Cox Homelife Home Automation System & Service Agreement
Effective Date: May 30, 2017(v.1)
WE ADVISE YOU TO READ THIS AGREEMENT CAREFULLY. ALL OF THESE TERMS AFFECT YOUR LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING COX'S LIABILITY AND REQUIRING MANDATORY ARBITRATION OF DISPUTES. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION BY FOLLOWING THE PROCEDURE DESCRIBED IN SECTION 23.
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Cox Homelife Service provided by Cox Advanced Services: Arizona, LLC - ALARM License No. 18141-0, ROC License No. 310876; Arkansas, LLC – License No. E 2014 0026/CMPY.0002278; California, LLC–Alarm License #7196 & Contractor’s License #992992; Connecticut, LLC–License #N/A; Florida, LLC–License No. EF20001232; Georgia, LLC–License: Bryan David Melancon #LVU406595; Idaho, LLC 024933; Iowa, LLC– License #C121646 & AC268; Louisiana, LLC–License F 2006; Nebraska, LLC–License #26512; Nevada, LLC dba Cox Homelife – License #78331; Ohio, LLC–License #53-18-1671; Oklahoma, LLC–License #2002; Rhode Island, LLC–License #9314; Kansas, LLC – Topeka License No. 109 & Wichita License No. 2015-36492; and Cox Advanced Services Virginia, LLC–DCJS License #11-7776; DPOR License # 2705164725.
1. Introduction —
This Home Automation System and Service Agreement ("Agreement") sets forth the terms and conditions under which Cox Communications, Inc., through one or more of its licensed subsidiaries or affiliates authorized to provide the Services as defined herein (each subsidiary hereafter "Cox") agrees to provide Services to you, and under which you, the Customer, agree to accept the Service. In this Agreement, "you" and "your" mean the "Customer" who subscribes to and receives the Services. "Cox," "we," "our," and "us" means the Cox entity that is providing you with Service. (Cox Homelife Automation is referred to in this Agreement as the "Service" or "Services"). The Services defined in this Agreement do not include any other services provided by Cox or its affiliates (for example, Cox High Speed Internet, Cox Homelife Home Security Services, Cox Video or services provided by Cox to commercial customers, which may be governed by one or more separate agreements.) Subject to the survival provisions of this Agreement, this Agreement shall remain in effect at all times you are subscribed to and/or receive the Service, to include following any changes you or Cox make to the Service you receive or to the Cox Equipment, Customer Equipment or other equipment (as defined below) you use.
a. Our Agreement: You will be bound by the terms and conditions in this Agreement. The Services are also subject to the Annual Privacy Notice ("Customer Privacy Notice") and the Cox Internet Acceptable Use Policy ("AUP"). You will receive the Customer Privacy Notice and the Annual Customer Notice each year from Cox. These Notices and the AUP are posted on the Cox Website at www.cox.com or at another URL Cox may designate from time to time ("Cox Website"). Your use of the Services is also subject to any license agreements relating to any software used in connection with the Services. This Agreement incorporates by reference the terms and conditions of all other service agreements, tariffs and other documents applicable to the Cox Services including without limitation: (i) the Customer Privacy Notice, (ii) the Annual Customer Notice, and (iii) if you subscribe to Cox Internet, the Acceptable Use Policy. Each Service is provided subject to federal, state and local laws, statutes, regulations, and ordinances applicable to such Service ("Applicable Law").
b. Entire Agreement: This Agreement and all of the documents specifically incorporated herein constitute the entire Agreement between you and Cox for the Services. No prior agreement and no written or oral statement, advertisement, or Service description will contradict, explain or supplement it.
c. Acceptance of Agreement: Your Agreement with Cox starts when you accept and continues until your subscription to the Services is terminated, except as otherwise stated herein. Certain provisions of this Agreement will survive termination. You accept this Agreement when you first do any of the following ("Acceptance") upon or after the Effective Date of this Agreement: (i) sign this Agreement by written or electronic signature, (ii) inform us electronically or orally of your acceptance of this Agreement, to include acceptance of these terms via mobile or web application; (iii) activate any Service provided under this Agreement through a method provided by Cox, or (iv) use or pay for, in whole or in part, your Service.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS AND CONDITIONS AND THE RATES AND CHARGES AS LISTED ON THE COX WEBSITE, IN YOUR WELCOME KIT, AND/OR ON YOUR TRANSACTION SUMMARY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT USE THE SERVICES AND IMMEDIATELY TERMINATE YOUR SUBSCRIPTION TO THE SERVICES AND THIS AGREEMENT BY CALLING COX AT THE CUSTOMER SERVICE NUMBER ON YOUR BILL OR ON COX.COM AND RETURN ALL COX EQUIPMENT, SOFTWARE, AND ASSOCIATED MATERIALS TO COX.
d. Changes to the Agreement or Service: Cox reserves the right to modify any of the terms and conditions of this Agreement including any aspect of the Services in its sole discretion at any time with or without notice. Such changes may include for example, changes to rates, the rate plan structure, or payment policies for the Services, changes to the features and content of the Services, configuration and capacity of Services, changes in the features, functionality and technical requirements for Cox Equipment and Customer Equipment, use of vendors to provide Services, limitations of liability, procedures for disputes and policies for termination. In order to receive the Services, you may not modify this Agreement in any way, to include by making any typed, handwritten, electronic, or any other changes to it for any purpose.
e. Notice of Material Changes: Cox will provide you with written notice of any changes that we determine are material to your Services or this Agreement consistent with Applicable Law. You agree that we may provide you with such written notice (i) by sending it via U.S. Mail or commercial overnight mail to your last known billing address in Cox's account records, (ii) by including the notice on or with your Cox bill, (iii) by sending notice to your email address on Cox's account records, (iv) by hand delivery, or (v) by other lawful means, and you agree that any of the foregoing will constitute sufficient notice and you waive any claims that these forms of notice are insufficient or ineffective. All such changes will become effective as of the date specified on the written notice and will be posted on the Cox Website and you agree to regularly check your postal mail, e-mail and all postings on the Website or an another website about which you have been notified or you bear the risk of failing to do so. The updated version of this Agreement on the Cox Website will supersede any prior version of this Agreement. You agree that your sole recourse if you do not accept any such material change to your Services or this Agreement is to terminate this Agreement within thirty (30) days of our notice to you. If you receive services under a Price Lock Guarantee or other Minimum Term Agreement that requires you to pay an early termination fee and you terminate Services subject to that Minimum Term Agreement as provided in this Agreement upon express written notice from us of a material change in this agreement, you will not be charged an early termination fee under that Minimum Term agreement. Your continued use of the Services after such thirty (30) day period will constitute your Acceptance of this Agreement as modified.
f. Copy of Agreement or Rates: A copy of this Agreement and the rates for the Services may be obtained by visiting the Cox Website or the Cox office listed on your monthly Cox bill.
g. Your Subscription: You represent to Cox that you are at least 18 years old or the age of majority in your state. Your Acceptance of this Agreement entitles you to use the Services. Your use of the Services is personal to you. If you permit other persons to use the Services, you agree that you are solely responsible and liable for any and all breaches of this Agreement, whether such breach results from your use or use by another person using the Services provided to you, the System, Cox Equipment, or Licensed Software. You are responsible for contacting the Cox customer service number listed on your monthly Cox bill immediately upon the occurrence of any change in the status of your account, such as, without limitation, a change in individuals authorized to use your account ("Authorized Users"), any changes to your contact information such as name, email address, wireline or wireless phone number, or if you move or any of your Services become subject to a bulk agreement. You agree to keep your contact information, including email address or contact telephone number, up to date and current.
h. Consent to Contact You: In order to contact you more efficiently, Cox and our affiliates may at times contact you using autodialer technology, prerecorded or artificial voice message calls, or text messages at the telephone number(s) you have provided us. You agree that we and our service providers or agents may place such calls or texts to communicate with you about your account, service(s) and equipment, and service agreements, including (but not limited to): (i) providing notices related thereto, (ii) resolving technical or billing issues, (iii) informing of installation or other service appointments, (iv) data usage, (v) investigating or preventing fraud, and/or (vi) collecting a debt or outstanding balance ("Informational Communications"). Also, we may share your phone number(s) with such service providers or agents whom we hire to assist us in carrying out these Informational Communications, but will not share your phone number(s) with any third parties for their own purposes without your consent. Applicable standard telephone minute, data and/or text charges may apply. We and our service providers or agents, however, will not use autodialer technology, or texts to contact you for marketing purposes at the wireless telephone number(s) you designate nor send you prerecorded or artificial voice message marketing calls at the wireless or landline telephone number(s) you designate unless we receive your prior express written consent as required under federal law. Prior express written consent is not required in order to obtain or use Cox's products and services or to receive Informational Communications from Cox. If Cox is required by law to obtain your prior express consent — either verbal or written — to receive autodialed calls, prerecorded or artificial voice message calls, or text messages and you have provided Cox such consent, you may revoke this consent at any time by contacting Cox and informing us of your desire to stop receiving such calls or text messages for Informational Communications purposes and/or for marketing purposes.
2. SYSTEM PURPOSE, SCOPE, AND LIMITATIONS —
THE SYSTEM PROVIDES HOME AUTOMATION SERVICES AND EQUIPMENT FOR RESIDENTIAL USE ONLY. THE SYSTEM AND RELATED SERVICES ARE SOLELY INTENDED FOR HOME AUTOMATION AND CONTROL, SUCH AS ENERGY MANAGEMENT, LIGHTING, THERMOSTATS, AND RELATED FUNCTIONALITY. IT IS NOT A SECURITY SYSTEM, AND IT IS NOT MONITORED IN ANY WAY. IN THE EVENT OF AN INTRUSION, FIRE, FLOOD, INJURY, MEDICAL EMERGENCY, OR ANY OTHER EVENT, THE SYSTEM WILL NOT ALERT ANY AUTHORITIES OR EMERGENCY PERSONNEL. YOU HEREBY ACKNOWLEDGE THESE LIMITATIONS, AND YOU AGREE NOT TO USE, OR ATTEMPT TO USE, THE SYSTEM 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.
3. FINANCIAL DISCLOSURES —
YOUR TOTAL MONTHLY SERVICE FEE SHALL INCLUDE THE SUM OF THE BASE MONTHLY CHARGES AND ANY ADDITIONAL MONTHLY FEES FOR THE SERVICES SELECTED. THERE IS NO FINANCING CHARGE OR COST OF CREDIT (O% APR) ASSOCIATED WITH THIS AGREEMENT. Pricing for service, equipment and installation is subject to the results of a credit check, credit information you furnish and/or Cox internal credit information. See Sections 7, 15, and 16 for information regarding nonpayment, default, late fees and our collection and termination remedies.
4. SCOPE OF AGREEMENT —
This Agreement applies to the installation of a residential home automation system in your home as described in this Agreement, including all Cox Homelife Equipment sold or otherwise provided to you and incorporated herein by reference, and any additional equipment which may be added in the future (collectively, the "System"), and for other services ("Services"). You warrant that you are the owner or lessee of the premises where the System is being installed and/or that you have the authority to authorize us to perform the installation and the legal right to improve the premises. You will comply with all laws, codes and regulations pertaining to the operation of the System. Cox waives any right to file a mechanics lien. All Services related to the System shall be subject to the terms and conditions of this Agreement.
You understand that the System is designed to provide home automation Services as set forth in this Agreement and related materials. You agree not to use the System (i) for any illegal purpose; (ii) to invade the privacy of a person; (iii) for commercial distribution of content; or (iv) for any other purpose in violation of this Agreement or the Cox Acceptable Use Policy.
5. SYSTEM OWNERSHIP/SOFTWARE LICENSE —
Upon payment for the System, all components of the System not otherwise identified as Cox Equipment shall become your personal property, except that any software resident on the System and/or any of its included components shall remain the sole property of the software owner, and this Agreement does not transfer ownership to any such software. Cox grants you solely a license right to use the software in connection with the System during the term of this Agreement and any renewals hereof. You shall not (i) decompile or reverse engineer any products or software of vendors or take any other action to discover the source code or underlying ideas or algorithm of any components thereof, (ii) copy any products or software of vendors (iii) post, publish or create derivative works based on any products or software of vendors, or (iv) remove any copyright notice, trade or service marks, brand names and the like from any products or software of vendors.
6. PAYMENTS/DEPOSITS —
All payments for any equipment, installation, repair or replacement parts, and service charges shall be paid on or before the due date on the Cox invoice. Failure to pay charges when due may result in interest and/or late charges at the highest rate permitted by law. You also agree to pay for all taxes (including without limitation sales and use taxes), fees, licenses, permits, assessments, and governmental charges in connection with the System and the Services. We may require a deposit from you based on the results of a credit check, credit information you furnish, or our internal information. The deposit will remain on your account for up to twelve (12) months and may be refunded to you or applied as a credit to your bill in accordance with applicable law. Upon termination, the deposit will be posted to your account and applied to any unpaid balance for any Service charges, or System payments, if applicable. If there is no balance, you will be refunded the amount of the deposit. Except as required by law, no interest will be paid on deposits.
7. SERVICE CHARGES —
Following the expiration of the limited warranty period provided herein, you agree to pay service call charges if Cox responds to a service call at your premises because you improperly followed System operating instructions, or the System fails to operate properly due to your fault. Equipment and installation charges shall be paid at the time of sale.
8. FAILURE TO PAY CHARGES —
If you fail to make payments for any charges when due or breach other terms or conditions of this Agreement, Cox may stop providing the Services with or without notice. Cox does not waive any legal rights or remedies.
9. SYSTEM INSTALLATION —
Except where a self-installation option is available, Cox will install the System as ordered and purchased by you at your premises in a workmanlike manner at mutually agreed-upon times during Cox's normal working hours. While Cox may make recommendations as to the types and locations of the equipment (as defined herein), Cox is not agreeing to configure the System in any specific manner nor to install or design a system that is infallible or fit for any particular purpose. You understand that the installation will involve primarily surface mounted equipment, but may require drilling into various parts of your premises, including door frames, windows, ceilings, and other surfaces of your premises. You will make arrangements to move furniture if required to install the System. Where possible, we will install wireless devices or sensors, but there may be areas where we determine, in our sole discretion, it is impractical to install wireless devices or sensors. In such areas, wiring may be exposed. Because the System has wireless communications devices, Customer agrees not to move the Hub from the location where it is initially installed. Relocating the Hub may interfere with System functionality. Cox shall not be responsible for, nor will Cox repair, any holes made during the installation of equipment, upon the removal of the equipment by you or your landlord (if any), or upon Cox's removal of equipment at your request, due to non-payment, or due to breach or termination of this Agreement. You are responsible for selecting the types and locations of equipment that best meet your needs. If the System replaces any pre-existing system or equipment, Cox will not reinstall any such pre-existing system or equipment following removal of the System.
10. REPAIRS AND REPLACEMENTS —
If you request a service call, we will repair or replace any part of the System that we installed at our then-prevailing prices for labor and materials unless such charges are covered by our Limited Warranty or CCC as defined below. If the repair is covered by our Limited Warranty, or if you purchased the Cox Complete Care ("CCC") for home automation as further defined in Section 22, below, then the repair or replacement labor and material charges may be covered by the Limited Warranty or CCC unless excluded by Sections 21 or 22. Warranty, ESP, and other repairs and Services will be performed during regular Cox business hours, local time, in the area where the System is installed.
11. CUSTOMER PROVIDED EQUIPMENT AND THIRD PARTY SYSTEMS —
Where compatible with your System and approved by Cox, you may install Customer Provided Equipment ("CPE") for use with the System, but Cox is not responsible for operation of such CPE nor is such equipment covered by the Limited Warranty or CCC. Repair or replacement of CPE shall be subject to the availability of parts, and performed at your expense at Cox's then-prevailing rates. Cox may refuse in its sole discretion to repair or replace any CPE. Cox is not responsible for damage CPE may cause to the System. You shall bear the exclusive risk of any consequential damages resulting from the impaired functionality of the System caused by damaged or out of date CPE. You may also purchase certain equipment, where available, from Cox for installation exclusively by Cox or its subcontractors in your residence for use with the System. You shall be solely responsible for the cost of such purchase and installation as well as any resulting damages to your premises caused by the installation, operation, or removal of such equipment.
In the event Cox provides integrated access with third-party systems and related devices, such as smart thermostats, home control modules, and home entertainment and communication systems which are sold separately and are available independent from a Cox Homelife Home Automation System, (collectively, "Third-Party Systems"), your use of those Third-Party Systems, whether purchased separately or sold by Cox, will be subject to the terms of this Agreement and may also be subject to any additional terms and conditions, privacy policies, and/or user guidelines provided and/or required by such Third-Party Systems. You acknowledge and agree that Cox does not operate or control any Third-Party Systems, and any information you share with, or transmit via, such Third-Party Systems may be used in a manner beyond, or in conflict with, Cox privacy policies and/or this Agreement.
12. COX EQUIPMENT —
a. Definition: In connection with the Services, and depending upon additional services which may be offered in your area, you may be provided with one or more devices at the time of installation or in the future and identified as equipment owned by Cox and not provided for your purchase, including all embedded software (together or individually, the "Cox Equipment") for your use in connection with the Services. Cox Equipment shall also include any other devices provided to you by Cox for your use with the System, whether for an additional fee or at no additional charge. The Cox Equipment is provided solely for your use in your residence, and your use is subject to this Agreement. At no time will you gain ownership of the Cox Equipment. Cox Equipment will remain the property of Cox at all times and you will not acquire any ownership or other interest in the Cox Equipment or any software by virtue of any payment made pursuant to this Agreement or by any installation of the Cox Equipment in your residence.
b. Changes and Upgrades to Equipment: Cox may upgrade, replace, remove or otherwise change the System and any Cox Equipment (including embedded software) at any time. You consent to such changes including code updates or downloads with or without notice to you which may alter, add to, or remove features or functionalities of the System or Cox Equipment, to include any temporary interruption of the Services. Cox may, at its option, install new or reconditioned Cox Equipment, including replacing your existing Cox Equipment, for which you may incur a fee. You agree that such changes may be performed within Cox's sole discretion at any time and in any manner.
c. Authorized Use and Prohibition on Tampering: The Cox Equipment will permit you to access and use certain features and applications related to the Services and which will be made available to you either by Cox or a third party subject to a revocable license. You are required to agree to, and comply with, all applicable license terms and conditions associated with the Cox Equipment and any such applications, and any use of such applications shall constitute your acceptance and agreement to such license terms. The Cox Equipment contains software that consists of interactive applications that perform a variety of communications over the Internet as part of their normal operation. Some of these communications features are automatic and are enabled by default. By installing and/or using the Cox Equipment, you consent to such communications features and transmission of information, to include any impact on your data use allocation by your broadband provider. You are liable for all Cox Equipment on your Premises and in your possession. You agree to use the Cox Equipment only for receiving the Services, and you will use the Cox Equipment only in connection with the Services as expressly authorized by Cox. You agree that you will not, and you will not permit others to, rearrange, disconnect, remove, relocate, repair, alter, tamper or otherwise interfere with any of the Cox Equipment including software or firmware. Such prohibition includes attaching any unauthorized devices to Cox Equipment or altering identifying information such as serial numbers or logos. Additional terms regarding the authorized use and misuse of the Cox Equipment and Services are as otherwise set forth in this Agreement.
d. Payment for Damage to, Loss of, or failure to return Cox Equipment: You agree to pay the full retail cost for any Cox Equipment that is lost, stolen, unreturned, damaged, modified, sold, transferred, leased, encumbered or assigned, together with any costs incurred by Cox in obtaining or attempting to obtain possession of any Cox Equipment (the "Cox Equipment Non-Return Fee"). You agree to return the Cox Equipment to Cox in undamaged condition immediately upon termination of this Agreement for any reason. YOU AGREE THAT IF YOU FAIL TO RETURN ANY COX EQUIPMENT AS DEFINED HEREIN, SUCH COX EQUIPMENT MAY INCLUDE A COX EQUIPMENT NON-RETURN FEE, AND YOU HEREBY AGREE TO PAY SUCH FEES AS MAY BE DETAILED FOR SUCH COX EQUIPMENT.
14. INTERNET/BROADBAND CONNECTION —
You must have an Internet broadband connection at your premises for use with the System. At an additional charge, Cox may provide the Internet connection. If you have an existing Cox Internet connection at your premises, Cox will use that connection for the System. The System uses Internet bandwidth, the amount of which may vary based upon the equipment used and your use of the System, and such use may count against any applicable data use allowances established by Cox or your Internet service provider. All Cox Internet connections are subject to the Cox High Speed Internet Subscriber Agreement and the Cox Acceptable Use Policy which may be found at www.cox.com. YOU UNDERSTAND THE SYSTEM OPERATES THROUGH A BROADBAND CONNECTION. IF THE INTERNET CONNECTION IS DOWN OR NOT FUNCTIONING PROPERLY, INCLUDING DUE TO EQUIPMENT FAILURE, THE SYSTEM WILL NOT FUNCTION. YOU UNDERSTAND THAT THE SYSTEM 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 SYSTEM AT LEAST MONTHLY IN ADDITION TO FOLLOWING ANY POWER OUTAGE, STORM, BROADBAND FAILURE OR ANY OTHER EVENT POTENTIALLY AFFECTING SIGNAL TRANSMISSION TO CONFIRM SYSTEM FUNCTION. YOU AGREE TO NOTIFY COX OF ANY SYSTEM FAILURE OR MALFUNCTION IMMEDIATELY AND ARE RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES ARISING FROM YOUR FAILURE TO DO SO. Cox is not responsible for any temporary or total loss of communication from the System due to (i) Customer reconfiguring or changing the location of the Hub and/or router; (ii) Customer relocating or tampering with Equipment; or (iii) modifications made to Customer's Internet connection or configuration. Video and other Internet-dependent components of the system will not function without a functioning Internet connection. Termination of your Internet service for any reason, whether provided by Cox or another 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.
15. NON-COX BROADBAND INTERNET CONNECTIONS —
Cox is not responsible for the operation and functioning of any communications system or Internet connection that has not been supplied and installed by Cox. You agree that if Cox determines at any time that your Internet connection is not compatible with the System, Cox will require that you purchase a compatible Internet connection to obtain or continue with the Services.
16. TERMINATION —
You may terminate the Services at any time by providing Cox with at least thirty (30) days prior written notice. The Agreement will also terminate effective with the termination of your Services, except for any provisions which survive termination as set forth herein. In addition to other termination rights in this Agreement, Cox may, at any time, terminate this Agreement and all Services if: (i) a Force Majeure event occurs; (ii) Cox determines in its sole discretion that installation of the System at your premises is not commercially practical; (iii) you fail to follow Cox's recommendations to repair or replace any defective parts of the System not covered under the Limited Warranty or CCC; (iv) you breach this Agreement or operate the System contrary to the terms of this Agreement and/or our operating instructions for the System; (v) you modify or alter your premises so that in Cox's sole discretion, it is impractical to continue to provide Service to you; or (vi) you fail to give Cox access to your premises. If Cox terminates the Services or this Agreement for any of the foregoing reasons, Cox will not be liable to you. Cox shall not be liable for any losses resulting from the termination of this Agreement and/or the Services.
17. EFFECT OF TERMINATION —
Upon termination of this Agreement, (i) Cox reserves the right to charge you all applicable fees and charges which have not been paid up to the date of termination, including System charges; (ii) certain software and communication functionality of the System will be disabled; and (iii) Cox reserves the right to remotely lock the Hub.
18. 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. 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. You waive all subrogation and other rights of recovery against us that any insurer or other person may have as a result of paying or incurring any claim for loss or injury of any kind.
19. LIMITATION OF LIABILITY —
YOU AGREE THAT THE AMOUNT YOU PAY FOR THE SERVICES INCLUDES AN AMOUNT THAT IS BASED UPON THE COST OF THE EQUIPMENT, THE SERVICES WE PERFORM, AND THE LIMITED LIABILITY AND OTHER LIMITING CONDITIONS OF THIS AGREEMENT. THE AMOUNT YOU PAY FOR THE SERVICE IS UNRELATED TO THE VALUE OF YOUR PROPERTY, THE POTENTIAL LOSS OR DAMAGE YOU MAY INCUR TO PERSON OR PROPERTY, OR TO THE AMOUNT OF INSURANCE YOU HAVE IN CONNECTION WITH YOUR PREMISES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT IT IS EXTREMELY DIFFICULT TO CALCULATE THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT FROM OUR ALLEGED FAILURE TO PERFORM THE SERVICES DUE TO, AMONG OTHER THINGS, THE: (A) PERSONS OCCUPYING OR AT ANY TIME PRESENT IN OR ON THE PREMISES, AND THE UNCERTAIN AND/OR UNKNOWN VALUE OF THE PREMISES OR YOUR POSSESSIONS; (B) INABILITY TO ASCERTAIN WHAT PORTION, IF ANY, OF AN ALLEGED INJURY WAS PROXIMATELY CAUSED BY OUR ALLEGED FAILURE TO PERFORM THE SERVICES; AND (C) THE GENERAL NATURE OF THE SERVICES. ACCORDINGLY, YOU AGREE THAT COX, ITS SUBCONTRACTORS, SUPPLIERS, 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 SYSTEM INSTALLATION OR SERVICES (INCLUDING INTERNET SERVICES) WE PERFORM OR THE SYSTEMS WE PROVIDE AND INSTALL UNDER THIS AGREEMENT 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 $1,500.00 OR THE TOTAL OF THE SERVICE FEES FOR THE IMMEDIATELY PRIOR 24 CONSECUTIVE MONTHS, WHICHEVER IS GREATER. IN ADDITION, YOU AGREE THAT NEITHER COX NOR ITS SUBCONTRACTORS, CARRIERS, SUPPLIERS OR LICENSORS, NOR THEIR RESPECTIVE AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENT COMPANIES ARE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
AT YOUR REQUEST, WE MAY ASSUME ADDITIONAL LIABILITY BY ATTACHING AN AMENDMENT TO THIS AGREEMENT SIGNED BY BOTH PARTIES AND STATING THE EXTENT OF OUR ADDITIONAL LIABILITY AND THE ADDITIONAL COST TO YOU. ANY AGREEMENT BY COX TO INCREASE THE LIMITATION OF LIABILITY SHALL NOT BE CONSTRUED OR INTERPRETED TO HOLD COX AS AN INSURER.
20. THIRD-PARTY INDEMNIFICATION —
THIS AGREEMENT IS INTENDED ONLY FOR YOUR BENEFIT AND THE BENEFIT OF OTHER PERMITTED RESIDENTS OF YOUR RESIDENCE. THIS AGREEMENT IS NOT FOR THE BENEFIT OF ANY OTHER INDIVIDUAL OR ENTITY. IF ANY LAWSUIT, CLAIM, DEMAND OR LEGAL ACTION IS FILED BY A THIRD PARTY AGAINST COX, OUR SUBCONTRACTORS, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENT COMPANIES ARISING OUT OF THE SYSTEM, YOUR USE OR MISUSE OF THE SYSTEM, OR THE SERVICES WE PROVIDE UNDER THIS AGREEMENT, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD COX, ITS SUBCONTRACTORS, SUPPLIERS OR LICENSORS AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND PARENT COMPANIES ("INDEMNIFIED PARTIES") HARMLESS FROM SUCH LAWSUIT, CLAIM, DEMAND OR LEGAL ACTION INCLUDING PAYMENT OF ALL LOSSES, DAMAGES, INJURIES, EXPENSES, COSTS AND ATTORNEYS' FEES, EVEN IF SUCH CLAIM IS ASSERTED BY YOUR INSURANCE CARRIER. THESE INDEMNIFICATION OBLIGATIONS WILL SURVIVE TERMINATION OF THIS AGREEMENT. THESE OBLIGATIONS WILL APPLY EVEN IF SUCH LAWSUIT OR OTHER CLAIM ARISES OUT OF COX'S OR ANY INDEMNIFIED PARTIES' NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY SUBCONTRACT AGREEMENT, STRICT PRODUCTS LIABILITY, OR OTHER FAULT OF COX OR ANY INDEMNIFIED PARTY. THIS PARAGRAPH WILL NOT APPLY TO LOSSES OR DAMAGES WHICH OCCUR WHILE COX'S EMPLOYEES ARE ON YOUR PREMISES, PROVIDED THE LOSS, DAMAGE, OR INJURY IS CAUSED SOLELY BY COX'S EMPLOYEE. THE INDIVIDUAL EXECUTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT S/HE HAS THE AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF ALL INDIVIDUALS RESIDING IN THE APPLICABLE RESIDENCE AND THAT THE PROVISIONS OF THIS SECTION 20 SHALL APPLY TO ALL SUCH ADDITIONAL RESIDENTS.
21. LIMITED WARRANTY —
a. WHAT IS COVERED: FOR NINETY (90) DAYS AFTER COX COMPLETES THE INSTALLATION, COX WILL REPAIR OR REPLACE ANY DEFECTIVE PART OF THE SYSTEM INSTALLED BY COX WITHOUT CHARGE TO CUSTOMER, INCLUDING PARTS AND LABOR, DURING CURRENT PREVAILING BUSINESS HOURS IN THE LOCAL COX MARKET. REPAIR OR REPLACEMENT OF THE SYSTEM IS OUR ONLY DUTY. COX CAN USE NEW OR USED PARTS OF THE SAME QUALITY, AND COX MAY KEEP ANY REPLACED PARTS. YOU AGREE THAT THIS IS COX'S ONLY WARRANTY AND COX HAS NOT GIVEN YOU ANY OTHER WARRANTY FOR THE SYSTEM.
b. HOW TO GET SERVICE: CALL COX AT THE NUMBER ON THE FIRST PAGE OF THIS AGREEMENT AND TELL COX WHAT COMPONENT OF THE SYSTEM YOU BELIEVE REQUIRES SERVICE. COX WILL PROVIDE SERVICE AS SOON AS POSSIBLE DURING ITS CURRENT PREVAILING BUSINESS HOURS IN THE LOCAL COX MARKET, EXCLUDING HOLIDAYS COX OBSERVES.
c. WHAT IS NOT INCLUDED: THIS WARRANTY WILL NOT APPLY TO: (I) SYSTEM DAMAGE DUE TO ACCIDENTS, THEFT, FORCE MAJEURE EVENTS, ELECTRICAL SURGES, ALTERATIONS, TAMPERING, VANDALISM, OR MISUSE; (II) SYSTEM DAMAGE DUE TO YOUR FAILURE TO PROPERLY FOLLOW THE OPERATING INSTRUCTIONS OR YOU DAMAGE THE SYSTEM WHEN ATTEMPTING TO CHANGE BATTERIES; (III) ORDINARY MAINTENANCE OR WEAR AND TEAR (UNLESS COVERED IN THE LIMITED WARRANTY); (IV) CHANGES TO THE SYSTEM REQUIRED BECAUSE OF RENOVATIONS OR ALTERATIONS TO YOUR PREMISES; (V) DAMAGE TO THE SYSTEM CAUSED BY YOU OR ANY THIRD PARTY; OR (VI) ANY OTHER CAUSE BEYOND OUR CONTROL. IF INSPECTION BY COX FAILS TO DISCLOSE ANY DEFECT COVERED BY THIS LIMITED EQUIPMENT WARRANTY, THE EQUIPMENT WILL BE REPAIRED OR REPLACED AT CUSTOMER'S EXPENSE AND COX'S REGULAR SERVICE CHARGES WILL APPLY. OTHER THAN THE LIMITED REPAIR WARRANTY SPECIFIED HEREIN, COX MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY OF THE SYSTEM OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THE SYSTEM IS NOT INTENDED TO DETECT, OR HELP PREVENT, ANY BURGLARY, INTRUSION, FIRE, HOLD-UP OR OTHER SUCH EVENT, AND COX DOES NOT WARRANT THAT THE SYSTEM WILL DO SO. COX DOES NOT WARRANT THAT THE SYSTEM CANNOT BE DEFEATED, BYPASSED OR COMPROMISED OR THAT IT WILL ALWAYS OPERATE. ALL WARRANTY REPAIR OR REPLACEMENT IS SUBJECT TO THE AVAILABILITY OF PARTS FROM THE MANUFACTURER. COX'S NORMAL CHARGES FOR PARTS AND LABOR SHALL APPLY TO REPAIRS AND SERVICE CHARGES TO CORRECT OR REPAIR ANY SYSTEM MALFUNCTION DUE TO ANY OF THE FOREGOING CAUSES.
d. STATE LAW: SOME STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR A LIMITATION ON THE DURATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
22. COX COMPLETE CARE ("CCC") —
If you purchased CCC for the System at the time of installation, Cox will repair or, at its option, replace any part of the System requiring such repair or replacement due to ordinary wear and tear or malfunction of the System. We will use new or functionally operative used parts for replacements. CCC and the billing for it will commence as of the date the System is installed, operational, and the necessary Internet connection is completed and will continue for the term of this Agreement. You may cancel CCC at any time. CCC will automatically renew for successive thirty (30) day terms concurrent with the Service Fees at our then-current CCC rate unless terminated by either party upon at least thirty (30) days' prior written notice. Cox in its sole discretion may allow you to purchase CCC after the initial System installation, provided that: (i) you pay Cox for a service charge to visit your premises to evaluate your System; and (ii) your System must be in good working condition at the time of CCC purchase. To purchase CCC please call Cox. CCC is only available for Cox-installed Systems and is an equipment service plan for the devices in the System. CCC does not cover Equipment that Cox did not install, nor any third-party or Customer Provided Equipment. CCC covers all Cox labor to replace the System hardware, but CCC does not cover the cost or replacement of the batteries in the System accessories and components. CCC does not cover customer education and you may receive service charges if the issue for which a service visit is requested is unrelated to the System equipment. THERE IS NO COVERAGE UNDER CCC FOR SYSTEM REPAIR OR MALFUNCTION DUE TO THE CAUSES SET FORTH IN SECTION 21(C) ABOVE. All services provided under CCC shall be subject to the terms and conditions of this Agreement.
23. DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION; CLASS ACTION WAIVER —
IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 23(b) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT; PROVIDED HOWEVER IF YOU BECOME A NEW COX CUSTOMER AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THIS AGREEMENT AS DEFINED IN SECTION 1(c) ABOVE (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 ("Dispute") that arise out of or in any way relate to this Agreement, any of the Services provided under this Agreement or any other Services or products that Cox provides to you in connection with this Agreement (including but not limited to amounts that Cox charges you for Services or products provided, 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. 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, or 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.
b. Opt Out: You may opt out of this dispute resolution provision (except for the jury trial waiver contained in Section 23(g) 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 Cox customer. 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: You and Cox agree that all Disputes between you and Cox will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration. If you or Cox brings a claim in small claims court, the class action waiver will apply, and neither of us can bring a claim on a class or representative basis. Furthermore, neither you nor Cox may participate in a class or representative action as a class member if the class action asserts Disputes that would fall within the scope of this arbitration agreement if they were directly asserted by you or Cox. We both agree that this class action waiver is an essential part of our arbitration agreement and that if this class action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 21 will not apply to any Dispute between you and Cox, except for the provisions of Section 23(g) waiving the right to jury trial. This class 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. 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.
e. Informal Dispute Resolution: You and Cox agree that you will try to resolve disputes informally before resorting to arbitration. If you have a dispute, first call Cox Customer Care at the number listed on your monthly bill statement. 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 so that Cox can attempt to resolve it with you. If Cox does not satisfactorily resolve your claim within 30 calendar days of receiving written notice to Cox Customer Care of your claim, then you may pursue the claim in arbitration. Neither you nor Cox may initiate arbitration without first following the informal dispute resolution procedure provided in this paragraph and thereafter, if the dispute is still not resolved, the party who desires to initiate arbitration must provide the other written notice of the intent to file for arbitration. If you are sending a written notice of your intent to file for arbitration to Cox, please send such notice via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. If Cox is sending you a written notice of our intent to file for arbitration, we will send it to the last known address of record we have on file for you.
f. Informal Dispute Resolution: 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 the American Arbitration Association ("AAA"). The AAA's rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the claim asserted in arbitration is for less than $75,000, the AAA's Consumer Arbitration Rules will apply. If the claim asserted is for $75,000 or more, the Commercial Arbitration Rules will apply. If there is a conflict between the AAA's rules and this dispute resolution agreement, this dispute resolution agreement 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 AAA's rules regarding initiation of arbitration. Cox will pay all filing fees and costs for commencement of arbitration, but you will be responsible for your own attorneys' fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Agreement or Applicable Law. Cox will not seek to recover its fees and costs from you in the arbitration, even if allowed under the law, unless your claim has been determined to be frivolous. 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. The arbitration will be held in the county of the billing address where Cox provided you service and either party may appear either in person or by telephone.
g. Jury Trial Waiver: If for any reason this arbitration agreement is found to be unenforceable, or if you opt out of this dispute resolution agreement, 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.
h. Survival: This dispute resolution provision survives the termination of your Services with Cox. If you bring a claim against Cox after termination of your Services that is based in whole or in part on events or omissions that occurred while you were a Cox customer, this dispute resolution provision shall apply.
24. FORCE MAJEURE —
We have no responsibility or liability to you or any other person for delays in the installation or repair of the System or the performance of our System due to strike, riot, flood, fire, terrorism, act of God, or any other cause beyond our control. During any such System outage or failure, we have no obligation to supply you a substitute System.
25. MISCELLANEOUS —
We have no responsibility or liability to you or any other person for delays in the installation or repair of the System or the performance of our System due to strike, riot, flood, fire, terrorism, act of God, or any other cause beyond our control. During any such System outage or failure, we have no obligation to supply you a substitute System.
26. PRIVACY —
If a court determines that any provision of this Agreement is invalid or unenforceable, that provision shall be deemed amended and enforced as permitted by law; however, every other provision of this Agreement shall continue to be valid and enforceable. You may not assign this Agreement. Cox shall have the right to assign this Agreement to any person or subcontract for any Services or installation of the System or any part thereof without providing prior notice to you. You understand, acknowledge and agree that the provisions of this Agreement inure to the benefit of, are applicable to, and are enforceable by any subcontractors, suppliers, vendors, or licensors engaged by Cox to provide Services and bind you to said subcontractors, suppliers, vendors, or licensors with the same force and effect as they bind you to Cox. THIS INSTRUMENT IS NOT NEGOTIABLE.
27. VIDEO RECORDING —
If included in your selected equipment, Cox may install and connect at least one video camera at your premises. You acknowledge and agree that: (i) any such video camera is being installed at your specific request and is for the use of the residents, invitees, and other persons at your premises, and for no other purpose; (ii) any such video camera will only be installed in public areas within the premises, and will not be installed or utilized in any area where persons have a reasonable expectation of privacy, such as bedrooms, bathrooms, etc.; and (iii) you will provide adequate illumination under all operational conditions for the proper operation of each such camera and will provide the 120 AC power supply where required.
Some cameras and related video recording, storage, and playback equipment connected to the system may be configured to provide remote viewing and storage of video data via the Internet. You acknowledge that the System and any connected broadband networks are subject to interruptions in service which may cause the video services to fail to operate as intended.
You further acknowledge and agree that video content may be received and stored on computer servers maintained by Cox or third parties. You consent and agree that Cox may store, or cause to be stored, video content from your premises for such time as is determined at Cox's sole and exclusive discretion. While Cox agrees to keep said video content confidential, you expressly agree that Cox may disclose such video content to third parties with or without notice to you: (a) in connection with any law enforcement investigation or proceeding; (b) in a legal proceeding to which Cox or its affiliates is a party; and/or (c) pursuant to a court order or subpoena.
You are solely responsible for the video content and the consequences of posting or publishing videos. You agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to post the material and to grant Cox requisite license rights. You further agree that you will not purposefully allow video content which is indecent, offensive, or pornographic, that is defamatory or constitutes an invasion of privacy, that otherwise violates any legal duty under criminal or civil law, or that otherwise violates any applicable local, national, and/or international laws and regulations, to be transmitted via the System or over Cox's broadband network via the video camera(s) installed at your premises. Cox reserves the right to remove any video content, without notice to you, if it learns that such content infringes or may infringe upon another's intellectual property rights, or otherwise violates the provisions of this Section 26.
28. CONTACT AND COMMUNICATIONS —
You agree to provide Cox with current contact information, to include a valid email address, mailing address, and active telephone numbers, and to keep such information up-to-date at all times during the Term and when the System and any Services are provided. 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 Services, including but not limited to service issues, equipment repair and replacement, and billing and collections matters.