StraightUp InternetSM and StraightUp Internet Hotspot PassSM Customer Agreement
Effective Date: January 14, 2020(v.2)
This StraightUp InternetSM and StraightUp Internet Hotspot PassSM Customer Agreement governs the terms and conditions under which Cox provides you with StraightUp InternetSM, a pay as you go residential Internet access service, and/or StraightUp Internet Hotspot PassSM, a pay as you go out-of-home wifi Internet access service. It has been updated effective as of January 14, 2020 ("Effective Date"). Please visit the Policy/Legal page on www.cox.com to review the current terms. For additional information, please find your local Cox contact information.
This StraightUp InternetSM and StraightUp Internet Hotspot PassSM Customer Agreement (“Agreement”) sets forth the terms and conditions under which CoxCom, LLC or one or more of its subsidiaries or affiliates authorized by applicable regulatory, franchise or license authority (each hereafter “Cox”) agrees to provide Services (as defined below) to you, and under which you, the Customer, agree to accept the Services. 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 the Services. "Services" means Cox’s pay as you go residential Internet access service known as “StraightUp InternetSM” (which will not include access to StraightUp Internet Hotspot PassSM) , and Cox’s pay as you go out-of-home wireless or “wifi” Internet access service known as “StraightUp Internet Hotspot PassSM , which does not include access to StraightUp Internet InternetSM residential internet service. Certain locations ("Facilities") may offer you free use of StraightUp Internet Hotspot PassSM ("Facility-based WiFi"). Your use of Facility-based WiFi is subject to this Agreement and any other terms and conditions made available by the Facilities ("Facility Policies"). Cox is not responsible for the Facility Policies or the actions or inaction of any Facility. You should read the Facility Policies before using Facility-based WiFi.
The Services defined in this Agreement do not include any other services provided by Cox or its affiliates (for example, Cox HomelifeSM security, phone, television, video, automation and other services) or services provided by Cox to commercial customers, which may be governed by one or more separate agreements. Subject to Section 15(g), this Agreement shall remain in effect at all times you are subscribed to and/or receive the Services, to include any changes you or Cox make to the Services you receive or to the Cox Supplied Equipment (as defined in Section 5(b)(1)), Customer Equipment (as defined in Section 5(c)(1)) or other equipment you use.
a. Our Agreement:
You will be bound by the terms and conditions in this Agreement with respect to your use of the Services. The Services are also subject to the Annual Privacy Notice and the Cox Internet Acceptable Use Policy (“AUP”), as applicable. The Annual Privacy Notice and the AUP are posted on Cox’s 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 and other documents applicable to the Services including without limitation: (i) the Annual Privacy Notice and (ii) the AUP. The Services are provided subject to federal, state and local laws, statutes, regulations, and ordinances applicable to such Services (“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 Services description will contradict, explain or supplement it.
c. Acceptance 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) activate any Services provided under this Agreement through a method provided by Cox, or (ii) use or pay for, in whole or in part, the Services.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS AND CONDITIONS AND THE RATES AND CHARGES AS LISTED ON THE COX WEBSITE OR ON YOUR ORDER CONFIRMATION. 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 ORDER CONFIRMATION OR ON THE COX WEBSITE.
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, rearrangement and changes to the features and content of the Services, configuration and capacity of Services, changes in the features, functionality and technical requirements for Cox Supplied 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 by making any typed, handwritten, 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) via text message to your wireless telephone number on Cox’s account records, (v) by hand delivery, or (vi) by other lawful means, including by posting such notice on the Cox Website and related webpages, and that any of the foregoing will constitute sufficient notice, and you waive any claims that these forms of notice are insufficient or ineffective. By providing your wireless telephone number and email address to Cox, you provide Cox with consent to send you emails and text messages regarding your account and subscription to the Services as further provided herein and in Section 1(h) below. You acknowledge and agree that your wireless provider’s standard message and data rates may apply. 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, text messages, and all postings on the Cox Website or 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. Your continued use of the Services will constitute your Acceptance of this Agreement as modified. You agree that your sole recourse if you do not accept any such material change to your Services or this Agreement is to discontinue your use of the Services.
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.
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, Cox Supplied Equipment, or Licensed Software (as defined in Section 8(a)). You are responsible for contacting the Cox customer service number listed on your order confirmation or on the Cox Website 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, any changes to your contact information such as name, email address, wireline or wireless telephone number, or if you move. 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, our affiliates 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, and/or (v) investigating or preventing fraud (“Informational Communications”). Also, we may share your telephone number(s) with such service providers or agents whom we hire to assist us in carrying out these Informational Communications, but we will not share your telephone 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 Applicable 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.
2. Charges, Billing and Payments
a. Charges, Taxes and Fees:
b. Payments and Billing:
3. Dispute Resolution; Mandatory Binding Arbitration; Class Action Waiver
IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 3(b) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN THIRTY (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 Annual 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 3(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 3 will not apply to any Dispute between you and Cox, except for the provisions of Section 3(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 order confirmation. 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 thirty (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. Arbitration Procedures:
You and Cox agree that this Agreement and the services Cox provides to you affect interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitration 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.
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.
4. Access to Your Premises
a. Access to Premises:
You agree in connection with your use of the StraightUp Internet Services to allow Cox and/or our agents to enter the property at which the StraightUp Internet Services and/or Cox Supplied Equipment will be provided to you (the “Premises”), upon your request, to install, configure, upgrade, maintain, inspect, change, repair and/or remove the StraightUp Internet Services, Cox Supplied Equipment and/or Customer Equipment. You warrant that you are either the owner of the Premises or, if you are not the owner of the Premises that you have obtained the consent of the owner for Cox or its agents to access the Premises for the purposes described. In addition, you agree to supply us or our agent, if we ask, the owner’s name, address and telephone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises. If installation of StraightUp Internet Services or Cox Supplied Equipment by Cox at your Premises is required, Cox will schedule one or more installation and/or service appointments with you as needed and you agree to be present or to have a responsible representative, 18 years or older, present at the Premises during such appointments.
b. Support; Charges for Visits:
You will be responsible for payment of any charges assessed by Cox for visits to your Premises to install, maintain, inspect, repair or remove the StraightUp Internet Services, or any Cox Supplied Equipment or Customer Equipment, including, without limitation, in response to any difficulty caused, in whole or in part, by Customer Equipment, or other equipment, services or facilities not provided by Cox, for service calls at times other than normal business hours, and for any non-routine installation or maintenance. Without limiting the foregoing, Cox may provide routine service calls or routine installation support during normal business hours which may be subject to an additional charge. Charges for visits to your Premises can be found on the Cox Website or by calling Cox Customer Care at the number located on your order confirmation. You acknowledge and agree that in the event Cox provides service calls or installation support, Cox’s personnel and/or its agents may open or access your computer/device. You further acknowledge and agree that such access may result in the modification of your computer’s or other device’s system’s files. Additionally, Cox may periodically update the software/firmware in your modem or gateway in order to provide the Services. Cox does not represent, warrant, or covenant that such modifications and updates will not disrupt the normal operations of your computer or device. Cox’s liability for any damage resulting from such installation, use of the Licensed Software and/or file modifications or updates is limited as described in Section 13 of the Agreement. Unless Cox offers and you subscribe to service and support for in-home networks you agree that Cox has no responsibility to provide such service.
c. Safe Working Environment:
You agree to provide Cox's employees and representatives with a safe working environment while on the Premises. If a Cox employee or representative deems the working environment unsafe in his/her sole discretion, you agree that Cox may elect not to provide any services, including without limitation installation, repair, maintenance, support or training services, on the Premises until such Premises are deemed safe by Cox.
a. Taking Proper Precautions
b. Cox Supplied Equipment:
c. Cox Supplied Equipment:
6. Telephone Number, E-mail Address and Cox Identifiers
You do not have any proprietary rights to any identification number or other identifier that Cox assigns to you or your account. We may change or reassign them, but if we do, we will notify you. You own any email addresses associated with your account. Cox will not provide you a cox.net email address.
7. Power Supply, Interruptions and Emergency Services
a. Power Supply:
The Services do not have their own power supply and you are required to provide power for your use of the Services. Cox will not be liable for any interruption of Services or other damage resulting from a power outage disruption or fluctuation (such as a power surge). The Services are not intended to be used for activities requiring absolute reliability and accuracy. You assume complete responsibility for any damages or injuries resulting from any interruption or other failure of the Services due in whole or in part to a failure of power supply.
b. Scheduled Interruptions:
Cox may schedule and interrupt Services for maintenance, repairs, upgrades, testing, or other administrative purposes at any time except as limited by any Applicable Law.
8. Software and Intellectual Property
a. Licensed Software:
Cox grants you a limited, nonexclusive, nontransferable and nonassignable license to install and use Cox’s software (“Licensed Software) (which includes software from third party licensors, vendors and providers (“Suppliers”)) solely in order for you to access and use the Services. Cox may modify the Licensed Software at any time, for any reason, and without providing notice of any such modification to you. The Licensed Software constitutes confidential and proprietary information and contains trade secrets and intellectual property of Cox and its Suppliers which is protected under Applicable Law. All right, title, and interest in and to the Licensed Software will remain with Cox and its Suppliers. You agree not to translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Licensed Software or any part thereof. You have a license to use the Cox Supplied Equipment, content, Services, Licensed Software and/or applications provided by Cox and/or its Suppliers. You agree, however, that all such content and Licensed Software will remain the sole property of Cox or its Suppliers and that no additional rights arise from this grant of use. By subscribing to Services, you waive any claim against Cox or its Suppliers in connection with this Agreement and agree that Cox and its Suppliers have the right to enforce this provision. You acknowledge and agree that neither Cox nor its Suppliers can provide uninterrupted or error-free service and that Cox’s and its Suppliers’ liability is limited as described in Section 13 below. You also agree to comply with the terms and conditions of all end user software license agreements provided to you in order for you to access and to use the Services. Your right to use the Licensed Software, Services, or content ends upon termination of your Services.
b. Posting Your Material:
You are solely responsible and liable for all material that you upload, post, email, transmit or otherwise make available via the Services, including, without limitation, material that you post to any Cox website, including the Cox Website, any third party website, or any third party vendor’s service (such as a social media site) that is used by Cox. Cox does not claim ownership of material you submit or make available for inclusion on the Services. However, with respect to material you submit or make available for inclusion on publicly accessible areas of the Services, you grant Cox a perpetual, world-wide, royalty free and nonexclusive license to use your material in connection with Cox’s businesses including, but not limited to, the rights to copy, distribute, publicly perform, publicly display, transmit, publish your name or identifier in connection with the material, and prepare derivative works. No compensation will be paid with respect to the use of your material.
c. Intellectual Property Infringement Claims:
Cox is registered under the Digital Millennium Copyright Act of 1998. In accordance with Title 17, United States Code, Section 512(c)(3), if you believe that a Web page hosted by Cox is violating your rights under U.S. copyright law, you may file a complaint of such claimed infringement with Cox’s designated agent. See Procedure for Making Claims of Copyright Infringement located on the Cox Website.
d. Copyright and Trademark Notices:
Materials available on the Cox Websites, the Services and other services are protected by copyright law. Cox is a trademark of Cox Communications, Inc. Cox and other Cox services referenced herein are either actual service marks or registered service marks of Cox Communications, Inc. All other trademarks and service marks are the property of their respective owners.
e. Links to Third Party Websites:
In your use of the Services and/or Cox Websites, you may encounter various types of links that enable you to visit websites operated or owned by third parties (“Third Party Site(s)”). These links 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 is not an endorsement by Cox of the Third Party Site, an acknowledgement of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer on the Third Party Site. Your use of any Third Party Site is governed by the various legal agreements and policies posted at that website.
9. Annual Privacy Notice and Account Security
a. Annual Privacy Notice:
b. Security of your Account:
You are responsible for protecting the information required to access or make modifications to your account (for example, passwords, PINs, secret answers to security questions, etc.). If someone else acquires this information (through no fault of ours), we will assume that you have authorized that person’s use of the information and access to your account. Please report any suspected incidents of unauthorized access to your account or unauthorized disclosure of your account information to Cox promptly by calling the Cox Customer Care number listed on your order confirmation, visiting a Cox Solutions Store®, or writing to us at the address listed on your order confirmation.
10. Use of Services
a. Compliance with the Law:
You agree that you will comply with all current and future laws regarding the Services. If you violate the law in connection with your use of the Services, Cox Supplied Equipment, or Licensed Software, Cox may suffer harm and will have all remedies available at law or in equity, including injunctive relief. Content derived from the Services, Cox Supplied Equipment, the Licensed Software, and any accompanying information is subject to applicable export control laws and regulations of the United States. You agree not to export or reexport such content, to any countries that are subject to restrictions or upload through the Services any material in violation of such restrictions.
b. Non Commercial Use Only:
You agree to use the Services only for personal, noncommercial purposes and not business activities. You may not rebroadcast, retransmit, redistribute, perform, or charge admission to view or listen to any of the Cox Services unless you obtain and pay for any applicable public performance licenses.
c. Misuse of the Services:
You agree to not misuse the Services, Cox Supplied Equipment, or Licensed Software. Such misuse includes but is not limited to: (i) violation of any law and any commercial use as described above; (ii) use in a manner that adversely interferes with Cox’s network or reputation; (iii) any unauthorized or fraudulent use of or access to the Services such as to avoid paying for Services; (iv) use in a manner that infringes the intellectual property or other rights of Cox or any third party including copying, modifying, reverse engineering, uploading, downloading or reselling any content or Licensed Software; (v) sending content or messages or otherwise engaging in communications that are abusive, obscene, lewd, lascivious, filthy, excessively violent, harassing, illegal, fraudulent, threatening, defamatory or an invasion of privacy; (vi) modifying or tampering with Cox Supplied Equipment in any manner other than as expressly authorized by Cox; (vii) engaging in telemarketing, fax broadcasting, spam, junk or other unsolicited email; (viii) intercepting a third party’s communications or accessing or attempting to access another party’s account or otherwise circumvent any security measures; (ix) uploading any virus, worm or malicious code; (x) using automated connections that allow web broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing; (xi) using as a substitute or back-up for private lines, or full-time or dedicated data connections; or (xii) accessing or breaching the security of any other person’s account, computer, system, website, network, software, or data for which you are not an expressly authorized user. Prohibited conduct also includes, but is not limited to networking hacking and “denial of service” attacks; (xiii) using unauthorized software or devices to maintain continuous active Internet connection when the connection would otherwise have entered idle mode; (xiv) using more than 1 terabyte (1 TB) of data during a Service Period or Access Term, as applicable; (xv) falsifying, altering, spoofing or otherwise modifying or changing any IP address or MAC address assigned to or associated with your equipment to access or use the Services; (xvi) accessing or using the Services with anything other than a dynamic IP address that adheres to the dynamic host configuration protocol; (xvii) reselling, making available or sharing the Services with any third party or using the Services for the operation of an Internet service provider or for any business; (xviii) taking part in any fraudulent activity; and (xix) invading another person’s privacy, stalking, harassing or otherwise violating the rights of others.
d. Customer Responsibilities for Improper Use:
You acknowledge that you are accepting this Agreement on behalf of all persons who use the Services and Cox Supplied Equipment, including at the Premises, and that you shall have the responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable policies, including, but not limited to the AUP and Annual Privacy Notice, and any other applicable privacy notices or other policies. You will take reasonable precautions to prevent others from gaining unauthorized access to the Services. Except as otherwise specified in this Agreement, you are responsible for any unauthorized use and for controlling access to the Services, Cox Supplied Equipment, Customer Equipment, and Licensed Software including payment of any charges incurred as a result of any such unauthorized use.
e. Monitoring Compliance with the Law and this Agreement:
Although Cox is not obligated to monitor the Services, Cox may perform tests and inspections to confirm that you are complying with this Agreement, including any policies referenced herein. Cox may, without notice, suspend, restrict access to or terminate the Services, or remove or make unavailable any content and/or monitor, review, retain and/or disclose any content or other information in Cox’s possession about or related to you or your use of the Services as Cox deems necessary to satisfy any Applicable Law, regulation, legal process or governmental request.
f. Call Recording; Use of Recording Devices:
You consent to Cox recording telephone conversations between you and Cox for quality assurance, analytics and internal business purposes.
You hereby indemnify and hold harmless Cox and its parent companies, subsidiaries, affiliates, vendors, Suppliers and other suppliers, contractors, distributors, licensors and business partners, as well as the officers, directors, employees, agents and representatives of each of these (each a “Cox Related Party”, and collectively, the “Cox Related Parties”) from any third-party claims, actions, proceedings, damages and liabilities, including attorneys’ fees, arising out of (i) your use or misuse, or other users’ use or misuse, of the Services, Cox Supplied Equipment, or Customer Equipment; (ii) any act in violation of any law committed by you including any use of the Services that may infringe on the patent, copyright, trademark or other intellectual property right or privacy right of any third party; (iii) any breach by you of this Agreement; (iv) any content or software displayed, distributed, or otherwise disseminated by you or other users of your Services; (v) your failure to safeguard your PIN, passwords or other account information; and (vi) your failure to replace Cox Supplied Equipment or Customer Equipment when requested by Cox. This Section will continue in effect after this Agreement terminates.
12. Disclaimer of Warranties
YOU ACKNOWLEDGE THAT THE SERVICES, COX SUPPLIED EQUIPMENT, AND LICENSED SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES. COX MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT AS TO THE SERVICES, COX SUPPLIED EQUIPMENT, AND/OR THE LICENSED SOFTWARE PROVIDED TO YOU. COX DOES NOT MANUFACTURE THE COX SUPPLIED EQUIPMENT, DEVICES OR LICENSED SOFTWARE AND IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS ON THE PART OF ANY MANUFACTURER, SPECIFICALLY INCLUDING A MANUFACTURER OF CUSTOMER EQUIPMENT OVER WHICH YOU RECEIVE THE SERVICES. UNLESS OTHERWISE RESTRICTED OR PROHIBITED BY APPLICABLE LAW, COX DOES NOT WARRANT THAT THE SERVICES, COX SUPPLIED EQUIPMENT OR LICENSED SOFTWARE WILL BE ACCURATE, COMPLETE, ERROR-FREE, WITHOUT INTERRUPTION, FREE FROM VIRUSES OR OTHER MALICIOUS AGENTS EVEN IF ANTI-VIRUS MECHANISMS ARE DEPLOYED. COX DOES NOT WARRANT THAT ANY COMMUNICATION WILL BE TRANSMITTED UNCORRUPTED OR AT ANY UPSTREAM OR DOWNSTREAM SPEED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THOSE PROVISIONS MAY NOT APPLY TO YOU. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
13. Limitation of Liability
THIS SECTION DESCRIBES THE FULL EXTENT OF COX’S AND THE COX RELATED PARTIES’ RESPONSIBILITY FOR ANY CLAIMS FOR DAMAGES CAUSED BY OUR ACTS OR OMISSIONS OR THE FAILURE OF THE SERVICES, COX SUPPLIED EQUIPMENT, OR LICENSED SOFTWARE, OR ANY OTHER CLAIMS IN CONNECTION WITH THE SERVICES, COX SUPPLIED EQUIPMENT, LICENSED SOFTWARE, OR THIS AGREEMENT. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
Neither Cox nor any of the Cox Related Parties will be liable for damages for failure to furnish or the degradation or interruption of the Services, a problem with the interconnection of Services, any loss of data or stored content, identity theft, or any files or software damage, regardless of cause, or a problem with the service or equipment of a third party.
b. Damage to Person or Property:
Neither Cox nor any of the Cox Related Parties will be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of Cox Supplied Equipment, Licensed Software, use of Services or any content contained therein, support for the Services, or inclusion, omission, or error relating to information about you in any published or electronic directory we may offer. You recognize that you have an obligation to exercise caution and personal responsibility including adhering to all manufacturers’ warranties accompanying any Cox Supplied Equipment or Customer Equipment or any other equipment used in connection with the Services and to make sure that your use of the Services, Cox Supplied Equipment or Customer Equipment does not subject you or others to danger.
Neither Cox nor any of the Cox Related Parties is obligated to monitor your use of the Services. Neither Cox nor any of the Cox Related Parties will be liable, however, for any action we take such as restricting access to obscene content or blocking email considered to be “spam” to help assure your use of the Services is in compliance with Applicable Laws and this Agreement.
d. Third Party Acts:
You expressly agree that neither Cox nor any of the Cox Related Parties is responsible or liable for any content, act or omission of any third party including, without limitation, any threatening, defamatory, obscene, offensive, or illegal conduct, or any infringement of another’s rights including, without limitation, privacy and intellectual property rights, and you hereby release Cox and each of the Cox Related Parties for any such claims based on the activities of third parties.
e. No Indirect or Consequential Damages:
YOU AGREE THAT FOR ANY CLAIMS YOU ASSERT AGAINST COX OR THE COX RELATED PARTIES AND FOR ANY CLAIMS THAT COX OR THE COX RELATED PARTIES ASSERT AGAINST YOU, THERE SHALL BE NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUE OR INCREASED COSTS OF OPERATION, OR FOR PUNITIVE DAMAGES, RELIANCE DAMAGES, OR SPECIAL DAMAGES. THESE LIMITATIONS APPLY EVEN IF THE DAMAGES WERE FORESEEABLE OR WE WERE TOLD THEY WERE POSSIBLE, AND THEY APPLY WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
f. Additional Limitations on Cox’s Liability for Cox Internet:
The public Internet is used by numerous persons or entities including, without limitation, other subscribers to the Services. As is the case with all shared networks like the public Internet, there is a risk that you could be subject to “eavesdropping.” This means that other persons or entities may be able to access and/or monitor your use of the Services. If you post, store, transmit, or disseminate any sensitive or confidential information, you do so at your sole risk. Neither Cox, nor the Cox Related Parties or any of the Cox or Cox Related Parties’ agents shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by you. You acknowledge that software programs are commercially available that claim to be capable of encryption or anonymization. We make no representation or warranty regarding the effectiveness of these programs.
g. Limitations Period:
Both you and Cox each agree that any claims must be brought within two (2) years of their accrual notwithstanding any otherwise applicable statute of limitations.
You may terminate your Services at any time, and you will continue to have access to the Services through the end of your current Service Period or Access Term, as applicable, during which time this Agreement shall remain in effect. Unless prohibited by Applicable Law, Cox may prevent you from using your Services or terminate your Services at any time without notice to you if you fail to pay for Services or otherwise breach this Agreement (including the AUP), if you violate the law or applicable Cox policies, or if you misuse the Services or Cox Supplied Equipment. In the event of termination by you, you must notify Cox as instructed in Section 15(e). In the event of termination by Cox, Cox may notify you of such termination by electronic or other means.
b. Customer Obligations Upon Termination:
You expressly agree that upon termination of your Services: (i) you will return or destroy all copies of any Licensed Software provided to you pursuant to this Agreement; (ii) you are responsible for storing or retrieving any information you wish to retain after termination of the Services; (iii) you will cease use of any Services terminated; and (iv) Cox is authorized to delete any files, programs, data and email messages (if any) associated with any terminated account.
Except as described in this Agreement, you may not assign or transfer any part of this Agreement, the Services or Licensed Software (including transfer to any other occupant of the Premises or to any other location) without the prior written consent of Cox. Cox may assign all or part of this Agreement without notice to you and without your consent
b. Force Majeure:
Cox will not be liable for any delay, interruption of Services, failure of performance of Cox Supplied Equipment or Customer Equipment, or any loss, liability or damage directly or indirectly caused by circumstances beyond our control, including but not limited to acts of God, flood, explosion or other catastrophes, causes attributable to you, your Customer Equipment or your property, acts of third parties, national emergencies, acts of terrorism, insurrections, riots, wars, unavailability of rights-of-way, loss of use of poles or other utility facilities, material shortages, power outages or reductions, failure of any cable signal at the transmitter, failure of a satellite, strikes, lockouts, or work stoppages, or any law, order, regulation, or request of the federal, state or local governments having jurisdiction over Cox. The use and restoration of Services in emergencies will in all cases be subject to the priority system specified by federal regulations.
c. Acceptable Use:
You agree to use the Services strictly in accordance with Cox’s AUP.
d. Governing Law:
The rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State or Commonwealth in which Cox provides the Services and applicable federal law.
When this Agreement requires notice from you to Cox, you agree to provide us with written notice as instructed on the Cox Website or by calling us. Notice by calling us will be effective as of the date our records show that we received your call. Notices to you shall be provided as stated in Section 1(e) above.
In the event that any portion of this Agreement is held to be unenforceable in a jurisdiction, the unenforceable portion will be construed in accordance with Applicable Law in that particular jurisdiction as nearly as possible to reflect the original intentions of the parties and the remainder of this Agreement will remain in full force and effect.
g. Surviving Obligations:
Certain provisions will survive the termination of this Agreement including Arbitration, Indemnification, Disclaimer of Warranties, Limitation of Liability, payment obligations and all other provisions which by their nature would be expected to survive.
h. Waiver and Strict Performance:
Cox’s failure to require your strict performance of any term of this Agreement will not be a waiver of Cox’s right to require strict performance of any term or condition herein.
j. Service Management:
Cox manages the Services to improve its service offerings, protect customers, create new services and feature enhancements. Management activities may include, without limitation, the following actions: Speeds and Data Plans, port blocking, and cybersecurity mechanisms (including identification and blocking of viruses, phishing sites and other malware). We also measure customer bandwidth usage. Cox manages its network for the greatest benefit of the greatest number of customers. Cox may enforce limits on specific features of the Services. To learn the limits on specific features of the Services, visit the Cox Website. Also, where applicable, to review Cox’s Internet Service Disclosures, please visit www.cox.com/internetdisclosures.