Communities IoT End User License Agreement
Effective Date: September 12, 2023
1. Introduction —
This End User Agreement ("Agreement") sets forth the terms
and conditions under which Cox Communications, Inc., through one or
more of its licensed subsidiaries or affiliates (each subsidiary
hereafter "Cox") agrees to provide you with access to the service (“Service”) that is used to manage and control the operation of the home automation devices (“Equipment”)
in your residential unit. The Service is available to you so long as
Cox maintains a commercial relationship with the owner of your building
(“Lessor”) for the Service. In this Agreement, "you" and "your" mean
the resident of the property unit in which the Equipment is installed ("User") who accepts this Agreement.
a. Acceptance of Agreement: BY ACCEPTING THIS AGREEMENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER, OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCEPT THIS AGREEMENT.
b. Changes to the Agreement or Service: Cox reserves the right to modify any of the terms and conditions of this Agreement and any aspect of the Service in accordance with its agreement with the Lessor. Such changes may include, for example, changes to: (i) the features and content of the Service, configuration and capacity of the Service, (ii) the Equipment, (iii) the subcontractors, vendors, suppliers and/or licensors Cox uses to support the Service, and (iv) procedures for disputes and policies for termination. You agree that our posting of new terms in the application that controls the Service (the “App”) constitutes notice to you of same and you agree to regularly review the terms of this Agreement to check for updates and changes. You bear the risk of failing to do so. The updated version of this Agreement in the App supersedes any prior version of this Agreement. Your continued use of the Service after an update to or change of this Agreement constitutes your acceptance of such updates and changes. You agree that your sole recourse if you do not accept any such update or change to this Agreement is to cease use of the Service.
c. SERVICE PURPOSE, SCOPE, AND LIMITATIONS — THE SERVICES ARE SOLELY INTENDED TO ENABLE AUTOMATION AND CONTROL OF THE LIGHTING, FRONT DOOR LOCKS, THERMOSTATS, AND OTHER EQUIPMENT IN YOUR UNIT. IT IS NOT A SECURITY SYSTEM, AND IT IS NOT MONITORED IN ANY WAY. IN THE EVENT OF AN INTRUSION, FIRE, INJURY, MEDICAL EMERGENCY, OR ANY OTHER EVENT, THE SERVICE WILL NOT ALERT ANY AUTHORITIES OR EMERGENCY PERSONNEL. YOU HEREBY ACKNOWLEDGE THESE LIMITATIONS, AND YOU AGREE NOT TO USE, OR ATTEMPT TO USE, THE SERVICE FOR ANY SECURITY, PROPERTY PROTECTION, OR LIFE SAFETY PURPOSE, INCLUDING BUT NOT LIMITED TO THE PROTECTION OF INDIVIDUALS OR REAL OR PERSONAL PROPERTY FROM INJURY, THEFT, HARM, OR DAMAGE.
d. INTERNET/BROADBAND CONNECTION —You must have an Internet broadband connection at your premises for use with the Service. Depending on the commercial relationship Cox maintains with the Lessor, the Internet connection will either be provided by the Lessor or by you. The Service uses Internet bandwidth, the amount of which may vary based upon the equipment used and your use of the Service, and such use may count against any applicable data use allowances established by Cox or your third party Internet service provider. All Cox Internet connections are subject to the Cox Internet Subscriber Agreement and the Cox Acceptable Use Policy which may be found at www.cox.com. YOU UNDERSTAND THE SERVICE OPERATES THROUGH A BROADBAND CONNECTION. IF THE INTERNET CONNECTION IS DOWN OR NOT FUNCTIONING PROPERLY, INCLUDING DUE TO EQUIPMENT FAILURE, THE SERVICE WILL NOT FUNCTION. YOU UNDERSTAND THAT THE SERVICE WILL NOT COMMUNICATE INFORMATION WHEN THE INTERNET CONNECTION IS NOT OPERATING OR IS OTHERWISE UNAVAILABLE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, NON-PAYMENT OF INTERNET SERVICE, SUSPENSION OF INTERNET SERVICE, NETWORK OUTAGES, CABLE CUTS, NETWORK MAINTENANCE, NETWORK CONGESTION, EQUIPMENT FAILURES, OR FORCE MAJEURE EVENTS. YOU ARE RESPONSIBLE FOR TESTING THE SERVICE AT LEAST MONTHLY IN ADDITION TO FOLLOWING ANY POWER OUTAGE, STORM, BROADBAND FAILURE OR ANY OTHER EVENT POTENTIALLY AFFECTING SIGNAL TRANSMISSION TO CONFIRM SERVICE FUNCTION. YOU AGREE TO NOTIFY COX OR YOUR THIRD PARTY INTERNET SERVICE PROVIDER OF ANY SERVICE FAILURE OR MALFUNCTION IMMEDIATELY AND ARE RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES ARISING FROM YOUR FAILURE TO DO SO. Neither Cox nor its subcontractors, vendors, suppliers or licensors is responsible for any temporary or total loss of communication from the Service due to (i) your or the Lessor’s reconfiguring or changing the location of the Equipment; (ii) Your or the Lessor’s relocating or tampering with Equipment; or (iii) modifications made to the Internet connection or configuration. Termination of your Internet service for any reason, whether provided by Cox or a third party Internet Service Provider, including non-payment of service charges, abuse, violation of the Cox Acceptable Use Policy, or any other reason, will not relieve you of any obligations pursuant to this Agreement.
2. LICENSE —
Subject to the terms of this Agreement, Cox grants you a limited, revocable, non-exclusive and nontransferable license to:
a. Download, install and use the App for your personal, non-commercial use on mobile devices owned or otherwise controlled by you strictly in accordance with the application’s documentation; and
b. Use the App on such mobile device to use the Service strictly in accordance with this Agreement and the.
c. Cox has the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
3. License Use Restrictions —
You shall not:
a. Make any effort to disconnect the any of the Equipment from the Internet service. Nor shall you use the dedicated Internet connection for anything other than Service.
b. Disrupt the Service or its servers or networks in any way;
c. Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Service;
d. Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any part the source code;
e. Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Service, including any copy thereof;
f. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Service or any features or functionality of the Service, to any third party for any reason, including by making the Service available on a network where it is capable of being accessed by more than one device at any time; or
Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Service;
g. Use the Service to commit a criminal offense or to encourage others to engage in any conduct which would constitute a criminal offense, or;
h. Use the Service to invade the privacy of a person.
Cox reserves the right to suspend your access to the Service, with or without notice, if Cox has reason to believe that the account is being used for any of the prohibited purposes enumerated above or otherwise in violation of Applicable Law, as defined below.
4. Your Passwords and Account Security —
You are responsible for maintaining the security and confidentiality of passwords associated with your access to the Service. Accordingly, you agree that you will be solely responsible to Cox for all activities that occur under your account. If you become aware of an unauthorized access to, loss or unauthorized use of your password or of your account, you agree to notify Cox immediately by contacting our service provider at 1 (800) 869-4755.
5. Reservation of Rights —
You acknowledge and agree that the Service is provided under a license, and not sold, to you. You do not acquire any ownership interest in the Service under this Agreement, or any other rights to the Service other than to use it in accordance with the terms, conditions and restrictions under this Agreement. As between you and Cox, Cox reserves and shall retain its entire right, title and interest in and to the Service, including all copyrights, trademarks and other intellectual property rights relating to the Service.
6. Collection and Use of Your Information —
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and that you are responsible for any use of the Service that occurs through your account credentials. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
7. Geographic Restrictions —
The Licensed Application may contain links to third party websites (including certain social media websites) and applications or other separate COX applications. You understand that the links to third party websites are provided to you as a convenience and are not under the control or ownership of COX. The inclusion of any link to a third party site or application is not (i) an endorsement by COX of the site or application, (ii) an acknowledgement of any affiliation with its operators or owners, or (iii) a warranty of any type regarding any information or offer on the site or application. Your use of any such third party site or application is governed by the various legal agreements and policies posted at that site or in the application.
8. Updates —
Cox and/or its vendors, suppliers and licensors may from time to time in their sole discretion develop and provide updates to the Service, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that neither Cox nor its vendors, suppliers or licensors has any obligation to provide any Updates or to continue to provide or enable any particular features or functionality except as otherwise provided in Cox’s agreement with the Lessor. Based on your device settings, when your device is connected to the internet either: (a) the application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Service or portions of the Service may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of this Agreement.
9. Third Party Materials —
The Service may display, include or make available third-party content (including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Cox is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other similar aspect. The Company does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links to such materials are provided solely as a convenience to you, and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
10. Term and Termination —
a. The term of this Agreement commences when you accept the terms hereof and will continue in effect so long as you use the Service, until terminated by Cox as set forth in this Section 11 , or until the Lessor no longer offers the Service to residents.
b. Cox may terminate this Agreement at any time without notice if it ceases to support the Service, which Cox may do in accordance with its agreement with the Lessor. In addition, Cox may terminate this Agreement immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
c. Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Service.
d. Termination will not limit any of Cox’s rights or remedies at law or in equity.
e. Survival: Sections 5, 6, 9 – 15 and 17 - 20 survive termination and expiration of this Agreement.
11. Disclaimer of Warranties —
THE SERVICE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COX, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE SUBCONTRACTORS, VENDORS, SUPPLIERS AND LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, NEITHER COX NOR ITS SUBCONTRACTORS, VENDORS, SUPPLIERS OR LICENSORS PROVIDES ANY WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Insurance Coverage, Waiver of Subrogation —
Cox is not an insurer and is not providing insurance to you under this Agreement. You agree to purchase, at your expense, adequate insurance coverage from a qualified insurance company to cover loss of life, personal injury, damage to property, or any other liability you may incur in connection with your premises and/or personal property. You agree to look solely to your insurance company for compensation or coverage for any losses, injury to anyone, or damage that you may incur or suffer, or liability to any third party, in connection with your premises and/or personal property. You waive all subrogation and other rights of recovery against Cox that any insurer or other person may have as a result of paying or incurring any claim for loss or injury of any kind.
13. Limitation of Liability —
YOU AGREE THAT COX, ITS SUBCONTRACTORS, SUPPLIERS, VENDORS AND LICENSORS AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND PARENT COMPANIES ARE NOT LIABLE TO YOU FOR ANY LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM THE SERVICE EVEN IF CAUSED BY OUR NEGLIGENCE. IF A COURT DETERMINES THAT COX IS LIABLE FOR ANY LOSS, INJURY OR DAMAGE, THEN YOU AGREE THAT COMPENSATION FOR SUCH LOSS, INJURY OR DAMAGE SHALL BE LIMITED TO $1500.00. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COX OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SUBCONTRACTORS, SUPPLIERS, VENDORS OR LICENSORS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE SERVICE INCLUDING, WITHOUT LIMITATION, FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY. THEREFORE, SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
14. Intellectual Property Rights —
This Agreement permits you to use the Service and the App for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the App. No right, title or interest in or to the Service, the App or any content thereon is transferred to you, and all rights not expressly granted are reserved by Cox and/or its licensors or other providers. Any use of the Service or the App not expressly permitted by this Agreement is a breach of the Agreement and may violate copyright, trademark and other laws.
As between you and Cox, the Service, the App and each of their contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Cox, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws (“Intellectual Property Rights”).
The Cox name, the Cox logo, and all related names, logos, product and service names, designs and slogans contained in the App are trademarks of Cox or its licensors or other providers. You must not use such marks without the prior written permission of Cox.
15. Indemnification —
You agree to indemnify, defend and hold harmless Cox and its officers, directors, employees, agents, affiliates, subcontractors, service providers, and licensors and their respective agents, employees, subsidiaries, affiliates and parent companies (“Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Service or your breach of this Agreement. Furthermore, except with respect to the Privacy Notice commitments, you agree that Cox assumes no responsibility for the content you submit or make available through the Service.
16. Export Regulation —
The Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Service to, or make either accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
17. Severability —
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
18. Dispute Resolution; Mandatory Binding Arbitration; Class Action Waiver and Mass Action Waiver —
IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 19(B) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (“DISPUTE RESOLUTION PROVISION”) (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THIS AGREEMENT (THE "OPT-OUT PERIOD"). OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH COX THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
a. YOU AND COX AGREE TO ARBITRATE — RATHER THAN LITIGATE IN COURT — any and all claims, disputes, or controversies between you and Cox, including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of Cox, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory except as expressly provided in Sections 19(g) and 19(h) below ("Dispute") that arise out of or in any way relate to this Agreement, the Service provided under this Agreement or any other service that Cox provides to you in connection with this Agreement (including but not limited to any alleged breach related to the collection, retention or disclosure of your personal information, and any alleged violation of our Privacy Notice. You and Cox also agree to arbitrate any and all Disputes that arise out of or relate in any way to any services or products provided to you by Cox or any of its affiliated entities under any other agreement, except as specified in Sections 19(g) and 19(h) below.
b. Opt Out: You may opt out of this Dispute Resolution Provision (except for the jury trial waiver contained in Section 19(k) below) by notifying Cox of that intent during the Opt-Out Period by sending an email to Cox at ArbitrationOptOut@cox.com or a letter via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328 stating that you are opting out of this Dispute Resolution Provision. Exercising this right, should you choose to do so, will not affect any of the other terms of this Agreement with Cox, and you may remain a Service user. If you opt out of the Dispute Resolution Provision, that opt out will remain in effect if Cox modifies this section in the future or you agree to a new term of service under this Agreement. If you enter into a new agreement with Cox that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out.
c. Class Action Waiver: All Disputes between us must be resolved on an individual basis. Except as specified below, you and Cox agree that all Disputes between you and Cox will be arbitrated individually, and that you will not file or participate in a “Class Action” (as defined in federal, state, or arbitration procedural rules), any other form of class, collective, representative, or consolidated actions (collectively “Mass Action,” which term includes, but is not limited to, any action in which twenty-five or more similar demands for arbitration are filed against Cox or any of its affiliated entities and representation for the parties is consistent or coordinated across all cases. The twenty-five or more demands for arbitration need not be filed simultaneously. A Mass Action expressly includes any mass action as defined under National Arbitration and Mediation (“NAM”) Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures). We both agree that it is a material breach of this Dispute Resolution Provision to file or participate in a Class Action or Mass Action, and Cox may enforce this prohibition as set forth in Section 18i) below. If you or Cox brings a claim in small claims court, the Class Action and Mass Action waiver will apply. Nothing in this subsection bars any claims by you for public injunctive relief, which must be decided in court under Section 18(i) below. We both agree that this Class Action and Mass Action waiver is an essential part of our arbitration agreement and that if this Class Action and Mass Action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 18 will not apply to any Dispute between you and Cox, except for the provisions of Section 18(k) waiving the right to jury trial. This Class Action and Mass Action waiver may not be severed from our arbitration agreement.
d. Arbitrator Authority: The arbitration between you and Cox will be binding. In arbitration, there is no judge and no jury. Instead, our disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. You and Cox agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. Except as provided in Section 18(i) below, the arbitrator may resolve all disputes concerning whether this Dispute Resolution Provision is enforceable, unconscionable, applicable, valid, void, or voidable. An arbitrator may award attorneys' fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with Cox. Review of arbitration decisions in the courts is very limited. Any arbitrator award – whether or not confirmed – is neither res judicata nor collateral estoppel as to any Dispute or issue between the parties not subject to or not submitted to arbitration (including, but not limited to, any claim for public injunctive relief) or as to any Dispute or claim between Cox and any non-parties to the arbitration. Because of, among other things, the nature of any Dispute submitted to arbitration, the informality of the procedures to adjudicate any such Dispute, and the limited review of arbitration decisions by the court, the award is conclusive only as to the Dispute resolved in arbitration and only as to the parties to that arbitration.
e. Informal Dispute Resolution: You and Cox agree that you will try to resolve disputes informally before you may file a demand for arbitration, as set forth in this section (the “Informal Dispute Resolution Process”). If you have a dispute, first call Cox Customer Care at the number published in www.Cox.com. If the Cox representative is unable to resolve your dispute in a timely manner, you agree to then notify Cox of the dispute by sending a written description of your claim to Cox Customer Care, ATTN: Corporate Escalation Team, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328, along with your address, so that Cox can attempt to resolve it with you. If Cox does not satisfactorily resolve your claim within 45 calendar days of receiving written notice to Cox Customer Care of your claim, then you may pursue the claim in arbitration, and if you do so, you must first notify us in writing of your intent to file for arbitration by sending a written notice of your intent to file for arbitration to Cox via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. Cox will notify you before it files for arbitration by sending you a written notice of our intent to file for arbitration the last known address of record we have on file for you at least 45 calendar days prior to initiating arbitration or a small claims action. At any time during the Informal Dispute Resolution process, either you or Cox may elect to have the Dispute resolved in small claims court in accordance with Section 19(g) below. This Informal Dispute Resolution is mandatory, and we both agree that it is an essential part of our arbitration agreement. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration or small claims action without first engaging in the Informal Dispute Resolution Process.
f. Arbitration Procedures: You and Cox agree that this Agreement and the services Cox provides to you affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitrations shall be conducted by NAM under its Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures) as modified by this Dispute Resolution Provision. NAM’s rules are available on its website www.namadr.com or by calling 1-800-358-2550. You must file your own demand, which sets forth your own claim, and may not join in a claim filed by another person. If the arbitrator determines that claim is for $25,000 or less, you agree that it may be resolved based only on written submissions. For claims above $25,000, the arbitration will be held at a location in the county of your billing address then appearing in our records unless you and we both agree to (or the arbitrator orders) another location, a remote video hearing, or a telephonic or “desk” arbitration (i.e. an arbitration conducting solely on the basis of written submissions by the participants.) If there is a conflict between NAM’s rules and this Dispute Resolution Provision, this Dispute Resolution Provision shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to Cox at ArbitrationOptOut@cox.com or via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. You must also comply with the NAM’s rules regarding initiation of arbitration. Cox will pay all filing fees and costs for commencement of arbitration, except the portion of such fees allocated to you under NAM’s fee schedule then in effect. We agree that fees imposed by NAM will be due at the time set forth under NAM’s rules, except that in no event shall the fees payable by the party responding to the demand for arbitration be due and payable earlier than 30 days from the date on which that party receives an invoice. You will be responsible for your own attorneys' fees and costs unless otherwise determined by the arbitrator. Cox will not seek to recover its fees and costs from you in the arbitration unless your claim has been determined to be frivolous or to have been brought for an improper purpose. . If you are successful in the arbitration, Cox will pay your reasonable attorney's fees and costs. If you obtain an award from the arbitrator greater than Cox's last written settlement offer, Cox will pay you $5,000 in addition to what you have been awarded in the arbitration. Any award, decision, finding, or conclusion entered or adopted by an arbitrator shall only apply to the individual arbitration and shall not have any res judicata, collateral estoppel or other preclusive effect and such award, decision, finding, or conclusion shall not be referred to, offered, or admitted in any subsequent proceeding.
g. Small Claims: Notwithstanding this agreement to arbitrate, you and Cox may bring appropriate Disputes against each other in small claims court, if the Dispute falls within the small claims court’s jurisdiction. A small claims court includes any court designated as small claims or any court of limited jurisdiction in which claims are only resolved on an individual basis. During the 45-day period following your submission of written notice of a Dispute to Cox, in which time you and Cox attempt to informally resolve the Dispute, or within 30 days after you or Cox have initiated an arbitration, either you or Cox may elect to have the Dispute resolved in small claims court by sending written notice to the other party of this election. In the event there is any disagreement between you and Cox concerning whether the Dispute is within the jurisdiction of the small claims court, only the small claims court may resolve that disagreement. If the small claims court determines that it lacks jurisdiction to hear the Dispute, then the Dispute may be submitted to arbitration in accordance with the terms of this Section 19. If the small claims court determines that it has jurisdiction over part of the Dispute, then that part shall first be resolved in small claims court, and any remaining issues in the Dispute shall be resolved in accordance with the terms of this Section 19. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration when the other party has elected to have the Dispute resolved in small claims court, absent a determination by the small claims court that it does not have jurisdiction over the Dispute.
h. Claims Before Regulatory Entities. Notwithstanding the foregoing, you and Cox may bring appropriate Disputes against each other before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the Dispute
Exceptions to Arbitration:
(i). This Dispute Resolution Provision does not require arbitration of claims for public injunctive relief. To the extent that you have a Dispute that is subject to arbitration and you also assert a claim for public injunctive relief that is required to be brought in court, the arbitrator shall first decide the merits of the Dispute. A court may then decide your claim for public injunctive relief de novo (without giving any law of the case, res judicata or collateral estoppel effect to the award or arbitration decision on the Dispute).
(ii) This Dispute Resolution Provision shall not require arbitration of any claim concerning whether you have filed or participated in a prohibited Class Action or Mass Action, which shall be determined by a court of competent jurisdiction, except that either Party may promptly elect to have such a claim resolved under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Election”). In the event any party alleged to be a participant in a prohibited Class Action or Mass Action makes the NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court.
(iii) This Dispute Resolution Provision shall not require arbitration of any claim that you or Cox have breached this Dispute Resolution Provision, including but not limited to claims of material breach of Sections 19(c) [Class Action and Mass Action Waiver], 19(e) [Informal Dispute Resolution], or 19(g) [Small Claims], except that either party may promptly make a NAM Election for that claim. In the event any party alleged to have breached this Dispute Resolution Provision makes a NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court. We agree that any of the remedies set forth in Section 19(i) [Remedies for Breach of Dispute Resolution Provision] may be imposed.
(iv) Should Cox notify NAM and you in writing that it contends an arbitration(s) you filed breaches the Dispute Resolution Process, that you have participated or will be participating in a prohibited Class Action or Mass Action, or that you have otherwise materially breached Sections 19(c), 19(e), or 19(g), then NAM will stay the arbitration(s). In such event, either you may bring an action against Cox to compel it to arbitrate such Dispute(s) or Cox may bring an action for declaratory relief that it is not required to arbitrate such Dispute(s). Such actions must be brought in a court of competent jurisdiction located in the same judicial district as the address listed in the Informal Dispute Resolution Notice, the small claims court that Cox contends should resolve the Dispute(s), or with NAM pursuant to a NAM Election.
j. Remedies for Breach of Dispute Resolution Provision: As set forth above in Sections 18(c), 18(e), and 18(g), we agree that certain actions constitute a material breach of this Dispute Resolution Agreement. We agree that one of the essential purposes of this Dispute Resolution Provision is to provide for the prompt, efficient, and inexpensive resolution of disputes, and Sections 19(c), 19(e), and 19(g) further this purpose by ensuring disputes are resolved on an individual basis and by providing for alternative low-cost paths to resolving individual disputes. In the event a court or arbitrator determines that a breach of the Dispute Resolution Provision has occurred, or in the event an arbitrator acting under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures determines that you have participated in a prohibited Class Action or Mass Action, then we agree on the following remedies, in addition to any other remedy ordered by the court or arbitrator:
(i) The court or arbitrator may enter an order permitting the dispute to be heard in court, rather than arbitration. Whether the Dispute proceeds to resolution in court or in arbitration, you agree that the Dispute will be resolved on an individual basis as set forth in Section 18(c).
(ii) The court or arbitrator may enter an order that the breaching party bear the non-breaching party’s costs, including but not limited to fees incurred in court or in arbitration.
(iii) The court or arbitrator may enter an order to dismiss without prejudice all demands included within the Mass Action.
k. Non-Severability: It is the intention of the parties that the
provisions of this Dispute Resolution Provision are mutually dependent
and not severable. If any part of this Dispute Resolution Provision is
determined to be unenforceable for any reason, then the entire Dispute
Resolution Provision, except for the Jury Trial Waiver set forth in
Section 19(k), shall be unenforceable.
l. Jury Trial Waiver: If for any reason this arbitration agreement is found to be unenforceable under Section 19(j) [Non-Severability], or if you opt out of this Dispute Resolution Provision, you and Cox expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and Cox if, for any reason, the arbitration agreement is not enforced.
m. Survival: This dispute resolution provision survives the termination of your Service with Cox. If you bring a claim against Cox after termination of your Service that is based in whole or in part on events or omissions that occurred while you were a user of the Service, this Dispute Resolution Provision shall apply.
19. Entire Agreement —
This Agreement and the Privacy Notice constitute the entire agreement between you and Cox with respect to the Service and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to such.
20. Waiver —
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power under this Agreement shall operate as a waiver of any such right or power, nor shall any single or partial exercise of any right or power under this Agreement preclude further exercise of that or any other right under this Agreement. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
21. Consent to Contact You —
You agree to provide Cox with current information in your Account registration, and to keep such information up-to-date at all times during the term of your subscription. You acknowledge and agree that Cox may use all contact information provided, including any telephone number and any email addresses, to contact you for any reason related to your use of the Service, including but not limited to service issues, and equipment repair and replacement.
In order to contact you more efficiently, Cox and our affiliates may at times contact you using auto dialer technology, prerecorded or artificial voice message calls, or text messages at the telephone number(s) you have provided us. By providing a mobile phone number, you confirm that you are the current owner/subscriber of the mobile phone number provided or that the current owner/subscriber of this mobile phone number authorized you to provide this number (collectively, “Current Owner”) to Cox. You understand that by providing this mobile phone number, the Current Owner consents to being contacted by Cox and our affiliates at the mobile number provided. You agree to notify us immediately if there is any change in the information that you have provided to us, including without limitation any change in your telephone number or mobile telephone number. Failure to do so is a breach of this Agreement. You agree that we and our vendors, supplier or agents may place such calls, pre-recorded messages or texts to communicate with you about your account and the Service, including (but not limited to): (i) providing notices related thereto, (ii) providing products/service information and education; (iii) resolving technical issues, (iv) informing of installation or other service appointments, and/or (v) investigating or preventing fraud ("Informational Communications"). Also, we may share your phone number(s) with such vendors, suppliers or agents whom we hire to assist us in carrying out these Informational Communications, but will not share your phone number(s) with any third parties for their own purposes without your consent. Applicable standard telephone minute, data and/or text charges may apply. Consent to Informational Communications is not required in order to obtain or use Cox's products and services or for any purchase, and you can manage your communications preferences at www.cox.com/myaccount. You agree that you shall indemnify, defend and hold us harmless from any claim or liability resulting from your failure to notify us of a change in the information you have provided, including any claim or liability under the Telephone Consumer Protection Act (47 U.S.C. Sec. 227), and any regulations promulgated thereunder resulting from us attempting to contact you at the mobile telephone number you provided. Your consent to receive communications as outlined herein survives termination of your services.