility including all costs of installation, maintenance and repair. You agree to allow us and our agents the rights to insert cable cards and other hardware in the Customer Equipment, send software, firmware, and/or other programs to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You are responsible and liable for any degradation or any interruption of Service, damage to Hammer Equipment, loss of data, loss of your stored content or other consequences that you, Hammer or any third party may suffer resulting from your use of Customer Equipment, including any Customer Equipment to which Hammer or its agents has sent software, firmware or other programs. Hammer has no responsibility or liability for any loss of stored content or any damage to Customer Equipment.
- Technical Requirements for Customer Equipment. All Customer Equipment must comply with Hammer’s technical requirements which we may post on the Hammer Website and change from time to time (“Technical Requirements”). We will not be obligated to provide Service or support where your Customer Equipment fails to conform to Hammer’s Technical Requirements. Neither Hammer nor any of its affiliates, suppliers or agents warrant that Customer Equipment not meeting Hammer’s Technical Requirements will enable you to successfully install, access, operate, or use the Services. You acknowledge that any such installation, access, operation, or use could cause Customer Equipment to fail to operate or cause damage to Customer Equipment, you, your Premises or Hammer Equipment. Neither Hammer nor any of its affiliates, suppliers or agents shall have any liability whatsoever for any such failure or damage. Hammer reserves the right to deny you customer support for the Services and/or terminate Services if you use Customer Equipment not meeting the Technical Requirements.
- Changes and Upgrades. You acknowledge that Hammer may install Licensed Software and may send firmware and other code updates or downloads to Customer Equipment which will ensure full functionality of the Service and may alter, add to, or remove features or functionalities of Customer Equipment with or without notice to you and you agree that such changes may be performed at any time and in any manner. Periodically you may need to acquire new or additional Customer Equipment to continue to use the Service or receive the best quality of Service.
10. Hammer Equipment.
- Definition. “Hammer Equipment” means any equipment provided or leased to you by Hammer or our agents with or without a separate charge or fee in connection with the Services. Hammer Equipment also includes any software, firmware, or other programs contained within the Hammer Equipment and Customer Equipment. Examples of Hammer Equipment includes any provided gateways, routers, cable modems, miniboxes/DTAs, voice-capable modems, wireless gateway/routers, converters/receivers/set top boxes, digital adapters, remote controls, etc. Hammer Equipment does not include equipment you may purchase at retail or from Hammer directly that may perform some or all of the functions of Hammer Equipment. You agree that Hammer Equipment will remain the property of Hammer and you will not acquire any ownership or other interest in any Hammer Equipment or any network facilities, cabling or software by virtue of any payment made pursuant to this Agreement or by any attachment of the Hammer Equipment to the Premises. You agree that Hammer Equipment will not be deemed fixtures or in any way part of the Premises. You agree to use Hammer Equipment only for receiving and/or using the Services pursuant to this Agreement.
- Changes and/or Upgrades. Hammer may upgrade, replace, remove or otherwise change the Hammer Equipment at our discretion at any time any Service is active (including Soft Disconnection) or following the termination of your Services. You consent to such changes including software, firmware and other code updates or downloads, with or without notice to you, which may alter, add to, or remove features or functionalities of the Hammer Equipment or Service. You acknowledge and agree that our addition or removal of or change to the Hammer Equipment may interrupt your Services. Hammer may, at its option, install new or reconditioned Hammer Equipment, including replacing your existing Hammer Equipment, for which you may incur a fee. You agree that such changes may be performed within Hammer’s sole discretion at any time and in any manner. If Hammer requests that you replace, or offers to replace your equipment in order to provide you with better Service or stronger security, and you do not do so, Hammer is not responsible for any resulting degradation of service or security vulnerabilities.
- Tampering and Unauthorized Use. You are responsible and may be liable for all Hammer Equipment on your Premises and in your possession. You may not sell, lease, abandon, or give away the Hammer Equipment. You agree that you will not and you will not permit others, including without limitation any other provider of video, telecommunications or Internet services, to use, rearrange, disconnect, abandon, remove, relocate, repair, service, alter, modify, tamper or otherwise interfere with the Hammer cable network, the Services, or any of the Hammer Equipment including software, firmware, or code changes without Hammer’s prior written consent, which Hammer may withhold in its sole discretion. Such prohibition includes, without limitation, attaching or permitting others to attach any unauthorized devices to our cable network, the Services, or the Hammer Equipment, using or permitting others to use equipment that causes interference with reception equipment, or otherwise degrades our cable network signal quality or strength or creates signal leakage, altering a cable modem, router or gateway to change its downloading or uploading capacity, or altering identifying information such as serial numbers or logos. If you make or assist any person to make any unauthorized connection or modification to Hammer Equipment or the Services or any other part of our cable network, we may terminate your Services and recover such damages as may result from your actions. You also agree that we may recover damages from you for tampering with any Hammer Equipment or any other part of our cable network or for receiving unauthorized Services. The unauthorized reception of the Services may also result in criminal fines and/or imprisonment. You agree that you will not allow anyone other than Hammer or its agents to service the Hammer Equipment.
- Damaged or Lost Hammer Equipment. You agree to pay the full retail cost for the repair or replacement of any Hammer Equipment or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Hammer in obtaining or attempting to obtain possession of any Hammer Equipment.
- Return of Hammer Equipment. You agree that in the event you terminate your Service, you will return, in person, all Hammer Equipment to any Hammer office within thirty (30) days of notifying Hammer of your decision to terminate your Service, unless otherwise instructed in writing by a Hammer representative. If you downgrade your Services and the Hammer Equipment that you possess is no longer required to support your new Hammer Services, you must promptly return such Hammer Equipment and , if applicable, exchange any advanced Hammer Equipment (e.g. HD or DVR receiver) for standard Hammer Equipment (e.g. standard digital receiver). Such Hammer Equipment must be returned to any Hammer office, in person, within thirty (30) days of notifying Hammer of your decision to downgrade your Services, unless otherwise instructed in writing by a Hammer representative. The returned Hammer Equipment must be in good condition and without any encumbrances, except for ordinary wear and tear resulting from proper use. If you fail to return such Equipment as provided herein, charges applicable to that Hammer Equipment may continue to apply until such Equipment is returned. Notwithstanding anything to the contrary contained herein, the provisions of this Section 10(e) shall apply to any Hammer Equipment associated with any Hammer Video, Hammer Phone or Hammer Internet Services developed, offered or provided by Hammer now or in the future. If you return your Hammer Equipment to Hammer by mail, you will be responsible for (i) any damage to the Equipment as assessed by Hammer upon receipt, (ii) the replacement cost of such Equipment if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs, unless Hammer provides written notice in advance that it will pay such costs. This provision shall survive the termination or expiration of this Agreement.
11. Binding Arbitration and Dispute Resolution.
- Arbitration Agreement. You and Hammer agree to resolve any and all Disputes (defined below) between you and Hammer through individual arbitration and not litigation in court. This Section 11 shall be broadly interpreted. “Dispute” means any claim or controversy that arises out of or in any way related to this Agreement, any of the Services provided under this Agreement, or any other Services or products that Hammer provides to you in connection with this Agreement, including but not limited to any and all: (i) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (ii) claims that arose before this or any prior Agreement; (iii) claims that arise after the expiration or termination of this Agreement, and (iv) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Section 11, “Hammer” means Hammer and any of its predecessors, successors, assigns, parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of the Services. You and Hammer also agree to arbitrate any and all Disputes that arise out of or relate in any way to any Services or products provided to you by Hammer or any of its affiliated entities under any other agreement.
- Exclusions. Notwithstanding the foregoing, the following Disputes will not be subject to arbitration: (i) disputes relating to the scope, validity, or enforceability of this Section 11; (ii) Disputes that arise between Hammer and any state or local regulatory authority or agency that is empowered by federal, state, or local law to grant a franchise under 47 U.S.C. § 522(9); and (iii) Disputes that can only be brought before the local franchise authority under the terms of the franchise.
- Right to Opt Out. If you do not wish to arbitrate disputes, you may decline to have your disputes with Hammer arbitrated by notifying Hammer in writing, within 30 days of the date that you first receive this Agreement or contacting Hammer and informing them of your desire to opt out of this dispute resolution provision. Your decision to opt out will have no adverse effect on your relationship with Hammer or Services provided by Hammer. If you opt out of the dispute resolution provision, that opt out will remain in effect if Hammer modifies this section in the future or you agree to a new term of service under this Agreement. If you enter into a new agreement with Hammer that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out. You must separately opt out for each account under which you receive services.
- Class Action Waiver. You and Hammer agree that all Disputes between you and Hammer will be arbitrated individually, and that there shall be no right or authority for any claims to be arbitrated or litigated on a class action, joint or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (such as a private attorney general), other subscribers, or other persons. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Arbitrator Authority. The arbitration between you and Hammer will be binding. In arbitration, there is no judge and no jury. Instead, our disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. You and Hammer agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with Hammer. Review of arbitration decisions in the courts is very limited.
- Informal Dispute Resolution. You and Hammer agree that you will try to resolve disputes informally before resorting to arbitration. If you have a dispute, first call Hammer Customer Care at the number listed on your monthly bill statement. If the Hammer representative is unable to resolve your dispute in a timely manner, you agree to then notify Hammer of the dispute by sending a written description of your claim to Hammer Customer Care, ATTN: Dispute Resolution Team, at the address listed on your monthly bill statement so that Hammer can attempt to resolve it with you. If Hammer does not satisfactorily resolve your claim within 30 calendar days of receiving written notice to Hammer Customer Care of your claim, then you may pursue the claim in arbitration. Neither you nor Hammer may initiate arbitration without first following the informal dispute resolution procedure provided in this Section 11(f) and thereafter, if the dispute is still not resolved, the party who desires to initiate arbitration must provide the other written notice of the intent to file for arbitration. If you are sending a written notice of your intent to file for arbitration to Hammer, please send such notice via U.S. mail to Hammer Legal Department, Attn: Litigation Counsel, at the address listed on your monthly bill statement. If Hammer is sending you a written notice of our intent to file for arbitration, we will send it to the last known address of record we have on file for you.
- Arbitration Procedures. The party initiating the arbitration proceeding may open a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org) or calling its toll free number (1-800-778-7879). If the claim asserted in arbitration is for less than $75,000, the AAA’s Consumer Arbitration Rules will apply. If the claim asserted is for $75,000 or more, the Commercial Arbitration Rules will apply. If there is a conflict between this Section 11 and the rest of this Agreement, this Section 11 shall govern. If there is a conflict between this Section 11 and the AAA rules, this Section 11 shall govern. A single arbitrator will resolve the Dispute. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Section 11 to the contrary, Hammer will pay all fees and costs that it is required by law to pay.To initiate arbitration, you must send a letter requesting arbitration and describing your claims to Hammer Legal Department, Attn: Litigation Counsel, at the address listed on your monthly bill statement. You must also comply with the AAA’s rules regarding initiation of arbitration. The arbitration will be held in the county of the billing address where Hammer provided you Service and either party may appear either in person or by telephone. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
- Small Claims Court. Notwithstanding anything in this Section 11 to the contrary, either you or Hammer may bring an individual action in a small claims court in the area where you receive Services from Hammer if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
- Jury Trial Waiver. If any part of Section 11(d) is found to be illegal or unenforceable, the entire Section 11 will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND HAMMER AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Section 11 is found to be illegal or unenforceable, that clause will be severed from this Agreement, and the remainder of this Section 11 will be given full force and effect.
- Survival. This Arbitration Provision shall survive the termination of your Services with Hammer.
12. Assignability. This Agreement and the Services furnished hereunder may not be assigned by you. You agree to notify us immediately of any changes of ownership or occupancy of the Premises. We may freely assign our rights and obligations under this Agreement with or without notice to you.
- Term. This Agreement will be in effect from the time that the Services are activated until (i) it is terminated as provided for by this Agreement or by any addendum to this Agreement or (ii) it is replaced by a revised Agreement. Unless prohibited by Applicable Law, either you or Hammer may terminate this Agreement at any time without cause by providing the other party with no less than twenty-four (24) hours written notice of such termination. Hammer may also terminate Service without notice to you if you fail to pay for Service or otherwise breach this Agreement, if you violate the law or Hammer policies, or if you misuse the Services or Hammer Equipment. You may terminate any particular Service and this Agreement will remain in effect for any Services you continue to subscribe to, use or pay for. Prior to affecting such termination, or any other change to your account, Hammer may undertake actions to verify your identity and confirm your election. Subject to Applicable Law or the terms of any agreements with governmental authorities, all applicable fees and charges for the Services will accrue until this Agreement has terminated, the Services have been disconnected, and all Hammer Equipment has been returned. We will refund all prepaid monthly charges or fees charged for Services after the date of termination (less any outstanding amounts due Hammer for the Services, affiliate services, Hammer Equipment, or other applicable fees and charges). In the event of termination by you, you must notify Hammer Customer Care at the number located on your billing statement. In the event of termination by Hammer, Hammer may notify you of such termination by electronic or other means.
- Obligations Upon Termination. You agree that upon termination of this Agreement you will do the following: (i) you will immediately cease all use of the Services and all Hammer Equipment; (ii) you will pay in full for your use of the Services up to the date that this Agreement has been terminated and the Services are disconnected; (iii) within ten (10) days of the date on which Services are disconnected, you will return all Hammer Equipment as provided in Section 7(f); and (iv) you will return or destroy all copies of any Licensed Software provided to you pursuant to this Agreement. Upon our request during regular business hours at a time agreed upon by you and us, you will permit us and our employees, agents, contractors, and representatives to access the Premises during regular business hours to remove all Hammer Equipment and other material provided by Hammer. You are responsible for storing or retrieving any emails, voice mail messages, and material stored in Hammer’s online backup service, or other information you wish to retain after termination of the Service. Hammer is authorized to delete any files, programs, data and email messages associated with any terminated account.
- Proration of Charges Upon Termination. If Services are terminated, charges will accrue through the date that Hammer fully processes the termination. You agree to pay Hammer on a pro-rated basis for any use by you of any Hammer Equipment or Services for a part of a month. You must pay all outstanding charges, including payment of any bills that remain due. You must reimburse us for any reasonable costs we incur; including attorneys’ fees, to collect charges owed to us. If you want us to renew the Services after termination, we may require that you pay a deposit. For some Services, Hammer may require a minimum thirty (30) day charge regardless of the activation or cancellation date.
- Termination Charges. In the event that this Agreement is terminated prior to the end of the Initial Service Term by either (i) Hammer for cause, or (ii) you without cause, charges may be imposed by Hammer (“Termination Charges”). Termination Charges may be imposed for each terminated Work Order and shall equal, in addition to any and all amounts payable by you in accordance with the other provisions of Section 13, Fifteen (15)% of the remaining monthly fees that would have been payable by you under the Work Order if the Services had been provided until the end of the Initial Service Term. In the event this Agreement is terminated as herein described, Termination Charges shall also include any unpaid non-recurring fees as defined in Section 2.
14. Software and Intellectual Property. Hammer grants you a limited, nonexclusive, nontransferable and nonassignable license to install and use Hammer’s software which includes software from third party licensors (“Licensed Software”) solely in order for you to access and use the Services. Hammer may modify the Licensed Software at any time, for any reason, and without providing notice of any such modification to you. The Licensed Software constitutes confidential and proprietary information and contains trade secrets and intellectual property of Hammer and its licensors which is protected under Applicable Law. All right, title, and interest in and to the Licensed Software will remain with Hammer and its licensors. You agree not to translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Licensed Software or any part thereof. You have a license to use the Hammer Equipment, content, Service, Licensed Software and/or applications provided by Hammer and/or third party providers (collectively “Suppliers”). You agree, however, that all such content and Licensed Software will remain the sole property of Hammer or its Suppliers and that no additional rights arise from this grant of use. By subscribing to Services, You waive any claim against Hammer or its Suppliers in connection with this Agreement and agree that Hammer and its Suppliers have the right to enforce this provision. You acknowledge and agree that neither Hammer nor its Suppliers can provide uninterrupted or error-free service and that Hammer’s and its Supplier’s liability is limited as described in Section 19 below. You also agree to comply with the terms and conditions of all end user software license agreements provided to you in order for you access and to use the Services, particularly Hammer Internet. Your right to use the Licensed Software, Service, or content ends upon termination of this Agreement.
You are solely responsible and liable for all material that you upload, post, email, transmit or otherwise make available via the Services, including, without limitation, material that you post to any Hammer website, third party website, or any third party vendor’s service (such as a social media site) that is used by Hammer. Hammer does not claim ownership of material you submit or make available for inclusion on the Service. However, with respect to material you submit or make available for inclusion on publicly accessible areas of the Service, you grant Hammer a world-wide, royalty free and non-exclusive license to use your material in connection with Hammer’s businesses including, but not limited to, the rights to copy, distribute, publicly perform, publicly display, transmit, publish your name or identifier in connection with the material, and to prepare derivative works. No compensation will be paid with respect to the use of your material.
In your use of the Services and/or Hammer Internet, you may encounter various types of links that enable you to visit websites operated or owned by third parties (“Third Party Site”). These links are provided to you as a convenience and are not under the control or ownership of Hammer. The inclusion of any link to a Third Party Site is not an endorsement by Hammer of the Third Party Site, an acknowledgement of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer on the Third Party Site. Your use of any Third Party Site is governed by the various legal agreements and policies posted at that website.
15. Use of Services.
- Compliance with the Law. You agree that you will comply with all current and future laws regarding the Services. If you violate the law in connection with your use of the Services, Hammer Equipment, or Licensed Software, Hammer may suffer harm and will have all remedies available at law or in equity, including injunctive relief. Content derived from the Service, Hammer Equipment, the Licensed Software, and any accompanying information is subject to applicable export control laws and regulations of the United States. You agree not to export or re-export such content, to any countries that are subject to restrictions or upload through the Services any material in violation of such restrictions.
- Misuse of Services. You agree to not misuse the Services, Hammer Equipment, or Licensed Software. Such misuse includes but is not limited to: (i) violation of Applicable Law as described above; (ii) use in a manner that adversely interferes with Hammer’s network or reputation; (iii) any unauthorized or fraudulent use of or access to the Services such as to avoid paying for Services; (iv) use in a manner that infringes the intellectual property or other rights of any third party including copying, modifying, reverse engineering, uploading, downloading or reselling any content or Licensed Software; (v) sending content or messages or otherwise engaging in communications that are abusive, obscene, lewd, lascivious, filthy, excessively violent, harassing, illegal, fraudulent, threatening, defamatory or an invasion of privacy; (vi) modifying or tampering with Hammer Equipment in any manner other than as expressly authorized by Hammer; (vii) engaging in telemarketing, fax broadcasting, spam, junk or other unsolicited email; (viii) intercepting a third party’s communications or accessing or attempting to access another party’s account or otherwise circumvent any security measures; (ix) uploading any virus, worm or malicious code; (x) using automated connections that allow web broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing; (xi) networking hacking and “denial of service” attacks; or (xii) using unauthorized software or devices to maintain continuous active Internet connection when the connection would otherwise have entered idle mode.You will not use the Hammer Equipment at any time at an address other than the Premises without our prior written authorization. You agree and represent that you will not resell or permit another to resell the Services in whole or in part. You will not use or permit another to use the Hammer Equipment or the Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted Hammer policy applicable to the Services. Use of the Hammer Equipment or Services for transmission, communications or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Hammer Equipment and/or Services at the Premises and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable Hammer policies including, but not limited to, acceptable use and privacy policies. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. You agree to indemnify, defend and hold harmless Hammer and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Services, the Hammer Equipment and/or the Customer Equipment or the breach of this Agreement or any of the applicable Hammer policies by you or any other user of the Services at the Premises.
- Monitoring Compliance. Although Hammer is not obligated to monitor the Services, Hammer may perform tests and inspections to confirm that you are complying with this Agreement. Hammer may, without notice, suspend, restrict access to or terminate your Service, or remove or make unavailable any content and/or monitor, review, retain and/or disclose any content or other information in Hammer’s possession about or related to you or your use of the Services as Hammer deems necessary to satisfy any Applicable Law, regulation, legal process or governmental request.
- Theft of Service. Tampering with or altering a cable system or converter to receive unauthorized services is a Federal crime punishable by fines and/or imprisonment. We may conduct periodic system checks and audits to detect the unauthorized receipt of Service.
- Content and Data Management by Hammer. We reserve the right to: (i) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple Hammer servers for back-up and maintenance purposes; and (b) block or remove any unlawful content you store on or transmit to or from any Hammer server. We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access.
- Security Responsibilities. You agree that you are solely responsible for maintaining the security of your and any other users’ computers, devices and data, including without limitation, encryption of data and protection of any passwords and personal and other data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE. Use of the Hammer network for the distribution, operation, and maintenance of malicious software (viruses, bots, worms, Trojan horses, etc.) is prohibited. Communications to malicious domain names (e.g., domain names used by networks of machines running malicious software) and to malicious Internet protocol addresses (e.g., IP addresses used by networks of machines running malicious software) may be redirected by Hammer to our network security systems at any time without notice as a countermeasure against the operation of malicious software such as “botnets” in the Hammer network. Hammer’s security systems may retain certain information such as the date and time of the malicious communication, the IP address it originated from, the domain name involved, and other technical information for cybersecurity purposes.
16. Availability of and Changes to Service. The Service you select may not be available in all areas or at the rates, speeds, or bandwidth generally marketed, and some locations may not qualify for the Service even if initial testing showed that your line was qualified. Bandwidth is provided on a per-line (not a per-device) basis. The bandwidth available to each device connected to the network will vary depending upon the number, type and configuration of devices using the Service and the type of use (e.g., streaming media), among other factors. The speed of the Service will vary based on network or Internet congestion, your computer configuration, your use of Hammer Video on demand service, the condition of your telephone line and the wiring inside your location, among other factors. We and our affiliates, suppliers and agents reserve the right, at any time, with or without prior notice to you, to restrict or suspend the Service to perform maintenance activities and to maintain session control.
17. Limitations on Use of the Services. You acknowledge and agree that Hammer (i) is not responsible for invalid destinations, transmission errors, or the corruption of your data; and (ii) does not guarantee your ability to access all websites, servers or other facilities or that the Services are secure or will meet your needs. You acknowledge that the Services will allow access to information which may be sexually explicit, obscene or offensive, or otherwise unsuitable for children. You agree that the supervision of use of the Services by children is your responsibility and that Hammer is not responsible for access by you or any other users to objectionable or offensive content. WE STRONGLY RECOMMENDSTHE USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE. You agree that Hammer assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any content, advice or opinions contained in any emails, message boards, chat rooms, websites or in any other public services or social networks, and that we do not endorse any advice or opinion contained therein. Hammer does not monitor or control such services, although we reserve the right to do so. You represent that when you, or your users’ transmit, upload, download, post or submit any content, images or data using the Services you or your users have the legal right to do so and that your or your users’ use of such content, images or data does not violate the copyright or trademark laws or any other third party rights.
18. Disclaimer of Warranties. YOU ACKNOWLEDGE THAT THE SERVICES, HAMMER EQUIPMENT, AND LICENSED SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES. HAMMER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT AS TO THE SERVICES, HAMMER EQUIPMENT, AND/OR THE LICENSED SOFTWARE PROVIDED TO YOU. HAMMER DOES NOT MANUFACTURE THE HAMMER EQUIPMENT, DEVICES OR LICENSED SOFTWARE AND IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS ON THE PART OF ANY MANUFACTURER, SPECIFICALLY INCLUDING A MANUFACTURER OF CUSTOMER EQUIPMENT OVER WHICH YOU RECEIVE THE SERVICES. UNLESS OTHERWISE RESTRICTED OR PROHIBITED BY APPLICABLE LAW, HAMMER DOES NOT WARRANT THAT THE SERVICES, HAMMER EQUIPMENT OR LICENSED SOFTWARE WILL BE ACCURATE, COMPLETE, ERROR-FREE, WITHOUT INTERRUPTION, FREE FROM VIRUSES OR OTHER MALICIOUS AGENTS EVEN IF ANTI-VIRUS MECHANISMS ARE DEPLOYED. HAMMER DOES NOT WARRANT THAT ANY COMMUNICATION WILL BE TRANSMITTED UNCORRUPTED OR AT ANY UPSTREAM OR DOWNSTREAM SPEED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THOSE PROVISIONS MAY NOT APPLY TO YOU. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
19. Limitation of Liability.
- Application. The limitations of liability set forth in this Section 19 apply to any acts, omissions, and negligence of Hammer and its underlying third-party service providers, affiliates, suppliers or agents which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine. This Section 19 will continue in effect after this Agreement terminates.
- Limitation. Neither Hammer nor any of its affiliates, suppliers or agents will be liable for damages for failure to furnish or the degradation or interruption of any Services, for a problem with the interconnection of Services, for any loss of data or stored content, for identity theft, or for any files or software damage, regardless of cause, or for a problem with the service or equipment of a third party.
- Damage to Person or Property. Neither Hammer nor any of its affiliates, suppliers or agents will be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of Hammer Equipment, Licensed Software, from use of Services or any content contained therein including interactive or 3D television Services, from support for the Services, or from inclusion, omission, or error relating to information about you in any published or electronic directory we may offer. You recognize that you have an obligation to exercise caution and personal responsibility including adhering to all manufacturers’ warranties accompanying any Hammer or Customer Equipment or any other equipment used in connection with the Services and to make sure that your use of the Services and Hammer Equipment does not subject you or others to danger.
- Customer Equipment. Customer Equipment may be damaged or suffer service outages as a result of the installation, self-installation, use, inspection, maintenance, updating, repair, and removal of Hammer Equipment, Customer Equipment and/or the Services. Except for gross negligence or willful misconduct, neither Hammer nor any of its affiliates, suppliers or agents shall have any liability whatsoever for any damage, loss, or destruction to the Customer Equipment.
- Other Equipment. By accepting this Agreement, you waive all claims against Hammer for interference, disruption, or incompatibility between the Hammer Equipment or the Services and any other service, systems, or equipment. In the event of such interference, disruption, or incompatibility, your sole remedy shall be to terminate the Services in accordance with Section 13.
- Software. When you use certain features of the Services, such as online features, you may require special software, applications, and/or access to the Internet. Hammer makes no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through Hammer Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Services if a virus or other harmful feature or software is found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your Customer Equipment. NEITHER HAMMER NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.In addition, as part of the installation process for the software and other components of the Services, system files on your Customer Equipment may be modified. Hammer does not represent, warrant or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation your computers, or cause the loss of files. Hammer does not represent, warrant, or covenant that the installation of the special software or applications or access to Hammer Internet will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including, but not limited to, your computers. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER HAMMER NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
- Disruption of Service. Hammer shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or Customer Equipment; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within 60 days of such interruption, to a pro rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Services interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES. Any credits provided by Hammer are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Hammer.
- Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation, their services, equipment, infrastructure, or content. Hammer is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure, or content, whether or not they constitute components of the Services. Hammer shall not be bound by any undertaking, representation or warranty made by an agent, or employee of Hammer or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Services, if that undertaking, representation, or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Services, including without limitation that of content providers. Hammer is not responsible for any services, equipment, infrastructure, and content that are not provided by us, even if they are components of the Services, and we shall have no liability with respect to such services, equipment, infrastructure, and content. You should address questions or concerns relating to such services, equipment, infrastructure, and content to the providers of such services, equipment, infrastructure, and content. We do not endorse or warrant any third-party products, services, or content that are distributed or advertised over the Services.
- Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement. Any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
20. Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER HAMMER NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TRESPASS, CONVERSION, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
- Any direct, indirect, incidental, special, treble, punitive, exemplary, or consequential losses or damages, including, but not limited to, loss of profits, loss of earnings, loss of business opportunities, personal injuries, or death that result directly or indirectly from or in connection with (i) your reliance on or use of the Hammer Equipment or the Services; (ii) the installation, self-installation, maintenance, failure, or removal of the Services including, but not limited to, any mistakes, omissions, interruptions, computer or other hardware or software breach, failures or malfunctions, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in transmission, or failure of performance of the Services, the Hammer Equipment, or the Customer Equipment, or any other mistakes, omissions, loss of call detail, e-mail, voicemail, or other information or data; (iii) the use of Hammer Equipment or Customer Equipment to provide the Services, including, but not limited to, damages resulting from others accessing Customer Equipment, Hammer’s network, or the contents of your transmissions made through the Services, or your use of file sharing, print sharing, or other capabilities that allow others to gain access to your computer network; and
- Any losses, claims, damages, expenses, liabilities, legal fees, or other costs that result directly or indirectly from or in connection with any allegation, claim, suit, or other proceeding based upon a contention that the use of the Hammer Equipment or the Services by you or any other person or entity infringes upon the contractual rights, privacy, confidentiality, copyright, patent, trademark, trade secret, or other intellectual property rights of any third party.
21. Indemnification. You hereby indemnify and hold harmless Hammer and its affiliates, suppliers and agents from any third-party claims, actions, proceedings, damages and liabilities, including attorneys’ fees, arising out of (i) your use, or other users use, of your Services or Hammer Equipment; (ii) any act in violation of any law committed by you including any use of the Services that may infringe on the patent, copyright, trademark or other intellectual property right or privacy right of any third party; (iii) any breach by you of this Agreement; (iv) any content or software displayed, distributed, or otherwise disseminated by you or other users of your Services; (v) your failure to safeguard your passwords or other account information, (vi) your failure to replace Customer or Hammer Equipment when requested by Hammer, and (vii) any claims or damages arising out of the lack of 911/e911 or dialing associated with a home security, home detention, or medical monitoring system. This Section will continue in effect after this Agreement terminates.
22. Customer Privacy Notice and Security.
- Security. To the extent Hammer is expressly required to do so by applicable law, we will provide notice to you of a breach of the security of certain personally identifiable information about you.
- Governing Law. This Agreement will be governed by the laws of the state in which you receive the Services and applicable federal law.
- Notices. When this Agreement requires notice from you to Hammer, you agree to provide us with written notice to the address specified on your bill or as instructed on the Hammer Website or by calling us. Notice by calling us will be effective as of the date our records show that we received your call.You agree that we may provide you with notice by (i) sending it via U.S. Mail or commercial overnight mail to your last known billing address in Hammer’s account records, (ii) including the notice on or with your Hammer bill, (iii) sending notice to your email address on Hammer’s account records, (iv) hand delivery, or (v) other lawful means, and you agree that any of the foregoing will constitute sufficient notice and you waive any claims that these forms of notice are insufficient or ineffective.
- Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
- Waiver and Strict Performance. Hammer’s failure to require your strict performance of any term of this Agreement will not be a waiver of Hammer’s right to require strict performance of any term or condition herein.
Hammer Fiber – Business Class Service Level Agreement
This description of the Service Level Agreement (“SLA”) is applicable to Hammer Fiber’s Business Class Broadband Service suite of products or Hammer Fiber High Speed Internet Service for Business.
- Business Connect High Speed Internet
- Business Essentials
- Business Plus
- Business Premium
- Business Express
Hammer Fiber will exclusively determine, at its sole discretion, if Hammer Fiber has failed to meet any of the Service Levels described in this SLA. Hammer Fiber reserves the right to alter or discontinue any Service Level described herein without notice. In order to determine and verify any failure on the part of Hammer Fiber to deliver the below Service Levels, the customer must cooperate with Hammer Fiber in testing, determining and verifying that a quality of service outage has occurred.
A. Credit Request Process
In order for the Customer to receive credit(s) specified herein for Hammer Fiber’s service, the Customer must immediately notify Hammer Fiber of an occurrence that results in the inability of Customer to transmit IP packets within the Hammer Fiber Business Class Broadband Service or Hammer Fiber High Speed Internet Service for Business (“Service Outage”).
Hammer Fiber’s Network Operations Center and Technical Assistance Center will investigate the reported outage and assign a trouble ticket number. Once determined that the Service Outage could qualify for a credit under this SLA, the Customer has thirty (30) days after the qualifying Service Outage to request a service credit by contacting Hammer Fiber’s Customer Service Department. Any credits appear on the Customer’s bill for Business Class Broadband Service or Hammer Fiber High Speed Internet Service for Business after such SLA credit has been approved by the Hammer Fiber Customer Service representative. Credits are exclusive of any applicable taxes charged to the Customer.
B. Limitations on SLA Credits
Customer’s total SLA credits may not exceed for any Business Class Broadband Service or Hammer Fiber High Speed Internet Service for Business, one month’s worth of monthly service fee for the affected Service, in any calendar month. The monthly service fee shall include any recurring charges for the service, excluding any one time charges.
A Service Outage does not include an outage that occurs during scheduled periods of maintenance or upgrades.
Hammer Fiber is not responsible, and this SLA does not apply to any Service Outage resulting from:
- The misconduct or accident of Customer behavior
- The failure or deficient performance of power, equipment, service or systems not provided by Hammer Fiber
- Any delay caused or requested by the Customer
- Service Interruptions, deficiencies, degradations or delays during any period in which Hammer Fiber or its representatives are not afforded access to the premises where CPE is located.
- Service interruption when a service component is removed from Service for maintenance, replacement or for the implementation of a Customer order
- Force Majeure conditions including but not limited to fire, power surges or failures, acts of god, flooding or other causes beyond Hammer Fiber’s control.
In addition, Business Broadband Service or Hammer Fiber High Speed Internet Service for Business SLAs do not apply (a) if Customer is entitled to any other available credits, compensation or remedies under Customer’s Service Agreement for the same service interruption, deficiency, degradation or delay, (b) for service interruptions, deficiencies, degradations or delays not reported by Customer to Hammer Fiber within a reasonable period of time, (c) where Customer reports an SLA failure, but Hammer Fiber does not find any SLA failure,
C. Use of Alternate Service
If Customer elects to use another service during the period of interruption, Customer must pay the charges for the alternative service used.
D. 99.9% Network Availability
The Hammer Fiber network shall be “Available” 99.9% of the measured over a calendar month. Customer shall be entitled to one (1) day’s credit* (based on a 30 day calendar month) from the Customer’s monthly recurring service fees if Hammer Fiber fails to meet the Network Availability guarantee during any Calendar month.
Any calculation of Network Availability shall not include any unavailability resulting from: (a) scheduled Network maintenance, (b) the occurrence of a Force Majeure event, (c) the failure of non-service impacting equipment or systems responsible for network measurements.
E. Packet Loss – 99.9%
Hammer Fiber’s aggregate monthly average packet loss between Hammer Fiber’s network POPs shall not exceed 0.1%. Packet Loss shall be calculated based on the arithmetic mean of aggregate monthly measurements between Hammer Fiber POPs Customer shall be entitled to one (1) day’s credit* (based on a 30 day calendar month) from the Customer’s monthly recurring service fees if AT&T fails to meet the aggregate Network Packet Loss SLA during any calendar month.
F. Service Restoration
In the event of a Service Outage, Hammer Fiber shall restore service within 24 hours from the time that Hammer Fiber is notified of the outage. Customer shall be entitled to (1) day’s credit* (based on 30 day calendar month) from the Customer’s monthly recurring service fees if Hammer Fiber fails to meet the 24 hours Service Restoration SLA.
Any calculation of 24 Hour Service Restoration shall not include any failure attributable to (a) scheduled Network maintenance; (b) the occurrence of a Force Majeure event; (c) the failure of non-service impacting equipment or systems responsible for network measurements; or (d) any CPE failures
*Credits are not automatically applied. Customer must apply by calling our Customer Care center listed on your bill.
This policy is posted and maintained on our website at www.hammerfiber.com. Hammer Fiber Optic Investments (hereafter “Hammer Fiber”) reserves the right to modify this policy from time to time without notice to you by posting updated versions at the aforementioned website. You, your agents, servants, employees, invitees and others who use your Service (hereafter collectively known as “users” or “you”) should periodically review the Internet Usage Policy to conform to the most recent version. Any modification to the policy is considered to be in effect immediately upon posting. By subscribing to any Hammer Fiber service, (the “Service”) you agree not to use the Service for any unlawful purpose and to comply with all policies and terms of this Usage Policy.
This Internet Usage Policy, including modifications posted to the website over time, is incorporated into your Service Agreement. If you, and/or any user of your service, fail to abide by any of the terms of the Internet Usage Policy, as modified, Hammer Fiber reserves the right to suspend or terminate any or all provisions of the Service to you as further detailed below in the paragraph entitled “Violation of the Hammer Fiber Internet Usage Policy”. Additionally, Hammer Fiber reserves the right to charge you for any direct or indirect costs we may incur in connection with your failure to abide by the Internet Usage Policy. Hammer Fiber, reserves its right to deny service to you, at its sole discretion, if it deems itself unable to deliver the service at suitable or appropriate performance levels and/or if your requirement may interfere with the performance of the network and/or the ability of others on the network to receive their service at suitable or appropriate performance levels.
The Service and/or equipment we provide shall be used only by you, your agents, servants and employees and others who you authorize to use the Service on the premises at which the Service has been installed. This Service is not for reuse by others and may not be resold or redistributed in any fashion. You have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Internet Usage Policy, including modifications or revisions over time.
Furthermore, you are responsible for any misuse of your Service or equipment, regardless of whomever may have perpetrated the inappropriate activity (i.e. an invitee, licensee, agent, servant, guest, employee or any other person who gains access to the Service). Hammer Fiber therefore requires that you ensure that others do not gain unauthorized access to the Service, through strict maintenance of password confidentiality and/or by appropriately protecting your computer, network, and/or any wireless devices you use in connection with the Service. It is your sole responsibility for the security of a device you connect to the Service, including any data stored on that device. Hammer Fiber recommends against allowing remote access to your computer, printers, or networks, including but not limited to file and print sharing services.
Hammer Fiber may choose to provide Electronic Mail (henceforth “Email”) service to you. The use of Hammer Fibers Email service is governed by this policy as well as any service level agreements. This policy strictly prohibits the transmission of unsolicited bulk Email or spam. Furthermore, the service may not be used to receive responses from unsolicited bulk emails generated from other hosts or email services. Additionally, tampering with or removing Email headers is also prohibited. At no time may you use, reference or infer an association with Hammer Fiber in any unsolicited email. Hammer Fiber is not responsible for email sent to any account/address that has been suspended or canceled. Hammer Fiber, may choose to end this service at any time.
Using Hammer Fiber’s Service or equipment to engage in any violation of local, state, federal or international law, order or regulation is a violation of this Internet Usage Policy. Prohibited activities include, but are not limited to the following:
- (i) possessing, storing, transmitting or otherwise disseminating material which is unlawful (i.e. child pornography or obscene material);
- (ii) possessing, storing, transmitting or otherwise disseminating material which violates the copyright or other intellectual property rights of others;
- (iii) fraudulent endeavors, including:
- a. pyramid or other illegal soliciting schemes,
- b. impersonating any person or entity
- c. forging anyone else’s digital or manual signature;
It is a further violation of this policy to utilize the Service or any equipment provided to you by Hammer Fiber to directly or indirectly:
- a.) interfere with or otherwise inhibit or cause a degradation in performance, despite intent or knowledge, to the Service, the network or infrastructure used by Hammer Fiber or its suppliers;
- b.) interfere with or otherwise inhibit, or impede our ability to monitor or deliver any feature of the Service;
- c.) interfere with or otherwise inhibit any networking or telecommunications service to or from any host, network, or other user including but not limited to, overloading a service, denial of service (collectively “crashing”), unauthorized access to or abuse of a system (collectively “hacking”);
- d.) interfere with or otherwise inhibit the ability of another person(s) to access the Internet, any equipment or other feature of the Service, including but not limited to: disseminating any information or software that contains malicious programming (i.e. virus, lock, key, bomb, worm, Trojan Horse or other harmful or debilitating feature); distributing mass or unsolicited email (i.e. spam); or creating levels of bandwidth consumption sufficient enough to impede another users ability to access or distribute information;
- e.) utilize or distribute devices, software, services, or programs designed for compromising security (i.e. encryption circumvention devices or Trojan Horses)
- f.) gain access to another user or entity’s data, system, network and/or hardware, without the consent of the aforementioned person and/or entity;
- g.) gain access to any confidential, copyright protected or patent protected material (henceforth collectively “protected materials”) of any other person or entity, without the consent of the aforementioned person and/or entity;
- h.) retransmit, alter, or redistribute in any manner protected materials, with prior permission or consent of the materials right-holder;
- i.) invade a person’s or entity’s privacy, through the collection of personal information or protected materials without the consent of the aforementioned person and/or entity;
- j.) unlawfully promote, use, possess, store, post, transmit or disseminate
- a. obscene , profane or pornographic material;
- b. content that is unlawful, threatening , abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable;
- c. content designed to incite hatred;
- d. objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense , gives rise to civil liability, or otherwise violate any local, state , federal or international law, order or regulation;
- k.) reproduce or relicense software Hammer Fiber may make available to you, without the prearranged permission of Hammer Fiber;
- l.) tamper with or modify any equipment or service Hammer Fiber provides you.
- m.) utilize an IP Address different form the IP address specifically assigned to you by Hammer Fiber
- n.) repackage, distribute, resell, or otherwise provide the service to anyone outside the service premises, without prior written consent from Hammer Fiber.
- o.) enable general access or open Wi-Fi or provide access to third parties unless otherwise specified in your Business Service Agreement.
- p.) operate a server, or other system such as mail or file servers, configuration servers, multi-media streamers, or other equipment designed to provide network level services to users outside the premises at which the service is installed, unless expressly provided for in your Service Level Agreement.
Hammer Fiber requires you to comply with United States Copyright laws, and in accordance with those laws, we reserve the right remove or block material or content that may have protection under intellectual property or copyright law, at our discretion. Copyright Owners may report alleged infringement to Hammer Fiber by sending an infringement claim which satisfies the Digital Millennium Copyright Act of 1998. Upon verification of the claim Hammer Fiber may remove or block the content in question or terminate the service, at its discretion. All inquiries regarding copyright and intellectual property including infringement claims and counterclaims should be addressed in writing to :
Hammer Fiber Optic Investments
Point Pleasant Beach, NJ 08742
Violation of Internet Usage Policy
Though Hammer Fiber is under no obligation to monitor transmission on its network, Hammer Fiber does reserve the right to monitor transmissions, at its sole discretion, in order to ensure compliance with this Internet Usage Policy, as well as any and all service level agreements, and international, federal or state law, mandate, order or regulation. Any failure by Hammer Fiber to execute any portion of this policy shall not be construed as a waiver of the policy, and Hammer Fiber reserves its right to execute any or all of the actions contained within at any time, as is consistent with this policy and applicable law.
Hammer Fiber further asserts its right to enforce this policy by taking actions that may include, but are not limited to, any or all of the following measures:
- a.) blocking or removing, either temporarily or permanently, any content or material it deems to be in violation of this policy;
- b.) preventing transmission of, either temporarily or permanently, any content or material it deems to be in violation of this policy;
- c.) disclosure of transmissions, which it deems to be in violation of this Internet Usage Policy and/or any service level agreement, international, federal or state law, order or regulation, to law enforcement;
- d.) suspending or terminating any part or all of The Service
Hammer Fiber, its partners, agents, or suppliers will have no liability for any of the aforementioned actions as they pertain to remedying violations of the Internet Usage Policy, and/or conforming with international, federal, state, or local law, order, mandate or regulation. You authorize Hammer Fiber, and/or its designated suppliers, partners, agents, and/or law enforcement agencies to execute and/or permit the execution of investigations or examinations of materials related to the enforcement of this policy, and/or law, regulation, mandate or order. Additionally, you authorize Hammer Fiber to cooperate with system administrators from outside or third party Internet Service Providers, network or computing services, as that cooperation pertains to the enforcement of this policy, your service agreement and/or international, federal or state law, order or regulation. Said cooperation may include, but is not limited to, providing information about you, such as username, subscriber name, IP address and/or other account information. If Hammer Fiber deems it necessary to terminate your account, it reserves the right to delete any data associated with your account.
As per the Federal Communication Commission’s regulation, located in part 8 of Title 47 of the code of Federal Regulations, commonly referred to as the “Open Internet” or “net Neutrality” rules, Hammer Fiber asserts the following statements regarding the management of its network and the access to content on its network.
Hammer Fiber has designed its network, systems, and practices in order to deliver to the consumer of its services, broadband Internet access that is consistent with federal regulation and which provides its users full access to all legal content. Hammer Fiber utilizes technologies and techniques to manage its network in order to ensure both the protection of the network and its users. Hammer Fiber monitors its network in an effort to prevent or stop illegal or malicious activities such as, but not limited to, denial of service attacks, or spam.
Additionally, to ensure that Bandwidth requirements are always met, Hammer Fiber has implemented a self-imposed Network Capacity, dictated by the deployment of equipment and infrastructure by geographical region, which prevents the Network from becoming oversubscribed.
Hammer Fiber does not block, or interfere with the transmission of any Lawful or non-objectionable material or content as part of its network management. Additional definitions and information as to Hammer Fiber’s reasonable consideration to what constitutes lawful or objectionable material can be found in their Internet Usage Policy, located on HammerFiber.com.
This privacy notice discloses the privacy practices for www.hammerfiber.com. This privacy notice applies solely to information collected by this web site. It will notify you of the following:
- What personally identifiable information is collected from you through the web site, how it is used and with whom it may be shared.
- What choices are available to you regarding the use of your data.
- The security procedures in place to protect the misuse of your information.
- How you can correct any inaccuracies in the information.
Information Collection, Use, and Sharing
We are the sole owners of the information collected on this site. We only have access to/collect information that you voluntarily give us via email or other direct contact from you. We will not sell or rent this information to anyone.
We will use your information to respond to you, regarding the reason you contacted us. We will not share your information with any third party outside of our organization, other than as necessary to fulfill your request, e.g. to troubleshoot a website problem or hosting issue you might be having.
Your Access to and Control Over Information
You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address or phone number given on our website:
- See what data we have about you, if any.
- Change/correct any data we have about you.
- Have us delete any data we have about you.
- Express any concern you have about our use of your data.
We take precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline.
Wherever we collect sensitive information (such as credit card data), that information is encrypted and transmitted to us in a secure way. You can verify this by looking for a closed lock icon at the bottom of your web browser, or looking for “https” at the beginning of the address of the web page.
While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.