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Terms and Conditions of Service - Fidelity Communications

The following are the terms and conditions (the “Agreement”) that govern the relationship between you (“you,” “your,” “I” or “Customer”) and the subsidiary of Fidelity Communications Co. that operates the cable and/or telephone system in your area (“Fidelity,” “we,” “us” or “our”). If Fidelity provides telephone services in your area pursuant to a tariff or service guide, such tariff or service guide shall, to the extent required by law, supersede, and operate in lieu of, this Agreement with respect to such services; otherwise, such tariff or service guide shall supplement, and control over any contradictory terms less protective of Fidelity or less restrictive of Customer in, this Agreement. If you receive data or Internet services, you will also be bound by the Acceptable Use Policy, which shall supplement, and control over any contradictory terms less protective of Fidelity or less restrictive of Customer in, this Agreement. Each video, phone, data, internet or other service provided by the applicable Fidelity entity is a “Service,” and, collectively, are the “Services.” The Services are also subject to the Annual Notice provided by Fidelity each year, which contains, among other things, Fidelity’s Privacy Policy.

Your signature on the work order and/or use of the Services constitutes your agreement to the terms and conditions set forth herein. We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future, and will provide you notice of any such changes. Your continued use of the Services after notice of the change shall constitute your acknowledgement and acceptance of the changes.

1. Subscription and Payment. You are subscribing to Services as set forth on your work order, or as ordered by you over the telephone, or online. You agree to pay the monthly service fees and related charges for the Services. Fidelity may verify your credit standing with credit reporting agencies and require a deposit based on your credit standing or other applicable criteria.

2. Payment. You agree to pay for all Services provided to you by us including charges for installation, Equipment, Services provided on a per-channel or per-program basis, any other Services provided and all applicable local, state or federal fees, taxes, surcharges and other fees that are imposed or permitted by governmental or quasi-governmental bodies for the sale, installation, use or provision of the Service or Equipment. Monthly recurring charges are billed in advance and non-recurring charges are billed in arrears. All charges are due upon receipt of bill or by date specified on the billing statement for each period. If you intend to dispute a charge or request a billing credit, you must contact us within sixty (60) days of the date of the bill; otherwise, such dispute or credit is waived. You may not amend or modify this Agreement. Any restrictive endorsements (such as “paid in full”), releases or other statements on or accompanying checks or other payments accepted by Fidelity shall have no legal effect.

3. Late/Other Charges . You understand that we may impose an administrative late fee for each month’s charges not paid when due, as well as interest at a rate of 18% per annum, or, if less, the maximum interest rate permitted by law, accruing from the due date until the date paid. If Service is disconnected, we may impose a reconnect charge and/or security deposit, in addition to any outstanding balance, including late charge, before service is restored. If your check is returned for insufficient funds, we may impose a service charge up to $30.00. If you have not paid amounts due within thirty (30) days of the due date, and we use the services of a collection agency and/or attorney to collect amounts due, you agree to pay to us, in addition to other amounts due, all reasonable agency and attorneys’ fees that we incur, including without limitation, court costs.

4. Broadcast TV Surcharge. As a direct result of local broadcast, or “network-affiliated,” TV stations increasing the rates to Fidelity to distribute their signals to our customers, we will be passing on to our customers, and you hereby agree to pay, those charges as a Broadcast TV Surcharge on your video services bill.

5. Ownership of Equipment. “Equipment” includes all Equipment installed in or on your premises by us including, without limitation, set-top boxes, cable modems, wiring, and remote control. The Equipment shall remain our sole and exclusive property.

6. Tampering/Misuse/Lost/Stolen Equipment. You shall not alter, misuse, repair, or in any manner tamper with the Equipment or outlets or remove from the Equipment any markings or labels. Equipment cannot be removed from your premises and used in another location. You are responsible for the safekeeping of all Equipment. If any Equipment is destroyed, damaged, lost or stolen while in your possession, you shall be liable for the cost of repair or replacement of the Equipment.

7. Termination of Service. Upon termination of service for any reason, you agree to immediately return all Equipment in the operating condition as when received (reasonable wear and tear excepted) directly to us. If you fail to return any Equipment, you shall pay us the replacement cost of the Equipment. You understand and agree that all unreturned Equipment will be charged to your credit card or bank account consistent with your prior authorization as required by law.

8. Changes in Services, Equipment and Charges. We may change our Services, Equipment and charges, including deleting Services, with or without notice. You acknowledge that the content, programs, or formats of the Services may be discontinued, modified or changed by the owners of the services at any time without prior notice. Parental control is available to block or restrict certain programming or channels. It is your sole responsibility to activate or otherwise enable this feature and to update settings if Fidelity or its suppliers rearrange, delete, add or change programming. Information on how to enable this feature is available from Fidelity upon request.

9. Transfer of Account or Change of Residence. You may not assign or transfer your obligations or rights related to the Equipment or Services, including to a new address, without our express written consent.

10. Theft of Service. The receipt of Services without our authorization is a crime. You understand that the law prohibits: (a) theft or unauthorized reception of cable programming; (b) assisting theft or unauthorized reception of cable programming (including the manufacturing or sale of equipment intended for such unauthorized use); and (c) willful damage, alteration or destruction of Equipment. You can be subject to both civil and criminal penalties for such conduct.

11. Service and Repairs. We will use commercially reasonable efforts to maintain our cable system, to respond to service calls in a timely manner, and to repair damage to Equipment, or interruption of Service, due to reasonable wear and tear or technical malfunction. Physical damage to Equipment caused by misuse or neglect is your sole responsibility and you must pay us for the cost of repair or replacement. Notwithstanding the foregoing, your sole and exclusive remedy in the event of a service outage, interruption, or other failure of Fidelity to maintain the system, Equipment or Services is the credit set forth in the “Service Interruptions” section below.

12. Access on Premises. You grant us a permanent easement on your premises to construct, install, maintain, inspect, replace and/or remove our outlets, video, voice and data transmission lines and all other Equipment necessary to provide Services. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner of the premises for us to make installation and maintenance contemplated by your order.

13. Customer’s Equipment. We shall have no responsibility for the operation, maintenance or repair of any equipment owned by you, including but not limited to televisions, VCRs, audio receivers, converter boxes and other devices. You shall not connect more than one television and/or stereo receiver to an outlet without notifying us, and getting our advance approval, of the connection. You agree not to connect any device to the Services that: (a) harms Fidelity’s network; (b) is not compatible with Fidelity’s network; (c) enables you or others to access or use the Service in violation of this Agreement or Fidelity’s Acceptable Use Policy.

14. Service Interruptions. The Service is provided on a shared network and subject to degraded performance and interruption at any time. Reasons for degraded performance and interruption include, without limitation, problems with your computer, telephone or set-top box, problems within Fidelity’s network such as network congestion, equipment failures or damage to Fidelity’s network components, and problems outside of Fidelity’s network such as, congestion, equipment failures or damage to network components. If you lose Service for twenty-four (24) consecutive hours or more, as your sole and exclusive remedy, you are entitled to a prorated credit upon request. To qualify for an adjustment, you must request a credit within thirty (30) days of the failure. We assume no liability for, and you are not entitled to any credit for, interruption of Service or alterations in programming due to circumstances beyond our control, including without limitation, acts of God, natural disaster, fire, civil disturbance, strike or weather. We assume no liability for, and you are not entitled to any credit for, any substitution, discontinuation or modification of any programming.

15. Termination by Customer. You may terminate Service by providing us at least seven (7) days advanced notice. Account holders are liable for all Services rendered by us up to the time the account has been de-activated and we have received all Equipment.

16. Compliance with Agreement. We reserve the right to suspend performance or terminate Service for the breach of any of these terms and conditions or our policies related to the Services.

17. Notifications. You acknowledge receipt of a Cable Privacy Notification as required by federal law.

18. Customer Warranties. I, the customer, represent and warrant that I am at least 18 years of age and am legally authorized to enter into this Agreement. I warrant that I am legally empowered to authorize Fidelity to enter upon the premises for the purpose of (a) placing transmission lines in the utility easement on the property, including, if necessary, an above ground pedestal in the easement; (b) attaching wiring and equipment to the structure; and (c) installing, maintaining, repairing or disconnecting Service. I further represent and warrant that (a) residential Service and Equipment will be used only for personal, residential, non-commercial purposes by me and the members of my immediate household living at the same, designated address and will not be duplicated except in compliance with applicable law; (b) I will not exhibit any programming (including PPV, VOD, or digital music) in a commercial establishment or for commercial purposes; (c) I will not resell or permit another to resell Service in whole or in part; and (d) I will not use the Equipment at and address other than the designated service address without Fidelity’s advance permission in each instance.

19. WARRANTY DISCLAIMER. OUR EQUIPMENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. NO STATEMENT, ADVICE, OR INFORMATION GIVEN BY US, OUR OFFICERS, EMPLOYEES, AGENTS, AUTHORIZED REPRESENTATIVES, AFFILIATES OR CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES, CREATES A WARRANTY. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES BY FIDELITY, WRITTEN OR ORAL, OTHER THAN THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. WE DO NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

20. CUSTOMER INDEMNIFICATION. YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS FIDELITY AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES) (COLLECTIVELY, THE “FIDELITY GROUP”) AND SHALL REIMBURSE THE FIDELITY GROUP FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF (i) YOUR USE OF THE SERVICE OR EQUIPMENT; (ii) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; AND (iii) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.

21. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL THE FIDELITY GROUP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE EQUIPMENT, THE SERVICES, OR YOUR USE OF OR INABILITY TO USE THE FOREGOING, INCLUDING LOST BUSINESS OR PROFITS, BUSINESS INTERRUPTION OR DOWNTIME, LOSS OF INFORMATION OR DATA, OR COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES. THE TOTAL CUMULATIVE LIABILITY OF THE FIDELITY GROUP ARISING OUT OF AND RELATED TO THIS AGREEMENT, THE EQUIPMENT, THE SERVICES, AND YOUR USE OF OR INABILITY TO USE THE FOREGOING SHALL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE LESSER OF: (A) THE FEES PAID BY CUSTOMER TO FIDELITY IN RESPECT OF THE EQUIPMENT AND SERVICES GIVING RISE TO THE CLAIM(S); OR (B) THE TOTAL FEES PAID BY CUSTOMER TO FIDELITY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, INDEMNITY OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT, AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

22. BINDING ARBITRATION

(a) Purpose. If you have a Dispute (as defined below) with Fidelity, you or Fidelity may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may result in limited discovery and may be subject to limited review by courts.

(b) Definitions. The term “Dispute” means any dispute, claim, or controversy between you and Fidelity regarding any aspect of your relationship with Fidelity, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, “Fidelity” means Fidelity and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.

(c) Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Fidelity elect to resolve your Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-493-4185, www.adr.org under the Commercial Arbitration Rules of the American Arbitration Association “AAA”.

(d) Arbitration Procedures. Because the Service(s) provided to you by Fidelity concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. Applicable federal law or the law of the state where you receive the Service from Fidelity may apply to and govern the substance of any Disputes. No state statutes pertaining to arbitration shall be applicable under this Arbitration Provision. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization, this Arbitration Provision shall govern. If AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with Fidelity. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.

A single arbitrator will resolve the Dispute. 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 will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement. If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (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 exists under the FAA.

(e) Restrictions:

1. You must contact us within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes) about which you must contact Fidelity within sixty (60) days as provided in Section 2 of this Agreement, or you waive the right to pursue any claim based upon such event, facts or dispute.

2. All parties to the arbitration must be individually named. There shall be no right or authority for any claims to be arbitrated or litigated on a class action 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.

(f) Location of Arbitration. The arbitration will take place at a location convenient to you in the area where you receive the service from us.

(g) Payment of Arbitration Fees and Costs. Fidelity will advance all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration, including, but not limited to, fees for attorneys or expert witnesses. If the arbitration proceeding is decided in Fidelity’s favor, you shall reimburse Fidelity for the fees and costs advanced to you only up to the extent awardable in a judicial proceeding. If the arbitration proceeding is determined in your favor, you will not be required to reimburse Fidelity for any of the fees and costs advanced by Fidelity. If a party elects to appeal an award to a three-arbitrator panel, the prevailing party in the appeal shall be entitled to recover all reasonable attorneys’ fees and costs incurred in that appeal. Notwithstanding anything to the contrary in this Arbitration Provision, Fidelity will pay all fees and costs that it is required by law to pay.

(h) Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court. If this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and Fidelity have each agreed to waive, to the fullest extent allowed by law, any trial by jury.

(i) Exclusions from Arbitration. You and Fidelity agree that the following will not be subject to arbitration: (1) any claim filed by you or by Fidelity that is not aggregated with the claim of any other subscriber and whose amount in controversy is properly 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; (4) any dispute that arises between Fidelity and any state or local regulatory authority or agency that is empowered by federal, state or local law to grant a franchise 47 U.S.C. § 522(9); and (5) any dispute that can only be brought before the local franchise authority under the terms of the franchise.

(j) Continuation. This Arbitration Provision shall survive the termination of your Service(s) with Fidelity for any reason.

23. Special Provisions Regarding Certain Telephone Services.

(a) You acknowledge that, with regard to telephone services provided over Internet protocol, the voice-enabled cable modem used to provide the telephone services is electrically powered and that the telephone services, including the ability to access 911 services and home security and medical monitoring services, may not operate in the event of an electrical power outage or if your broadband cable connection is disrupted or not operating. You acknowledge that, in the event of a power outage in your home, any battery included in your voice-enabled cable modem may enable back-up service for a limited period of time or not at all, depending on the circumstances, and that inclusion of the battery does not ensure that telephone or other service will be available in all circumstances. You also acknowledge that, in the event of a loss of power that disrupts your local Fidelity cable system, the battery in your voice-enabled cable modem will not provide back-up service and the telephone service will not be available.

(b) You agree that the Fidelity Group will not be responsible for any losses or damages arising as a result of the unavailability of telephone service, including the inability to reach 911 or other emergency services, or the inability to contact your home security system or remote medical monitoring service provider. You acknowledge that Fidelity does not guarantee that any telephone service will operate with your home security and/or medical monitoring systems, and that you must contact your home security or medical monitoring provider in order to test your system’s operation with Fidelity’s Services. You agree that you are responsible for the cost of any such testing or any fees for configuring my home security or medical monitoring system to work with the Services.

(c) The location and address associated with your telephone service will be the address identified on your order. You acknowledge that, you are not permitted to move the Equipment from the location and address in which it has been installed. Furthermore, if you move your voice-enabled cable modem to an address different than that identified on the order, calls from such modem to 911 will appear to 911 emergency service operators to be coming from the address identified on the order and not the new address.

24. Special Provisions Regarding Internet Services.

(a) YOU understand and agree that Fidelity does not guarantee any particular amount of bandwidth on the Fidelity network or that any speed or throughput of YOUR connection to the Fidelity network will be available to YOU. You understand and agree that the speed of the Service provided at your site will vary depending upon a number of factors, including your computer system(s) and associated equipment, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Fidelity’s control, and system failures, modifications, upgrades and repairs.

(b) You understand that Fidelity may use various tools and techniques in order to efficiently manage its networks and to ensure compliance with Fidelity’s Acceptable Use Policy. These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code, and managing network resources through techniques such as limiting the number of peer-to-peer sessions a customer can conduct at the same time, limiting the aggregate bandwidth available for certain usage protocols such as peer-to-peer and newsgroups, and such other network management tools and practices as Fidelity may from time to time determine appropriate.

(c) You further understand and agree that, to allocate bandwidth across all of its users, Fidelity may employ traffic-management technology, including but not limited to packet-reset technology, which technology may materially slow the uploading of certain files.

(d) You acknowledge that the Service provides full access to the Internet and all content, applications and services available over the Internet. Some content, applications or services may be offensive or inappropriate for certain people. Such content may include information, images, or programs that are unlawful, infringing, abusive, profane or sexually offensive. You assume all risk, responsibility and liability for use of the Service to connect to, and access content on, the Internet. Fidelity and its officers, employees, and agents disclaim any liability for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to such content or from use or reliance upon information, services or merchandise accessed on the Internet through the Service.

(e) You assume all responsibility and liability for any software, content, applications or services you download from the Internet, including any virus or other damaging or destructive attribute. Fidelity has no responsibility and disclaims any liability for such acts or occurrences. Fidelity does not endorse or warranty any third party software, applications, services or content that you access through the Service.

(f) You assume all responsibility and liability for the security of information on your personal computer and information you transmit or receive through the Service. Fidelity has no responsibility and disclaims any liability for the security of any information on your personal computer, or the security or accuracy of any information or data transmitted or received through the Service. Fidelity has no responsibility and disclaims any liability for unauthorized access by third persons to your personal computer, files, or data.

25. Monitoring. Fidelity has no obligation to monitor content; however, you agree that Fidelity has the right to monitor content and your use of the Services, and todisclose any information as permitted or required by any law, regulation, or governmental request, or to protect us or our other customers.

26. Entire Agreement. This Agreement, any applicable tariffs, service guides and other agreements specifically referenced herein constitute the entire agreement between Fidelity and you for the subject matter hereof. Only Fidelity may make modifications to this document. The invalidity or unenforceability of any term of this Agreement shall not affect the validity or enforceability of any other provision.

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