HomeMy WebLinkAboutDoc 404 - Svcs Agrmt - Health-BendbroadbandDeschutes County Board of Commissioners
1300 NWWall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of August 19, 2013
Please see directions for completing this document on the next page.
DATE: August8,2013
FROM: Nancy Mooney, Contract Specialist Phone: 322-7516
Health Services--Behavioral Health Division
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document #2013-404, personal services contract between
BendBroadband Business and Deschutes County Health Services.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
BendBroadband is a local, family-owned business that has serviced Central Oregonians for more
than fifty (50) years. In 2003, the company name was changed from Bend Cable to
BendBroadband, recognizing that services had expanded beyond cable TV. BendBroadband is
nationally recognized as a leader in the cable industry due to progress with technology. In fact,
BendBroadband is the first company to provide high-speed Internet service in Oregon. In addition
to residential service, BendBroadband provides a full array of products to businesses in the region,
including Internet, fiber connectivity, phone, video and advertising services.
This contract provides for the expansion of Deschutes County's private network on Bend
Broadband's infrastructure. A majority of Deschutes County's high speed communications within
the Bend/Redmond metro is on Bend Broadband. This is not an internet connection. This is a
service Deschutes County uses to expand Deschutes County's private network to facilities
requiring the full set of county services (phones, data, internet, etc.) provided by IT. In this case,
the expansion is to provide internet services to Deschutes County's Kids Center location. The Kids
Center works together with law enforcement, medical providers and social service agencies to
create a supportive response to child abuse through a multi-disciplinary team approach. Located
on the Rosie Bareis Campus on the Westside, Bend is able to provide evaluation, interviewing,
family support and therapy services.
FISCAL IMPLICATIONS:
Maximum compensation for this expansion is $225 per month for five (5) years.
RECOMMENDATION &ACTION REQUESTED:
Behavioral Health requests approval.
ATTENDANCE: Consent Agenda requested
DISTRIBUTION OF DOCUMENTS:
Executed originals to:
Nancy Mooney, Contract Specialist, Health Services
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be returned to
the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: I July 15, 2013 I
Department: I Health Services, Behavioral Health
Contractor/Supplier/Consultant Name: I Bendbroadband Business
Contractor Contact: I Sandy Morse I
Type of Document: Personal Services Contract
Goods and/or Services: Bendbroadband will provide internet services at the Kid's
Center location located on Kingston Ave.
Background &History: BendBroadband is a local, family-owned business that has
serviced Central Oregonians for more than fifty (50) years. In 2003 the company name
was changed from Bend Cable to BendBroadband, recognizing that services had
expanded beyond cable TV. BendBroadband is nationally recognized as a leader in the
cable industry due to progress with technology. In fact, BendBroadband is the first
company to provide high-speed Internet service in Oregon. In addition to residential
service, BendBroadband provides a full array of products to businesses in the region,
including Internet, fiber connectivity, phone, video and advertising services.
BendBroadband will provide internet services to Deschutes County's Kids Center
location. Kids Center works together with law enforcement, medical providers and
social service agencies to create a supportive response to child abuse through a multi
disciplinary team approach. Located on the Rosie Bareis Campus on the Westside,
Bend is able to provide evaluation, interviewing, family support and therapy services.
Agreement Starting Date: I July 1, 2013 I Ending Date: I June 30, 2018 I
Annual Value or Total Payment: I Maximum contract revenue is $225 per month fo~
~ve (5) years. I
7115/2013
Check all that apply:
D RFP, Solicitation or Bid Process
'7 D Informal quotes «$150K)
~)()' ~ Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37)
Funding Source: (Included in current budget? ~ Yes D No
If No, has budget amendment been submitted? D Yes No
Is this a Grant Agreement providing revenue to the County? D Yes ~ No
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant-funded position so that this will be noted in the offer letter: D Yes No
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title: I Nancy Mooney, Contract Specialist
Phone #: I 541-322-7516 I
Deputy Director Approval: 'S-(e ern (l'll al\~t.J
Signature Date
Department Director Approval: ~ 11"13
&gaLJre Date
Distribution of Document: Return both originals to Nancy Mooney, Behavioral
Health Department.
D
Official Review:
County Signature Required (check one): WBOCC 0 Department Director (if <$25K)
150K; if >$150K, BOCC Order No. _____)
Date g, 1~ ($Legal Review
7115/2013
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Customer to Bend Cable Data Services, LlC Commercial Subscriber Agreement, IncludIng any ·Eorly Termination Charg08 that
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below, If, within thirty days atter ClJetomer'a slgnlliure be low, Bend Cablo Dnla ServIces. LLC determines that Customer's locaHon
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and Customer cancels this Agrvement pnor to In.tenellon. CU8tomer shall be liable for Bend;Cebla Dato ServIces , LLC reasonable
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LEGAL COUNSEL
DATED this dayof __________2013 for the
Deschutes County Board of Commissioners.
ALAN UNGER, Chair
TAMMY BANEY, Vice Chair
ATTEST:
Recording Secretary
ANTHONY DEBONE, Commissioner
BENDBROADBAND COMMERCIAL SUBSCRIBER AGREEMENT
This is your Subscriber Agreement ("Agreement") with Bend Cable
Communications, LLC ("BendBroadband," "we," "us," "our"). It sets forth the
terms and conditions under which commercial customers ("Customer," "you,"
"your") will be provided BendBroadband video, Internet and Phone services
("Service(s)").
WHEN YOU EXECUTE A TERM AGREEMENT WITH BENDBROADBAND, OR
USE OR PAY FOR THE SERVICES (WHICHEVER OCCURS FIRST) ("Effective
Date"), YOU AGREE TO THE PRICES, TERMS, AND CONDITIONS SET
FORTH IN THE TERM AGREEMENT AND THIS AGREEMENT (together,
"Agreement").
GENERAL TERMS AND CONDITIONS
1. Installation fees and deposits; installation.
(a) Installation fees and deposits. Installation fees and deposits on
BendBroadband Equipment (as defined below) will be invoiced in your first bill.
Payments for installation fees, deposits, and for all Services are due 30 days
from the issue date of the applicable bill.
(b) Installation. BendBroadband will use reasonable efforts to make the
Services available by the Requested Service Date in the Term Agreement.
Installation delays outside BendBroadband's control may occur from time to time,
and in this event, BendBroadband will notify Customer.
2. Billing and payment.
(a) Charges. You agree to pay all charges associated with the Services.
These charges may include installation charges, monthly service charges,
charges for the use of BendBroadband EqUipment, charges for service calls,
early termination charges, and other charges. The applicable schedules of
charges and fees are included in your Term Agreement with BendBroadband, or
can be found at www.bendbroadband.com or by calling BendBroadband
customer service at 541-382-5551. In the event of any inconSistency between
the charges and fees in your Term Agreement and those available at
www.bendbroadband.com or by calling BendBroadband customer service, the
charges and fees in your Term Agreement shall govern.
(b) Taxes and other fees. You agree to pay any and all applicable federal,
state, and local taxes (however deSignated) levied upon us and our affiliates in
connection with the sale, installation, use, or provision of the Services, including
amounts that we and our affiliates are required by governmental or quasi
governmental authorities to collect from or to pay to others in support of statutory
or regulatory programs, including universal service fees, 9111E911 surcharges,
telecommunications relay service surcharges, franchise fees, right-of-way fees,
number portability fees, etc. If you are tax-exempt under federal or state law, you
may submit to BendBroadband a valid tax-exempt certificate, and
I
BendBroadband will not assess the applicable tax to you. You agree to notify
BendBroadband if your tax-exempt status changes during the term of this
Agreement.
(c) Notification of changes. Unless this Agreement specifies otherwise, we
will give you 30 days' notice of any modi'fication to this Agreement.
BendBroadband may, in it sole discretion, change or downgrade portions of the
Services (including but not limited to features and equipment requirements) at
any time without notice. If you continue to use the Services after any modification
of this Agreement that materially and adversely affects your rights, or any
material downgrade to the Services, you shall be deemed to have accepted such
modification or downgrade. If you do not agree to any such modification or
downgrade, you must immediately stop using the Services and notify
BendBroadband that you are terminating this Agreement. You will then be
entitled to a refund of any unused portion of any recurring monthly service fee for
the Services that has been paid by you in advance (less any outstanding
amounts due for equipment or other applicable fees and charges). You will be
responsible to pay any fees, payment obligations, and taxes that become
applicable retroactively.
(d) Accrual of fees and charges. The fees and charges for the Services
begin to accrue on the date of installation.
(e) Payment by credit card. If we make available payment by credit card
and you provide a credit card number to us, you thereby authorize us to charge
that credit card for all amounts payable by you to BendBroadband as specified in
this Agreement. You also authorize us to continue such charges until you notify
BendBroadband in writing that you are withdrawing this authorization or until you
have paid all charges under this Agreement. If BendBroadband does not receive
payment from your credit card issuer or its agents, you agree to pay all amounts
due upon demand by us.
(f) Billing errors. Subject to applicable law, you must notify us of any billing
errors or other requests for refund within 60 days of the date on the bill.
(g) Late Fees. You agree to pay a $5.00 late fee in addition to all other
applicable charges if you do not pay the full balance due on your account within
60 days of the due date.
(h) Credit inquiries. You authorize BendBroadband to make inquiries and to
receive information about your credit experience from others, to enter this
information in your file, and to disclose this information concerning you to
appropriate third parties for reasonable business purposes, and in accordance
with applicable law.
(i) Returned checks, nonpayment, collection. You agree that
BendBroadband may electronically debit your account for both the face amount
of your check, and a returned check fee of $25, if your check is returned unpaid.
In the event of nonpayment, BendBroadband reserves the right to disconnect
your Services at any time, with or without notice. You agree that if
BendBroadband incurs collection or other legal costs as a result of nonpayment,
you will be liable for the total past due amount and any returned check fees, and
also for collection and attorneys' fees as well as court costs upon judgment.
Further, in order to resume Services, you must pay the past due charges in full in
addition to a connect fee and one month's service charges in advance.
3. No resale. You agree and represent that you are buying the Services for
your internal business purposes only and that you will not resell, distribute or
resell the Services to others through any means whether or not for a fee, or
permit others to distribute or resell the Services. You agree to ensure that all
uses of the BendBroadband Equipment and Services installed at your premises
are legal and appropriate.
4. BendBroadband Equipment, software and marks
(a) Equipment. You acknowledge that BendBroadband-installed equipment
and facilities, along with any equipment leased to you (including converters,
remote control units, external cabling and power cords provided or installed with
any cable television services, and any cable modem or multimedia terminal
adaptor ("MTA") installed along with your Internet or BendBroadband Phone
services (collectively, "BendBroadband Equipment"), is for your exclusive use
during your subscription and remains the property of BendBroadband. You
agree that you will not allow the Bend Broad band Equipment to be serviced by
anyone other than BendBroadband employees or agents. You may not relocate
BendBroadband Equipment. At your request, we may relocate the
BendBroadband Equipment within your service address for an additional charge,
at a time agreeable to you and to us. If you change your service address, you
must contact BendBroadband for information on whether the BendBroadband
Equipment and Services can be transferred to your the new service address and
what the relocation will cost. If you wish to disconnect the Services, you must
contact BendBroadband for information on the necessary procedures and cost.
You shall not permit any attachments to, alteration of, or tampering with the
BendBroadband Equipment, nor any alteration or additional use of the Services
at any time, under penalty of law. You agree that if either party terminates your
Services for any reason, you shall return the BendBroadband Equipment to
BendBroadband within 10 business days of termination in proper, undamaged
working order other than reasonable wear and tear.
(b) Damage to or failure to return BendBroadband Equipment. In the
event the BendBroadband Equipment is lost, stolen, damaged, destroyed, or
otherwise not returned to BendBroadband as required under this Agreement. you
agree to pay the current replacement cost of the BendBroadband Equipment.
You understand that failure to pay the replacement charge will result in the
matter being turned over to a collection agency and attorneys to pursue legal
action.
(c) Unauthorized use of BendBroadband Equipment or Services.
Unauthorized use of BendBroadband Equipment or Services constitutes a
violation of federal and state law. BendBroadband will press charges against all
violators. You will be liable for all unauthorized use of the Services and for any
and all stolen Services. You agree to notify us immediately in writing or by calling
our customer service line during normal business hours if you become aware at
any time that the BendBroadband Equipment has been stolen or that your
Services are being stolen or used without your authorization. If you fail to notify
us in a timely manner, your Services may be terminated without notice, with
additional charges to you.
(d) BendBroadband firmware and software. The Services and
BendBroadband Equipment, including any firmware or software that may be
embedded in the BendBroadband Equipment or used to provide the Services,
are protected by trademark, copyright, and other intellectual property laws and
international treaty provisions. You are granted a revocable license to use such
firmware and software in object code form (without making any modification
thereto) strictly in accordance with this Agreement. This license will commence
upon the Effective Date and will terminate immediately upon the termination of
the Services for any reason. BendBroadband and its licensors retain all rights
and interests in and to any such software of firmware. You acknowledge and
understand that you are not granted any other license to use the firmware or
software embedded in the BendBroadband Equipment or used to provide the
Services. You expressly agree that you wi" use the BendBroadband Equipment
exclusively in connection with the Services. You are permitted to archive the
software or re-Ioad the software disk in its original format. All such copies must
contain the same copyright notices and proprietary markings as the original
software. You shall not reverse compile, disassemble, or reverse engineer or
otherwise attempt to derive the source code from the binary code of the firmware
or software.
If you decide to use the Services through an interface device not provided by
BendBroadband, which BendBroadband reserves the right to prohibit in particular
cases or generally, you warrant and represent that you possess all required
rights to use that interface device with the Services. including all software and
firmware licenses. You will indemnify and hold harmless BendBroadband against
any and all liability arising out of your use of such interface device with the
Services.
(e) Export laws. You expressly agree to comply with all applicable export
and re-export laws, including but not limited to the Export Administration Act, the
Arms Export Control Act, and their implementing regulations. You further
expressly agree not to use the Services in any way that violates any provision of
these export and re-export laws or their implementing regulations.
(f) Protection of BendBroadband's information and marks. All
Bend Broadband Services information, documents, and materials on our websites
are protected by trademark, copyright or other intellectual property laws, and
international treaty provisions. All websites, corporate names, service marks,
trademarks, trade names, logos, and domain names (collectively "marks") of
Bend Broadband are and shall remain the exclusive property of BendBroadband.
Nothing in this Agreement shall grant you the right or license to use any of the
marks.
5. Customer equipment
(a) Specifications. Any customer-owned or provided equipment ("Customer
EqUipment") that you use in connection with the Services must meet
Bend Broadband's current minimum technical and other requirements. Those
requirements are posted on at www.bendbroadband.com (or on an alternative
site if we so notify you). The requirements may be revised by us from time to
time.
(b) Non-Recommended Configurations: If you install or use in connection
with the Services Customer Equipment that does not meet the minimum
technical or other requirements described above (a "Non-Recommended
Configuration"), you agree that (i) you will not be entitled to customer support
relating to any issues other than the quality of the signal delivered to the
Customer Equipment, and (ii) the following limitation of liability shall apply:
NEITHER BENDBROADBAND NOR ANY OF ITS OWNERS, OFFICERS,
DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, OR ASSOCIATED
PARTIES ("BENDBROADBAND PARTIES") WARRANT THAT A NON
RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY
INSTALL, ACCESS, OPERATE, OR USE THE SERVICES. YOU
ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION,
OR USE COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT. NONE OF
THE BENDBROADBAND PARTIES SHALL HAVE ANY LIABILITY
WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE, INCLUDING LACK
OF 911/E911 OR DIALING ASSOCIATED WITH A SECURITY SYSTEM. For
purposes of this Agreement, "affiliate" means any entity that controls, is
controlled by, or is under common control with BendBroadband. The foregoing
limitation of liability is in addition to and shall not limit any other limitation of
liability set forth in this Agreement.
(c) Maintenance of Customer EqUipment. BendBroadband shall have no
obligation to provide, maintain, or service Customer Equipment unless purchased
from BendBroadband, and only to the extent provided for in the warranty for the
Customer Equipment.
6. Service and maintenance procedures. The Services include the right to
request reasonable service and maintenance calls to check and correct any
problems with the Services at no additional cost to you, except as provided
below. In such an event, you agree to allow a BendBroadband representative to
inspect its facilities either inside or outside the place of attachment. However,
you understand that the BendBroadband representative may not service any
Customer Equipment, including your TV set, VCR, stereo, fax equipment, PCs;
local area networks, telephone switching equipment, PBXs or premises wiring
not installed by Bend Broad band. In the event that you request a service call
based on problems which, in BendBroadband's sole judgment relate Customer
Equipment, Customer negligence, lack of knowledge, Customer software,
Customer-installed wiring or hardware, or any problem not caused by
BendBroadband, you agree to pay the cost of repair. Please use the following
procedures to best help us resolve any service or maintenance issues:
• Contact BendBroadband customer service at 541-382-5551.
• During normal business hours, you may speak with a Customer Service
Representative (CSR). Our CSR will attempt to determine the nature of
the problem. If the problem cannot be resolved over the phone, the CSR
will schedule a Service Technician to visit your service address, usually by
the same business day. We do not charge for service calls if our
equipment caused the problem.
• If you do not call during normal business hours, leave a complete
message including your account number, billing name, contact telephone
numbers, and the nature of the problem. When possible, a Service
Technician will be dispatched by the next business day to fix the problem.
In other cases, the answering service will forward the message to our
office, and we will contact you during normal business hours.
• Emergencies such as fallen trees or utility poles, violent storms or very
cold weather may interfere with the Services. Our crews are promptly
dispatched to correct any emergency. As these situations may affect a
large service area, it may take several days to resume full service to the
entire area.
If a problem is not resolved to your satisfaction, you may write our call us with
concerns or complaints. For cable television-related issues, you may also
contact your local franchise authority at the address listed at the end of this
Agreement.
7. LIMITATION OF LIABILITY; INDEMNIFICATION; NO WARRANTIES
(a) No warranties. THE BENDBROADBAND EQUIPMENT AND SERVICES
ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, NEITHER THE BENDBROADBAND PARTIES NOR
THEIR SERVICE PROVIDERS (as defined in Section 7(e) below) WARRANT
THAT THE BENDBROADBAND EQUIPMENT OR THE SERVICES WILL MEET
YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE
AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER THE
BENDBROADBAND PARTIES NOR THEIR SERVICE PROVIDERS WARRANT
THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED
FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY EXCLUDED.
NEITHER THE BENDBROADBAND PARTIES NOR THEIR SERVICE
PROVIDERS WARRANT, OR SHALL BE RESPONSIBLE IN ANY REGARD,
FOR ANY MERCHANDISE OR SERVICES ORDERED THROUGH THE
SERVICES FROM THIRD PARTIES OR OTHER COMMERCIAL
TRANSACTIONS WITH THIRD PARTIES. CUSTOMER SHALL BE
RESPONSIBLE FOR ALL SUCH CHARGES AND SHALL INDEMNIFY
BENDBROADBAND FOR ALL LIABILITY IN CONNECTION THEREWITH.
(b) Limitations on liability for delays, malfunctions and intellectual
property claims. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, IN NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY
(INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, OR OTHERWISE),
SHALL THE BENDBROADBAND PARTIES OR THEIR SERVICE PROVIDERS
HAVE ANY LIABILITY TO YOU OR TO ANY PERSON OR ENTITY FOR (i) ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING
BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF
BUSINESS OPPORTUNITIES, OR PERSONAL INJURIES (INCLUDING
DEATH), RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE
ARISING IN CONNECTION WITH, THE INSTALLATION, SELF-INSTALLATION,
MAINTENANCE, FAILURE, REMOVAL, OR USE OF THE SERVICES,
INCLUDING LACK OF 911/E911 OR DIALING ASSOCIATED WITH A
SECURITY SYSTEM, OR THE BENDBROADBAND EQUIPMENT OR
CUSTOMER'S RELIANCE ON OR USE OF THE BENDBROADBAND
EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY
MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURES OR MALFUNCTION,
ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION,
DELAYS IN INSTALLATION OR MEETING ANY REQUESTED SERVICE
DATES, LOSS OF INFORMATION OR DATA, OR FAILURE OF
PERFORMANCE OF THE BENDBROADBAND EQUIPMENT OR SERVICES;
OR (ii) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR
COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY
OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY
ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A
CONTENTION THAT THE USE OF THE BENDBROADBAND EQUIPMENT OR
THE SERVICES BY CUSTOMER OR ANY OTHER PERSON OR ENTITY
INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET,
CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY
RIGHTS, OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
(c) Limitations on liability for directories and directory assistance.
THE LIMITATIONS IN THIS SECTION 7(c) SHALL APPLY WHERE WE MAKE
AVAILABLE A DIRECTORY LISTING OR PUBLICATION OPTION. IF (i) ANY
PHONE NUMBER FOR WHICH YOU HAVE REQUESTED UNLISTED STATUS
IS PUBLISHED IN ANY DIRECTORY; (ii) ANY PHONE NUMBER FOR WHICH
YOU HAVE REQUESTED NONPUBLISHED STATUS IS INCLUDED IN ANY
DIRECTORY, ANY DIRECTORY ASSISTANCE DATABASE, OR IS
OTHERWISE DISCLOSED TO ANY UNAUTHORIZED PERSON; (iii) ANY
PHONE NUMBER WHICH YOU REQUESTED BE PUBLISHED OR LISTED IN
ANY DIRECTORY OR DIRECTORY ASSISTANCE DATABASE IS NOT SO
PUBLISHED OR LISTED, OR (iv) ANY PUBLISHED OR LISTED PHONE
NUMBER CONTAINS MATERIAL ERRORS OR OMISSIONS, THEN THE
TOTAL LIABILITY OF THE BENDBROADBAND PARTIES AND THEIR
SERVICE PROVIDERS IN CONNECTION WITH THE DESCRIBED ERROR OR
OMISSION SHALL NOT IN THE AGGREGATE EXCEED THE MONTHLY
CHARGES, IF ANY, WHICH YOU HAVE ACTUALLY PAID TO
BENDBROADBAND TO LIST OR NOT TO LIST OR TO PUBLISH OR NOT
PUBLISH THE NUMBER FOR THE AFFECTED PERIOD. YOU SHALL HOLD
THE BENDBROADBAND PARTIES AND THEIR SERVICE PROVIDERS
HARMLESS AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR
CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE
ERRORS AND OMISSIONS DESCRIBED ABOVE.
(d) Limitations on liability for Customer Equipment and software.
Customer Equipment may be damaged or suffer service outages as a result of
the installation, use, inspection, maintenance, repair, and removal of the
BendBroadband Equipment and the Services. Except for gross negligence or
willful misconduct by us, none of the BendBroadband Parties shall have any
liability whatsoever for any damage, loss, or destruction to the Customer
Equipment. In the event of gross negligence or willful misconduct by
BendBroadband, we shall pay at our sole discretion for the repair or replacement
of the damaged parts up to a maximum of $250. This shall be your sole remedy
relating to such activity. Use of certain features of the Services, such as
integrated messaging (where available), may require special software,
applications, or access to a web portals. BendBroadband makes no
representation or warranty that any software or application installed on your
computers or web portal does not contain a virus or other harmful feature. It is
your sole responsibility to take appropriate precautions to protect any computer
and other hardware of yours from damage to its software, files, and data as a
result of any such virus or other harmful feature. We are not required to provide
you with any assistance in removal of viruses. If we decide, in our sole discretion,
to install or run virus check software on your computer, we make no
representation or warranty that the virus check software will detect or correct any
or all viruses. You acknowledge that you may incur additional charges for any
service call made or required on account of any problem related to a virus or
other harmful feature detected on your system. NEITHERTHE
BENDBROADBAND PARTIES NOR ITS SERVICE PROVIDERS SHALL HAVE
ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY
HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS,
ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE
IT.
BendBroadband does not represent, warrant, or covenant that the installation of
the special software or applications described in the preceding paragraph or
access to our web portals will not cause the loss of files or disrupt the normal
operations of any Customer Equipment, including but not limited to your
computer. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND
UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO
ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES.YOU
UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP
FILES. NEITHER THE BENDBROADBAND PARTIES NOR ITS SERVICE
PROVIDERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY
DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
CERTAIN CONTENT MAY BE OBJECTIONABLE OR UNSUITABLE FOR
MINORS. YOU ARE RESPONSIBLE FOR AND MUST EXERCISE YOUR OWN
DISCRETION WHEN ALLOWING MINORS TO USE THE SERVICES.
(e) Limitations on BendBroadband's liability for third parties.
Notwithstanding anything to the contrary in this Agreement, you acknowledge
and understand that we may use third parties to provide components of the
Services, including without limitation their services, equipment, and infrastructure
("Service Providers"). BENDBROADBAND IS NOT RESPONSIBLE FOR THE
PERFORMANCE OR NON-PERFORMANCE OF THIRD-PARTY SERVICES,
EQUIPMENT, OR INFRASTRUCTURE, WHETHER OR NOT THEY
CONSTITUTE COMPONENTS OF THE SERVICES. BENDBROADBAND
SHALL NOT BE BOUND BY ANY UNDERTAKING, REPRESENTATION, OR
WARRANTY MADE BY AN AGENT OR EMPLOYEE OF BENDBROADBAND
OR OF OUR SERVICE PROVIDERS IN CONNECTION WITH THE
INSTALLATION, MAINTENANCE, OR PROVISION OF THE SERVICES, IF
THAT UNDERTAKING, REPRESENTATION, OR WARRANTY IS
INCONSISTENT WITH THE TERMS OF THIS AGREEMENT. THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 APPLY TO ANY
ACTS, OMISSIONS, AND NEGLIGENCE OF THE BENDFROADBAND
PARTIES AND THEIR SERVICE PROVIDERS WHICH, BUT FOR THAT
PROVISION, WOULD GIVE RISE TO A CAUSE OF ACTION IN CONTRACT
TORT, OR ANY OTHER LEGAL DOCTRINE. '
(f) Customer's Indemnification of BendBroadband. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AGREE
TO DEFEND, INDEMNIFY, AND HOLD THE BENDBROADBAND PARTIES
AND THEIR SERVICE PROVIDERS, HARMLESS FROM CLAIMS OR
DAMAGES RELATING TO OR ARISING OUT OF YOUR BREACH OF THIS
AGREEMENT OR YOUR AND YOUR USERS' USE OF THE SERVICES OR
ANY BENDBROADBAND EQUIPMENT, INCLUDING BUT NOT LIMITED TO
ANY CLAIMS OR DAMAGES ARISING OUT OF (i) POSTINGS MADE USING
YOUR INTERNET SERVICES, INCLUDING FOR DEFAMATION, COPYRIGHT,
TRADEMARK OR OTHER PROPRIETARY RIGHT INFRINGMENT OR
OTHERWISE; (ii) THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A
SECURITY SYSTEM.YOU AGREE THAT BENDBROADBAND SHALL NOT BE
RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS AGAINST US THAT ARISE
FROM YOUR USE OF THE SERVICES OR THE BENDBROADBAND
EQUIPMENT. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS
AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS.
(g) Service level agreement. In the event of complete failure of a Service
due to technical malfunction for 24 consecutive hours or more, you are entitled to
a prorated credit upon request. To qualify for a credit, you must request it within
30 days of the failure. THE FOREGOING IS YOUR SOLE REMEDY FOR A
SERVICE INTERRUPTION. YOU UNDERSTAND AND ACKNOWLEDGE THAT
THERE MAY BE INTERRUPTIONS OF THE SERVICES DUE TO ACTS OF
GOD, WAR, WEATHER, POWER FAILURES, EQUIPMENT FAILURES, OR
OTHER SIMILAR EVENTS BEYOND THE CONTROL OF BENDBROADBAND.
NONE OF THE BENDBROADBAND PARTIES OR THEIR SERVICE
PROVIDERS SHALL HAVE ANY LIABILITY, INCLUDING AS SET FORTH IN
THIS SECTION 7(g), FOR INTERRUPTIONS OF SERVICE DUE TO
CIRCUMSTANCES BEYOND THEIR CONTROL, OR FOR CLAIMS OR
DAMAGES ARISING FROM SUCH INTERRUPTIONS.
(h) Customer's Sole Remedies. Your sole and exclusive remedies under
this Agreement are as expressly set forth in this Agreement. If any of the above
exclusions is found invalid, the liability of the BendBroadband Parties and their
Service Providers is limited to the maximum extent permitted by law.
8. BendBroadband's access to customer's premises. From time to time,
BendBroadband may need to enter the premises at which you will use the
Services ("Premises") in order to install, maintain, inspect, repair, and remove the
BendBroadband Equipment or Services. Accordingly, you are responsible for
arranging all necessary rights of access to the Premises, including space for
cables, conduits, and equipment necessary for BendBroadband to install, repair,
inspect, maintain, replace or remove any and all BendBroadband Equipment
You shall provide a secured space with electrical power, climate control and
protection against fire, vandalism, and other casualty for the BendBroadband
Equipment. You authorize BendBroadband and its employees, agents,
contractors, and representatives to enter the Premises as necessary, at a time
agreeable to you and us. You warrant either that you are the owner of the
Premises, or if you are a tenant, that you have the authority to allow us access to
the Premises. If you are not the owner of the Premises, you agree to supply us, if
we ask, the owner's name and address, evidence that the owner has authorized
you to grant access to the Premises, and written consent from the owner.
9. Security deposits. If you have made arrangements to have a security
deposit on file with Bend Broadband, you agree to relinquish those funds if you
fail to return any piece of BendBroadband Equipment. You also agree that your
deposit may be applied to any outstanding charges at the time of termination of
the Services. No interest will be paid on deposits.
10. Pricing and charges. Non-recurring charges and monthly recurring
charges for your Services are included in your Term Agreement with
BendBroadband. Other applicable prices and charges can be found at
www.bendbroadband.com , or by calling BendBroadband customer service at
541-382-5551.
11. Privacy. Your privacy interests, including your ability to limit disclosure of
certain information to third parties, may be safeguarded by provisions of the
Cable Communication Policy Act of 1984, as amended, or, for BendBroadband
Phone subscribers, by 47 U.S.C. § 222 and the FCC's regulations governing
customer proprietary network information. Your rights under the foregoing law,
and BendBroadband's privacy practices, are described in the Subscriber Privacy
Notice delivered to you and incorporated herein by reference. Bend Broadband
reserves the rights to change its privacy practices from time to time.
12. ARBITRATION
(a) EXCEPT FOR (i) CLAIMS FOR INJUNCTIVE RELIEF, AS DESCRIBED
BELOW; (ii) CLAIMS BROUGHT BY BENDBROADBAND RELATED TO
UNPAID CHARGES FOR THE SERVICES OR BENDBROADBAND
EQUIPMENT; OR (iii) CLAIMS BROUGHT BY BENDBROADBAND FOR
UNAUTHORIZED USE OF THE SERVICES OR BENDBROADBAND
EQUIPMENT, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR
CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE
RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION
RULES. CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT
BE PERMITTED. THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT
UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT HAVE
THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAY BE
SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW. NO CLAIM
SUB~IECT TO ARBITRATION UNDER THIS AGREEMENT MAY BE COMBINED
WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW. THE
ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE
ARBITRATOR. JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY
COURT HAVING COMPETENT JURISDICTION. IF ANY PORTION OF THIS
SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL
CONTINUE TO BE ENFORCEABLE.
(b) If any clause within this Section 12 (other than the class action waiver
clause) is found to be illegal or unenforceable, that clause will be severed from
the Arbitration Provision, and the remainder of this Section 14 will be given full
force and effect. If the class action waiver clause is found to be illegal or
unenforceable, the entire Section 12 will be unenforceable. In the event that this
entire Section 12 is determined to be illegal or unenforceable for any reason, or if
a claim is brought that is found by a court to be excluded from the scope of this
Section 12, you and BendBroadband have each agreed to waive, to the fullest
extent allowed by law, any trial by jury.
13. Representations and warranties of Customer. You represent and
warrant that the individual executing this Agreement has the authority to do so.
You are solely responsible for monitoring all material that is accessed by minors
using your Services. You also represent and warrant that you have provided and
will continue to provide to BendBroadband accurate, complete, and current
customer information, including but not limited to your legal name, address,
phone numbers, and payment data (including but not limited to credit card
numbers and expiration dates).You agree that during the term of this Agreement
you will promptly notify us if there is any change in the information that you have
provided to us in accordance with the terms of this Agreement. If you fail to
provide and maintain accurate information, you thereby breach this Agreement.
14. No Relationship between BendBroadband and other providers.
Nothing in this Agreement will create any joint venture, joint employer, franchisor
franchisee, employer-employee, or principal-agent relationship between
BendBroadband and any providers of content or of backbone, network, circuit,
and other technology or communications; between BendBroadband and any
software and other licensors; between BendBroadband and any hardware and
equipment suppliers; or between BendBroadband and any other third-party
providers of elements of the Services. Nor will anything in this Agreement impose
upon any such companies any obligations for any losses, debts, or other
obligations incurred by the other.
15. Termination
(a) Term. This Agreement shall become effective on the Effective Date and
shall continue thereafter until terminated as provided for in this Agreement. If
you have executed a Term Agreement with BendBroadband, your Term
Commitment for a particular Service commences on the date that Service is
activated ("Term Commencment Date"). Following the expiration of your Term
Commitment, BendBroadband will continue to provide the Services on a month
to-month basis at BendBroadband's then-current rates until termination of the
Agreement pursuant to this Section 15.
(b) Termination by you. You may terminate the Services at any time by
notifying BendBroadband during normal business hours via the contact
information listed in Section 16(a) below. Your liability for service charges will
continue until such notice is received and verified by BendBroadband. You will
receive a refund for any prepaid days not yet used after the termination date. If
you executed a Term Agreement with BendBroadband, the first three sentences
of this Section 15(b) shall not apply until the Term Commitment under the Term
Agreement has expired, further, an Early Termination Charge may apply.
(c) Suspension and termination by BendBroadband. We may suspend
your Services or terminate this Agreement for any reason. If we suspend your
Services or terminate this Agreement because you failed to comply in full with
any term of this Agreement, we may do so at any time upon 7 days' notice, or
upon less than 7 days' notice or without notice where permitted by this
Agreement, and, in addition to your other obligations under Section 15(d), you
will be subject to the Early Termination Charge provided for in Section 15(d). If
we suspend Service or terminate this Agreement for any other reason, we must
first give you 30 days' notice. If we suspend Service or terminate this Agreement
for a reason other than your violation of this Agreement, all applicable fees and
charges will accrue until the date of suspension or termination, but we will refund
all prepaid monthly service fees charged for Services after the date of termination
(less any outstanding amounts due BendBroadband for the Services, affiliate
services, equipment, or other applicable fees and charges).You understand and
acknowledge that all BendBroadband Phone Services, including 911/E911 ,will be
disabled because of termination of your account.
(d) Your obligations upon termination; Early Termination Charge. You
agree that upon termination of this Agreement you will (i) immediately cease use
of the Services and all BendBroadband Equipment; (ii) pay in full for your use of
the Services and the BendBroadband Equipment up to the later of the effective
date of termination of this Agreement or the date on which the Services are
disconnected and all BendBroadband Equipment has been returned; and (iii)
return the BendBroadband Equipment to BendBroadband, by any method
reasonably requested by us, within 10 days after termination of the Agreement.
In addition, if you terminate this Agreement before the expiration of the Term
Commitment set forth in your Term Agreement for any reason other than a
material default by BendBroadband under this agreement, BendBroadband may
charge an Early Termination Charge as follows:
(i) If you terminate less than six months from the Term
Commencement Date, you agree to pay BendBroadband an Early
Termination Charge of $300.00.
(ii) If you terminate between six and twelve months from the Term
Commencement Date, you will be billed by BendBroadband for an
Early Termination Charge equal to 90% of the Monthly Recurring
charges that would have been due under your Term Agreement for
the remainder of your Term Commitment.
(iii) If you terminate between twelve and twenty-four months from the
Term Commencement Date, you agree to pay BendBroadband an
Early Termination Charge equal to 70% of the Monthly Recurring
charges that would have been due under your Term Agreement for
the remainder of your Term Commitment.
(iv) If you terminate between twenty-four and thirty-six months from the
Term Commencement Date, you agree to pay BendBroadband an
Early Termination Charge equal to 50% of the Monthly Recurring
charges that would have been due under your Term Agreement for
the remainder of your Term Commitment.
In addition, you agree to pay any unpaid activation fees, installation and/or
construction charges pertaining to your account If you received promotional
service credits through the duration of the Term Commitment, you agree to repay
BendBroadband for such credits. All such amounts (including any Early
Termination Charge) will become due upon termination.
(e) Upon our request, you will permit us and our employees, agents,
contractors, and representatives to access your Premises during regular
business hours to remove the BendBroadband Equipment and other material
provided by BendBroadband. We will conduct this removal at a time agreed on
by you and us, and you will ensure that all BendBroadband Equipment is
returned to BendBroadband. You may be responsible for paying an equipment
return charge and any previously agreed to charges if BendBroadband must
come to the Premises to recover the BendBroadband Equipment. If
BendBroadband incurs collection or legal costs as a result of your failure to
comply with this Agreement or this Section 15(e), you will be liable for not only
the value of the BendBroadband Equipment, but also for collection and attorneys'
fees as well as court costs upon judgment.
(f) Reconnection. If either party terminates a Service, you will be required,
in addition to payment of all overdue balances, to pay a reconnect charge or trip
charge (where applicable) before reconnection.
(g) Deletion of Customer information. BendBroadband and its service
providers reserve the right both during the term of this Agreement and upon its
termination to delete your voicemail, data, files, or other Customer information
that is stored on BendBroadband's or its Service Providers' servers or systems,
in accordance with our storage policies. You understand and acknowledge that
we shall have no liability whatsoever as a result of the loss or removal of any
such voicemail, data, files, or other Customer information.
16. Miscellaneous
(a) How to Contact Us. For any inquiries or notices required in connection
with this Agreement, you may contact us (i) via the support request form or live
chat at www.bendbroadband.com (ii) in writing at Customer Service
BendBroadband, 63090 Sherman Road, Bend, OR 97701, or (iii) on our
customer service line at 541-382-5551 during normal business hours.
(b) How you will receive notices. BendBroadband may deliver this
Agreement, updates to this Agreement, its pricing lists, or any other
communications to you by sending it to you via U.S. Mail or overnight mail at
your address of record, or delivering it by hand. If we give you notice, it will be
considered given when deposited in the U.S. Mail or with an overnight carrier,
addressed to you at your billing address or hand-delivered to you. Our notice to
you will also be effective if provided on your billing statement or by telephone, or
on your Bend Broadband email account or at any email address that you provide
to us. If you are a BendBroadband Phone or Internet customer, we may also
provide you notice by posting it at www.bendbroadband.com (or an alternative
site if we so notify you). Because we may from time to time notify you about
important information regarding the Services, this Agreement, and related
matters, you agree to check your mail, email and all postings on our website
regularly and bear the risk of failing to do so. If you give notice to us, it will be
deemed given when received by us at the address listed on the first page of this
Agreement.
(c) Entire agreement. This Agreement, along with any Term Agreement for
Services, pricing lists and additional terms found at www.bendbroadband.com ,
and BendBroadband's Subscriber Privacy Notice (all of which are incorporated
herein by reference), constitutes the entire agreement of the parties with respect
to the subject matter hereof, and supersede all previous written or oral
agreements between the parties with respect to such subject matter; provided
that any other special pricing agreement, or Term Agreement relating to
Customers Services with BendBroadband shall remain in full force and effect.
(d) Governing law. This Agreement shall be construed in accordance with
the laws of the State of Oregon, without regard to its conflict of laws rules. In the
event that any portion of this Agreement is held to be invalid or unenforceable,
the invalid or unenforceable portion shall be construed in accordance with
applicable laws as nearly as possible to reflect the original intentions of the
Parties as set forth herein, and the remainder of the Agreement shall remain in
full force and effect. No waiver by either Party of any breach or default shall be
deemed to be a waiver of any preceding or subsequent breach or default.
(e) ASSignment. BendBroadband may assign its rights and obligations under
this Agreement, without notice, to (i) any affiliate of BendBroadband; (ii) to any
party (or its affiliate) acquiring all or substantially all of the assets or stock, by
merger, or otherwise, of BendBroadband or any affiliate of BendBroadband; or
(iii) to any person or entity purchasing or otherwise acquiring the affiliated
BendBroadband video system serving the Premises. Customer may not assign
or transfer this Agreement without BendBroadband's prior consent, except that
Customer may assign this Agreement to any entity merging with Customer or
acquiring all or substantially all of the equity or assets of Customer upon 30 days'
written notice to BendBroadband, provided that such entity shall be bound by the
terms of this Agreement.
(f) Survival of limitations. All representations, warranties, indemnifications,
and limitations of liability contained in this Agreement shall survive the
termination of this Agreement; any other obligations of the parties hereunder
shall also survive, if they relate to the period before termination or if, by their
terms, they would be expected to survive such termination.
(g) BendBroadband rights and remedies. Nothing contained in this
Agreement shall be construed to limit Bend Broadband's rights and
remedies available at law or in equity.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO
BENDBROADBAND PHONE SERVICES
17. LIMITATIONS OF 911/E911 DIALING
(a) Limitations. The BendBroadband Phone Services include
9111Enhanced 911 functions ("911/E911") that may differ from 911/E911
functions furnished by traditional telephone service providers. As such, the
911/E911 services may have certain limitations. CAREFULLY READ THE
INFORMATION BELOW. YOU ACKNOWLEDGE AND ACCEPT ANY
LIMITATIONS ON 911/E911. YOU AGREE TO CONVEY THESE LIMITATIONS
TO ALL PERSONS WHO MAY HAVE OCCASION TO PLACE CALLS OVER
THE BENDBROADBAND PHONE SERVICES. If you have any questions about
911/E911, call BendBroadband customer service at 541-382-5551.
(b) Correct Address. In order for your 911/E911 calls to be properly
directed to emergency services, BendBroadband must have your correct
service address. If you move the BendBroadband Phone Services to a different
address without BendBroadband's approval, 911/E911 calls may be directed to
the wrong emergency authority, may transmit the wrong address, or the
BendBroadband Phone Services (including 911/E911) may fail altogether.
Therefore, you must call BendBroadband customer service at 541-382-5551
before you move the BendBroadband Phone Services to a new address. All
changes in service address require BendBroadband's prior approval. YOU
UNDERSTAND AND ACKNOWLEEDGE THAT BENDBROADBAND WILL
NEED SEVERAL BUSINESS DAYS TO UPDATE YOUR SERVICE ADDRESS
IN THE E911 SYSTEM SO THAT YOUR 911/E911 CALLS CAN BE
PROPERLY DIRECTED.
(c) Network congestion or failures. Calls, including calls to 911/E911,
may not be completed if there is a problem with network facilities,
including network congestion, network or network equipment failure, or
another technical problem.
(d) Service interruptions caused by power failures. BendBroadband
Phone uses the electrical power in your home. YOU UNDERSTAND AND
ACKNOWLEDGE THAT YOU MAY LOSE ACCESS TO AND USE OF THE
BENDBROADBAND PHONE SERVICES, INCLUDING 911/E911, UNDER
CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE
FOLLOWING: (i) IF OUR NETWORK OR FACILITIES ARE NOT
OPERATING; (ii) IF ELECTRICAL POWER TO THE MTA IS INTERRUPTED
AND THE MTA DOES NOT HAVE A BATTERY BACKUP; OR (iii) IF THE
ELECTRICAL POWER TO THE MTA IS INTERRUPTED AND ANY BATTERY
BACKUP IS EXHAUSTED OR FAILS. You also understand and
acknowledge that battery backup may provide power for only a limited
time, that the performance of the battery backup is not guaranteed, and
that if the battery is exhausted, the BendBroadband Phone Services will
not function until normal power is restored. You understand and
acknowledge that your MTA may not have battery backup or another power
source of its own.
(e) LIMITATION ON LIABILITY: YOU ACKNOWLEDGE AND AGREE THAT
THE BENDBROADBAND PARTIES AND THEIR SERVICE PROVIDERS WILL
NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911
USING THE BENDBROADBAND PHONE SERVICES, OR INABILITY TO
ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE BENDBROADBAND PARTIES
AND THEIR SERVICE PROVIDERS, FROM ANY AND ALL CLAIMS, LOSSES, !
DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT
NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF
OF, YOU OR ANY THIRD PARTY OR USER OF THE BENDBROADBAND
PHONE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE
BENDBROADBAND PHONE SERVICES, INCLUDING THOSE RELATED TO
911/E911 SERVICES PROVIDED TO YOU IN CONNECTION WITH THE
BENDBROADBAND PHONE SERVICES.
18. Acceptable use. You expressly agree not to use the BendBroadband
Phone Services for auto-dialing, continuous or extensive call forwarding,
telemarketing, fax broadcasting or fax blasting, or for any other use that results in
excessive usage inconsistent with normal calling patterns for business of your
size and type. If we determine, in our sole discretion, that your BendBroadband
Phone Services are being used for any of the aforementioned activities, we
reserve the right (i) immediately and without notice to terminate or modify the
BendBroadband Phone Services and (ii) to assess additional charges for each
month in which excessive usage occurred.
19. Per-call and measured-call charges. Calling plans billed on a flat
monthly fee basis may not include certain call types. These call types will instead
be charged on a per-call (e.g., operator services) or a measured basis (e.g.,
international calls). For billing purposes, a measured call begins when the call is
answered by the called party or an automated answering device (such as an
answering machine or fax machine); it ends when one of the parties disconnects
the call. Measured calls are recorded in whole minutes, with partial minutes
rounded up to the next whole minute. However, some providers (e.g., those
involved in calls to foreign countries) charge BendBroadband for a completed call
when the called party's line rings or after a certain number of rings. In these
situations, BendBroadband will charge for the call as if it were answered by the
called party. Consult the pricing lists at www.bendbroadband.com for information
on per-call charges and the timing of measured-call charges.
20. Rounding of fractional charges. If the computed charge for a measured
call includes a fraction of a cent, the fraction is rounded up to the nearest whole
cent. If the computed charge for taxes or surcharges includes a fraction of a cent,
the fraction is rounded up to the nearest whole cent.
21. Third-party charges. The BendBroadband Phone Services may allow
you to access "dial-up" Internet service providers, other enhanced service
providers (e.g., information services accessible through 800, 888, and 877
numbers), and other third-party providers. You acknowledge that you may incur
charges with such providers that are separate and apart from the amounts
charged by us. You agree that all charges payable to third parties, including all
applicable taxes, are your sole responsibility. In addition, you are solely
responsible for protecting the security of credit card information provided to
others in connection with such transactions.
22. Call detail records. Call detail records for per-call, measured-call and
third-party charges will not be sent to Customer in Customer's hardcopy bill, but
may be accessed online at www.bendbroadband.com.
23. BendBroadband Phone and customer equipment
(a) Handset and wiring: In order to use the BendBroadband Phone
Services, you are required to provide certain Customer Equipment such as a
phone handset or equivalent, phone inside wire and outlets, and a powered
electrical outlet.
(b) MTA. BendBroadband will provide you with any MTA needed for your use
of the BendBroadband Phone Services under this Agreement.
(c) Incompatible equipment and services. You acknowledge and
understand that the BendBroadband Phone Services may not support, have
battery backup to power in the event of a power outage, or be compatible with: (i)
Non-Recommended Configurations as defined in Section 5(b); (ii) Certain non
voice communications equipment, including but not limited to alarm or home
security systems that make automatic phone calls; medical monitoring devices;
certain fax machines; and certain "dial-up" modems; (iii) Rotary-dial phone
handsets. pulse-dial phone handsets, and models of other voice-related
communications equipment such as answering machines and traditional Caller
ID units; (iv) Casual/dial around (10-10) calling; 976, 900, 700. or 500 number
calling; (iv) 311.511 or other x11 calling (other than 411,611,711, and 911); and
(vi) Other call types not expressly set forth in our product literature (e.g ..
outbound shore-to-ship calling and outbound satellite calling).
BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST THE
BENDBROADBAND PARTIES AND THEIR SERVICE PROVIDERS. FOR
INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE
BENDBROADBAND EQUIPMENT OR THE BENDBROADBAND PHONE
SERVICES AND ANY OTHER SERVICE. SYSTEMS, OR EQUIPMENT. IN THE
EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY,
YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN
ACCORDANCE WITH SECTION 15.
(d) You assume the risk of high-risk activities. The BendBroadband Phone
Services are not represented as fail-safe. They are not designed for use in
situations where error-free or uninterrupted service is essential. You expressly
assume the risk of any damages from high-risk activities involving vital
communications in which an error or interruption in the BendBroadband Phone
Services could lead to material injury to business, persons, property. or the
environment.
(e) No tampering with or relocation of BendBroadband Equipment. You
will not service, alter, modify, or tamper with BendBroadband Equipment or with
the BendBroadband Phone Services, or permit any other person not expressly
authorized by BendBroadband to do so. You agree that the MTA and the
BendBroadband Phone Services will only be used at your service address
appearing in our records. You understand and acknowledge that if you attempt to
install or use the BendBroadband Equipment or BendBroadband Phone Services
at another location, the BendBroadband Phone Services, including but not limited
to 911/E911, may fail to function or may function improperly. As described in
Section 4(a) above, you must notify BendBroadband if you wish to relocate the
MT A or BendBroadband Phone Services. If you move the MT A or Services to
another location without complying with Sections 4(a) and 17(b), you do so in
violation of this Agreement and at your own risk.
24. Transferring your phone number
(a) Switching to BendBroadband from another provider. If you are
switching to the BendBroadband Phone Services from another service provider,
you may transfer your existing phone number (if any) to the BendBroadband
Phone Services, provided that: (i) you request the phone number transfer when
you place your order for the BendBroadband Phone Services; (ii) your current
service provider releases your existing phone number, at our request. without
delay or charge; (iii) transfer of your existing phone number to the
BendBroadband Phone Services would not, in our view, violate applicable law or
our processes and procedures; (iv) you acknowledge and agree that if your MTA
is set up before the date that the number transfer becomes effective ("Port
Effective Date"), you may only be able to make limited outgoing calls over the
phone that you have connected to the MT A. In that event, you should keep
another phone connected to an existing phone extension at your service location
to receive incoming calls until the Port Effective Date, after which you will be able
both to make and to receive calls using the BendBroadband Phone Services; and
(v) you acknowledge and agree that to avoid an interruption in your phone
service, it is extremely important that you have the MTA installed on or before the
Port Effective Date. Your existing phone service for the number you are
transferring will be disconnected on the Port Effective Date; if your MTA is not yet
activated, you will not have access to the BendBroadband Phone Services.
Therefore, you will not have service for that phone number. BendBroadband will
provide you with an estimate of the Port Effective Date at the time of service
ordering or via email following your completion of the ordering process.
(b) Switching from BendBroadband to another provider. To transfer your
phone number from BendBroadband to another service provider, you must
terminate the BendBroadband Phone Services and place the transfer order
through your new service provider (and not through BendBroadband).
BendBroadband will release your phone number to your new service provider,
provided that: (i) your new service provider requests the transfer upon
termination of your account; (ii) your new service provider is willing to accept
transfer of the phone number without delay or charge; and (iii) transfer of your
existing phone number to the new service provider would not, in our view, violate
applicable law or our processes and procedures.
25. Regulatory limitations. You understand and acknowledge that the
BendBroadband Phone Service may be subject to regulatory or tax treatment
that differs from the regulatory or tax treatment applicable to traditional telephone
service. This different treatment may limit or otherwise affect your rights of
redress before federal or state regulatory or tax agencies.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO
BENDBROADBAND HIGH·SPEED INTERNET SERVICES
26. General. You are responsible for all Internet activity and bandwidth usage
originating from your or others' use of your Services, including under any screen
name or password. You agree to ensure that all use of your Services complies
fully with this Agreement. You are solely responsible for protecting the
confidentiality of your screen names, passwords, PINs, parental controls, and
other security measures, and BendBroadband shall have no liability for your
failure to do so.
27. Equipment and software
(a) Monthly charges. The monthly charge for the Services may include (i)
rental of a cable modem and other BendBroadband Equipment, if necessary, to
be installed at your Premises to permit connection of a PC to the Services, and
(ii) rental of a license for the computer software licensed for the limited use
described in this Agreement by BendBroadband to you to enable you to access
the Services, as described in Section 4(b) and 27(c). You must specify the
number of PCs on which any software is to be installed on the Work Order for
your Internet Services, and you shall not install the software on a greater number
of PCs than specified in your Work Order. If software is installed on more than
one PC, additional charges may apply. Additional charges may also apply for
transactions, purchases, or access to other services.
(b) Installation. BendBroadband will install the BendBroadband Equipment
and software, unless you request otherwise, at the prevailing rates quoted prior
to installation.
(c) Software. The license granted under Section 4(b) will permit such use by
you of your Internet Services for your internal business purposes only, under any
passwords or screen name available to you, provided that you shall be
responsible for all use of your Services.
28. Acceptable use
(a) Lawful purposes only. You shall use the Internet Services for lawful
purposes only. You shall not post or transmit through the Internet Services any
material (including any message or series of messages) that violates or infringes
in any way upon the rights of others (including copyright), that is unlawful,
threatening, abusive, obstructive, harassing, defamatory, invasive of privacy or
publicity rights, vulgar, obscene, profane, that encourages conduct that would
constitute a criminal offense, give rise to civil liability, or otherwise violate any
law.
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(b) No resale. YOU SHALL NOT ADVERTISE. RESELL. REUSE. OR MAKE
ANY SOLICITATION WITH RESPECT TO THE SERVICES. OR USE THE
SERVICES FOR OPERATION AS AN ISP OR FOR THE HOSTING OF
WEBSITES. OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS
AGREEMENT OR ANY ADDITIONAL TERMS OF USE FOUND AT
WWW.BENDBROADBAND.COM. THE SERVICES MAY BE USED ONLY BY
YOU AND YOUR EMPLOYEES OR CONTRACTORS. AND ONLY FOR YOUR
INTERNAL BUSINESS PURPOSES. IF YOU USE A WIRELESS NETWORK
WITHIN YOUR SERVICE ADDRESS. YOU MUST ESTABLISH AND USE A
SECURE PASSWORD OR SIMILAR MEANS TO LIMIT TO YOUR SERVICE
ADDRESS WIRELESS ACCESS TO THE SERVICES. ANY OTHER USE OF
THE SERVICES. WHETHER OR NOT A FEE IS SOUGHT, OR ANY USE OF
ANY FORM OF TRANSMITTER OR WAN THAT ENABLES PERSONS
OUTSIDE YOUR SERVICE ADDRESS TO USE THE SERVICES, IS STRICTLY
PROHIBITED WITHOUT EXPRESS WRITTEN APPROVAL FROM
BENDBROADBAND AND A CONTRACT FOR PAYMENT OF RELATED FEES.
(c) Copyrighted material. The Services contain copyrighted material,
trademarks and other proprietary information. You may download copyrighted
material solely for your personal use. Except as otherwise expressly permitted
under copyright law, no copying, redistribution, publication or commercial
explOitation of downloaded material will be permitted without the express prior
written consent of BendBroadband and, where applicable, the third party
copyright owner. In the event of any permitted copying, redistribution or
publication of copyrighted material, no changes in or deletion of author attribution
or copyright notice shall be made. You may download public domain materials for
your own use or non-commercial distribution.
(d) Postings. You shall not upload, post or otherwise make available on the
Services any material protected by copyright, trademark or other proprietary right
without the express permission of the owner. You may upload public domain
materials and are responsible for and assume all risks with respect to the
determination of whether materials are in the public domain. You hereby grant
BendBroadband the right to edit. copy, remove, publish and distribute any
material made available on the Services by anyone using your Services
(including postings to chat services, forums and bulletin boards on the Services)
at any time for any reason. This provision is subject to the disclaimer contained in
Section 28(h) below.
(e) Subscriber lists. You give BendBroadband consent to use, distribute,
transfer, loan, or otherwise share with other persons or entities user lists as well
as aggregate information, but not contrary to any applicable laws or
BendBroadband's Subscriber Privacy Policy. Aggregate information includes
demographic data, usage patterns, preferences, survey data, or other descriptive
information which does not disclose the identity of any particular user. A copy of
BendBroadband's Subscriber Privacy Policy may be found at
www.bendbroadband.com.
(f) Enforcement of acceptable use restrictions. The provisions of this
Section 28 are for the benefit of the BendBroadband Parties and their third-party
content or information service providers and licensors, and each shall have the
right to assert and enforce these provisions directly on its own behalf.
(g) Additional operating policies and conditions of use
(i) You shall not impersonate any person on the system or
communicate under a false name or a name that you aren't entitled
or authorized to use.
(ii) You shall not participate or use your Services in any way to make
fraudulent offers of products, items or services.
(iii) You shall not mass post of the same message to any inappropriate
on-line sites Gunk e-mail, bombing or spamming).
(iv) You shall not post or e-mail scams such as "make-money-fast"
schemes or pyramid or chain letters. Nor shall you engage in these
activities using the service of another ISP while channeling such
activities through the Services or using the Services as a mail drop
for responses.
(v) You shall not use the Services to send unsolicited advertising,
promotional material or other forms of unwanted solicitation, except
in areas on-line speCifically deSignated for such communications.
(vi) You shall not interfere with BendBroadband's ability to provide
Services to others, including the use of excessive bandwidth, or
interfering with other users' use of the Services.
(vii) You shall not transfer post or transmit files that contain viruses,
worms, "Trojan horses" or any other contaminating or destructive
features.
(viii) You shall not export software or technical information in violation of
United States export control laws.
(ix) You shall not perform any activity on the Services that constitutes a
criminal offense.
(x) You shall not use the Services in any manner that disrupts Services
for other BendBroadband customers, or which threatens to or
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actually causes damage to the BendBroadband network, or is
considered to be abuse of the network (examples include
"spawning" dozens of processes, consuming excessive memory or
CPU for long periods).
(xi) Use of any form of transmitter, router or wide area network that
enables persons or entities outside your service address to use the
Services, whether or not a fee is sought, is prohibited.
(g) Remedial measures. Depending upon the extent of any violation of
these acceptable use restrictions, Customers may receive warnings, or in some
cases, have their accounts suspended. BendBroadband reserves the right to
monitor Customers' actions when deemed necessary to troubleshoot connectivity
problems or determine if there is an abuse of the BendBroadband Internet
system.
(h) Violations of acceptable use restrictions. Violations of this Section 28
are a breach of this Agreement and in some cases may be unlawful. However,
BendBroadband has no practical ability to restrict conduct which violates these
policies and conditions and cannot ensure prompt removal of content or
immediate cessation of violative conduct. Accordingly, BendBroadband expressly
denies any liability to Customers or third parties for failure to enforce these
policies and conditions.
(i) Investigations. In its sole discretion, BendBroadband may initiate an
investigation and, in order to prevent further possible unauthorized activity, may
suspend access to Service to the individual Account in question. Confirmation of
violations may result in cancellation of the individual Account and criminal
prosecution.
29. Tiering. The Services are offered on a tiered basis and each tier has
limits on the maximum throughput rate at which Customers should expect to be
able to send and receive data at any time and other limits as set forth in this
Agreement or at www.bendbroadband.com. You understand and agree that the
actual throughput rate you may experience at any time will vary based on
numerous factors, such as the condition of wiring at your location, computer
configurations, Internet and BendBroadband network congestion and
management, the time of day at which the Service is used, and the website
servers you access, among other factors. Each tier includes an allotment of
bandwidth consumption that you may use during each billing cycle at no
additional charge. You agree that you will pay for additional bandwidth consumed
beyond that allotment at the rates posted at www.bendbroadband.com. Unused
bandwidth from your allotment expires at the end of your billing cycle and does
not carry over to subsequent billing cycles. You agree that BendBroadband may
change these and other applicable limits or terms of any tiers by amending the
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prices, aspects and features of the Service set forth at
www.bendbroadband.com. Your continued use of the Service will constitute
acceptance of any new and revised limits and terms. It is your responsibility to
monitor and manage your bandwidth usage, which you may check using the
online usage monitor available after logging into your account at
www.bendbroadband.com/usage. You must report any anomalous traffic to
BendBroadband within 5 days. If such traffic is reported promptly and resulted
from circumstances outside your control, such as a computer virus, spam attack,
or a denial of service attack, BendBroadband may, at its discretion, confirm
the source of the problem and deduct the bandwidth from your usage statistic.
You also agree that BendBroadband may use technical means, including but not
limited to suspending or reducing the speed of your Services, to ensure quality of
service to other customers or for other good cause, and that BendBroadband
may at its option move you to a higher tier of Services (which may result in higher
monthly charges). You further agree that BendBroadband has the right to monitor
your usage patterns to facilitate the provision of the Services and to ensure your
compliance with this Agreement and any additional terms of use found at
www.bendbroadband.com. BendBroadband may take such steps as it
determines appropriate in the event that your usage of the Services does
not comply with this Agreement or any additional terms of use found at
www.bendbroadband.com .
30. Monitoring. BendBroadband shall have the right, but not the obligation,
to monitor the content of the Services, including chat rooms, bulletin boards and
forums, in order to determine compliance with this Agreement and any operating
rules established by BendBroadband. BendBroadband shall have the right in its
sole discretion to edit, refuse to post or remove any material submitted to or
posted on the Service. Without limiting the foregoing, BendBroadband shall have
the right to remove any material that BendBroadband, in its sole discretion, finds
to be in violation of the provisions hereof or any operating rules established by
BendBroadband hereafter, or otherwise to be objectionable (including indecent or
obscene words or material; obstructive or disruptive communications; epithets
and the like). Under no circumstances, however, does BendBroadband
undertake any obligation to review or determine the acceptability or accuracy of
any Customer postings.
ADDITIONAL TERMS AND CONDn"IONS APPLICABLE TO
BENDBROADBAND VIDEO SERVICES
31. Programming availability. Certain Services transmitted by us, including
but not limited to some subscription Services, sporting events and broadcast
network Services, may be blacked out in your area of reception. If you
circumvent or attempt to circumvent any of these blackouts, you may be subject
to legal action. You must be at least 18 years of age, or the applicable age of
majority where you reside, in order to receive adult-oriented programming
services.
32. Equipment used with video services
(a) Equipment necessary. To receive BendBroadband's video services on
your TV, you will need a set-top box or conditional access card ("CableCARD").
You may lease a set-top box or CableCARD from BendBroadband.
(b) Set-top boxes. If your service is received through a set-top box, you may
not be able to use special features and functions on some TVs and VCRs. For
example, some set-top boxes may not be cOlTlpatible with TV or VCR features
that allow you to view a program on one channel while simultaneously recording
a program on another channel; record two or more consecutive programs that
appear on different channels; or use advanced picture generation and display
features such as "Picture-in-Picture."
(c) Additional set-top boxes and CableCARDs. To independently tune
additional televisions or broadcast devices within your home, a separate set-top
box or CableCARD will be required for each television. Each additional set-top
box or CableCARD will be authorized to receive the same Services as your initial
receiver. BendBroadband will charge you a reduced monthly fee for each
additional set-top box or CableCARD added to your account. This option is only
available if your initial set-top box or CableCARD and all additional set-top boxes
or CableCARDs are located at the same service address and are continuously
connected to the same RF return path. If you desire to receive Services at two
different locations, you must open a separate account for each location.
(d) Remote control devices. Remote control devices available from retail
outlets may be compatible with set-top boxes available from BendBroadband. A
list of models of remote control devices that are compatible with our set-top
boxes are listed on our website at www.bendbroadband.com.
I (e) Downloads. BendBroadband reserves the right to alter software in the
I equipment, and provide content to PVR products, through periodic downloads.
BendBroadband will use commercially reasonable efforts to schedule these
downloads in a manner that result in the least amount of interference with or
interruption to your Service.
(f) Available services, equipment, pricing. For more information on the 1 BendBroadband video Services, channel lineups, Equipment and pricing, please
visit www.bendbroadband.com or call Bend Broadband customer service at 541
382-5551.
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33. Ordering pay-per-view or on-demand Services. If you use a set-top
box, you may order pay-per-view or on-demand Services by using your on
screen program guide and remote control unit to select the movies and other
events we offer. To order pay-per-view or on-demand Services, your set-top box
must be connected to our RF return path. You may also order special events and
pay-per-view Services over the telephone by calling 541-382-5551.
34. Franchise authority contact information
City of Bend
710 NW Wall St.
PO Box 431
Bend, OR 97709
City of Redmond
716 SW Evergreen Ave.
PO Box 726
Redmond, OR 97756
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City of Sisters
520 E. Cascade
PO Box 39
Sisters, OR 97759
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