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Terms Of Service

This document was last modified on June 25, 2009.

WINDSTREAM TECHHELP SERVICES ARE OWNED AND OPERATED BY WINDSTREAM COMMUNICATIONS, INC. ("WINDSTREAM"), A DELAWARE CORPORATION, AND A THIRD PARTY PROVIDER, HIWIRED, INC., AND ARE PROVIDED TO YOU ("YOU") UNDER THE TERMS AND CONDITIONS OF THESE WINDSTREAM TERMS OF SERVICE (THIS "AGREEMENT"), WHICH INCLUDES WINDSTREAM’s HIWIRED PRIVACY POLICY AND AN END USER LICENSE AGREEMENT, AVAILABLE THROUGH THE HYPERLINKS SET FORTH BELOW AND INCORPORATED HEREIN BY REFERENCE. BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CHECKING THE "I AGREE" CHECKBOX, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AT LEAST 18 YEARS OF AGE AND AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (II) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 9 AND 10 BELOW. IF YOU DO NOT AGREE, DO NOT CONTINUE WITH THE ACCEPTANCE PROCESS.

1. GENERAL

You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online or telephone order for the Services; (b) your electronic agreement to this Agreement during registration or in the course of initiating a support session whether online or by telephone; (c) your use of the Services; or (d) your download and/or retention of the software we make available to you. This Agreement is made up of these terms, the End User License Agreement, available at http://www.Windstreamtechhelp.com/documents/eula.aspx, the HiWired Privacy Policy available at http://www.Windstreamtechhelp.com/documents/privacy.aspx, and any other terms set forth on the Windstream website (http://www.Windstream.com) including Windstream’s Privacy Statement (the "Website"), all of which are incorporated herein by reference.

2. DEFINITION OF SERVICE

For purposes of this Agreement, the term "Services" shall mean the Windstream TechHelp services including all Windstream and third party software made available to you, technical support, and other products and services provided by Windstream (or third party vendors) under the service option that you have selected. The Services may be referred to herein as: "Remote Support Service," or "Remote Personal Technology Support." "Software" shall mean the PC Check & Connect software and other third party diagnostic or other tools that may be downloaded and used in the provision of the Services.

3. AUTHORIZED USER, USE, AND RESPONSIBILITIES

3.1 You represent and warrant that the information you supply to us is correct and complete. You understand that Windstream relies on the information you supply and that providing false or incorrect information may result in Services being withheld or delayed or the suspension or termination of your Services or customer account. You shall indemnify and defend Windstream from any harm or damages that result from any provision by you of false or incorrect information. You shall promptly notify Windstream whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).

3.2 You shall be responsible for the Services and Software provided through your customer account with Windstream, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses Services or Software via your account, or any secondary accounts, with or without your permission. You shall indemnify and defend Windstream for any harm or damages that result based on use of the Services or Software via your account, or any secondary accounts.

3.3 You shall not resell or distribute the Services, or engage in similar activities, whether commercial or non-commercial, as determined solely by Windstream.

3.4 You shall not cause Windstream or any of its employees or third party vendors to participate in, or contribute towards, any activity that is illegal under any applicable federal, state or local law, rule or regulation, and you shall indemnify and defend Windstream from and against any harm or damages caused by any illegal activity in which you may engage.

4. PRIVACY POLICY

Windstream shall treat your personal information in accordance with its current TechHelp Privacy Policy, and separate Privacy Statementas amended from time to time in the sole discretion of Windstream.

5. AVAILABILITY OF SERVICE

5.1 The Services and Software you select may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be capable to receive the Services even if initial testing showed that such computers were capable. For Remote Personal Technology Support, we shall qualify your line for the maximum line rate available to your location based on our standard line qualification procedures.

5.2 Windstream, its suppliers and licensors may, at any time, without notice or liability to you, restrict in whole or in part the use of the Services or the Software or limit availability in order to perform maintenance activities, to maintain session control or for any other purpose.

6. SOFTWARE LICENSES AND THIRD PARTY SERVICES

6.1 In connection with the Services, we may provide to you, via download, CD, other media, or other delivery methods, certain software which is owned by Windstream or its third party licensors, providers and suppliers (collectively, "Third Party Licensors"), and which may be provided to you for free or for a fee, including client and/or network security software. We reserve the right to update or change the Software from time to time and, if you wish to continue receiving the Services, you shall cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You shall use the Software only as part of or for use with the Service and for no other purpose.

6.2 The Software may be accompanied by one or more end user license agreements from Windstream, its Third Party Licensors or other third parties. Your use of the Software is governed by the terms of each applicable end user license agreement and by this Agreement, where applicable. All third party Software and services are licensed or provided to you by the respective owners or licensees of such Software or services. You must agree to the terms and conditions set forth by such owners or licensees before installing third party Software, whether or not Windstream assists you in the acquisition, installation, and/or use of third party Software. Windstream does not license third party Software to you or make any representation or warranty regarding the third party Software. By accepting the Services and downloading the Software, you designate Windstream technicians as your agents, and hereby authorize such technicians, to accept the terms of such third party Software end user license agreements on your behalf and you agree to be bound by the terms of such agreements.

6.3 If you subscribe to or otherwise use any third party services offered by or through Windstream, your use of any such services is subject to such third party service provider’s terms of service including its privacy policies. You shall comply with all third party service provider’s terms of service and acknowledge and agree that such third party service provider is solely responsible for delivery of its service(s) and Software to you and your access to and use of such services and Software. Third party services include, but are not limited to, technical support, portal, and training that Windstream may elect to make available from time to time. Violation of such third party service providers terms of service may, in Windstream’s sole discretion, result in the termination of your customer account and use of Service and Software.

7. TERM AND TERMINATION

7.1 Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue until terminated by either party as permitted by this Agreement.

7.2 Termination of Service.

7.2.1 Pay-as-you-go or Subscription Service. If you are a Pay-as-you-go or Subscription Service customer, either you or Windstream may terminate this Agreement without cause by giving notice to the other party. Termination by you shall be effective upon notice to Windstream, subject to your fulfillment of any minimum service commitment related to the Service you have purchased or subscribed to. Activation or set-up fees paid at the initiation of your Services, if any, shall not be refundable. Termination by Windstream shall be effective upon Windstream’s notice to you, except as otherwise provided in this Agreement. In the event of termination by Windstream, for any reason, you shall be required to pay the remaining balance of the charges applicable to your Services through the effective date of termination. You acknowledge that any Software that you may install as part of the Services may cease to operate, update or function properly after termination of any subscription.

7.2.2 Termination and/or Suspension by Windstream. If, in the sole discretion of Windstream: (a) you fail to pay any amount due for the Services or Software, (b) you are in breach of any of the terms of this Agreement or any Third Party Licensor agreement (including but not limited to, all Windstream and its Third Party Licensors’ and third party service providers policies regarding abuse and acceptable use of the Services and the Software and all end user license agreements); (c) you are abusive or offensive in your interactions with Windstream personnel; (d) you are engaged in unlawful activities or your use of the Services or the Software is otherwise prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Services or the Software, Windstream’s network or a Third Party Licensors’ or third party service providers’ network, or the use and enjoyment of other users; (e) Windstream receives an order from a court to terminate your Services; (f) Windstream for any reason ceases to offer the Services or the Software; or (g) you are no longer a Windstream customer, then Windstream at its sole election may terminate or suspend your Services immediately without notice.

7.2.3 Terminated Account. In the event your Services are suspended or terminated, Windstream, in its sole discretion, shall have the right to refuse to accept any future request for Services, renewal or re-subscription.

7.2.4 Windstream may terminate or suspend the Service and this Agreement at any time upon notice to you in its sole discretion. Windstream may terminate, suspend or restrict the Service and your account (without any reduction in your Service Fees applicable to the Service) or terminate this Agreement, at any time without notice, if: (i) the operations or efficiency of the Service is impaired by the use of your account or the Service (You are responsible for taking appropriate steps to maintain and safeguard your IT system through, amongst other things, regular data back-up, running current virus software and adopting other appropriate security or maintenance procedures); or (ii) there has been or is a breach of any term or condition of this Agreement by you or any other user.

7.2.5 If you engage in excessive usage of the Service, you may incur additional charges, as imposed by Windstream in its sole discretion from time to time, and you agree to pay any such charges. Excessive usage shall be determined by Windstream in its sole discretion. Such determination may be calculated by Windstream using a standard deviation metric based on the average monthly usage of the applicable subscriber base (or a portion thereof) for the Service.

8. PRICING AND PAYMENT

8.1 Pricing and Fees. Windstream fees and charges for the Services you select are supplied to you during the ordering process and are available on the Windstream Website unless otherwise provided for in this Agreement. You agree to pay the charges applicable to the Services you select, as well as any applicable taxes and other charges, including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, set-up fees and other nonrecurring charges. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, shall be included in your first bill. Monthly recurring charges (subscription plans) shall be billed one month in advance; usage charges, if applicable, shall be billed in arrears, and pre-purchase plans shall be billed in advance, if applicable. Windstream shall bill you directly.

8.2 Discontinuation of Service for Nonpayment. As provided in Section 7.2.2. hereof, Service to you may be denied or discontinued without notice at any time if you fail to make payment in full when due.

8.3 Late Fees. If any portion of your bill is not paid by the due date, Windstream shall have the right to charge you a late fee on unpaid balances and may also terminate or suspend your Services without notice. The late fee shall be the lesser of one and one-half percent (1.5 %) per month, or the highest rate permitted by law. In the event Windstream utilizes a collection agency or resorts to legal action to recover monies due, you shall reimburse Windstream for all expenses incurred to recover such monies, including reasonable attorneys' fees.

8.4 Local telephone, Toll and Long Distance Charges. Whether you are accessing the Services from your home or away from your home, you are responsible for all telephone charges.

8.5 Service Without Resolution. Windstream shall use commercially reasonable efforts to troubleshoot, analyze, assess, correct or otherwise fix your computer, network or personal technology problem. If Windstream is unable to resolve your technology problem, you shall remain liable for all Services charges.

8.6 Unable to Create Online Connection. Windstream may not charge you if Windstream cannot connect with your computer and is therefore unable to provide remote computer support service.

8.7 All Windstream subscription Services require a minimum commitment as indicated on the Windstream Website under pricing for Services. Once the minimum commitment is met, Windstream subscription services shall automatically renew on a monthly basis until Windstream is notified, via phone or email, of your request to cancel the applicable Services. Any failure to follow all required procedures shall be at your sole risk. Each Windstream subscription shall be used by you only on one personal computer and such subscription shall not be transferred by you to any other personal computer or party.

8.8 Windstream support sessions may have a time limit as indicated in the product description and/or on the receipt. Support beyond this time limit may incur additional charges or fees if you choose to continue.

9. LIMITATIONS ON USE OF THE SERVICE

9.1 You agree that your use of the Services, Software and the Internet is your sole responsibility, is solely at your own risk, and is subject to all applicable local, state, national and international laws and regulations.

9.2 You agree that the Internet is not owned, operated or managed by, or in any way affiliated with Windstream and Windstream is not responsible and has no control over the information or materials accessible via the Internet through use of the Services or the Software. You further agree that Windstream does not own or control all of the various facilities and communications lines through which Services may be provided, nor does Windstream guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by Windstream or its Third Party Licensors or third party service providers.

9.3 You agree that Windstream cannot and does not guarantee or warrant that data and Software available for downloading through the Services shall be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Services for the reconstruction of any lost data.

9.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. Windstream is not liable for invalid destinations, transmission errors, or corruption or security of your data.

9.5 You are not authorized to use any Windstream name, logo or trade or service mark as a hypertext link to any Windstream web site or in any advertising, publicity or in any other commercial manner without the prior written consent of Windstream. You understand that your ability to link to a web site through the Services does not, in any way, represent or imply Windstream’s approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Services are maintained by their respective organizations, which are solely responsible for their content.

10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES

10.1 IN NO EVENT SHALL WINDSTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, SUBSIDIARIES, ATTORNEYS OR AFFILIATES, OR ITS THIRD PARTY LICENSORS OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICES, THE SOFTWARE OR YOUR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF WINDSTREAM OR ITS THIRD PARTY LICENSORS OR THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY. THE MAXIMUM CUMULATIVE LIABILITY OF WINDSTREAM TO YOU UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES PROVIDED HEREUNDER.

10.2 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

10.3 WINDSTREAM RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICES OR THE SOFTWARE OR FOR YOUR BREACH OF THE AGREEMENT, INCLUDING ANY POLICIES, TERMS OF SERVICE OR END USER LICENSE AGREEMENTS RELATING TO THE SERVICES OR THE SOFTWARE.

10.4 Notwithstanding any language to the contrary in this Agreement, the Services and the Software are provided to you "AS IS" and "AS AVAILABLE" and without any warranty from Windstream of any kind. WINDSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICES OR THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, SUITABILITY, ACCURACY, SECURITY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ADVICE, SUPPORT OR INFORMATION DELIVERED BY WINDSTREAM OR ITS REPRESENTATIVES TO YOU SHALL CREATE ANY WARRANTY.

10.5 WINDSTREAM DOES NOT WARRANT THAT THE SERVICES OR THE SOFTWARE PROVIDED BY WINDSTREAM HEREUNDER SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR SHALL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. WINDSTREAM SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA OR DAMAGES TO YOUR EQUIPMENT. WINDSTREAM MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICES, THE SOFTWARE OR THE INTERNET. WINDSTREAM MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICES OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICES, THE SOFTWARE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICES OR THE SOFTWARE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.

10.6 ALL LIMITATIONS AND DISCLAIMERS STATED HEREIN ALSO APPLY TO WINDSTREAM’S THIRD PARTY LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.

11. INDEMNIFICATION

You shall defend, indemnify and hold harmless Windstream, its Third Party Licensors and third party service providers from and against all liabilities, damages, costs and expenses, including reasonable attorney’s fees, relating to or arising from: (1) your breach of this Agreement; (2) your breach of any agreement with a Third Party Licensor or third party service provider; (3) Windstream’s access to or use of Third Party Licensor Software on your behalf; (4) your use of the Services or the Software; (5) violation of applicable laws or regulations; (6) your placement or transmission of any message, information, software or other materials on the Internet; (7) your negligent acts, errors, or omissions; (8) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of, result from or are in connection with this Agreement, the Services, Software or the Internet, except to the extent that such liabilities arise from the gross negligence or willful misconduct of Windstream; or (9) claims for infringement of any intellectual property rights arising from the use of the Services, Software, or the Internet.

12. NOTICES

12.1 Notices required under this Agreement by you shall be provided to the Customer Service Department at 1-866-445-3402. Notices by Windstream to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable.

12.2 With regard to electronic communications, you and Windstream further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender’s identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it is a valid proof of the validity of the original content of the electronic communication.

13. GENERAL PROVISIONS

13.1 The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.

13.2 Windstream shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, or other things we do not control, or an inability to obtain necessary equipment or services.

13.3 You shall not assign or otherwise transfer this Agreement in whole or in part, including the Software, or your rights or obligations under it. Any attempt to do so shall be null and void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.

13.4 You and Windstream agree that the substantive laws of the state or commonwealth identified in the billing address you provided us, without reference to its principles of conflicts of laws, shall be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. Except as otherwise required by law, including such state or commonwealth's laws relating to consumer transactions, any cause of action or claim you may have with respect to the Services or Software must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.5 Windstream’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

13.6 This Agreement, the policies and terms referenced in paragraph 1 hereof and all other policies posted on the Website, which are fully incorporated into this Agreement by reference, constitute the entire agreement between you and Windstream with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.

13.7 Satisfaction Statement. If you are not completely satisfied with any Service, Windstream will, upon your written request, provide you with one help session or a refund of the money you have paid to Windstream, so long as Windstream receives such written request within seven (7) calendar days of such subscription setup or single incident session.