The CityNet Internet service (the "Service") will be provided to you ("Customer") on the terms and conditions set forth in this Subscriber Terms Of Service Agreement (the "Agreement") by CityNet, Inc. which owns and/or operates the Internet system in your building.

Below in bold is a summary of relevant Terms Of Service CityNet subscribers should be familiar with. Please review the entire page for details.

1. Payment Terms.

(a.) Fees and Charges. Customer agrees to pay all charges and fees associated with the use of the Service, which charges may include, without limitation, monthly service fees, charges for the use of CityNet Equipment, installation charges, charges for service calls and other charges. In addition, Customer agrees to pay all applicable federal, state and local fees and taxes. Customer agrees that fees shall be paid by 1.) Automatic monthly Debit/Draft of Customer checking account or 2.) Quarterly, Semi-annual, or Annual billing paid by Customer check or money order or draft. Semi-Annual and Annual agreements are automatically renewed for a six month period 14 days prior to expiration of agreement unless otherwise notified. Please contact CityNet or fill out Termination Of Service form to disconnect prior to agreement renewel.

The current applicable schedule of fees and charges is posted on the Service, in the Support Section of the On-line Customer Support Center located at http://citynetxdsl.com or on another web site about which Customer has been notified. CityNet shall have the right to change the amount of fees and charges from time to time at their discretion and upon reasonable advance notice. Monthly service, equipment and other fees shall be payable monthly in advance. Installation and other charges will be billed according to CityNet’s then current billing policies.

(b.) Checking Account. Upon authorization by Customer, CityNet shall charge all amounts payable by Customer to CityNet pursuant to this Agreement to Customer’s Checking Account in accordance with the Checking Account information provided by Customer at the time of installation. By providing Checking Account information to CityNet, Customer authorizes CityNet to continue charging the Checking Account for all monthly fees (including without limitation monthly service fees and equipment charges, as well as applicable taxes and fees) payable to CityNet, and any other charges incurred by Customer and payable to CityNet pursuant to this Agreement, until this Agreement is terminated. Monthly service fees and equipment fees may be charged up to thirty (30) days in advance of the first day of the month for which the charges relate. Customer agrees to inform CityNet immediately of any change in Checking Account information. Customer’s checking account agreement governs use of the Checking Account in connection with the Service, and Customer must refer to that agreement with respect to his or her rights and liabilities as an account holder. If CityNet does not receive payment from Customer’s Checking Account, Customer agrees to pay all amounts due upon demand by CityNet, along with associated bank and other costs incurred by CityNet

(c.) Late Payments; Failure to Pay. Early Termination Of Semi-Annual or Annual Payment. Customer agrees to pay CityNet, as set forth in this Agreement, for any fees or charges due to CityNet, including any administrative late fee(s) and related fees, charges and assessments due to late payments or non-payments. If CityNet does not receive any required payment from Customer by the date on which the payment is due, Customer may be charged such fees, charges and assessments and the Service may be disconnected. If the Service is disconnected, in addition to the rights and remedies of CityNet under this Agreement or otherwise, Customer  is required to pay a reconnect fee of $29.00, in addition to all past due charges before the Service is reconnected. Any such administrative late fee(s) and related fees, charges and assessments due to late payment and nonpayment are not penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of CityNet’s costs resulting from late payments or non-payments by CityNet’s customers, which costs will not be readily ascertainable, and will be difficult to predict or calculate, at the time that such administrative late fee(s) and related charges are set because it would be difficult to know in advance: (a) whether Customer will pay for the Service on a timely basis, (b) if Customer does pay late, when Customer will actually pay, if ever, and (c) what costs CityNet will incur because of Customer’s late payment or non-payment. CityNet will inform Customer of the amount of these fees and other separate or additional charges by posting notice of such charges on the Service, in the Support Section of the On-line Customer Support Center located at http://citynetxdsl.com/, or on another web site about which Customer has been notified, or by sending notice via e-mail or first class U.S. postal mail to Customer’s address of record or e-mail address on CityNet’s account records, prior to CityNet assessing any new or changed fees. Customer may avoid these fees and other separate or additional charges relating to late payment and non-payment by complying with the payment provisions of this Agreement and by complying with CityNet’s current billing policies. If Customer fails to pay for the Service when due (because of a failure to comply with the payment provisions of this Agreement or for any other reason), Customer agrees to voluntarily pay such administrative late fee(s) and related fees, charges and assessments due to late payment and non-payment. CityNet does not anticipate that Customer will fail to pay for the Service on a timely basis. CityNet does not extend credit to customers and the administrative fee(s), related fees, charges and assessments are not interest, a Checking Account service charge or a finance charge. CityNet’s late fee practices may be revised to comply with applicable state or local laws, rules or regulations. If CityNet is required to use a collection agency or attorney to collect money owed by Customer or to assert any other right which CityNet may have against Customer, Customer agrees to pay the reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorneys’ fees and arbitration or court costs. Early termination of Semi-Annual or Annual payment agreements will result in recalculated payment based on current monthly prices and applying the amount to the pre-paid balance. A $100.00 early termination will be applied to all Semi-Annual and Annual accounts and $200 to all Annual accounts terminated prior to full term of agreement.

(d.) Customer Equipment. Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service. CityNet shall have no obligation to provide, maintain or service the Customer Equipment. The current minimum technical and other requirements for Customer Equipment (including without limitation required computer hardware) in connection with the Service are posted on the Support Section of the On-line Customer Support Center located at http://citynetxdsl.com/ or on another web site about which Customer has been notified. Such minimum requirements may be revised by CityNet from time to time. If Customer proceeds with the installation of or uses the Service utilizing Customer Equipment that does not meet the minimum requirements (a "Non-Recommended Configuration"), Customer agrees that (i) Customer will not be entitled to customer support relating to any issues other than the quality of the signal delivered to the DSL modem, and (ii) the following limitation of liability shall apply: NEITHER CityNet NOR ANY OF ITS AFFILIATES WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICE. CUSTOMER ACKNOWLEDGES THAT ANY SUCH INSTALLATION, ACCESS, OPERATION OR USE COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT, INCLUDING WITHOUT LIMITATION CUSTOMER’S COMPUTER, PERIPHERALS, SOFTWARE OR DATA. NEITHER CityNet NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.

 

3. Intellectual Property Rights.

(a.) End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed or used in connection with the Service including, without limitation, the CityNet InternetSM Software License Agreement, the current version of which is attached to this Agreement as Exhibit A, as such agreements may be amended from time to time. All such agreements are incorporated in this Agreement by reference. All end user licenses will terminate upon the termination of this Agreement, and, at such time, Customer shall destroy all versions and copies of all software received by it in connection with the Service.

(b.) Ownership of Addresses. Customer acknowledges that use of the Service does not give Customer any ownership or other rights in any Internet/on-line addresses provided to Customer, including but not limited to Internet Protocol ("IP") addresses, e-mail addresses and web addresses. CityNet may modify or change such addresses at any time and shall in no way be required to compensate Customer for such changes.

(c.) Authorization. CityNet does not claim any ownership of any material that Customer publishes, transmits or distributes using the Service. By using the Service to publish, transmit or distribute material or content, Customer (i) is warranting that the material or content complies with the provisions of this Agreement, (ii) is authorizing CityNet, its agents and affiliates to reproduce, publish, distribute, and display such content worldwide and (iii) is warranting that Customer has the right to provide such authorization. Customer acknowledges that material posted or transmitted using the Service may be copied, republished or distributed by third parties, and Customer agrees to indemnify, defend and hold harmless CityNet, its agents and affiliates for any harm resulting from such actions.

(d.) Copyright in the Service. Title and intellectual property rights to the Service are owned by CityNet, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material and are protected by copyright laws and treaties. The copying, redistribution, reselling or publication of any part of the Service without express prior written consent from CityNet or other owner of such material is prohibited.

(e.) Material Downloaded from the Service or In possession of Customer. In addition to any content that may be provided by CityNet, Customer may access Copy protected material through the Service that is not owned by CityNet or Customer may already posses such Copy protected material on disk, CD, memory stick or other storage device. Any such material may be downloaded from the Service only for Customer’s personal, non-commercial use, and Customer is not allowed to redistribute that material over any network or file-sharing service (other than a residential home network located in the Premises) or sell or offer for sale that material. Customer may make: (a) one machine readable copy, (b) one backup copy, and (c) one print copy of any material downloaded from the Service. Any other copying, or any redistribution or publication of any downloaded Copy protected material or any Copy protected material already in possesion of Customer, including, without limitation, posting to any other online service or allowing file-sharing service access, must be with the express permission of the relevant copyright holder. Otherwise such distribution or sharing is prohibited and in violation of this agreement. In any permitted copying, redistribution or publication of copyrighted material, any changes to or deletion of any copyright notice are prohibited.

4. Customer Information and Privacy.

(a.) Customer Privacy. Customer's privacy interests, including Customer's ability to limit disclosure of certain information to third-parties, is safeguarded by, among other laws, the subscriber privacy provisions of the Communications Act of 1934, as amended (the "Cable Act"), and the Electronic Communications Privacy Act. Customer's rights under the Cable Act, and CityNet’s privacy practices.

(b.)Information Provided To Third Parties. The Service will allow Customer to access third parties, including without limitation, content providers, on-line services and other providers of goods, services and information. Some of these goods, services and information may be accessible directly from the Service, and others may be accessible from the third parties referenced above. In connection with such third party access, Customer may be requested or required to provide his or her name, address, telephone number, credit card number and other personally identifiable information to such third parties. CityNet is not responsible for any such information provided by Customer to third parties, and such information is not subject to the privacy provisions of this Agreement or the Subscriber Privacy Notice. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Service. For a description of the privacy protections associated with providing information to such third parties, Customer should refer to the privacy policies, if any, provided by such third parties.

5. Prohibited Uses of the Service; Acceptable Use Policy.

Customer shall not use the CityNet Equipment or the Service, directly or indirectly, to undertake or accomplish any unlawful purpose or in violation of any posted CityNet policy applicable to the Service, including without limitation any CityNet Acceptable Use Policy (the "AUP") or Terms Of Service (TOS) or other policy posted on the Service, posted in the Support Section of the On-line Customer Support Center located at http://citynetxdsl.com/ or posted on another web site about which Customer has been notified, which AUP or other policy may be modified by CityNet from time to time. Customer acknowledges that the terms of the AUP and any such other policies may be put into effect or revised from time to time without notice by posting a new version of the AUP or such other policy as set forth above. Accordingly, Customer and other users of the Service should consult the AUP and such other posted policies regularly to conform to the most recent version. Use of the CityNet Equipment or the Service for transmission or storage of any information, data or material in violation of any federal, state or local law or regulation is prohibited. Use of Service to download or share copy protected files through any file-sharing service is a violation of this agreement.

Representations and Warranties of Customer. Customer represents and warrants that:

(a.) Age. He or she is at least 18 years of age.

(b.) Customer Information. The Customer information that Customer has provided and will provide to CityNet during the term of this Agreement, including without limitation Customer’s legal name, address, telephone number(s), the number of computers on which the Service is being accessed and payment data (including without limitation credit card numbers and expiration dates) is accurate, complete and current. Customer agrees to promptly notify CityNet, in accordance with the terms of this Agreement, if there is any change in the information that Customer has provided to CityNet. Failure to provide and maintain accurate information constitutes a breach of this Agreement.

(c.) Multiple Users. The Service and the CityNet Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same address. Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the CityNet Equipment and/or Service by means of the Customer Equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible for and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of the Service and/or the CityNet Equipment by Customer or by any other user of the Customer Equipment. Customer agrees to indemnify, defend and hold harmless CityNet and its affiliates against all claims and expenses (including reasonable attorney fees) arising out of the use of the Service and/or the CityNet Equipment or the breach of this Agreement by Customer or any other user of the Customer Equipment.

(d.) Export Laws. Customer will comply with all export and re-export control laws, including but not limited to the Export Administration Act, the Arms Export Control Act and their implementing regulations, and Customer will not transfer, by electronic transmission or otherwise, any content derived from the Service to either a foreign national or a foreign destination without first obtaining any required government authorization. Customer further agrees not to upload to the Service any data or software that cannot be exported without prior written government authorization. The terms "export" and "re-export" mean transferring or releasing technology to another country or to a national of another by any means – physical, electronic or otherwise. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals.

(e.) No Tampering. Customer will not service, alter, modify or tamper with the CityNet Equipment or with the Service, or permit any other person (unless authorized by CityNet) to do so. Such prohibition includes, without limitation, altering a DSL modem to change the downloading or uploading capacity of the DSL modem.

(f.) IP Addresses. CityNet will provide Customer with dynamic IP connection(s) as a component of the Service. Customer will not alter, modify, or tamper with such dynamic IP connection(s) or those of any other customer. Customer agrees not to use a dynamic DNS to associate a host name with such dynamic IP connection(s) for any purpose. Customer also agrees not to use any software on or in conjunction with any computer(s) or network device connected to the Service that provides for static IP connections. If applicable, CityNet will take back the dynamic IP connection(s) upon disconnection, discontinuance, or termination of the Service or this Agreement.

(g.) Theft of Service. Customer shall not connect the Service or any CityNet Equipment to more computers, either on or outside of the Premises, than are reflected in Customer’s account with CityNet. Broadcasting CityNet service via wireless equipment outside the perimeter of Customer residence without standard secure encryption is strictly prohibited. Sharing the Service with any person or entity outside Customer residence via wire or wireless signal constitutes theft of service. Customer acknowledges that any unauthorized receipt or broadcast of the Service constitutes theft of service, which is a violation of federal law and can result in both civil and criminal penalties. In addition, if the violations are willful and for commercial advantage or private financial gain, the penalties may be increased.

6. Termination and Expiration.

(a.) Term. This Agreement will remain in effect until terminated by either party as set forth in this Agreement or until superceded by a revised Subscriber Agreement.

(b.) Termination by Customer. Customer may terminate this Agreement for any reason at any time by providing CityNet with notice of such termination, in accordance with the terms of this Agreement. In the event of such a termination, any applicable fees and charges will accrue through the date of termination but all prepaid monthly service fees for Service not received will be refunded.

(c.) Termination by CityNet. CityNet may terminate this Agreement immediately at any time, whether or not Customer has violated this Agreement. In the event CityNet terminates the Service for any reason other than Customer’s violation of this Agreement, any fees and charges will accrue through the date of termination but any prepaid monthly service fees for Service not received will be refunded. Prepaid fees will not be refunded to Customers who have had Service terminated due to Theft Of Service or Abuse Of Service.

(d.) Customer Obligations Upon Termination. Customer agrees that upon termination of this Agreement:

(i.) Customer immediately will cease use of the Service and the CityNet Equipment, and destroy all copies of any software provided to Customer pursuant to this Agreement or otherwise used by Customer to access the Service.

(ii.) Customer will pay in full for Customer’s use of the Service and the CityNet Equipment up to the later of the effective date of termination of this Agreement or the date on which the Service and the CityNet Equipment have been disconnected. Customer agrees to pay on a pro-rated basis for any use by Customer of the CityNet Equipment or Service for a part of a month.

(iii.) Customer shall return the CityNet Equipment (including without limitation the modem if Customer is leasing a modem from CityNet) to CityNet, by any method reasonably requested by CityNet, within 10 days after termination of the Agreement. Upon CityNet’s request, Customer will permit CityNet, and its employees, agents, contractors, and representatives, to access Customer’s premises during regular business hours to remove the CityNet Equipment and other material provided by CityNet. Such removal will be conducted at an agreed to time; and Customer will ensure the return of all CityNet Equipment to CityNet. If any CityNet Equipment is not returned, Customer agrees that CityNet may bill Customer for the charges referred to in Section 1(c) above, including without limitation charging Customer’s credit card if applicable.

(e.) Retention of Rights. Nothing contained in this Agreement shall be construed to limit CityNet’s rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, CityNet and its suppliers reserve the right to delete all Customer’s data, files, electronic messages or other Customer information that is stored on CityNet’s or its suppliers’ servers or systems. In addition, Customer may forfeit his/her account user name and all e-mail, IP and web space addresses. CityNet shall have no liability whatsoever as the result of the loss of any such data, names or addresses.

(f.) Survival. All representations, warranties, indemnifications and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination.

7. Limitation of Liability; No Warranties; Warnings.

(a.) Limited Warranty. THE CityNet EQUIPMENT AND THE SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER CityNet NOR ITS AFFILIATES WARRANT THAT ANY CONNECTION TO, TRANSMISSION OVER, OR RESULTS OF THE CityNet EQUIPMENT OR THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR WILL PROVIDE UNINTERRUPTED USE OR WILL OPERATE AS REQUIRED, UNINTERUPTED OR ERROR FREE. CUSTOMER’S SOLE REMEDY FOR SERVICE INTERRUPTION SHALL BE LIMITED TO A PRORATED CREDIT UPON REQUEST ONLY IN THE EVENT OF COMPLETE FAILURE OF THE SERVICE DUE TO A TECHNICAL MALFUNCTION FOR FOURTY-EIGHT (48) CONSECUTIVE HOURS OR MORE. TO QUALIFY FOR SUCH CREDIT, CUSTOMER MUST REQUEST THE CREDIT FROM CityNet WITHIN THIRTY (30) DAYS OF THE FAILURE. CREDITS SHALL BE APPLIED ONLY AGAINST FUTURE FEES PAYABLE BY CUSTOMER FOR THE SERVICE. NEITHER CityNet NOR ITS AFFILIATES WARRANT THAT ANY DATA OR FILES SENT BY OR TO CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY EXCLUDED.

(b.) Limitation of Liability. Except as specifically provided in this Agreement, in no circumstance and under no legal theory (including without limitation tort, contact, and otherwise), shall CityNet OR ITS AFFILIATES have any liability to Customer or to any person or entity for (i) any direct, indirect, incidental, special, TREBLE, punitive, EXEMPLARY or consequential losses or damages, including without limitation loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly out of, or otherwise arising in connection with, the INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE OF THE Service or the CityNet Equipment or Customer’s reliance on or use of the CityNet Equipment or the Service, including without limitation any mistakes, omissions, interruptions, computer or other hardware or software failure or malfunction, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in transmission, or failure of performance of the CityNet Equipment or the Service; or (ii) any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding based upon a contention that the use of the CityNet Equipment or the Service by Customer or any other person or entity infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party.

(c.) No Liability For Viruses/Spyware. CityNet makes no representation or warranty that any software or content installed on Customer’s computer(s) or downloaded from the Service does not contain a virus/spyware or other harmful feature and it is Customer’s sole responsibility to take appropriate precautions to protect any computer or other hardware of Customer from damage to its software, files or data as a result of any such virus/spyware or other harmful feature. CityNet may, but is not required to, terminate all or any portion of the installation or operation of the Service if a virus is found to be present on Customer’s system. CityNet is not required to provide Customer with any assistance in removal of the virus. If CityNet decides, in its sole discretion, to install or run virus/spyware check software on Customer’s computer(s), CityNet makes no representation or warranty that such virus/spyware check software will detect or correct any or all viruses or spyware. Customer acknowledges that Customer 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 Customer’s system. NEITHER CityNet NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS/SPYWARE OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.

(d.) Customer’s Hardware and Software. The installation, use, inspection, maintenance, repair and removal of the CityNet Equipment and certain Customer Equipment used in connection with the Service may result in service outage or potential damage to Customer’s computer(s) and other Customer Equipment. Except for gross negligence or willful misconduct by CityNet, neither CityNet nor any of its affiliates shall have any liability whatsoever for any damage, loss or destruction to the Customer Equipment (including without limitation Customer’s computer(s) and peripherals). In the event of such gross negligence or willful misconduct by CityNet, CityNet shall pay for the repair or replacement of the damaged parts up to a maximum of $1,000 and such shall be Customer’s sole remedy relating to such activity. In addition, as part of the installation process for the software and other components of the Service, system files on Customer’s computer may be modified. CityNet does not represent, warrant or covenant that such modifications will not disrupt the normal operations of any Customer Equipment including without limitation Customer’s computer(s), or cause the loss of files. FOR THESE AND OTHER REASONS, IT IS RECOMMENDED THAT CUSTOMER BACK-UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. CUSTOMER UNDERSTANDS AND ACCEPTS THE ASSOCIATED RISKS OF ANY DECISION BY CUSTOMER NOT TO DO SO. NEITHER CityNet NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES OR DATA. In addition, the opening of Customer’s computer may void warranties provided by the computer manufacturer or other parties relating to the computer’s hardware or software. Customer understands that his or her computer may need to be opened, either by Customer or by CityNet or its agents, in connection with the installation or repair of the Service. NEITHER CityNet NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.

(e.) Not Liable For Third Parties. Customer acknowledges that CityNet may use the services, equipment and infrastructure and content of others in providing the Service and that third parties may provide components of the Service. CityNet is not responsible for the performance (or non-performance) of such services, equipment, infrastructure or content of others whether or not they constitute components of the Service. In addition, Customer understands that he/she will have access to the services and content of third parties through the Service, including without limitation that provided by content providers (whether or not accessible directly from the Service). Services, equipment, infrastructure and content that are not provided by CityNet (even if they are components of the Service) are not the responsibility of CityNet, and CityNet shall have no liability with respect to such services, equipment, infrastructure and content. Customer should address questions or concerns relating to such services, equipment, infrastructure and content to the creators of such services, equipment, infrastructure and content. CityNet does not endorse or warranty any third-party products, services or content that are distributed or advertised over the Service.

(f.) Customer Responsibility for Content. Customer acknowledges that there is some content and material on the Internet or otherwise available through the Service which may be offensive to some individuals, may be unsuitable for children, may violate federal, state or local laws, rules or regulations or may violate the protected rights of Customer or others. CityNet assumes no responsibility for such content or material. All content and material accessed by Customer or others through the Service is accessed and used by Customer or such others at their own risk, and neither CityNet nor its affiliates shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to access to such content or material by Customer or others. Questions or complaints regarding content or material should be addressed to the content or material provider. Customer acknowledges that software programs claiming to be capable of restricting access to sexually explicit material on the Internet are commercially available. CityNet makes no representation or warranty regarding the effectiveness of such programs.

(g.) Monitoring of Postings and Transmissions. CityNet shall have no obligation to monitor postings or transmissions made in connection with the Service. However, Customer acknowledges and agrees that CityNet and its agents shall have the right to monitor any such postings and transmissions, including without limitation e-mail, newsgroups, chat, IP audio and video, and web space content, from time to time and to disclose them in accordance with Section 4 of this Agreement, and as otherwise required by law or government request. CityNet reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in its sole discretion, is unacceptable, undesirable or in violation of this Agreement.

(h.) Eavesdropping. CityNet’s facilities are used by numerous persons or entities including, without limitation, other subscribers to the Service. As a result, there is a risk that Customer could be subject to "eavesdropping." This means that other persons or entities may be able to access and/or monitor Customer’s use of the Service. This risk of eavesdropping exists not only with CityNet’s facilities, but also on the Internet and other services to which access is provided as a part of the Service. Any sensitive or confidential information posted, stored, transmitted or disseminated by Customer is done so at Customer’s sole risk, and neither CityNet nor its affiliates shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by Customer. Customer acknowledges that software programs claiming to be capable of encryption are commercially available. CityNet makes no representation or warranty regarding the effectiveness of such programs.

(i.) FTP/HTTP Service Setup. Customer acknowledges that when using the Service there are certain applications such as FTP (File Transfer Protocol) server or HTTP (Hyper Text Transfer Protocol) server which may be used by other persons or entities to allow such other persons or entities to gain access to Customer’s Equipment. Customer is solely responsible for the security of the Customer Equipment or any other equipment Customer chooses to use in connection with the Service, including without limitation any data stored on such equipment. Neither CityNet nor its affiliates shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to the use of such applications by Customer, or the access by others to the Customer Equipment or other equipment of Customer.

(j.) File and Print Sharing. The Service functions in some ways as a Local Area Network (LAN) with each Customer constituting a node on the network. As such, users outside of the Premises may be able to access the Customer Equipment and other equipment connected in some way to the Customer Equipment. In addition, some available software includes capabilities that will permit other users to gain access to the Customer Equipment and other equipment connected in some way to the Customer Equipment, and to the software, files and data stored on such equipment. For example, operating systems such as Windows and Macintosh include file sharing and print sharing capabilities which, when enabled, will permit other users to gain access to the Customer Equipment and other equipment connected in some way to the Customer Equipment, even if Customer is not using the Service. CityNet recommends that Customer disable file and print sharing and other capabilities that allow outside users to gain access to the Customer Equipment. Customer acknowledges that if Customer chooses to run such applications, Customer should take appropriate security measures, and that any failure by Customer to follow this recommendation is at Customer’s sole risk. Neither CityNet nor its affiliates shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to access by others of the Customer Equipment or any other equipment connected in some way to the Customer Equipment, or to the software, files and data stored on such equipment.

(k.) Cookies. Customer acknowledges that accessing certain web sites through the Service may result in an http header (commonly known as a "cookie") being entered into the memory of Customer’s browser or stored and that, if Customer does not want such "cookies," it is Customer’s responsibility to disable the entry of such "cookies" through whatever procedures are available on Customer’s browser.

(l.) Sole Remedy. Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Some states do not allow the exclusion or limitation of implied warranties, and some states do not allow the limitations or exclusion of incidental or consequential damages, so certain of the above exclusions may not apply. In such states, the liability of CityNet and its affiliates is limited to the maximum extent permitted by law.

8. Arbitration.

(a.) Binding Arbitration. The Federal Arbitration Act ("FAA"), not state law, shall govern the arbitrability of all disputes between CityNet and Customer regarding this Agreement and the Service. CityNet and Customer agree, however, that Colorado or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between Customer and CityNet regarding this Agreement and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Colorado’s choice of law principles. ANY AND All disputes arising BETWEEN CUSTOMER AND CityNet (whether based in contract, STATUTE, REGULATION, ORDINANCE, tort (INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE), COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY or any other legal or equitable theory), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, must be resolved by final and binding arbitration. This includes any AND ALL disputes based on any product, service or advertising CONNECTED TO THE PROVISION OR USE OF THE SERVICE. A single arbitrator will be selected in accordance with the rules of the American Arbitration Association (the "AAA"). The arbitration will be conducted under the applicable procedures and rules of the AAA that are in effect on the date the arbitration is filed unless this Section 9 is inconsistent with those procedures and rules, in which case, this Section 9 will prevail. These procedures and rules may limit the amount of discovery available to Customer or CityNet. The arbitrator will apply applicable statutes of limitation, will honor claims of privilege recognized by law, and will take reasonable steps to protect customer account information and other confidential or proprietary information, including the use of protective orders to prohibit disclosure outside the arbitration, if requested to do so by Customer or CityNet. The arbitrator will make any award in writing, but need not provide a statement of reasons unless requested by a party. Upon a request by Customer or CityNet, the arbitrator will provide a brief statement of the reasons for the award. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties. If any portion of this Section 9 is determined to be unenforceable, then the remainder of such section shall be given full force and effect. The provisions of this Section 9 shall survive termination, amendment or expiration of this Agreement. The arbitration of any dispute involving $10,000 or less shall be conducted in accordance with the Consumer Arbitration Rules of the AAA, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. The AAA’s Commercial Arbitration Rules and fee schedules will apply to any disputes in excess of $10,000. Both Customer and CityNet have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.

(b.) No Class Action or Consolidated Proceedings. All parties to the arbitration must be individually named. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED 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 SIMILARLY SITUATED. Customer understands and acknowledges that by consenting to submit claims to arbitration pursuant to this Agreement, Customer may be forfeiting his or her right to share in any class action awards. This Section 9 will not apply to any individual claims filed by Customer in a lawsuit prior to the effective date of this Agreement nor to the claims of a class certified prior to the effective date of this Agreement. This Section 9 will apply to all other claims, including class claims where a class has not yet been certified, even if the facts and circumstances upon which the claims are based occurred or existed before the effective date of this Agreement.

(c.) Limitation of Available Damages, Including Punitive or Exemplary Damages, and Attorneys’ Fees. THE ARBITRATOR MAY AWARD ONLY DAMAGES SPECIFICALLY PROVIDED FOR IN SECTION 8 OF THIS AGREEMENT WHICH ARE SUPPORTED BY ADMISSIBLE EVIDENCE (EVEN IF GREATER DAMAGES ARE AUTHORIZED BY STATUTE). THE ARBITRATOR CANNOT AWARD DAMAGES THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT. THE ARBITRATOR ALSO CANNOT AWARD ATTORNEYS’ FEES. CUSTOMER AND CityNet BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES OR ATTORNEYS’ FEES THAT ARE EXCLUDED OR LIMITED UNDER THIS AGREEMENT AND/OR BY APPLICABLE LAW. Notwithstanding the limitations set forth in this subsection, should it become necessary to resort to court proceedings to enforce a party’s compliance with the dispute resolution and arbitration process set forth herein, and the court directs, orders or otherwise requires compliance herewith, then all of the costs and expenses, including its reasonable attorneys’ fees, incurred by the party requesting such enforcement shall be reimbursed by the non-complying party to the requesting party. This Section 9 does not prevent either party from seeking interim injunctive relief from a court in order to preserve the status quo or to protect assets until the arbitration has been commenced and the arbitrator has an opportunity to consider the matter of interim relief.

Arbitration Information and Filing Procedures. Before Customer submits a dispute to arbitration, Customer must first send written notice to Customer Dispute Center, c/o Litigation Database Administrator, CityNet Legal Department, 320 Monroe Street, Denver, CO 80206 and give CityNet an opportunity to resolve the dispute. Similarly, before CityNet takes a dispute to arbitration, it must first attempt to contact Customer at Customer’s e-mail or postal address on CityNet’s account records, and give Customer an opportunity to resolve the dispute. Customer agrees that if Customer fails to contact CityNet within three (3) months of the date of the occurrence of the event or facts giving rise to a dispute (except with respect to billing disputes which are subject to the shorter time limitation set forth in Section 3(g) above), Customer waives the right to pursue, in any forum, including arbitration or courts, a claim based upon such event, facts or dispute. If the dispute cannot be resolved satisfactorily within sixty days from the date Customer or CityNet is notified (as set forth above) by the other of a dispute, then either party may contact the AAA in writing at AAA Service Center, 134555 Noel Road, Suite 1750, Dallas, Texas 75240-6620 and request arbitration of the dispute. Customer shall send a copy of any such contact with the AAA to Customer Dispute Center, c/o Litigation Database Administrator, CityNet Legal Department, 320 Monroe, Denver, CO 80206. Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at http://www.adr.org/ or by contacting the AAA at the above address. The arbitration will be based on written submissions of the parties and the documents relating to the dispute, unless either party requests that the arbitration be conducted using the AAA’s telephone or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration shall take place at a location that the AAA selects in the state in which the Premises is located. Any arbitration shall remain confidential. Neither Customer nor CityNet may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award.

(d.) Fees and Expenses of Arbitration. Customer must pay the applicable AAA filing fee when Customer submits a written request for arbitration to the AAA. The AAA’s filing fee and administrative expenses for a document arbitration will be allocated according to the AAA’s Rules, except that for claims of less than $1,000, Customer will only be obligated to pay a filing fee of $15 and CityNet will pay all of the AAA’s other costs and fees. If Customer elects an in-person arbitration process, Customer must pay his or her share of the higher administrative fee and the additional costs for this process. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys’ fees and expenses for witnesses, document production and presentation of evidence. The prevailing party may, however, seek to recover the AAA’s fees and the expenses of the arbitrator from the other party.

10. Miscellaneous.

(a.) Notice. CityNet may deliver any required or desired notice to Customer by posting the notice on the Service, posting the notice in the Policy Section of the On-line Customer Support Center located in the Support section at http://citynetxdsl.com/, or by posting the notice on another web site about which Customer has been notified or by sending notice via e-mail or first class U.S. postal mail to Customer’s address of record or e-mail address on CityNet’s account records. Customer agrees that any one of the foregoing will constitute sufficient notice. Because CityNet may from time to time notify Customer about important information regarding the Service and the Agreement by such methods, Customer agrees to regularly check his or her postal mail, e-mail and all postings on the Service, in the Support Section of the On-line Customer Support Center located at http://citynetxdsl.com/ and on any other web site about which Customer has been notified and bear the risk of failing to do so.

(e.) General. This Agreement and its exhibits constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersede and replace any and all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. CityNet’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.(d.) Additional Charges. The Service will allow Customer to access the Internet, content providers, providers of services, on-line services and other information. Customer acknowledges that Customer may incur charges on account of such access or usage through the Service separate and apart from the amounts charged by CityNet. In addition, Customers may incur charges as a result of accessing on-line services or purchasing or subscribing to other offerings via the Internet or otherwise. Customer agrees that all such charges payable to third parties, including all applicable taxes, are the sole responsibility of Customer. In addition, Customer is solely responsible for protecting the security of credit card information provided in connection with such transactions.(e.) Alternate Billing Arrangements. In certain cases, CityNet may agree to provide billing services on behalf of content providers, service providers or other third parties. If such billing services are provided by CityNet, CityNet shall be acting as the agent of the third party. Any such third party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. CityNet shall not be responsible for any dispute regarding such charges between Customer and any third party for whom CityNet bills. Customer must address all such disputes directly with the third party.(f.) Credit Inquiries. Customer authorizes CityNet to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes.(g.) Billing Errors. Subject to applicable law, Customer must notify CityNet of any billing errors or other requests for refund within thirty (30) days of the date on which the error occurred.(h.) Account Access. In order to protect the privacy of Customer’s account information, CityNet may require that Customer use a security code, designated in accordance with CityNet’s policies, to confirm Customer’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service.2. Equipment; Access.

(a.) Required Equipment. Customer understands and agrees that the Service requires certain equipment provided by Customer such as a personal computer, a USB or Ethernet device, if required, and an appropriate operating system (the "Customer Equipment"), as well as certain equipment provided by CityNet or its designee such as software, switches, firewalls, routers and external wiring and related electronic equipment installed by CityNet ("CityNet Equipment"). If Customer is leasing a DSL modem from CityNet, the DSL modem shall be CityNet Equipment. Modems provided at no cost to Customer shall be deemed “leased” by Customer. Unless otherwise agreed, all Modems provided by CityNet are "leased" by Customer, not owned.CityNet shall have the unrestricted right, but not the obligation, to upgrade the firmware in the DSL modem at any time that CityNet, in its sole discretion, determines it is necessary or desirable.(b.) Access to Customer’s Premises. Customer authorizes CityNet and its employees, agents, contractors, and representatives to enter Customer’s premises at which the Service will be accessed (the "Premises") in order to install, maintain, inspect, repair and remove the CityNet Equipment and the Service, and any equipment used in connection with the Service. All such access will occur at a time agreed to with Customer. Customer warrants that Customer is the owner of, or a tenant in, the Premises, and that Customer has the authority to enter into this Agreement. If Customer is not the owner of the Premises, upon request, Customer will supply CityNet with the owner’s name and address, evidence that Customer is authorized to grant access to the Premises on the owner’s behalf and (if requested by CityNet) written consent from the owner of the Premises.(c.) CityNet Equipment. The CityNet Equipment, including all broadband modems and wireless routers, will at all times remain the property of CityNet or its designee. Customer acknowledges that the CityNet Equipment is merely a means through which the Service is provided by CityNet and may be removed or changed by CityNet at its discretion as it deems appropriate, including through "downloads" to Customer’s computer(s) or otherwise. Customer agrees not to use the CityNet Equipment for any purpose other than to use the Service pursuant to this Agreement. Customer shall not sell, transfer, lease, encumber or assign all or part of the CityNet Equipment to any third party. Customer will not relocate the CityNet Equipment. Upon receipt of a request by Customer, CityNet may, at an additional charge, relocate the CityNet Equipment within the Premises at a time agreed to with Customer. If Customer changes residences, Customer will contact CityNet for additional information concerning the possibility, costs and procedures for transferring the CityNet Equipment and Service to Customer’s new residence. Customer shall pay to CityNet the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned CityNet Equipment or part thereof, together with any incidental costs incurred by CityNet relating to the replacement of the CityNet Equipment or part thereof.(b.) Changes to the Service and the Agreement. CityNet may, in its sole discretion, change, add to or remove portions of the Service (including without limitation content, functionality, hours of availability, equipment requirements, speed, and upstream and downstream rate limitations) at any time without notice. In addition, CityNet may modify this Agreement at any time in its sole discretion upon reasonable advance notice to Customer. CityNet will notify Customer of any such modifications as set forth in Section 10(a) above. Customer agrees that any one of the foregoing will constitute sufficient notice of such changes. Customer’s continued use of the Service following notice of such changes shall be deemed to be Customer’s acceptance of any such changes. If Customer does not agree to any such changes, Customer must immediately stop using the Service and notify CityNet that Customer is terminating this Agreement. Customer will then be entitled to a refund of any unused portion of any monthly service fee for the Service that has been paid by Customer in advance.(c.) No Relationship. Nothing in this Agreement will create any joint venture, joint employer, franchisee-franchisor, employer-employee or principal-agent relationship between CityNet any content, backbone, network, circuit and other technology or communications providers, software and other licensors, hardware and equipment suppliers or other third party providers of elements of the Service, nor impose upon any such companies any obligations for any losses, debts or other obligations incurred by the other.(d.) Assignment. CityNet may assign its rights and obligations under this Agreement, without notice, to (i) any affiliate of CityNet, (ii) to any party (or its affiliate) acquiring all or substantially all of the assets or stock, by merger or otherwise, of CityNet or any affiliate of CityNet, or (iii) to any person or entity purchasing or otherwise acquiring the broadband distribution system serving the Premises. This Agreement may not be assigned or transferred by Customer without CityNet’s prior consent.