THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT THAT AFFECTS YOUR RIGHTS, INCLUDING THE WAIVER OF CLASS ACTIONS AND JURY TRIALS. THE AGREEMENT ALSO CONTAINS PROVISIONS FOR OPTING OUT OF ARBITRATION. PLEASE REVIEW IT CAREFULLY.
Emergency Access to and Use of Optimum WiFi
You understand that Optimum WiFi is a feature of Optimum's Optimum Online service that is made available to non-subscribers for limited sixty minute time periods during a declared state of emergency only, and that you are provided with temporary access to Optimum WiFi during such an emergency situation. You are permitted to use Optimum WiFi only for lawful purposes. You acknowledge and agree that you will be responsible for all activities during any Optimum WiFi session.
Collection and Use of Information.
Performance of Optimum WiFi
In order to use Optimum WiFi, you must have a WiFi- capable device that (a) meets U.S. and other applicable technical standards; (b) is compatible with Optimum WiFi; (c) renders web pages in a standard HTML browser application; (d) runs the IP protocol; and (e) is configured to obtain web addresses automatically. The WiFi device must be in close enough proximity to Optimum WiFi wireless access points to achieve connectivity with the Optimum WiFi network. Actual Optimum WiFi coverage, locations and quality may vary.
You agree that Optimum will use its best efforts to provide useful and reliable Optimum WiFi service, but acknowledge that Optimum WiFi utilizes public, unlicensed radio-frequency spectrum. As such, Optimum WiFi is subject to external interferences, environmental influences, and other factors and variables beyond our reasonable control. Performance and availability may vary, including but not limited to or affected by, (a) transmission and download speed and accuracy; (b) network congestion; (c) performance, configuration, and functionality of your WiFi devices and wireless cards (including, but not limited to memory, storage and other limitations; (d) physical obstructions and distances between your WiFi device and the Optimum WiFi network; (e) availability of electric power; (f) collocation failures; (g) transmission and equipment limitations, failures, maintenance or repair; and (h) user error. Optimum WiFi may also be interrupted, refused, limited or curtailed for these reasons. We are not responsible for data lost or misdirected due to these and other foreseeable and unforeseeable factors. Network speed is an estimate and is no indication of the speed at which your WiFi device or Optimum WiFi will operate. Actual network speed and other performance will vary.
In order to maintain acceptable levels of service for all Optimum WiFi users and to improve this service, we reserve the right to monitor use of Optimum WiFi and to make such adjustments to the use of such services as necessary to maximize the benefit and enjoyment for all Optimum WiFi users. Additionally, the Optimum WiFi service may use automated processes to monitor and scan communications over the Optimum WiFi network in order to maintain and provide services, improve your experience and ensure the integrity of your communications. By using the Optimum WiFi service, you acknowledge and consent to Optimum's automated processing of your communications through the Optimum WiFi network, including information such as your IP or MAC address, HTTP requests and other information related to the provision of this service.
Service Subject To Interception and Unauthorized Use
You acknowledge that communications over the Optimum WiFi network may be subject to interception by unauthorized third parties. Although Optimum uses commercially reasonable efforts to provide you with a secure and reliable service, your use of Optimum WiFi is AS IS and AS AVAILABLE and we cannot and do not make any general or specific warranties regarding the security, availability, performance or other functionality of Optimum WiFi. You are responsible for implementing your own security protections while using Optimum WiFi. In the event you become aware of any unauthorized use of Optimum WiFi or any other security breach, you agree to immediately notify us. Optimum expressly disclaims any responsibility or liability for your use of Optimum WiFi and for any lack of security that may result from your use of Optimum WiFi. You agree to hold Optimum harmless for the loss of any file, data or other information while using the service, and for any unauthorized access to or utilization by any third party of any of your personal, financial, or other sensitive information.
You understand and agree that the Optimum WiFi "watermark" bearing our logo may appear superimposed from time to time over portions of website pages you visit, that the watermark is intended solely to identify Optimum WiFi as the source of your wireless Internet access service, and that this in no way indicates Optimum's approval of or responsibility for the content of such websites, which are solely the responsibility of the website operators and/or content providers.
You further agree that you will not seek to hold Optimum responsible in any way for any third party website content or the operation of any third party website accessed via Optimum WiFi, or for the appearance of our Optimum WiFi "watermark" over a portion of any website.
Disclaimer of Warranties and Limitation of Liability
Optimum makes no representation that you will be able to make an emergency (including 911) call using the Optimum WiFi service. Optimum expressly disclaims all warranties, including, but not limited to, warranties of merchantability or fitness for a particular purpose. Neither Optimum, nor any of its parents, partners, affiliates, subsidiaries, members, directors, officers, employees, agents, and operational providers, are liable or shall have responsibility of any kind to any user for any loss or damage that a user incurs in the event of (i) any failure or interruption of Optimum WiFi; or (ii) any other cause relating to user's access or use, or inability to access or use, Optimum WiFi; whether or not the circumstances giving rise to such cause may have been within the control of Optimum or any vendor providing software, services or support. Unless applicable law provides otherwise, in no event will Optimum, its parents, partners, affiliates, subsidiaries, members, officers, employees, agents, and operational providers be liable to any user for any direct, special, indirect, consequential, punitive, or incidental damages or any other loss or damages of any kind even if Optimum, its affiliates or any other party has been advised of the possibility thereof.
Except as noted below under "Excepted Claims," any and all disputes arising between You and Optimum, including its respective parents, subsidiaries, affiliates, officers, directors, employees, agents, predecessors, and successors, shall be resolved by binding arbitration on an individual basis in accordance with this Arbitration Provision.
Resolving Your dispute with Optimum through arbitration means You will have a fair hearing before a neutral arbitrator instead of in a court before a judge or jury. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND OPTIMUM EACH WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION.
IF YOU ARE AN EXISTING SUBSCRIBER FOR AT LEAST 30 DAYS BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT AND HAVE PREVIOUSLY ENTERED INTO AN ARBITRATION AGREEMENT WITH OPTIMUM, THE TERMS OF THIS ARBITRATION PROVISION ALREADY APPLY TO YOU. IF YOU BECAME A SUBSCRIBER ON OR WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT, AND DO NOT WISH TO BE BOUND BY REVISIONS TO THIS ARBITRATION PROVISION, YOU MUST NOTIFY OPTIMUM IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST RECEIVE NOTICE OF THIS PROVISION BY EMAILING US AT [email protected] OR BY MAIL TO OPTIMUM RESEARCH & SUPPORT, 200 JERICHO QUADRANGLE, JERICHO, NY 11753 ATTN. ARBITRATION. YOUR WRITTEN NOTIFICATION TO OPTIMUM MUST INCLUDE YOUR NAME, ADDRESS, AND OPTIMUM ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH OPTIMUM THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF REVISIONS TO THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH OPTIMUM OR THE DELIVERY OF OPTIMUM SERVICES TO YOU. OPTING OUT OF REVISIONS TO THE ARBITRATION PROVISION HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENTS THAT YOU MAY HAVE WITH OPTIMUM.
Because the Service(s) provided to You involves interstate commerce, the Federal Arbitration Act ("FAA"), not state arbitration law, shall govern the arbitrability of all disputes under this Arbitration Provision. Any state statutes pertaining to arbitration shall not be applicable. You and Optimum agree that applicable state law or federal law shall apply to and govern, as appropriate, the substance of all claims or causes of action, remedies, and damages arising between You and Optimum.
The arbitration will be administered by the American Arbitration Association ("AAA"), 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, under the AAA's Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes, as modified by this Arbitration Provision. You may obtain copies of those rules from the AAA at www.adr.org or by calling 1-800-778-7879. If the AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve Your dispute. If this situation arises, or if the AAA for any reason cannot serve as the arbitration organization, the parties shall agree on a substitute arbitration organization or ad hoc arbitration, which will enforce this Arbitration Provision as to the dispute. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization or ad hoc arbitrator that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern.
A single arbitrator will resolve the dispute between You and Optimum. Participation in arbitration may result in limited discovery. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect confidential or proprietary information, including subscriber personally identifiable information.
All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Arbitration Provision, or the interpretation of its prohibitions of class, representative, and private attorney general proceedings and non-individualized relief shall be for a court of competent jurisdiction to decide. The Arbitrator is limited and bound by terms of this Arbitration Provision. Although the arbitrator shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law, the arbitrator shall not be bound by rulings in other arbitrations involving different customers. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Unless the parties agree otherwise, any arbitration hearings will take place in a location convenient to You in the area where You receive the Service(s). If the amount in dispute is less than $50,000, Optimum agrees that You may choose whether the arbitration is conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by AAA rules.
If the amount in dispute exceeds $75,000 or the claim seeks any form of injunctive relief, either party may appeal the award to a three-arbitrator panel administered by AAA by a written notice of appeal within thirty (30) days from the date of entry of the written arbitration award. An award of injunctive relief shall be stayed during any such appeal. The members of the three-arbitrator panel will be selected according to AAA rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, subject to any right of judicial review that exists under the FAA.
You agree that if You fail to notify Optimum in writing within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute, then to the fullest extent permitted by law, You waive the right to pursue, in any forum, including arbitration or court, a claim based upon such event, facts or dispute.
Optimum will pay all arbitration filing, administrative, and arbitrator fees for arbitrations that it commences. If You commence an arbitration, You will be responsible for paying a portion of arbitration fees as follows: If You are seeking relief valued at up to $1,000, Your share of such fees shall be capped at $25, and if You commence an arbitration seeking relief valued at between $1,001 and $10,000, Your share of such fees shall be capped at $100. If You commence an arbitration seeking relief valued at greater than $10,000, arbitration filing, administrative, and arbitrator fees shall be allocated in accordance with the AAA rules. If You cannot pay Your share of these fees, You may request a fee waiver from the AAA. In addition, Optimum will consider reimbursing Your share of these fees if You indicate You cannot afford them and, if appropriate, will pay directly all such fees upon Your written request prior to the commencement of the arbitration. You are responsible for all additional costs and expenses that You incur in the arbitration, including, but not limited to, attorneys' or expert witness fees and expenses, unless the arbitrator determines that applicable law requires Optimum to pay those costs and expenses.
If the arbitrator concludes that Your claim is frivolous or has been brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)), then the AAA rules shall govern the allocation of arbitration fees, and You agree to reimburse Optimum for any amounts Optimum may have paid on Your behalf. In addition, in such cases, the arbitrator shall have the same discretion that a court would have to require You to pay Optimum's attorneys' fees and expenses. If Optimum is the claimant, the arbitrator shall have the same discretion to require Optimum to pay Your attorneys' fees and expenses if the arbitrator concludes that Optimum's claim is frivolous or has been brought for an improper purpose.
YOU AGREE TO ARBITRATE YOUR DISPUTE AND TO DO SO ON AN INDIVIDUAL BASIS; CLASS, REPRESENTATIVE, AND PRIVATE ATTORNEY GENERAL ARBITRATIONS AND ACTIONS ARE NOT PERMITTED. You and Optimum agree that each party may bring claims against the other only in Your or its individual capacity and may not participate as a class member or serve as a named plaintiff in any purported class, representative, or private attorney general proceeding. This Arbitration Provision does not permit and explicitly prohibits the arbitration of consolidated, class, or representative disputes of any form. In addition, although the arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other Optimum account holders, neither You nor Optimum may seek, nor may the arbitrator award, non-individualized relief that would affect other account holders. Further, the arbitrator may not consolidate or join more than one person's claims unless all parties affirmatively agree in writing.
If any of the prohibitions in the preceding paragraph is held to be unenforceable as to a particular claim, then that claim (and only that claim) must be severed from the arbitration and brought in court. In that instance, or any instance when a claim between You and Optimum proceeds to court rather than through arbitration, You and Optimum each waive the right to any trial by jury through this Agreement.
If any other portion of this Arbitration Provision is determined to be unenforceable, then the remainder of this Arbitration Provision shall be given full force and effect. The terms of the Arbitration Provision shall survive termination, amendment or expiration of this Agreement.
For purposes of this Agreement, the term "Excepted Claims" shall mean claims by either party relating to a party's intellectual property rights or to the theft or piracy of Optimum products or services. In addition, either You or Optimum may bring claims in small claims court in Your jurisdiction, if that court has jurisdiction over the parties and the action and the claim complies with the prohibitions on class, representative, and private attorney general proceedings and non-individualized relief discussed above. You may also bring issues to the attention of federal, state, and local executive or administrative agencies.
Effective: August 1, 2022