Orcas Online, Inc. Internet Service Agreement
This Internet Service Agreement (“Agreement”) sets forth the terms and conditions on which we agree to provide and you agree to accept the Internet Service. In this Agreement, the words “we,” “us,” or “our” to refer to Orcas Online, Inc d/b/a Orcas Online, and the words “you” or “your” refer to the customer to whom the Internet Service will be provided. You accept the terms and conditions of this Agreement if (i) you install, or permit us to install, any software or equipment which permits you to access the Internet Service, (ii) you use, attempt to use or permit others to use your Internet Service, or (iii) you pay for your Internet Service. By accepting the terms and conditions of this Agreement, you represent you are of legal age and have the legal capacity to enter into and be bound by the terms and conditions of this Agreement.
1. Definitions.The terms which are defined below may encompass meanings that differ from, or are in addition to, the normal connotation of the defined term. Any term not defined herein shall be interpreted in accordance with its customary meaning in our industry as of the date of this Agreement.
a. “Content” means content provided by ORCAS ONLINE or its third party licensors, providers or suppliers and accessible on the Internet Service, including without limitation, images, photographs, animations, video, audio, music and text, with the exception of content uploaded by and stored on behalf of our Internet Service customers.
b. “Early Termination Fee” or ETF” is the $95 fee you will incur if you terminate your DSL Internet Service prior to completing a Service Term of 12 months, or if we terminate your Internet Service for cause prior to you completing the Service Term.
c. “Equipment” means the modem, router and/or other equipment provided to you by ORCAS ONLINE to enable you to use the Internet Service.
e. “Installation Date” means one (1) day after you receive the Equipment or the date we install Broadband Service at your residence or business, but in no event later than the date you first use your Internet Service.
f. “Internet Package” means the service plan selected by you which identifies the download speed, recurring monthly charge and other specifics regarding your Internet Service.
g. “Internet Service” means the service we provide our customers which enables them to access the Internet. The particular Internet Service we provide to you is determined by the Internet Package you select, along with any Equipment, Software, technical support, email and mailbox services, features, options, products and other related services we agree to provide, and is referred to herein as “your Internet Service.” Variations of the Internet Service are referred to as “Wireless,” “DSL,” “High Speed Internet” or “Hotspot Service.” Wireless Internet, DSL and High Speed Internet are sometimes referred to individually or collectively as “Broadband Service.”
h. “ORCAS ONLINE” means ORCAS ONLINE, INC
i. “Service Term” means a minimum 12 month term, during which you agree to subscribe to DSL. All other Broadband Service is provided on a month-to-month basis.
j. “Software” means software owned by ORCAS ONLINE or third party licensors, providers and suppliers, which we may provide you to use (via download, CD, other media, or other delivery method) at no cost or for a fee, including client and/or network security software.
k. “Website” means the ORCAS ONLINE websites located at www.OrcasOnline.com, Orcasonline.info and OrcasOnline.net.
2. Use of the Internet Service.You agree to comply at all times with our Internet & Data Services Acceptable Use Policy and all other policies, terms and conditions governing the Internet Service, all of which are available at our OrcasOnline.info website. You agree not to use or permit others to use your Internet Service in an unlawful, fraudulent or abusive manner. Internet Service is provided on an AS IS basis and throughput speeds and availability of the Internet Service is not guaranteed. We may, at any time, without notice or liability, restrict the use of the Internet Service or limit its time of availability in order to perform maintenance activities and to maintain session control. We reserve the right to change any of the features, Content, Software, Equipment or applications offered as part of the Internet Service at any time with or without notice to you. You are not permitted to use your Internet Service to host any type of server whether personal or commercial in nature. You understand that any reselling of your Internet Service is strictly prohibited. We reserve the right to audit your Internet connection electronically to enforce the provisions of this Agreement. You are solely responsible for evaluating any third party services accessible through the Internet Service. We are not responsible for anything provided by third parties. Internet Service does not include local telephone service.
3. Broadband Service.You are not permitted to share your Internet Service with neighbors, other businesses (even if in the same building) or with locations other than your own. You may connect multiple computers or other devices used to access the Internet Service within a single residence or a single business location to the Equipment using a single Broadband account and a single IP address which we provideBroadband Service may not be available in all areas, may not be available at the rates, speeds, or bandwidth generally marketed, and some telephone lines may not qualify for Broadband Service even if initial testing indicated that your telephone line was qualified. We will provision your telephone line for Broadband Service at the maximum line rate available to your location based on our standard telephone line qualification procedures, unless you have selected a level of service with a lower maximum line rate.
4. Service Term.DSL Packages are subject to a Service Term of 12 months. Your Service Term commitment period begins on the Installation Date. You may change your Internet Package at any time without penalty during the Service Term. You may not change your Internet Package any more frequently than once every thirty (30) days. Upon completion of your Service Term, your DSL Internet Service will automatically convert to a similar Internet Package without a Service Term and billed at the month-to-month rates then in effect.
5. Charges to Your Account.Charges to your account are based on the terms of your Internet Package. If your Internet Package is for Broadband Service not subject to a Service Term, you will be billed at our current rates, which are subject to change without notice. If your Broadband Service is subject to a Service Term, your monthly recurring charge will not change during the Service Term unless you change your Internet Package or default in your obligations hereunder. If you change your Internet Package, any corresponding change in your monthly charges becomes effective on the date we implement the change. Any non-recurring charges (e.g. GIG overages) will be billed following incurrence. If you fail to return the Equipment to us within fourteen (14) days after termination of your Internet Service, you will be billed for the Equipment at our standard rate then in effect. YOU AGREE THAT ONCE WE BILL YOU FOR EQUIPMENT YOU FAIL TO PROMPTLY RETURN, WE ARE UNDER NO OBLIGATION WHATSOEVER TO CREDIT YOUR ACCOUNT OR PROVIDE ANY REFUND EVEN IF YOU LATER RETURN THE EQUIPMENT. If your Internet Package requires that you maintain other services (e.g. local telephone service, etc.) and you fail to do so, we may in our sole discretion (i) change your Internet Package to one that does not require that you subscribe to such other ORCAS ONLINE service(s) and is not subject to a Service Term, or (ii) terminate your Internet Service. If we elect to change your Internet Package under this section, your Internet Service will be provided thenceforth subject to the terms and conditions of your new Internet Package, and you agree to pay any higher fees that may apply including applicable back charges during the period you failed to maintain such required ORCAS ONLINE services. If we elect to terminate your Internet Service under this section, you will incur an ETF for the unfulfilled Service Term, if any. We will notify you prior to taking any action under (i) and (ii) above. The waiver of any fees or charges to your account is solely in our discretion. You are limited to taking advantage of no more than one special pricing promotion during any twelve (12) month period.
6. Taxes; Surcharges.Our prices do not include taxes, surcharges, or other fees levied by government or regulating agencies. If you are exempt, you must provide us with valid tax exempt documentation prior to accruing such costs.
7. Billing; Payment.You begin accruing charges to your account for your Internet Service on the Installation Date. You will be billed monthly the 15th of the month, and payment is due on the 1st of the following month for internet service. Recurring charges are billed one (1) month in advance. All other charges are billed in the month following incurrence, but are sometimes applied to a subsequent billing. You must pay all charges on your account by the due date on your bill. Past due amounts may accrue interest until paid at the rate of 1.5% per month or the highest rate allowed by law. If you agree to any auto-payment option through your bank or credit account, we may initiate payment from your account for all amounts we bill you without additional authorization or notice. You may be charged additional fees if your payment is denied by a financial institution. Acceptance of less than full payment shall not waive our right to collect all amounts that you owe us. You may dispute any charge on your bill provided you do so in writing within forty-five (45) days of the bill date, otherwise the charges shall be deemed correct and undisputable. You agree to pay any costs we incur collecting past due amounts, including collection fees, attorneys’ fees, court costs and expenses.
8. Authorized User, Use and Responsibilities.You will be provided with a User ID and password to enable you to access your Internet Service. You agree to protect your User ID and password, and to pay for all activity associated with it. You agree that you are responsible for all use on your account, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses your Internet Service via your account, or any secondary accounts, with or without your permission.
9. Equipment. If we provide you with Equipment, you agree to provide power for the Equipment and keep it physically secure and free from liens and encumbrances. You agree to bear the risk of loss or damage (other than normal wear and tear) to the Equipment. You understand that title to the Equipment remains at all times with us. You understand that you remain responsible for complying with all obligations set forth in this Agreement, including, but not limited to, paying your monthly charges, even if the Equipment is lost or damaged. Upon termination of your Internet Service or as requested by us, you agree to promptly return the Equipment.
10. Email Service.Any email service we may provide to you is subject applicable email and anti-spam policies, including limitations on the number and/or size of email messages that may be sent during a given time period, or the number of recipients of a particular email. The number of electronic mailboxes (and corresponding email addresses) available to you depends on your Internet Package. We may limit the number of emails or other messages that can be retained in your account. We reserve the right in our sole discretion to provide the level of security we deem appropriate to safeguard our network and customers, and other Internet users, against Internet threats or abuses, including without limitation, viruses, spam, phishing, identity theft, and any other potentially disabling or harmful threat or abuse. These security measures may include, but are not limited to, the use of firewalls and blocklists to block potentially harmful or abusive emails or attachments, anti-spam filters, anti-virus and anti-spyware software, and blocking selected ports. Such activities may result in the blocking, filtering or non-delivery of legitimate and non-legitimate email sent to or from your email account(s). By using any email service we provide, you understand and agree that delivery and receipt of email is not guaranteed and you agree to our use of the foregoing Internet and email security measures we in our sole discretion deem appropriate.
11. Termination of Internet Service by Customer.You may terminate your Internet Service at any time by notifying us and promptly returning any Equipment provided to you. If you terminate your DSL Service prior to completing the Service Term, you agree to pay us an ETF of $95. If you terminate your Broadband Service at your service location, you cannot subsequently transfer the remainder of the Service Term to a new service location. In addition to the applicable ETF, you are responsible for all charges applicable to your account through the date of termination. Activation or set-up fees paid at the initiation of your Internet Service, if any, are not refundable.
12. Suspension/Termination of Internet Service by ORCAS ONLINE.We may, without advance notice, limit, suspend or terminate your Internet Service if: (i) you breach any of the terms of this Agreement; (ii) you fail to make any payment due ORCAS ONLINE by the date such payment is due; (iii) you become insolvent or bankrupt (iv) you steal from or lie to us; (v) you or any user of your account or person authorized to act on your behalf threatens, harasses, uses abusive, vulgar or otherwise inappropriate language with any of our representatives; or (vi) we believe that your Internet Service is being used for an unlawful purpose or in a way that negatively affects our network or other customers. If we suspend your Internet Service, you may be charged a reconnection fee. If we terminate your Internet Service, you will be charged an ETF for any unfulfilled DSL Service Term and will not be given credit for any unused or prepaid Internet Service.
13. Third Party Agreements.If you subscribe to or otherwise use any third party services offered by or through ORCAS ONLINE, your use of such third party service is subject to the terms of service of such third party service provider. You agree to comply with such third party service provider’s terms of service and you acknowledge that the third party service provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to, email services, virus/spam protection services and other services that we may elect to make available from time to time. Any violation of such third party provider’s terms of service may, in our sole discretion, result in the termination of your Internet Service.
14. Software Licenses; Third Party Services.In connection with your Internet Service, we may provide you the use of certain Software. We reserve the right to update, upgrade or change the Software at any time without notice. In some cases you may be required to change the related settings on your computer and software necessary for such update, upgrade, or change from time to time, and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with your Internet Service and for no other purpose. If the Software is subject to an end user license agreement, your use of the Software shall be governed by the terms of such end user license agreement and by this Agreement, where applicable. By using the Software, you agree to the terms and conditions of the applicable end user license agreement. For Software that is not subject to an end user license agreement, you are hereby granted a revocable, non-exclusive, non-transferable license by ORCAS ONLINE or the third party licensors, providers or suppliers, to use the Software (and any patches, updates and upgrades). You are not permitted to make copies of the Software. You agree that the Software is the confidential information of ORCAS ONLINE or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by ORCAS ONLINE or third party licensors, providers, or suppliers. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Software. You acknowledge that this license is not a sale of intellectual property and that ORCAS ONLINE or third party licensors, providers or suppliers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any patches, updates and upgrades. The Software may be used in the United States only, and any export of the Software is strictly prohibited. We will provide reasonable technical assistance and support for any ORCAS ONLINE owned Software. We may, but are under no obligation, to provide technical assistance or support for any third party Software. Technical assistance or support with regard to third party Software is solely provided in accordance with such third party’s policies or other terms. Your license to use the Software shall remain in full force and effect unless and until terminated by ORCAS ONLINE, its third party licensors, providers or suppliers, or until your Internet Service is terminated. Upon termination of your Internet Service for any reason, you must cease all use of the Software and immediately delete the Software from your computer(s).
15. Disclaimer of Warranties.We make no representations or warranties, express or implied, including, to the extent permitted by applicable law, any implied warranty of merchantability or fitness for a particular purpose, about the Internet Service, the Equipment, or any applications you access through your Internet Service. We do not warrant that the Internet Service will be uninterrupted or error free. You understand that no one, including our sales representatives and agents, is authorized to make any warranties on our behalf.
16. Limitation of Liability.In no event shall we be liable for: (i) any errors, omissions, interruptions, mistakes, lost data, failures to transmit or receive, delays, or defects in the Internet Service; (ii) any damage or injury caused by the use of the Internet Service; (iii) any third party act or omission; (iv) any third party claim against you; (v) any damage or injury caused by a suspension, limitation or termination of your Internet Service; or (vi) any event caused by factors beyond our control. To the extent permitted by law, our total liability for monetary damages for any claim you may have against us shall be limited to an amount equal to the prorated charges we bill you for your Internet Service during the period(s) in which your Internet Service is interrupted in excess of twenty-four (24) continuous hours. In no event shall we be liable to you or anyone for any indirect, consequential, incidental, punitive or special damages of any nature whatsoever arising out of or in connection with the Internet Service or this Agreement, including, without limitation, lost profits, loss of business, or cost of replacement products or services even if we are advised of the possibility of such loss or damage. You agree to indemnify us for any third party claim, loss or damage resulting from any use or misuse of your Internet Service, unless caused by our negligence or omission.
17. Disputes.You and we agree to use binding arbitration to resolve all claims, controversies, or disputes (collectively, “Disputes”) arising out of or related to this Agreement whether such Disputes arise during the term of this Agreement or thereafter. Notwithstanding, appropriate Disputes may be brought in small claims court. You and we agree to notify the other in writing of the nature of the Dispute at least forty-five (45) days prior to initiating arbitration and within one (1) year of the event giving rise to the Dispute. If you and we are unable to resolve the Dispute within such forty-five (45) day period, either you or we may submit the Dispute to binding arbitration. Arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules (expedited procedure) then in effect by one arbitrator appointed in accordance with such rules. You and we must be individually named in the arbitration. The arbitrator’s decision and award shall be final and binding and judgment on such award may be entered in any court having jurisdiction thereof. Costs of the arbitration shall be paid in accordance with the arbitrator’s final decision. BY ENTERING INTO THIS AGREEMENT, YOU AND WE AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18. Changes to this Agreement.We may periodically change the terms and conditions of this Agreement, including our prices, policies, and any other terms and conditions applicable to the Internet Service, at any time by written notice to you or by posting such changes on our Website. You agree to visit our Website periodically to be aware of and review any such changes. If your Internet Service is used after such changes are effective, you accept the changes. If your Internet Service is subject to a Service Term and we change a material term of this Agreement and such change has a material adverse effect on you, we will waive such material term change or permit you to terminate your Internet Service without incurring an ETF; provided you notify us in writing within thirty (30) days after such change is effective. The foregoing does not apply to any increase or decrease in taxes, surcharges, or other charges imposed by government or based on government calculations, for which we have no control.
19. Miscellaneous.You may notify us by calling (360) 376-4124, or in writing via our Website or at 254 Northbeach Road, Eastsound, WA 98245. We may notify you in writing at your last known address, via email, or by calling you and leaving a voice message on your wireless or home phone. Properly addressed written notices are effective three (3) days after deposit in the U.S. Mail, postage prepaid. This Agreement provides no third party benefits except for our affiliates, successors and assigns. Liabilities or obligations for acts or omissions prior to the termination of your Internet Service, obligations under the provisions regarding limitations of liability, disputes and any other provisions of this Agreement which, by their terms, are contemplated to survive or to be performed after termination of this Agreement, shall survive the termination thereof. If we fail to enforce any provision of this Agreement on any one occasion, it shall not constitute a permanent waiver of such provision, or waive our right to later enforce that provision. If any part of this Agreement is held invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. Section headings are for reference purposes only. You may not assign this Agreement without our written approval. This Agreement is governed by and shall be construed under the laws of the State of Washington, without regard to choice of law principles. This Agreement and the documents it incorporates constitutes the entire agreement between you and us for the Internet Service hereunder, and no other terms and conditions, representations, understandings or agreements shall be in effect with regard to the Internet Service unless specifically adopted in a written agreement between you and us. You cannot rely on any other documents, or on what is said by any of our sales or customer service representatives, and you have no rights regarding your Internet Service or this Agreement except as provided herein.
OPEN INTERNET TRANSPARENCY
The FCC has recently issued new rules intended to preserve the free and open Internet. These rules require ORCAS ONLINE to provide the following disclosures:
ORCAS ONLINE’s connections to the Internet are provisioned with adequate capacity to prevent congestion, even during the busiest periods. We do not inhibit or favor applications or classes of applications being used over the network. ORCAS ONLINE does not restrict the types or quantities of devices connected to a High Speed Internet subscriber’s Internet connection.
ORCAS ONLINE offers many different High Speed Internet packages to best serve our customers’ needs. Wireless (WIRELESS) Broadband Internet is the primary technology and Digital Subscriber Line (DSL) is the secondary technology utilized by ORCAS ONLINE. High Speed Internet speeds are targeted to achieve 100% of advertised speeds. Speed may be tested on ORCAS ONLINE’s speed test server at http://st.OrcasOnline.net.
ORCAS ONLINE’s round-trip latency to our Internet connections depends on the technology used to access the Internet. ORCAS ONLINE offers many Internet package suitable for real-time applications such as voice-over-Internet or streaming media. Our customer service representatives are happy to assist consumers in choosing a package which matches the specifications for specific software or applications.
Monthly pricing other fees for Wireless and DSL broadband services are available on the ORCAS ONLINE website. Traffic from individual subscribers is not analyzed or characterized in any way, nor are any security measures employed which could impair subscribers from utilizing their Internet connections in any lawful way they desire.
If you require additional information please visit an ORCAS ONLINE store in Eastsound, WA. You may also write to Orcas Online, Inc, Attn: Customer Service Manager, POB 1901, Eastsound, WA 98245. Within 7 days, we will send you a letter acknowledging receipt of your letter. Within 15 days of receiving your information, we send you a letter of determination.