Legal Center

Updated/Effective July 22, 2020

1. Acceptance of the Terms of Use Agreement

Welcome to the website of EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds Wireless,” “we,” “our,” or “us”). This Terms of Use Agreement (“Agreement”) applies to a Desert Winds Wireless residential and commercial Subscriber, visitor, and user (collectively, “Users,” “you,” or ”your”) who accesses or uses our official website for Desert Winds Wireless and any branded websites ( collectively, “Sites”), and any Desert Winds Wireless service, including but not limited to high-speed broadband Internet access services, voice services, and other ancillary services to residential and commercial Subscribers in Nebraska, Colorado and Wyoming (collectively, “Services”). (We may use the term Subscribers separately from Users, where appropriate.) This Agreement is a legal contract between you and Desert Winds Wireless, so it is important that you review these terms of use carefully before using the Desert Winds Wireless Sites and Services. Your use of the Sites and Services indicates that you have read, understood, and agree to follow and be bound by this Agreement, which incorporates by reference our General Terms of Service Contract and Privacy Policy (collectively,” Service Agreements”). If you do not agree to this Agreement, do not access or use the Sites and Services. Any capitalized terms not defined in this Agreement will have the same meaning as defined in Desert Winds Wireless’s Service Agreements.

Registration for the Sites and Services are offered and available to Users who are 18 years of age or older, and reside in the United States or any of its territories or possessions. The Sites and Services are not targeted to children under the age of 13, and the Sites and Services do not knowingly collect any Personal Information from children. By registering for or visiting the Sites and Services or submitting any Personal Information to the Sites or Services, you represent and warrant that you are of legal age to form a binding contract with Desert Winds Wireless and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not register or submit any Personal Information to the Sites or Services.

2. Changes to the Desert Winds Wireless Site

We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Sites and Services thereafter.

Your continued use of the Sites and Services following the posting of revised terms and conditions means that you accept and agree to the changes, unless further steps are required by applicable law. You are expected to check the Desert Winds Wireless Site from time to time so you are aware of any changes, as they are binding on you.

3. Your Access to the Desert Winds Wireless Sites

We may choose to suspend your access to all or part of the Sites without advance notice and at any time, for violations of this Agreement, for any reason, or for no reason at all. We are not liable if for any reason all or any part of a Site is unavailable at any time or for any period.

To access the Sites or some of the resources each offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Sites and Services that all the information you provide on the Sites is correct, current and complete. You agree that all information you provide to register with this Site or otherwise, including but not limited to through the use of any interactive features on the Sites, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason.

4. Desert Winds Wireless Sites and Services Content and Intellectual Property Rights

The Sites and Services and the entire contents, features and functionality of each (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) (“Desert Winds Wireless Content”), are owned by Desert Winds Wireless, our licensors or other providers of such material and are protected by United States and international intellectual property or proprietary rights laws. Desert Winds Wireless expressly reserves all rights in the Sites and Desert Winds Wireless Content owned by and provided or licensed to Desert Winds Wireless.

This Agreement permits you to use the Sites and Services for your personal, non-commercial use only if you are a residential Customer. If you are a commercial Customer this Agreement permits you to also use the Sites and Services for your professional and commercial use. Users must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Sites, except as authorized in writing by us.

If you wish to make any use of material on the Sites and Services other than that set out in this section, please address your request to: management@desertwinds.net

“EV Holdings 1 LLC,” “Desert Winds Wireless Internet,” “Internet Xpress,” and all related names, logos, product and service names, designs and slogans (“Desert Winds Wireless Marks”) are trademarks of Desert Winds Wireless or our Affiliates (defined as an entity that controls, is controlled by or is under common control with Desert Winds Wireless) or licensors. You must not use the Desert Winds Wireless Marks or other Desert Winds Wireless intellectual property, including but not limited to copyrights, without the prior written permission of Desert Winds Wireless. All other names, logos, product and service names, designs, slogans, images, graphics, and sounds on this Desert Winds Wireless Site are the trademarks, copyrighted material, or intellectual property of their respective owners.

5. DMCA Copyright Infringement Notification and Counter Notification Process

Just as Desert Winds Wireless requires Users to respect our copyrights, and those of our Affiliates and Operational Service Providers and licensors, we respect the copyrights of others. If you believe in good faith that your copyrighted work has been reproduced, published or accessed on our Sites or Services without authorization in a way that constitutes copyright infringement, you may notify our Designated Copyright Agent via the following contact information and requirements:

Name of Service Provider: EV Holdings 1

Name of Designated Agent: Dimitry Gershenson

Postal Address: DESERT WINDS WIRELESS 9501 W CLEARWATER AVE. KENNEWICK, WA 99336

Telephone Number: 509-591-0808

Email Address: management@desertwinds.net

A. How to Provide Notification for Claims of Copyright Infringement

You must provide the following information to our Designated Agent in a written communication in the form required by the Digital Millennium Copyright Act (“DMCA”)(see above for contact information).

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Sites are covered by a single notification, a representative list of such works on the Sites;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Desert Winds Wireless to locate the material;
• Information reasonably sufficient to permit Desert Winds Wireless’s Designated Agent to contact the complaining party, such as a postal address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
• The statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you send your claim via email, you must put “DMCA Infringement Notification” in the subject line of the email. The above address for Desert Winds Wireless’s Designated Agent is intended only for notifications and any related correspondence regarding claims of copyright infringement for the Sites. Correspondence pertaining to other matters will not receive a response if sent to the above Designated Agent contact information.

We will remove or disable access to any posted content for which we have received a notice of claimed copyright infringement (or, more specifically, any notification in substantial conformance with the DMCA). United States law provides significant penalties for submitting a false or fraudulent claim of copyright infringement.

WE CAUTION YOU THAT IF YOU KNOWINGLY MISREPRESENT THAT ANY ONLINE CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO SEVERE CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

If we have an accurate postal mail or email address, we will also send a notification to the User who posted the allegedly infringing content, informing him/her that the content was removed or access to it was blocked because of claimed copyright infringement. The User has a right to send us a counter-notice challenging our removal of the User’s content, as described below in subsection C.

We will terminate the privileges, membership and/or account of any User who repeatedly uses the Sites or Services to unlawfully transmit or post copyrighted content without a license, express consent, valid defense or fair use exemption to do so. Please see the “Desert Winds Wireless Repeat Infringer Policy” below.

B. Desert Winds Wireless Repeat Infringer Policy

Under the appropriate circumstances we will terminate the privileges, account(s) and/or membership of users/Customers that are repeat infringers. We will review the circumstances of each situation and the decision to terminate will be at the sole discretion of our Designated Agent based on the number of complaints against that User and the overall circumstances. We generally classify a repeat infringer when we receive more than 1 copyright infringement notifications over a period of 12 months from the same IP Address or account. A complaint/violation will not be assessed against the User if the User has filed a counter-notice of infringement, and there are no further legal actions from the copyright owner or owner’s agent.

Each User understands, acknowledges and agrees that if his or her account or membership is terminated pursuant to this DMCA Copyright Infringement Policy, the User will not attempt to establish a new account or membership under any name, real or assumed, and the User further agrees that by opening a new account for membership after being terminated pursuant to this Policy, he/she will have violated this Policy and TOU and shall indemnify and hold us harmless for any and all liability that we may incur.

C. How to Appeal the Removal of Content with a Counter-Notice If You Believe the Content Was Not Infringing

If you are a User who posted content that was removed in response to a notice of infringement and you believe that such content was removed due to a mistake or misidentification, you may request that we restore the posting or cease blocking access to the content by sending us a written communication via postal mail or email to our Designated Agent for receiving notices of infringement (see above for our Designated Agent’s contact information). This counter-notice must include substantially the following information:

• A physical or electronic signature of the owner or licensee of the removed or disabled content on the Sites or Service;
• Identification of the content that has been removed or to which access has been disabled and the location on the Sites or Service at which the content appeared before it was removed or access to it was disabled.
• The statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
• The User’s full name, postal address, telephone number and email address (if applicable), and the statement: “I consent to the jurisdiction of the Federal District Court for the district in which my address is located,” or if the User’s address is outside of the United States, for any judicial district in which Desert Winds Wireless or our appropriate subsidiary may be found, and that the User will accept service of process from the person who provided notification of copyright infringement under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.

When we receive a counter-notice that complies with these requirements, we will forward it to the person who submitted the original claim of copyright infringement. Please note that when we forward the counter-notice, it will include your Personal Information. By submitting a counter-notification, you consent to having your Personal Information revealed to a third party.

We also reserve the right, but not the obligation, to restore the content that was removed or to allow access to the content. As stated in this Agreement, we can at our discretion remove any content for any purpose at any time. If we receive a counter-notice from the User that posted the content subject to a claim of copyright infringement, we will take the following actions: (a) We will forward a copy of the counter-notice to the person who sent the notice of infringement and inform him/her that the removed content may be restored or we may allow access to the material in ten (10) business days; and (b) If during those 10 business days, the person who sent the original notice of infringement notifies us that he/she has filed an action seeking a court order to restrain the User from infringing activity relating to the content on our Services, we will not restore or allow access to the content. (c) Otherwise, we may restore the content and allow access at our sole discretion.

However, as a User, you acknowledge, understand and agree that we generally retain the right to modify, move, remove, block access to, replace or decline to restore content at any time for any reason without notice to or any liability to the posting User.

Please contact us at management@desertwinds.net if you have any questions regarding this DMCA Copyright Repeat Infringer Policy. Do NOT send notices of infringement to this email address, see the above contact information for our DMCA Designated Agent.

6. Prohibited Uses

Please see our Acceptable Use Policy in the General Terms of Service Contract for acceptable and prohibited use of the Services. You may not use the Sites to break the law, violate an individual’s privacy, infringe our or any person or entity’s intellectual property or any other proprietary rights, or encourage or induce anyone else to do the same. You may use the Sites only for lawful purposes and in accordance with this Agreement. You agree not to:

• Use the Sites in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries);
• Use any device, software or routine that interferes with the proper function, security, or availability of the Sites;
• To impersonate or attempt to impersonate Desert Winds Wireless, a Desert Winds Wireless employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names or social networking IDs associated with any of the foregoing) via the Desert Winds Wireless Sites;
• Engage in unauthorized “scraping” or “spidering,” or harvesting of Personal Information, or use any unauthorized automated means to compile information; and
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Sites, or which, as determined by us, may harm Desert Winds Wireless, the Sites, or users of the Sites, or expose Desert Winds Wireless or users to liability.

7. Indemnity

All the things you do and all the information you submit to the Desert Winds Wireless Sites remain your responsibility. Specifically, you agree to hold Desert Winds Wireless, our Affiliates, officers, directors, shareholders, employees, agents, representatives, Operational Service Providers, and licensors harmless from and defend each of them against any claims, costs, damages, losses, expenses, government investigations or enforcement, and any other liabilities, including attorneys’ fees and costs, arising out of or related to your access to or use of the Sites, your violation of this Agreement, and/or your violation of the rights of any third party or person.

8. No Warranties

The Sites are provided “as is” and without warranty of any kind. To the maximum extent permitted by law, Desert Winds Wireless, our Affiliates and Operational Service Providers disclaim any and all warranties, express or implied, including (but not limited to) implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights, or any other warranty, condition, guarantee or representation, whether oral or electronic. You understand, acknowledge and agree that you are solely responsible for any damage to your computer or mobile device or loss of use. We do not guarantee that the Sites will always work properly.

9. Limitation of Liability

We shall not be liable for any special, consequential, indirect, incidental, punitive, reliance, or exemplary damages, whether in tort, contract, or any other legal theory, arising out of or in any way connected with this Agreement or your use of or attempt to use the Sites, including but not limited to damages for lost profits, goodwill, use, or loss of data. This limitation of liability shall not be affected even if we have been advised of the possibility of such damages. Some states do not allow for the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions may not apply to you. You may have other rights that vary from state to state.

You agree to release us, our Affiliates, Operational Service Providers, and each associated director, officer, employee, shareholder, agent, representative and licensor, from claims, demands and damages (actual and consequential), of every kind and nature, known and unknown, disclosed or undisclosed, arising out of or in any way connected to your use of the Sites.

10. Governing Law

Any claim or dispute between you and us arising out of or relating to this Agreement, in whole or in part, shall be governed by the laws of the State of Washington without respect to its conflict of laws provisions. We agree and you agree to submit to the personal jurisdiction and venue of the state court located in Benton County, Washington.

11. Severability and Enforcement

If any provision of this Agreement is held invalid or unenforceable, that provision will be modified to the extent necessary to render it enforceable without losing its intent. If no such modification is possible, that provision will be severed from the rest of this Agreement.

If we do not enforce any right or provision in this Agreement, that is not to be deemed a waiver of our right to do so in the future.

12. Entire Agreement and Headings

This Agreement is incorporated by reference in the Service Contracts and such documents consist of the entire agreement between you and us concerning the Sites. It supersedes all prior or contemporaneous agreements between you and us.

The headings in this Agreement are for convenience and do not control any of its provisions.

Copyright © 2020, EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds”). All Rights Reserved.

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Updated/Effective: July 22, 2020

EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds Wireless,” “we,” “our,” or “us”) provides high-speed broadband Internet access services, voice services, and other ancillary services to residential and business Subscribers in Nebraska, Colorado and Wyoming (collectively, “Services”). Desert Winds Wireless is committed to offering reliable Internet access services that will allow our Subscribers to take full advantage of all of the lawful content and services available on the Internet. We support the following Net Neutrality principles:

Transparency

• NO Blocking of lawful Internet content, subject to reasonable network management as described below
• NO Throttling of lawful Internet content, subject to reasonable network management as described below
• NO Unreasonable Discrimination
• NO Paid Prioritization of Internet content
• Freedom of Subscribers to access lawful Internet content
• Freedom of Subscribers to use non-harmful applications of their choice
• Freedom of Subscribers to attach non-harmful personal devices

This Open Internet Policy sets forth certain information regarding the policies and practices of Desert Winds Wireless and how we manage our networks for residential and business broadband Internet access service (the “Desert Winds Wireless Services”). This Open Internet Policy is a supplement to and is incorporated by reference in the various legal terms and conditions of our Services, the Terms of Service Contract, our Privacy Policy, and Acceptable Use Policy (collectively, “Service Agreements”). In the event of any inconsistency between this Open Internet Policy and the Service Agreements, this Open Internet Policy shall control.

The Desert Winds Wireless Internet Service is primarily a fixed wireless service using bandwidth that is shared with other users on our various computers, servers, transmission equipment and other infrastructure in various states, (collectively, the “Desert Winds Wireless Networks”). Generally, given the nature of fixed wireless services, certain circumstances may affect the speed and quality of the service, including but not limited to foliage, line-of-sight obstructions, the distance between a Subscriber’s premises and the transmission point, as well as the Subscriber’s connection of multiple devices to the Desert Winds Wireless Networks. Although we have engineered the Desert Winds Wireless Networks to provide consistent high-speed data services, some network management for these scenarios is required in order to provide the best online experience possible for all of our Subscribers. Very heavy data usage by even a few Subscribers at times and places of competing demand can affect the performance for all Subscribers.

Subscriber acknowledges that Internet access transmissions is subject to geographic, atmospheric and other variable conditions beyond the control of Desert Winds Wireless and that its communications Service may be interconnected with the publicly switched telephone network or with another carrier’s network. Subscriber also acknowledges that Internet access Services require certain physical arrangements of Desert Winds Wireless facilities and are subject to the availability of such facilities. Desert Winds Wireless reserves the right to limit the capacity of a customer connection when necessary to preserve system integrity.

1. Network Management Practices

Congestion Management: Our Subscribers are subject to the maximum connection speeds set forth in the specific Desert Winds Wireless Service residential or commercial plan they have purchased unless there is a need to make adjustments based on congestion management. In a manner consistent with the Desert Winds Wireless Privacy Policy and Service Contract, Desert Winds Wireless monitors network traffic to ensure capacity is sufficient to maintain an efficient network load, perform diagnostics and to otherwise manage and enhance our networks. To help manage traffic on the Desert Winds Wireless Networks, Desert Winds Wireless may give priority on an unpaid basis to interactive or critical classes of traffic such as VoIP, and traffic essential to the efficient operation of the Desert Winds Wireless Networks. Desert Winds Wireless may limit applications to the extent Desert Winds Wireless determines, in Desert Winds Wireless’s sole and reasonable discretion, is appropriate to maintain an efficient network load. Desert Winds Wireless’s congestion management practices are in place to ensure that all Subscribers experience high quality service. If Desert Winds Wireless determines, in its sole and reasonable discretion, that the manner in which a Subscriber is using the Services negatively impacts other Subscribers or the Desert Winds Wireless Networks, Desert Winds Wireless reserves the right to apply additional congestion management techniques.

Desert Winds Wireless’s network management is temporary and based on constantly changing and dynamic network conditions.

1. Blocking: Other than reasonable network management practices disclosed below, we do not block or otherwise prevent a Subscriber from accessing lawful content, applications, services, or your use of non-harmful devices.
2. Throttling: Other than reasonable network management practices disclosed below, we do not throttle or otherwise shape, slow, degrade or impair a Subscriber from accessing lawful Internet traffic on the basis of content, application, service, user, or use of a non-harmful device. All lawful Internet use is handled identically.
3. Affiliated Prioritization: We do not directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, to benefit any of our affiliates, defined as an entity that controls, is controlled by, or is under common control with Desert Winds Wireless.
4. Paid Prioritization: We do not directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, in exchange for consideration, monetary or otherwise.
5. Congestion Management: Our Services are provided on a “best efforts” basis and our congestion management practices are in place to ensure that all Subscribers experience as high quality a service as possible. Our typical frequency of congestion is <10%. Subscribers select how much high-speed data they receive under a designated service plan. We do not impose any additional usage limits for the Services unless such limits are enacted as part of our network management practices. In a manner consistent with our Service Agreements and Privacy Policy, we may use several Network Management Tools to monitor network traffic to ensure capacity is sufficient to maintain an efficient network load, to perform diagnostics and to otherwise manage and enhance the Desert Winds Wireless Networks. To help manage traffic on the Desert Winds Wireless Networks, during times of high demand, we may allocate available bandwidth among Subscribers on an equal basis. In addition, we may prioritize certain applications, such as public safety and VoIP, over other traffic types.
   1. Desert Winds Wireless may use fair-queueing, which allocates network resources evenly when the Desert Winds Wireless Networks approach maximum capacity.
   2. Desert Winds Wireless may also use traffic shaping software in order to establish maximum connection rates and fair-queuing policies.
   3. Desert Winds Wireless may also conduct deep packet inspection (“DPI”), which is a type of filtering that will examine the data and/or header part of Internet traffic for viruses, spam, intrusions, or protocol non-compliance that may harm the Desert Winds Wireless Networks; to determine the routing of Internet traffic; for internal statistical and performance purposes; for lawful intercept capabilities, and/or enforcement of our Service Agreements. We do not use DPI to conduct data mining for targeted marketing or advertising, or anti-competitive purposes.
   4. If Desert Winds Wireless determines, in our sole and reasonable discretion, that the manner in which a Subscriber is using the service negatively impacts other Subscribers or the Desert Winds Wireless Networks, we reserve the right to apply additional congestion management techniques.
6. Application-Specific Behavior: Subject to the qualification that Desert Winds Wireless may reasonably limit or rate-control specific or classes of applications, or other specific protocols or protocol ports as set forth below, Desert Winds Wireless generally treats all lawful applications identically. However, we reserve the right to block or limit access to any applications, ports, or protocols that we determine, in our sole and reasonable discretion, may expose any Desert Winds Wireless Networks to potential legal liability, harm any Desert Winds Wireless Networks or otherwise interfere with or impair the experience of other Subscribers on the Desert Winds Wireless Networks.Subject to the qualification that Desert Winds Wireless may reasonably limit peer-to-peer applications as set forth above, Desert Winds Wireless generally treats all lawful applications identically; however, Desert Winds Wireless reserves the right to block or limit access to any applications that Desert Winds Wireless determines, in Desert Winds Wireless’s sole and reasonable discretion, may expose Desert Winds Wireless to potential legal liability, harm the Desert Winds Wireless Networks or otherwise interfere with or impair the experience of other Subscribers on the Desert Winds Wireless Networks.The Desert Winds Wireless Networks may not support certain high-bandwidth video and voice applications, or peer-to-peer applications that carry unlawful or harmful content/software.
7. Device Attachment Rules: Generally, you do not need approval to connect a third-party device to the Desert Winds Wireless Networks. Desert Winds Wireless does not limit the types of devices that can be connected to the Desert Winds Wireless Networks, provided the devices are used for lawful purposes and do not harm the Desert Winds Wireless Networks, violate our Service Agreement, expose Desert Winds Wireless to potential legal liability, or harm other users of Desert Winds Wireless Networks. However, if we determine, in our sole and reasonable discretion, that the connection of a particular type of device to any Desert Winds Wireless Networks negatively impacts other users or the Desert Winds Wireless Networks, or may expose us to potential legal liability or violates our Service Agreement, we reserve the right to limit or restrict Subscribers’ ability to connect such type of device to the Desert Winds Wireless Networks. If you need technical support services to assist you in the installation and configuration of third party devices, please contact us or visit https://www.desertwinds.net/. Depending on the device, your level of service and your specific Service Agreement, there may be an additional monthly fee for our IT support services.
8. Security: Desert Winds Wireless uses industry-standard tools and generally accepted best practices and policies to take reasonable physical, technical and administrative safeguards to protect the integrity and operations of the Desert Winds Wireless Networks and our Subscribers from malicious and unwanted Internet traffic, as well as harmful online content and activities. Please see our Privacy Policy for details.We monitor the Desert Winds Wireless Networks for security threats and may prohibit certain activity on the Desert Winds Wireless Networks that we may deem, in our sole and reasonable discretion, poses a potential risk to the Desert Winds Wireless Networks and/or to other Subscribers. Triggering conditions include but are not limited to denial of service activity, IP address or port scanning, excessive account login failures; or certain Internet addresses that are disruptive, malicious and typically persistent. If we notice excessive Subscriber connections, including but not limited to Wi-Fi connections, that are harmful or are commonly used to disrupt the normal use of the Desert Winds Wireless Networks or use by other Subscribers, we will attempt to notify the Subscriber to work collaboratively to remedy the issue to the extent possible; however, we reserve the right as a reasonable security practice, without advance notice, to block any Subscriber traffic, ports, protocols, devices, or applications (such as peer-to-peer applications that may carry malicious software or are known to be problematic) that we determine, in our sole and reasonable discretion, may cause harm to the Desert Winds Wireless Networks or to other Subscribers, or may expose us to potential legal liability.

2. Performance Characteristics and Commercial Terms

Specific service fees and rates for individual residential Subscribers are set forth on the Desert Winds Wireless website at http://www.vistabeam.com/residential-plans. Specific service fees and rates for a commercial Subscriber are set forth in the designated Service Contract for that Subscriber. Various information is also publicized on the Desert Winds Wireless website: http://www.deserwinds.net/

1. Service Description, Pricing and Fees: Desert Winds Wireless is continually working to develop a variety of services and plans to meet your individual needs, budget, and Internet demands now and in the future. When we offer new online services, we will provide the characteristics, capabilities and terms of such new service offerings to allow you to make knowledgeable choices about which services make the most sense for you. Desert Winds Wireless will continue to provide you with accurate and relevant information in plain language so you can make informed choices. You can find information about our services here: https://www.desertwinds.net/services/
2. Other Fees: Additional fees, such as but not limited to a Service Deposit, Equipment Leasing/Purchase Fee, Installation Charges, Early Termination Fee, Deactivation Fee, Reactivation Fee, Paper Statement Fee, ACH Check Return/Denial Fee, and other applicable fees and taxes may apply as detailed in our Service Agreements at www.desertwinds.net/service-contract. The pricing, terms and fees of our Services are subject to change at any time.
3. Network Speeds: Desert Winds Wireless offers a standard range of download speeds to residential Subscribers varying from 1 Mbps to 50 Mbps. The standard range of download speeds for business Subscribers is from 10 Mbps to 1000 Mbps. The Desert Winds Wireless Networks are designed to support these speeds to help ensure that every Subscriber receives the speeds to which they have subscribed. Desert Winds Wireless however cannot guarantee speeds at all times, as there are many factors and conditions beyond Desert Winds Wireless’s control that can affect Internet performance. Some of these external factors and conditions are:

• Performance of Subscriber computer and/or router
• Type of connection to Subscriber’s own equipment (i.e., Wi-Fi)
• Congestion of websites and services on Internet
• Website or service limiting speeds on the Internet
• Internet and equipment performance outside of the Desert Winds Wireless Network

1. The Desert Winds Wireless Services are advertised as “up to” certain speeds reflecting performance under ideal conditions. Without purchasing an expensive “dedicated” Internet connection, no Internet Service Provider can guarantee package speeds at all times.
2. Impact of Non-Broadband Internet Connection Service Data Services (also known as “Specialized Services”): Desert Winds Wireless does not offer Specialized Services to Subscribers that will affect the last-mile capacity available for, and the performance of, our Desert Winds Wireless Services. We note, however, that there may be a temporary slowing of Internet speed when using any of Desert Winds Wireless’s broadband and VoIP services at the same time.
3. Acceptable Use: As set forth in the applicable Service Agreements, all of Desert Winds Wireless’s residential and commercial service offerings are subject to the Acceptable Use Policy (“AUP”) Service Contracts. We may from time to time establish or revise the AUP and/or the Service Contracts.
4. Privacy Policy: Desert Winds Wireless’s current Privacy Policy is available at www.desertwinds.net/privacy-policy
5. Redress Options: Desert Winds Wireless endeavors to respond to all Subscriber concerns and complaints in a timely and fair manner. We encourage Subscribers to contact us at 509-591-0808, or complaint@desertwinds.net, or U.S. postal mail to discuss any complaints or concerns as they occur. Our postal address is:
   Desert Winds Wireless
   Attn: Business Operations Manager
   9501 W Clearwater Ave
   Kennewick, WA 99336
6. Disputes and Arbitration: The Service Contracts require the use of arbitration to resolve disputes and otherwise limits the remedies available to Subscribers in the event of a dispute.

3. FCC Requirements and Complaint Process

The Federal Communications Commission (“FCC”) has adopted rules to preserve the Internet as an open platform (“Rules”). Information regarding these Rules is available on the FCC’s website at: https://www.fcc.gov/restoring-internet-freedom
If a Subscriber believes that we are not in compliance with the FCC’s rules, the Subscriber may file an informal complaint with the FCC. The FCC urges Subscribers to submit any complaints via its website at the following address: https://consumercomplaints.fcc.gov/hc/en-us.

4. Additional Disclaimers

This Open Internet Policy does not affect, alter or otherwise supersede the legal status of cooperative efforts by Desert Winds Wireless that are designed to curtail copyright or trademark infringement in response to information provided by rights holders in a manner that is timely, effective, and accommodates the legitimate interests of the company, rights holders, our Subscribers and other end users. Furthermore, this Open Internet Policy does not prohibit us from making reasonable efforts to address the transfer of unlawful content or unlawful transfers of content. For additional information, please review the Service Agreements and Privacy Policy.

© Copyright 2020, EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds”). All Rights Reserved.

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Updated/Effective: January 25, 2021

THIS TERMS OF SERVICE AGREEMENT (“TERMS OF SERVICE”), IN CONJUNCTION WITH OUR PRIVACY POLICY, OPEN INTERNET POLICY, WEBSITE & GENERAL SERVICES TERMS OF USE AGREEMENT, DMCA COPYRIGHT INFRINGEMENT NOTIFICATION PROCESS, AND ADDITIONAL TERMS (TERMS AND CONDITIONS THAT WILL GOVERN A NEW SERVICE OFFERING) IS A LEGAL AGREEMENT BETWEEN YOU AND EV HOLDINGS 1 DBA DESERT WINDS WIRELESS LOCATED AT 9501 W CLEARWATER AVE, A110, KENNEWICK, WA 99336 (HEREIN REFERRED TO AS “COMPANY”, “WE”. “OUR”, AND/OR “US”). AS USED HEREIN, “YOU”, “YOUR”, OR “SUBSCRIBER” MEANS EITHER AN INDIVIDUAL OR COMMERCIAL SUBSCRIBER, AS DETAILED BELOW.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF SERVICE REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO SUBSCRIBERS IN THE EVENT OF A DISPUTE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES DESCRIBED HEREIN.

These Terms of Service apply to the Company’s provision of Internet Access Service (“IAS”), and traditional wireline, data, or voice over IP (“VoIP”) services (collectively, “Services”) to both our Individual Subscribers and Commercial Subscribers:

• An Individual Subscriber refers to the person whose name appears on the account; and
• A Commercial Subscriber includes commercial, non-commercial, governmental, educational or institutional entities, or other non-residential entities.

WHEREAS, Subscriber desires to pay Company for our Services on the terms and conditions contained in these Terms of Service, with sufficient and adequate consideration from both parties, it is mutually agreed as follows:

THEREFORE, by using the Services, Subscribers agree to be bound by the terms and conditions of service in these Terms of Service  and all documents incorporated by reference herein, including without limitation any appendix and exhibit, Company’s Privacy Policy, Open Internet Policy, Website & General Services Terms of Use Agreement and DMCA Copyright Infringement Notification Process, and Additional Terms (terms and conditions that will govern a new service offering) (collectively, “Service Agreements”) as each may be amended from time to time. If there is a conflict between these Terms of Service  and any Additional Terms, the Additional Terms shall govern.

Company regularly updates and amends these Terms of Service, and the Service Agreements. Company will communicate any such updates or amendments to the Subscriber in accordance with Section 18(h) herein. Subscriber may obtain, at no charge, a copy of the current Terms of Service or any documents incorporated by reference herein by visiting Company’s website or by contacting Company.

1. General Overview
   1. The Subscriber represents and warrants that he/she is the Subscriber, that he/she is of legal age to form a binding contract with Company in his/her state of residence and meet all of the foregoing eligibility requirements, and, with respect to Commercial Subscribers, the individual accepting these Terms of Service represents and warrants he/she has legal authority to accept these binding Terms of Service on behalf of the Subscriber.
   2. Your use of the Services indicates that you have read, understood, and agree to follow and be bound by the terms and conditions of these Terms of Service. If you do not meet all of these requirements, you must not apply for the Services.
2. WeCare Plan
   1. Subscriber understands, acknowledges, and agrees that our WeCare Plan is included, by default, in your Internet Access Service and that you may opt-out of the WeCare Plan any time by calling our office at PHONE or sending an email to EMAIL with an opt-out request.  Any Subscriber that chooses to opt out will be unsubscribed from WeCare for the subsequent billing cycle.  WeCare includes the following benefits to Subscribers:
      1. Two (2) service calls per year at NO COST to the Subscriber for repair or replacement of equipment due to Subscriber action; this includes, but is not limited to:
         1. Weather or accidental cable damage
         2. Weather or accidental damage to radio
         3. Loss of alignment of radio due to Subscriber action
      2. Router support, configuration, and troubleshooting
      3. Cable moves and repairs at NO COST to the Subscriber; i.e. anytime a Subscriber wishes to relocate their equipment in the home and the associated relocation of cabling
      4. Free equipment upgrades when available
3. Term
   1. The initial term of any residential or commercial IAS plan is month-to-month (“Initial Term”).
   2. The Initial Term for other services, such as vDSL, Fiber, or other internet services is determined on a case by case basis and will be communicated in advance to Subscriber prior to start of Initial Term
   3. The term for any other service contracted at the same time as IAS, such as VoIP, Commercial WiFi, or Video shall match the initial term for IAS.
   4. The effective date of the Initial Term is the date installation is completed (“Installation Date”).
4. Security Deposit, Installation, Installation Fees, and Payments
   1. All invoices are due and payable in full upon receipt. Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of these Terms of Service. In the event Subscriber’s account becomes past due, Subscriber agrees to pay all costs reasonably incurred by Company, its agents, representatives, and Affiliates in collecting monies due on Subscriber’s account. “Affiliate” means an entity that controls, is controlled by or is under common control with Company.
   2. Subscriber authorizes Company to seek and acquire credit and related Subscriber information from reporting agencies furnishing such information for the purpose of ascertaining Subscriber’s credit and payment history. Company will use the information acquired about Subscriber’s credit history from others and to utilize such information in its decision regarding its provision of the Service to Subscriber. Subscriber understands, acknowledges and agrees that if, in the sole discretion of Company, Subscriber’s credit and/or financial information prove unsatisfactory at any time while Company is providing service to the Subscriber, the Services may be terminated.
   3. Security Deposit. Company reserves the right to require a security deposit (“Security Deposit”) prior to the installation of Services and/or terminate these Terms of Service if no Security Deposit is received by Company in a timely manner.
   4. Installation. Subscriber acknowledges and agrees that:
      1. Subscriber is the owner of property where Service is being installed and provided, or has permission from the property owner to have Service installed at the property
      2. The method of installation has been explained to Subscriber and Subscriber understands how and where the work will be performed.
      3. Subscriber authorizes all installation labor, including, but not limited to, drilling of holes for wiring, routing of cables, dish location and any additional alterations to the property in order for Services to be provided.
      4. Subscriber may be charged an amount more than quoted initially by the Company for any work above and beyond that contemplated in such initial quote that is requested by Subscriber. .
   5. Installation Fees. Company will charge a fee to install the Services for both Residential and Commercial Subscribers. Subscriber understands, acknowledges and agrees that the Installation Fee will vary based on the location of the Subscriber, and complexity of the work necessary to connect the Subscriber to Company’s Services. The amount of the Installation Fee will be set forth in the Customer Quote.
   6. Initial Payment. At the time of installation of Company’s IAS, Subscriber is required to pay the “Installation Fee,” the “First Month Payment,” and any Additional Service Fees, as set forth in the Customer Quote. The First Month Payment is the “Monthly Service Fee” set forth in Customer Quote, for a full month of IAS regardless of where the “Installation Date” falls in the calendar month. Together, the Installation Fee, First Month Payment, and any Additional Service Fees constitute the “Initial Payment.” Subscriber agrees that the Initial Payment is to be paid in consideration of Company’s making the IAS available on the terms and conditions set forth in these Terms of Service, that Company has earned the Initial Payment in full and that the Initial Payment is refundable only if the IAS is not working within seven (7) days of the Installation Date.
   7. Monthly Fees. After the Initial Payment, Subscriber agrees to pay the applicable “Monthly Service Fee,” and any other recurring monthly fee(s) (collectively the “Monthly Fees”) on or before the first day of Subscriber’s “Monthly Billing Cycle.” Subscriber’s Monthly Billing Cycle begins on the Installation Date. Subscriber understands, acknowledges and agrees that the Monthly Service Fee is subject to change from time to time, subject to advance notice by Company.
   8. Monthly Payment. Subscriber bears the sole responsibility to timely pay Monthly Fees when due. Invoices will be sent via email to the Subscriber’s email address, unless elected to be sent via physical mail (per subsection (i) below). Advertised prices may include a discount for Subscribers enrolled in automatic payments (“Autopay”).
   9. Paper Invoice. Subscriber may also choose to receive the monthly invoice via postal mail for a $3.00 U.S. monthly fee (“Paper Invoice Fee”).  Subscriber may request a waiver of the Paper Invoice Fee, with the approval of such waiver being at Company’s sole, reasonable discretion.
   10. Valid Contact Information. It is Subscriber’s sole responsibility to have a valid email address on file with Company at all times. On-line billing is available through a portal available on Company’s website.
   11. Payment Methods. Subscribers may pay invoices with cash, check, credit card or debit card (American Express, Master Card, Discover or Visa), or ACH (Automated Clearing House; direct withdrawal from checking or savings account) only.
   12. Past Due. If any payments owed to Company by Subscriber are past due by more than thirty (30) days on any account and/or for any Services, Company may deduct the amounts owed from any existing credit Subscriber has or any security deposit provided or, if applicable, charge them to the bank or payment card account Subscriber has authorized Company to use.
   13. Returned ACH or Check Transactions. Additionally, Subscriber will automatically be charged a twenty five dollar ($25.00 U.S.) fee for any check or ACH payment returned for non-payment or insufficient funds, “ACH Non-Payment Fee.” Company shall not be obligated to provide the Service during Monthly Billing Cycles for which Subscriber has not paid the applicable Monthly Fees in advance. If at any time Subscriber’s account has past due amounts or upon Subscriber’s violation of these Terms of Service (including any documents incorporated by reference herein), Company may, in Company’s sole and absolute discretion, suspend and/or terminate the provision of the Services to Subscriber.
   14. Subscriber understands, acknowledges and agrees that Company is not required to provide notice before suspending or disabling the Services and/or terminating the Subscriber’s account pursuant to these Terms of Service, and Company will not be liable to Subscriber or any Authorized User (defined below) for any such suspension, disabling or termination or any damages that may result therefrom. In order to restore the Services after a disconnection when equipment is still present at the service location, Subscriber agrees to pay the applicable “In Office Reactivation Fee” of $25.00 U.S. In order to restore Services after a disconnection and equipment is no longer present at the service location, Subscriber agrees to pay the applicable “Installation Fee”, the amount of which shall be at Company’s sole discretion.
   15. Subscriber also agrees to pay all applicable federal, state, and local taxes and fees, including without limitation those imposed after the effective date of these Terms of Service
5. Equipment and Requirements for Service
   1. Subscriber Equipment: To use the Service, Subscriber must have a personal computer(s) or other device(s) and other equipment necessary to connect to the Service. Although Company is under no obligation to do so, Company may, and Subscriber authorizes Company to, perform any updates and/or changes to Subscriber’s equipment, on-site or remotely, from time to time as Company deems necessary, in Company’s sole discretion. Subscriber will direct any questions concerning third-party hardware or software to the manufacturer. Company has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Subscriber elect to use in connection with the Services.
      1. As set forth below and in the Open Internet Policy, Subscriber is not permitted to connect any harmful equipment to the Company Equipment (as defined below). Subscriber understands that failure to comply with this restriction may cause damage to the Company Networks and subject Subscriber to liability for damages and/or other liability.
      2. Subscriber agrees to not alter, modify or tamper with the Company Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Company.
      3. Subscriber understands, acknowledges and agrees that Company shall not be liable to Subscriber or any authorized user if changes in Company’s facilities, operations, or Services rendered obsolete any equipment provided by the Subscriber or Authorized User (as defined below in Section 12), require modification or alteration of such equipment, or otherwise affected the performance of such equipment.
   2. Company Equipment: Subscriber understands, acknowledges and agrees that the equipment provided by Company to supply Subscriber Services is equipment owned by Company (“Company Equipment”) and agrees that the Company Equipment may, at Company’s sole discretion, be refurbished or otherwise used equipment. Subscriber certifies that the Company Equipment was installed at a location and in a manner authorized by Subscriber. Company Equipment is and shall remain the property of Company, and Subscriber shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Company Equipment to the Subscriber’s premises or otherwise. Subscriber and Company expressly understand, acknowledge and agree that the Company Equipment is not and shall not be considered a fixture to Subscriber’s premises. At such time as Subscriber or Company terminate the Service, Company may recover equipment within fifteen (15) calendar days,or otherwise in accordance with Company’s then-current return procedures, and/or as determined by Company in its sole discretion.
      1. Company Equipment Replacement Fee: In the event that Company is unable to recover Company Equipment as described in 5.b above, or in the event that the Company Equipment is damaged, destroyed, lost or stolen in Subscriber’s possession or otherwise inoperable, Subscriber will pay an applicable “Equipment Replacement Fee” as determined by Company in its sole discretion. Company Equipment for Internet Access Service includes but is not limited to wireless radio(s), wireless router(s), modem(s), wired Ethernet hardware, cabling, and point-to-point links.
   3. Access to Subscriber’s Premises: Subscriber hereby grants Company and its Affiliates, and their respective employees, contractors and agents the right to enter Subscriber’s property and premises at any time for the purpose of operating or maintaining the Company Equipment or Company’s network of various computers, servers, transmission equipment and other infrastructure in various states (collectively, the “Company Networks”), retrieving Company Equipment, or fulfilling its obligations or exercising its rights under these Terms of Service. Company shall provide Subscriber with reasonable advance notice of any such planned access, except when, in the reasonable opinion of Company, an emergency or other exigent circumstance exists that would require Company to immediately enter Subscriber’s property and premises.
6. Company’s Obligations
   1. Service Level Agreement: In the event Subscriber experiences a service outage for more than twenty four (24) consecutive hours and is unable to transmit and receive information through the Company Networks to other portions of the Internet and Subscriber notifies Company within 24 hours of such event and Company determines that such inability was caused by Company’s failure to provide said services for reasons within Company’s reasonable control and not as a result of any actions or inactions of Subscribers or any third parties (including failure of third party equipment), and such inability is not a result of scheduled maintenance of Company’s equipment or services, Company will, upon Subscriber’s request, credit Subscriber’s account the connectivity charges for the length of the outage. Subscriber credit pursuant to this Section 6(a) may not exceed the Monthly Service Fee in any single calendar month.
   2. Company may use various tools and techniques in order to efficiently and reasonably manage the Company Networks and to ensure compliance with Company’s Open Internet Policy (such tools and techniques, “Network Management Tools”). These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code or managing network resources through techniques such as limiting the number of simultaneous peer-to-peer sessions that Subscriber may conduct, limiting the aggregate bandwidth available for certain usage protocols such as peer-to-peer and newsgroups, and such other Network Management Tools as Company may from time to time determine appropriate.
   3. Despite Company’s efforts, it is possible that a price for the Services (or a component of the Services) offered on Company’s website, or the description of a Service may be inaccurate in some part. In the event Company determines that a Service contains an inaccurate price or description, Company reserves the right to take any action Company deems reasonable and necessary, in Company’s sole discretion, to rectify the error, including without limitation, canceling Subscriber’s order, unless prohibited by law. Company may make improvements or changes to any of Company’s information, or Services described on Company’s website at any time without notice. Subscriber agrees to notify Company immediately if Subscriber becomes aware of any pricing or descriptive errors or inconsistencies with any Services Subscriber order and to comply with any corrective action that Company may take.
7. Subscriber’s Obligations
   1. Subscriber agrees that the Service is personal to Subscriber and agrees not to assign, transfer, resell or sublicense Subscriber’s rights under these Terms of Service unless specifically permitted by the terms of these Terms of Service.
      1. For Individual Subscribers, Subscriber agrees that the Services and the Company Equipment shall be used only by Subscriber and by members of Subscriber’s immediate household living with Subscriber at the same service address, and Subscriber will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured.
      2. For Commercial Subscribers, Subscriber agrees that the Service and the Company Equipment shall be used only by Subscriber and by authorized members of Subscriber’s business located at the same address, and Subscriber will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured.
   2. Subscriber acknowledges that Subscriber is entering into these Terms of Services on behalf of all persons who use the Service by means of the Company Equipment. Subscriber agrees that Subscriber is solely responsible and liable for any and all breaches of the terms and conditions of these Terms of Service and any other documents incorporated by reference in these Terms of Service, whether such breach results from Subscriber’s use of the Service or by another using Subscriber’s equipment or the Company Equipment.
   3. Maintain Power to Company Equipment: Subscriber understands, acknowledges and agrees that: (i) Subscriber must provide electrical power to Company Equipment at all times (including, without limitation, when Subscriber is not using the Service), and (ii) Subscriber’s failure to provide such power and continuous connection may result in damage to the Company Equipment or to Subscriber’s computer, equipment, property or premises, for which damage Subscriber will be solely responsible.
   4. Use of Company Equipment: Subscriber agrees that Subscriber is responsible for anyone using the Company Equipment, Subscriber’s computer system, password, name or Subscriber name in connection with the Service (with or without Subscriber’s knowledge or consent) and for ensuring that anyone who uses the Service through the Company Equipment, Subscriber’s equipment or access to the Service, does so in accordance with the terms and conditions of these Terms of Service. Subscriber agrees to take all reasonable measures necessary to ensure that the Service is not used by another person without Subscriber’s consent. Subscriber understands, acknowledges and agrees that Subscriber is responsible for all use of the Service and Subscriber’s account whether Subscriber or someone else uses Subscriber’s account (with or without Subscriber’s permission).
   5. Subscriber is responsible for procuring and installing patches, any and all anti-virus and firewall software/hardware and operating system patches, updates or supplements that may be necessary for (i) the protection and maximum functionality of Subscriber’s computer and related equipment and (ii) the protection of the Company Networks and other Subscribers. For purposes of clarification, Company and its Affiliates hereby disclaim any and all responsibility and liability for any damages that may arise from Subscriber’s failure to procure or install the aforementioned security or other software and/or hardware and Subscriber agree that Company and its Affiliates shall have no liability for Subscriber’s failure to do the same.
   6. Subscriber may not resell the Service in whole or in part to any third party, unless the Subscriber has entered into a reseller agreement with Company. Subscribers further agree that they will not, directly or indirectly, use Company Services in whole or in part to provide any form of service generally associated with an Internet service provider, or otherwise be in competition with Company.
   7. Subscriber is responsible for backing up the data on Subscriber’s computer(s) and network(s) and Company shall have no liability whatsoever for any loss of data.
   8. Subscriber shall acquire no proprietary interest in the Internet Protocol (“IP”) address(es) assigned by Company for Subscriber’s use.

1. 1. Subscriber is responsible for any loss arising out of the theft, lightning, flood or any damages to equipment in Subscriber’s possession provided by Company.

1. Subscriber’s Representations and Warranties
   1. Subscriber represents and warrants that the Subscriber’s personally identifiable information provided and will provide to Company during the term of these Terms of Service, including without limitation Subscriber’s legal name, email address for communications with Company (such email address, as the same may be modified from time to time by Subscriber upon notice to Company), service address, billing address, telephone number(s), and payment data (including without limitation information provided when authorizing Automated Clearing House payments or other recurring payments) and Non-Personal Information, such as but not limited to the number of computers on which the Service is being accessed (all such information, collectively, the “Subscriber Information”) for purpose of these Terms of Service is accurate, complete and current.
   2. Subscriber agrees to promptly notify Company, in accordance with these Terms of Service, upon the occurrence of any change in the status of Subscriber’s account (including, without limitation, the creation or removal of an Authorized User) or if there is any change in the Subscriber Information. Subscriber understands, acknowledges and agrees that failure to provide and maintain accurate Subscriber Information with Company constitutes a breach of these Terms of Service.
   3. Subscriber further represents and warrants that Subscriber will not use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any local, state or federal statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Company or its Affiliates; (v) accesses, discloses, uses, or disposes of any “Personal Information” as defined by the Federal Trade Commission without proper authorization or impersonates any person or entity, including without limitation, any employee or representative of Company or its Affiliates; or (vi) transmits any virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.
   4. Subscriber further represents and warrants that there are no legal, contractual or similar restrictions on the installation of the Company Equipment in the location(s) and in the manner authorized by Subscriber. Subscriber is responsible for ensuring compliance with all regulations, applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Company Equipment and Service, for paying any fees or other charges and obtaining any permits or authorizations necessary for the installation of the Company Equipment and/or provision of the Service (collectively, “Legal Requirements”). Subscriber is solely responsible for any fines or similar charges for violation of any applicable Legal Requirements.
2. Terms and Conditions for Subscriber Material
   1. Company reserves the right to investigate suspected violations of these Terms of Service, and if/when Company becomes aware of possible violations, Company may initiate an investigation that may include gathering information from Subscriber(s) involved and the complaining party, if any, and examination of anything installed by Subscriber on Company’s servers not provided by Company (collectively, “Subscriber Material”). Subscriber Material includes without limitation any software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content.
   2. During an investigation, Company may suspend the Subscriber account(s) involved. After the investigation, if Company believes a violation of these Terms of Service has occurred, it may take responsive action at its sole discretion. Such action may include without limitation temporary or permanent removal of Subscriber Material from Company’s servers, warnings to Subscriber(s) responsible, and the suspension or termination of the account(s) responsible. Company, at its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms of Service could also subject the Subscriber to criminal and/or civil liability.
   3. Lawful content in the public domain (e.g., images, video, audio, text, data, and programs) may be downloaded or uploaded using the Service. Subscriber may re-distribute content in the public domain. Subscriber assumes sole responsibility, andall risks, regarding the determination of whether content is in the public domain.
   4. The storage, distribution, or transmission of unlawful content or material could subject Subscriber to criminal and/or civil liability, in addition to the actions outlined in Section 4(i) above. Subscriber understands, acknowledges and agrees that Company may remove any Subscriber Material or other content at any time that is alleged to infringe on a third party’s copyrights upon receiving a notice of infringement under the Digital Millennium Copyright Act. Please see the Company Website & General Services Terms of Use Agreement and DMCA Copyright Infringement Notification Process for details.
   5. Subscriber understands, acknowledges and agrees that if Subscriber’s Service is terminated for any reason, Company has the right to immediately delete all Subscriber Material, stored in or for Subscriber’s account, including without limitation personal websites and email, without further notice to Subscriber.
3. Acceptable Use Policy
   1. “Acceptable Use” of Company’s IAS is hereby defined as the normal activities associated with the use of the Internet, including without limitation to usage of the Company Networks and any other facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. Depending on the account type, this may include: File storage on Company’s servers for Subscriber’s own personal web page and file access area (FTP), etc.
   2. Activities specifically prohibited by Company include, without limitation, the following:
      1. Background and/or server-type applications – Including without limitation to IRC bots, HTTP servers, MUDs, and any other harmful process which were initiated by the Subscriber that continues execution on the system upon Subscriber logout. FCC authorized smart home systems and IoT devices are excluded from this prohibition.
      2. Long-term storage of data – Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes, without limitation, programs such as shareware programs which the Subscriber may download to their account for purposes of transferring to their home/business computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the Subscriber’s own system(s).
      3. Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly by Company. Flooding takes place in numerous ways, including, without limitation, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), phishing, mass mailings to multiple addresses via bulk email not in compliance with the federal CAN-SPAM Act, MSG/CTCP flooding on IRC, as well as other, less common methods. “Bulk Email” is defined as the same or similar email messages sent to more than twenty-five (25) recipients.
      4. Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Subscriber’s account are prohibited. This also includes attempts to hack into non-Company systems.
      5. Sharing of accounts – Sharing Subscriber’s IAS with another party for purposes of avoiding payment for a second Service is strictly prohibited. Subscriber may connect multiple computers/devices within a single location to Subscriber’s modem, router, and/or radio to access the Internet Service, but only through a single Company-issued IP Address.
      6. PPP/SLIP emulation software – Since PPP/SLIP is a product offered by Company, Subscribers desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from Subscriber’s account by Company immediately when found.Bulk broadcast data – This includes flood pinging, broadcast pinging, multicast, or IGMP use outside of the private network.
      7. Port scanning – Use of any application, software, or technique to scan any host’s ports.
      8. Conducting business through a residential account – The residential single-Subscriber Internet accounts provided by Company are designed for the home/casual Subscriber and may not provide the level of service, capacity or speed required for conducting business. Therefore, conducting business with a residential account is not advisable. Please contact a Company customer service representative to upgrade to a commercial account.
      9. Excessive use of system resources – This includes without limitation the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. Subscriber may not resell or redistribute Service.
      10. Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals not in compliance with the CAN-SPAM Act, the sending of harassing and/or threatening messages to other users, and the forging of email addresses so as to make the email appear to be from another user.
      11. USENET news abuse – Similar to email abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.
      12. Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.
      13. Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. Such activities are prohibited by Federal law and are thus not allowed in any form on Company. Such prohibition also includes the unauthorized copying of copyrighted material including, without limitation to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.
      14. High-traffic websites – Residential Internet service is intended to provide access to individuals only. As most individuals primarily download content, rather than upload it, the performance for everybody on the systems is optimal. However, some individuals occasionally choose to host content on their account that could degrade performance for other users. Due to such circumstances, Company may have to implement certain limitations on the amount of web hosting traffic an individual Subscriber’s residential account can receive.
      15. Storing Distributing or Transmitting unlawful content– Subscriber is prohibited from storing, distributing, or transmitting any unlawful content through the Service. Examples of unlawful content include without limitation direct threats of physical harm, child pornography and copyrighted, trademarked and other proprietary material used without proper authorization. Subscriber may not post, upload or otherwise distribute copyrighted content without the consent of the copyright holder.
      16. Storing Distributing or Transmitting other unlawful material – Subscriber may not store or distribute certain other types of material on Company’s servers. Examples of other prohibited material include without limitation software, applications and programs containing viruses, Trojans and other tools or technology that would compromise the security of Company or others.
4. Privacy Policy
   1. Company has established a Privacy Policy (“Privacy Policy”), which governs Company’s collection, use, disclosure, and security related to Subscriber’s Personal Information, Non-Personal Information, and for VoIP services, customer proprietary network Information (“CPNI”) (collectively, “Subscriber Information”). Subscriber understands, acknowledges and agrees that Subscriber has: (1) received a copy of the then-in-effect Privacy Policy; and (2) agrees to be bound by the terms and conditions of such Privacy PolicySubject to the notice provisions in Section 18(h) herein, Company may update or amend the Privacy Policy at any time without Subscriber’s prior consent. Company will, however, provide notice of any such changes or amendments as stated in Company Privacy Policy. Subscriber understands, acknowledges and agrees that Subscriber’s continued use of the Services after notice of any changes or amendments have been provided will indicate Subscriber’s acceptance of such changes, except where further steps are required by applicable law. All such updates or amendments shall be deemed to be incorporated by reference into these Terms of Service.
5. Subscriber Security and Passwords
   1. Company may require that Subscriber use a username and password combination or other reasonable procedures to verify and authenticate Subscriber’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through Company authorized Subscriber service channels. Individual and Commercial Subscribers may also choose to designate an authorized user of Subscriber’s account (an “Authorized User”), who will be permitted to access Subscriber’s account information and make certain changes to Subscriber’s account (authorization must be provided in writing; email OK).  All Subscribers will be solely liable for any and all action or inaction by any person that has access to Subscriber’s account, whether that person was authorized or not.
   2. Individual Subscriber accounts are for individual and personal use only; Commercial Subscriber accounts are for authorized personnel only. Individual Subscribers shall not share passwords or accounts with others. Commercial Subscribers shall only provide passwords to authorized personnel.
   3. Company shall provide or obtain passwords to protect Subscriber’s account and Services. In the event that the security of a Subscriber’s account or Service is compromised, Company shall provide Subscriber with a new password upon authentication of the Subscriber’s identity. Such authentication may include verification of account information, a security question, and/or PIN.
   4. Company may monitor the security of Subscriber’s passwords at any time. A Subscriber with an insecure password may be directed to change the password to one that complies with the above rules. Subscribers who repeatedly choose insecure passwords may be assigned a password by Company. Continued failure to maintain password security may be grounds for account termination.
   5. Subscriber is solely responsible for maintaining the security of Subscriber’s computer(s)/device(s) and data and protection of Subscriber’s Information User ID, password, account number and other data. Company strongly recommends the use and appropriate updating of commercial anti-virus, anti-spyware, firewall software, and encryption of data, to the extent feasible.
   6. Subscriber is prohibited from utilizing the Services to compromise the security or tamper with the Company Networks, resources or accounts on any of Company’s computers, routers, switches, servers, radios, modems, or any other equipment at Company or at any other website. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include without limitation password guessing programs, cracking tools, and network probing tools. Any attempt to access any of Company’s corporate assets is strictly prohibited.
   7. Subscribers understand, acknowledge and agree that Company reserves the right to release the login names and IP Address(es) of Subscribers involved in violating system security to system administrators at other websites, in order to assist them in resolving security incidents. Company will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers, subject to applicable law.
6. Termination
   1. Company reserves the right, in its sole discretion, to terminate your access to Services or any portion thereof at any time, without notice. Company reserves the right to suspend or terminate Subscriber’s account and access to the Services at any time upon receipt of claims or allegations from third parties or authorities, or if Company is concerned, in its sole discretion, that Subscriber may have breached these Terms of Service. Subscriber (and not Company, our Affiliates, or Operational Service Providers) remains solely responsible for Subscriber’s use of the Service and any material transmitted through the Service, and Subscriber warrants that Subscriber possesses all rights necessary to transmit such material. An Operational Service Provider is a third party owned company that provides or performs services on Company’s behalf, to help serve Subscribers better, or to perform functions in order to support Company’s Services and operations.
   2. Subscriber’s Termination. IF SUBSCRIBER CANCELS THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON, Company SHALL NOT BE REQUIRED TO REFUND SUBSCRIBER ANY PORTION OF THE MONTHLY FEES PAID BY SUBSCRIBER FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW.  IF SUBSCRIBER CANCELS WITH AT LEAST THIRTY (30) DAYS NOTICE (the “Notice Period”), COMPANY SHALL REFUND ANY PREPAID FEES PAID FOR SERVICE FOLLOWING THE NOTICE PERIOD.
      1. A Subscriber’s termination notice must be sent by Subscriber via email, fax, or U.S. postal mail to Company’s current address as set forth in Section 18(h) of these Terms of Service, completed through the customer portal on Company’s website, or by calling the main office line and speaking to a Company representative. Company may take reasonable steps to verify Subscriber’s identity and authority before effecting such termination. Upon termination, Subscriber agrees to pay any account balance in full and to return any Company Equipment within fifteen (15) days of such termination or pay the Equipment Replacement Price as required under Section 5.
      2. Subscriber agrees to return all Company Equipment installed for the Services upon cancellation or termination of the Services for any reason. Equipment not returned to Company within fifteen (15) days after effective date of termination will be billed at replacement rates as determined by Company. Company may terminate Subscriber’s Services in the event the Subscriber is in breach of any material term of these Terms of Service, including failure to pay any amount for service when due (in accordance with Section 4 above) This right to terminate shall be in addition to any other remedy set forth in these Terms of Service or the policies of Company.
      3. The Service and all Service features are subject to availability on an ongoing basis. Subscriber understands that Company may cease to offer the Services or any Service feature at any time, for any reason or no reason, and without notice to Subscriber. Without limiting the generality of the foregoing, Company may suspend, disconnect or terminate the Service at any time without prior notice if Company believes in its sole discretion that Subscriber is (A) past due, or has (B) threatened or harassed any Company employee, agent or contractor or (C) violated any other provision of these Terms of Service. In its reasonable discretion, Company may terminate the Service on thirty (30) days notice to Subscriber.
      4. In the event that Subscriber’s account is suspended, disconnected or terminated, no refund, including installation or other fees paid by Subscriber to Company, shall be granted. Moreover, Company shall not be responsible for the return of Subscriber’s data stored on Company’s servers, including web and email servers. Subscriber understands, acknowledges and agrees that Company has no obligation to visit Subscriber’s premises upon termination to reconfigure Subscriber’s computer(s) or for any other reason.
7. Disclaimer of Warranties
   1. SUBSCRIBER EXPRESSLY AGREES THAT SUBSCRIBER USES THE SERVICES AND THE COMPANY EQUIPMENT AT SUBSCRIBER’S SOLE RISK. THE SERVICE AND COMPANY EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN SECTION 3 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER COMPANY, NOR ITS AFFILIATES, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND OPERATIONAL SERVICE PROVIDERS (COLLECTIVELY, “COMPANY-RELATED ENTITIES”), OUR THIRD PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANT: (i) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (ii) THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS; (iii) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (vi) THAT ANY SUBSCRIBER INFORMATION, DATA OR FILES, OR SUBSCRIBER MATERIAL SUBSCRIBER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO SUBSCRIBER’S COMPUTER OR DEVICE. THIS INCLUDES, WITHOUT LIMITATION TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO SUBSCRIBER’S COMPUTER, DEVICE, OR NETWORK OR Company EQUIPMENT, OR TO MONITOR SUBSCRIBER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM Company SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
   2. Additionally, Company may, in its sole discretion, make available to Subscriber security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, and anti-spyware or anti-adware software for Subscriber’s use on Subscriber’s computer system in conjunction with the Service. Any such security software provided by Company to Subscriber is intended to provide only a minimal level of protection to Subscriber’s computer system(s). SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE COMPANY-RELATED ENTITIES AND THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. SUBSCRIBER UNDERSTANDS AND AGREES THAT COMPANY AND COMPANY-RELATED ENTITIES, THIRD PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NON-PERFORMANCE.
   3. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS OF SERVICE, SUBSCRIBER UNDERSTANDS AND AGREES THAT NEITHER COMPANY NOR THE COMPANY-RELATED ENTITIES GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE COMPANY NETWORKS OR THAT ANY SPEED OR THROUGHPUT OF SUBSCRIBER’S CONNECTION TO THE COMPANY NETWORKS WILL BE AVAILABLE TO SUBSCRIBER. Subscriber understands, acknowledges and agrees that the availability and speed of the Service provided at Subscriber’s premises may vary depending upon a number of factors, including Subscriber’s computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Subscriber’s premises, foliage between Company Equipment and other components of the Company Networks, Internet traffic, and other factors such as system capacity limitations, governmental actions, geographic, atmospheric and other variable conditions beyond the control of Company and that its Services may be interconnected with the publicly switched telephones or with another carrier’s network.
   4. Subscriber also understands, acknowledges and agrees that IAS require certain physical arrangements of Company facilities and are subject to the availability of such facilities. Company reserves the right to limit the length of a Subscriber’s communications when necessary.
   5. THESE TERMS OF SERVICE GIVE SUBSCRIBER SPECIFIC LEGAL RIGHTS, AND SUBSCRIBER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
8. Limitation of Liability
   1. STATUTE OF LIMITATIONS. SUBSCRIBER MUST BRING ANY CLAIM OR ACTION ARISING IN CONNECTION WITH THE SERVICES WITHIN ONE (1) YEAR FROM THE EVENT OR OCCURRENCE RELATED TO SUCH CLAIM OR ACTION.
   2. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, THE COMPANY RELATED ENTITIES, THIRD PARTY LICENSORS OR SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS SERVICE CONTRACT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO SUBSCRIBER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE AGGREGATE LIABILITY OF COMPANY UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 U.S.).
   3. SUBSCRIBER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT Company WILL HAVE NO LIABILITY FOR THE FOLLOWING:
      1. FOR ANY AMOUNT IN THE EXCESS OF ONE HUNDRED DOLLARS ($100.00 U.S.);
      2. FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING WITHOUT LIMITATION, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR WIRELINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES;
      3. FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER;
      4. FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
      5. FOR ANY DAMAGES OR LOSS DUE TO SUBSCRIBER’S FAILURE TO BACK UP ANY EQUIPMENT AS REQUIRED IN SECTION 3(f) HEREIN;
      6. ANY LACK OR BREACH OF SECURITY SUBSCRIBER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE;
      7. FOR ANY MATTER BEYOND Company’S REASONABLE CONTROL;
      8. FOR ANY INTERFERENCE OR INCOMPATIBILITY WITH OR DISRUPTION OF ANY NON-VOICE SYSTEMS, WHETHER CAUSED BY THE TELEPHONY SERVICE, INTERNET SERVICE, EQUIPMENT, OR OTHERWISE;
      9. FOR ANY ACT OR OMISSION OF ANOTHER CARRIER FURNISHING A PORTION OF THE SERVICES, FACILITIES OR EQUIPMENT TO SUBSCRIBER.; OR
      10. SUBSCRIBER’S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THESE TERMS OF SERVICE.
   4. This Section 15, Limitation of Liability, will survive termination or expiration of these Terms of Service, whether terminated by the Subscriber or by Company, for any reason.
9. Agreement to Arbitrate
   1. SUBSCRIBER AND COMPANY AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN SUBSCRIBER AND COMPANY THAT THEY ARE NOT ABLE TO RESOLVE THROUGH GOOD FAITH DISCUSSION. This mutual agreement between Subscriber and Company to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes without limitation: claims arising out of or relating to any aspect of the relationship between Subscriber and Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which Subscriber is not a member of a certified class and claims that may arise after the termination of your account and/or these Terms of Service. For the purposes of this Section 16, references to Subscriber include Subscriber’s subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service.
   2. SUBSCRIBER AGREES THAT, BY ENTERING INTO THIS SERVICE AGREEMENT, SUBSCRIBER AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THIS SERVICE AGREEMENT.
   3. These Terms of Service evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Service.
   4. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to Company must be addressed to Company at the address set forth in these Terms of Service for notices. An Arbitration Notice to Subscriber must be addressed to Subscriber at Subscriber’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Subscriber and Company do not reach an agreement to resolve the claim within 60 calendar days after the Arbitration Notice is received, Subscriber or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or Subscriber shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Subscriber or Company is entitled.
   5. The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Service Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to the Company. The arbitrator shall be bound by the terms of this Service Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless Subscriber and Company agree otherwise, any arbitration hearings shall take place in Benton County, Washington. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses.
   6. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. SUBSCRIBER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Subscriber and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
   7. Notwithstanding any provision in these Terms of Service to the contrary, Subscriber and Company agree that if Company makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Subscriber may reject any such change by sending Company written notice within thirty (30) days of the change. By rejecting any future change, Subscriber agrees that Subscriber will arbitrate any dispute between Subscriber and Company in accordance with the language of this provision.
10. Indemnification
    1. Subscriber agrees to indemnify, defend and hold harmless Company, the Company-Related Entities, and our third party licensors and suppliers and each of their respective, officers, directors, shareholders, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “Company Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims or actions brought against any Company Indemnitee(s) related to Subscriber’s use of the Service or any violation of these Terms of Service and all other documents incorporated herein by reference) including, without limitation, claims that Subscriber’s use of the Services infringed on the patent, copyright, trademark or other intellectual property right of any third party or Subscriber’s violation of any law or the rights of another and claims resulting from Subscriber’s negligence. Subscriber agrees to pay any attorneys’ fees incurred by any Company Indemnitees in connection with the defense of any such third-party claims or actions. Company reserves the right to assume the defense and control of any matter subject to indemnification by Subscriber, in which event Subscriber will cooperate with Company in asserting any available defenses.
11. General Provisions
    1. These Terms of Service (including all documents incorporated herein by reference) constitutes the entire agreement with respect to the Service. These Terms of Service supersede and nullify all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of these Terms of Service.
    2. The Parties agree that any Affiliates, Operational Service Providers, agents, third party suppliers and licensors of Company are intended beneficiaries of these Terms of Service. Except as set forth in the previous sentence, these Terms of Service are not intended to give and does not give any rights or remedies to any person other than Subscriber and Company.
    3. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
    4. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “RF noise” interference).
    5. These Terms of Service and all matters arising out of or related to these Terms of Service shall be governed by the laws of the State of Washington without regard to conflicts of law provisions. Subject to the agreement between Subscriber and Company with respect to arbitration of any disputes, Subscriber agrees that the state courts of Benton County, Washington and the federal courts closest in proximity to Company alone shall have jurisdiction over all disputes arising under these Terms of Service and Subscriber consents to the personal jurisdiction of those courts.
    6. Company’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of these Terms of Service shall, to any extent, be held invalid, illegal or unenforceable, the remainder of these Terms of Service shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.
    7. Company may change, amend, alter, or modify these Terms of Service and any document incorporated by reference herein at any time. Company may notify Subscriber of any change either by posting that change on Company’s website (www.Company.com), and by sending Subscriber an email or by U.S. first-class mail. If Subscriber continues to use the Service after such notice has been made, Subscriber agrees that such continued use shall be deemed to be Subscriber’s acceptance of those changes. The current version of these Terms of Service, as the same may be modified by Company from time to time, shall supersede any prior version of these Terms of Service that may have been provided to Subscriber at any time.
    8. Except as specifically set forth in these Terms of Service, any notices under these Terms of Service shall be effective as follows:
       1. If to Subscriber: notice shall be made by (A) email to Subscriber’s email address; (B) by first-class mail to Subscriber at Subscriber’s billing address then on file with Company; or (C) when posted to the Announcements page of Company’s website. If by email, such notice shall be deemed effective when transmitted by Company. If by first-class mail, such notice shall be deemed effective upon the earlier of (1) three (3) business days after dispatch or (2) at such time as actually received by Subscriber.
       2. If to Company: notice shall be made exclusively by first-class mail to Company at 9501 W Clearwater Ave A110, Kennewick, WA 99336, or such other address as Company may from time to time publish to Subscriber, and such notice shall be deemed effective upon receipt.
    9. Subscriber may not assign these Terms of Service, or Subscriber’s rights or obligations hereunder, without Company’s prior written consent, and any purported assignment by Subscriber without such consent shall be void. Company may transfer or assign any portion or all of these Terms of Servicet at any time without notice to Subscriber, and Subscriber waives any notice that may be required by law.
    10. Sections 2 through 18 herein shall survive any termination or expiration of these Terms of Service.

Updated: 1/25/2021

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Privacy Policy and Your California Privacy Rights

Updated/Effective: July 22, 2020

This is the official Privacy Policy of EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds Wireless” “we,” “our,” or “us”). We understand that residential and commercial subscribers, visitors and users (collectively, “Subscribers,” “you,” or “your”) care about how your personally identifiable information (“Personal Information”), as defined below, is collected, used and shared. (We may use the term users separately from Subscribers, where appropriate.) Your privacy is important to us. Our Privacy Policy explains how we collect, use, disclose, and dispose of your Personal Information through the Desert Winds Wireless website (the “Site”) and any of our services, including broadband Internet access services, voice over IP services, and other related services purchased by you (collectively, the “Services”). This Privacy Policy together with the Desert Winds Wireless Terms of Service Contract, Acceptable Use Policy and the Open Internet Policy (collectively, “Service Agreements”) govern your use of the Site and Services and our collection, use, disclosure, and disposal of your Personal Information. Any capitalized terms not defined in this Privacy Policy will have the same meaning as defined in our Service Agreements.

By using or accessing our Site and Services in any manner, Subscriber acknowledges that Subscriber accepts the practices and policies outlined in this Privacy Policy. If you disagree with the way we collect, use, disclose, and dispose of Personal Information, do not use the Site or any of the Services.

Your California Privacy Rights

Generally, California residents are entitled by law to ask Desert Winds Wireless for a notice identifying the categories of Personal Information that Desert Winds Wireless shared with its Affiliates and/or other third parties for their marketing purposes the preceding year, and provide contact information for such Affiliates and/or third parties unless Desert Winds Wireless meets certain exceptions in the law. This Privacy Policy and Site meet those exceptions. Therefore, if Subscriber resides in California and Subscriber has an established business relationship with Desert Winds Wireless, Subscriber may request information about Desert Winds Wireless’s opt-out and opt-in policies of sharing Subscriber Personal Information with other companies (including our Affiliates) for their marketing purposes. Please send Subscriber’s written request via email or postal mail following the instructions below. Desert Winds Wireless will not accept requests via the telephone or facsimile or respond to requests that are not labeled or sent properly, or do not have complete information.

• For all requests, include Subscriber’s full name, street address, city, state and zip code.
• In an email request, Subscriber must state “Re: Your California Privacy Rights” in the subject line and send Subscriber email to management@desertwinds.net.
• In a postal request, Subscriber must send a letter or postcard to:

EV Holdings 1 LLC
D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds Wireless”)
Attention: Your California Privacy Rights
9501 W Clearwater Ave Ste A110
Kennewick WA 99336

Desert Winds Wireless’s Privacy Principles

We are committed to conducting our business in accordance with the following principles in order to ensure that the confidentiality of your Personal Information is protected and maintained.

• We will collect Personal Information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.
• We will collect and use Personal Information solely for fulfilling those purposes specified by us and for other ancillary purposes, unless we obtain the consent of the individual concerned or as required by law.
• Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.
• We will protect Personal Information by using reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
• We will make readily available to Subscribers information about our policies and practices relating to the management of Personal Information.
• We will only retain Personal Information for as long as necessary for the fulfillment of those purposes.

General Information

Desert Winds Wireless’s Site and Services are designed and targeted to United States audiences and are governed by and operated in accordance with the laws of the U.S. If Subscriber is not a U.S. citizen or does not reside in the U.S., Subscriber voluntarily consents to the collection, transfer, use, disclosure and retention of Subscriber Personal Information in the U.S. Subscriber also agrees to waive any claims that may arise under Subscriber’s own national laws.

When Subscriber uses the Site and Services, the Personal Information Subscriber sends and receives is transmitted over a wireless network, and may be subject to interception by unauthorized third parties who seek to do you harm. While it is Desert Winds Wireless’s objective to take reasonable measures to reduce the risk that unauthorized third parties will be able to intercept the information Subscriber sends and receives through the Site and Services, Desert Winds Wireless cannot and does not make any guarantee that transmissions over the Internet are 100% secure or error-free.

Desert Winds Wireless does not knowingly collect, solicit or use Personal Information from anyone under the age of 13. If Subscriber is under age 13, please do not attempt to register for the Services or send any Personal Information about yourself to Desert Winds Wireless. If Desert Winds Wireless learns that we have collected Personal Information from a child under the age of 13, we will delete that information as quickly as possible to the extent technically feasible. If you believe that your child under age 13 may have provided Desert Winds Wireless Personal Information, please contact Desert Winds Wireless at management@desertwinds.net.

What Information does Desert Winds Wireless collect and how does Desert Winds Wireless use this Information?

Generally, Desert Winds Wireless collects and uses Personal Information internally in connection with providing the Site and Services to Subscriber, including to personalize, evaluate and improve the Site and Services, to contact Subscriber, to respond to and fulfill Subscriber requests, and to analyze how Subscriber uses the Site and Services.

Desert Winds Wireless collects and uses various types of information about Subscribers and Subscribers’ use of the Site and Services via various features and registration pages, Help Desk and call centers, postal mail, remote kiosks, the Desert Winds Wireless Facebook Page or other social network platforms, or by other means. Such information is generally classified as Personal Information or Non-Personal Information.

Personal Information

Personal Information is the information Subscriber provides to Desert Winds Wireless voluntarily or passively through Subscriber use of the Site and/or Services, and information which is directly associated with or reasonably linked to a specific person, computer or device. For example, we collect and use Personal Information through the registration process, when the equipment to provide the Service is installed, maintained or upgraded at Subscriber’s premises, and when Subscriber contacts Desert Winds Wireless regarding the Site or Services. Through Subscriber account settings, Desert Winds Wireless collects and uses Personal Information such as Subscriber name, email address, landline and/or wireless telephone number, postal address, billing address (if different) and billing information (such as credit/debit card account number or other financial account information), service address, and the nature of any of Subscriber devices or other property making use of the Services. Personal Information also includes customer proprietary network information (“CPNI”) which is collected and used to provide VoIP services to you. CPNI includes any information that relates to the quantity, technical configuration, type, destination, location, and amount of use of our VoIP service, such as call detail, logs, and specifics regarding your VoIP account. Subscriber may be required to provide certain Personal Information to assist Desert Winds Wireless in improving Subscriber’s Service or troubleshooting problems Subscriber is experiencing with the Site or Service, Subscriber computer or device, or otherwise to improve the quality of the Services.

Desert Winds Wireless will communicate with Subscriber if Subscriber has provided Desert Winds Wireless the means to do so such as submission of a Subscriber’s postal address, email address or phone number. Desert Winds Wireless will mail, email, call or text Subscriber about Subscriber’s use of the Services or product improvements or upgrades, and other transactional information about Subscriber’s service.

Desert Winds Wireless may also combine Personal Information with additional data obtained from Desert Winds Wireless’s Facebook Pages or other social network platforms, its Affiliates, its Operational Service Providers (third party owned companies that provide or perform services on Desert Winds Wireless’s behalf, to help serve Subscribers better and to perform functions in order to support Desert Winds Wireless’s businesses and operations), or other companies, such as credit bureaus, background check firms, and marketing research companies.

Some forms of Non-Personal Information as described below will be classified as Personal Information if required by applicable law or when such information is directly associated with or reasonably linked to a specific person, computer or device, or is combined with other forms of Personal Information.

Non-Personal Information

Website Information, Use of Cookies and other Similar Tracking Technology

When you visit Desert Winds Wireless’s Site, Desert Winds Wireless will collect various types of Non-Personal Information, such as information on Desert Winds Wireless server logs from Subscriber’s browser or device, which may include Subscriber IP Address, unique device identifier, “cookie” information, the type of browser and/or device you are using to access the Services, and the page or feature Subscriber requested. (IP Address and device identifiers are traditionally classified as Non-Personal Information, unless Desert Winds Wireless is required to do so otherwise under applicable law.) “Cookies” and “web beacons” are text file identifiers Desert Winds Wireless transfers to Subscriber’s browser or device that allow Desert Winds Wireless to recognize Subscriber’s browser or device and tell Desert Winds Wireless how and when pages and features on the Desert Winds Wireless Site are visited, by how many people, and other activity on the Site.

Subscribers can change the preferences on Subscriber’s browser or device to prevent or limit Subscriber’s device’s acceptance of cookies, web beacons or other similar technology, but this may prevent Subscribers from taking advantage of some of the features on the Desert Winds Wireless Site, or accessing certain functions and conveniences. This Privacy Policy does not cover the use of cookies or other such tracking technology by any third parties, and Desert Winds Wireless is not responsible for their privacy policies and practices.

Desert Winds Wireless also uses Personal Information and Non-Personal Information to enhance the Desert Winds Wireless Site and Services: such as how often visitors use a particular feature or activity; which products and services are most interesting to current and potential Subscribers; ways to make the Site useful and interesting to as many Subscribers as possible; and to enhance and refine Desert Winds Wireless’s Services. Desert Winds Wireless will continue to conduct analytics on Desert Winds Wireless Site and Services performance. Subscribers may not opt-out of this use of cookies, Personal Information and Non-Personal Information.

Technology is improving every day and to improve Desert Winds Wireless’s operations and functions Desert Winds Wireless may introduce new technologies and monitoring techniques without advance notice or consent from Subscriber. Desert Winds Wireless may also use Operational Service Providers to conduct such internal functions and analyses.

Network Information

Desert Winds Wireless also collects and uses Desert Winds Wireless Network Information, information about Subscriber access to, and use of, the Desert Winds Wireless Network, which may or may not be directly associated with or reasonably linked to a specific person, computer or device. For example, Desert Winds Wireless may collect use information about the performance of the our equipment installed on Subscriber property or at Subscriber premises, when Subscriber is using the Services, the various devices Subscriber is using to access the Services, the amount of data Subscriber is transmitting and receiving, the content of the data Subscriber is transmitting and receiving, the websites Subscriber is visiting, and any other information that is transmitted over the Desert Winds Wireless Network. Desert Winds Wireless may also aggregate Desert Winds Wireless Network Information from multiple Subscribers and share such aggregated Non-Personal information about the overall performance of the Desert Winds Wireless Services and Desert Winds Wireless Network with our Affiliates and other third parties. Aggregated information does not identify a specific individual, computer or device.

How we use Desert Winds Wireless Network Information:

We use Network Information to monitor and enhance the performance of the Desert Winds Wireless Network. Desert Winds Wireless will not monitor the content of the websites viewed or email communications as part of Desert Winds Wireless’s standard network management unless there is a complaint or an issue regarding the Services. Generally, Desert Winds Wireless will monitor and preserve the following Desert Winds Wireless Network Information:

• When Subscriber is using the Services;
• How Subscriber is using the Services, such as monitoring traffic patterns regarding websites visited, amount of data being sent or received, or other activity;
• The amount of data Subscriber is transmitting and receiving through the Services; and
• General information regarding the performance of our equipment installed on Subscriber’s property or at Subscriber’s premises, and its interaction with the rest of the Desert Winds Wireless Network.

However, Desert Winds Wireless reserves the right to, and may, monitor, access, review and preserve any Desert Winds Wireless Network Information and/or content in the following situations:

• In response to an inquiry from Subscriber or another Authorized Subscriber on Subscriber’s account regarding Subscriber or their use of the Services or problems Subscriber or they are experiencing using the Services;
• If Desert Winds Wireless has reason to believe Subscriber is using the Services in violation of Subscriber’s Service Agreement or any applicable statutes, rules, ordinances or regulations;
• If Desert Winds Wireless has reason to believe Subscriber use of the Service is negatively affecting other Subscribers; or
• When Desert Winds Wireless is required by law or legal process to do so, or when Desert Winds Wireless has a good faith belief that Desert Winds Wireless is required by law or legal process to do so.

How is Personal Information used for marketing and advertising purposes?

Desert Winds Wireless will use Personal Information to send Subscriber marketing and advertising messages related to Desert Winds Wireless’s Services and Site using Subscriber’s email address, postal address, or telephone number (for voice, texts, and pre-recorded calls). Desert Winds Wireless may deliver a marketing or advertising message based on Subscriber visits to the Desert Winds Wireless Site, which is general advertising or “Contextual Advertising,” defined as advertising based on the subject matter or the content of the specific website page or subject matter. Desert Winds Wireless may also send Subscriber “First Party Advertising,” which is advertising that is customized or personalized based on a history of Subscriber’s use of our Site or Services (possibly combined with information from our Facebook fan page or other social network platforms). First Party Advertising is based solely on a combination of information Desert Winds Wireless collects from Subscriber – not from Subscriber’s visits to other websites across the Internet.

Subscriber may opt-out of First Party Advertising but not Contextual Advertising. No Personal Information is used to deliver Contextual Advertising; it automatically will appear based on the content or webpage Subscriber is viewing and thus is based on the context of that visit. Subscriber may continue to receive general advertising if Subscriber opts-out of First Party Advertising, it will not be customized or personalized for Subscriber.

Desert Winds Wireless does not provide third party “Network Advertising,” which is advertising based on Subscriber’s overall Internet usage across different third party websites or online services. Multiple third party websites and online services are involved in this tailored or personalized advertising process, in essence a “network” of advertising providers.

Because Desert Winds Wireless does not provide network ads, Desert Winds Wireless does not recognize the “Do Not Track” settings on various Internet browsers. Desert Winds Wireless does not engage or allow third parties to track you across the Internet and across time for advertising purposes.

Links to other websites or online services

The Desert Winds Wireless Site and/or our Facebook Pages (or other social networking platforms) may contain a variety of content and functionality and may provide links to other third party websites or online services. Despite such links, this Privacy Policy applies only to Desert Winds Wireless and our Affiliates. The presence of a link does not constitute or imply Desert Winds Wireless’s endorsement, recommendation, or sponsorship of the content, goods, services, business or privacy practices on such websites or online services. Desert Winds Wireless encourages Subscribers to be aware and informed when Subscribers leave Desert Winds Wireless’s Site and Desert Winds Wireless’s Facebook Pages, or any other social networking platforms.

Will Desert Winds Wireless share Subscriber Personal Information?

Subscriber’s Personal Information will only be disclosed to third parties (including Desert Winds Wireless’s Affiliates) as listed in this Privacy Policy, or if Desert Winds Wireless has received your consent at the time Desert Winds Wireless will collect and use your Personal Information or prior to the disclosure of any Personal Information. Desert Winds Wireless reserves the right to fully use, disclose and process any Non-Personal Information collected from Subscriber in any manner as well as any information Subscriber makes public via Desert Winds Wireless’s Site or Services.

Desert Winds Wireless will not rent, sell or disclose Personal Information to anyone not related to Desert Winds Wireless for marketing or promotional purposes, unless in connection with a potential or actual sale, merger or a corporate restructuring by or of Desert Winds Wireless. (See “For Business Transfers” below for more information.) Desert Winds Wireless will share Subscriber Personal Information with its Affiliates and with other third parties as described in this section for the following reasons:

• To Our Affiliates: Desert Winds Wireless relies on various Affiliates in order to provide the Services to Subscribers. Desert Winds Wireless may share Personal Information and Non-Personal Information with any of its Affiliates for business, operational, promotional and/or Desert Winds Wireless’s own marketing and advertising purposes.
• To Operational Service Providers: Desert Winds Wireless and its Affiliates contract with other companies and people to perform tasks or services on Desert Winds Wireless’s behalf and need to share Subscriber Personal Information to provide products or services to Subscribers. For example, Desert Winds Wireless may use an independent payment processing company to receive and process Subscriber’s ACH or credit/debit card transactions, or with third parties to assist Desert Winds Wireless in optimizing the Desert Winds Wireless Network. Unless Desert Winds Wireless tells Subscriber differently, Desert Winds Wireless does not grant its Operational Service Providers any right to use the Personal Information Desert Winds Wireless shares with them beyond what is necessary to assist Desert Winds Wireless.
• For Business Transfers/Restructuring: Desert Winds Wireless may choose to buy or sell assets, or Desert Winds Wireless may sell assets or be sold. In these types of transactions, Subscriber Personal Information is typically one of the business assets that would be disclosed and transferred. Also, if Desert Winds Wireless (or Desert Winds Wireless’s assets) are acquired, or Desert Winds Wireless goes out of business, enters bankruptcy, or goes through some other change of control, including restructuring, reorganization or financing arrangements, Personal Information could be one of the assets disclosed, transferred to or acquired by a third party.
• For Protection of Desert Winds Wireless, and Our Affiliates, Employees, Operational Service Providers, Subscribers and Public Safety: Desert Winds Wireless reserves the right to access, read, preserve, and disclose any Personal Information to implement and/or enforce the Service Agreements, protect the Desert Winds Wireless Network, Site, and other company assets; protect the interests, rights, property, and/or safety of Desert Winds Wireless or our Affiliates, employees and officers/directors, Operational Service Providers, Subscribers and Subscribers, agents, representatives, third party licensors or suppliers, or the general public.
• When Required by Law or in Response to Legal Process: Desert Winds Wireless reserves the right to access, read, preserve, and disclose any Personal Information to which Desert Winds Wireless has access if Desert Winds Wireless is required by law or legal process to do so, or if Desert Winds Wireless has a good faith belief that Desert Winds Wireless is required by law or legal process to do so.

Is Subscriber Personal Information secure?

Desert Winds Wireless endeavors to protect the privacy of Subscriber’s account and other Personal Information Desert Winds Wireless holds using reasonable administrative, technical and physical security measures. We dispose of your Personal Information in a secure manner related to how sensitive or confidential the Personal Information is. However, Desert Winds Wireless cannot and does not guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of Personal Information at any time.

Subscriber’s account is protected by a password for Subscriber privacy and security. It is Subscriber’s responsibility to prevent unauthorized access to Subscriber’s account and Personal Information by selecting and protecting Subscriber password and/or other sign-on mechanism appropriately and limiting access to Subscriber computer, tablet or device and browser by signing off after Subscriber has finished accessing Subscriber’s account. Subscriber is required to notify us immediately if Subscriber’s password or account has been disclosed to a person whose name does not appear on Subscriber’s account, even if you have allowed such disclosure. Subscriber understands, acknowledges and agrees that Subscriber is solely responsible for any use of Desert Winds Wireless Services via Subscriber’s Subscriber name and password.
Additionally, if Subscriber contacts Desert Winds Wireless, Desert Winds Wireless will ask Subscriber for verification of Subscriber’s identification and account. Desert Winds Wireless will not send an email or text, nor should Subscriber respond to any email or text communications asking for any sensitive or confidential Personal Information, such as social security number, bank account or credit card account number, or a driver’s license number. If Subscriber receives an email or text from Desert Winds Wireless requesting any such information or someone that claims they are with Desert Winds Wireless or our Affiliates please contact our Privacy Administrator immediately: management@desertwinds.net.

What Personal Information can Subscribers access, modify and/or delete?

Generally, Subscriber may access the following Personal Information in Subscriber’s account:

• Full name;
• Subscriber name and password;
• Postal Address;
• Email address;
• Telephone number;
• Billing and Service address; and
• Account and billing information.

By contacting Desert Winds Wireless through any online account portal and/or via telephone, Desert Winds Wireless may enable Subscribers to view and modify Subscriber account settings, and in some cases, edit or delete the Personal Information listed above. Current subscribers may not delete any Personal Information; you may only update or modify information. Former Subscribers may be able to delete Personal Information from active status depending on the services you subscribed to. When a Subscriber updates Personal Information, however, Desert Winds Wireless may maintain a copy of the unrevised information in Desert Winds Wireless’s records for internal security reasons and recordkeeping. Desert Winds Wireless may also retain certain Personal Information indefinitely as required by Desert Winds Wireless’s business practices, by law, and/or tax reporting purposes after Subscriber is no longer a Desert Winds Wireless Subscriber.

Desert Winds Wireless may use any aggregated data derived from or incorporating Subscriber’s Personal Information after Subscriber updates or deletes it, but not in a manner that would identify Subscriber personally. The information Subscriber can access, update, and delete may also change.

To prevent unauthorized access to your account and Personal Information, you may only access your account portal or account via a telephone customer service representative after we have verified and authenticated your identity via your submission of a password, PIN, customer number and /or a security question. Only then will you have the ability to modify or update your Personal Information (including access to CPNI, if applicable), and receive other account information either via telephone or online. If Subscriber has any questions about viewing or updating information Desert Winds Wireless has on file, please contact Desert Winds Wireless at management@desertwinds.net

What third party disclosure choices do Subscribers have?

Subscribers can always choose not to disclose Personal Information to Desert Winds Wireless; however, certain Personal Information is necessary for Desert Winds Wireless to provide the Services to Subscriber or to access certain parts of the Site. Subscribers may opt out of sharing Personal Information with our Affiliates only for marketing or advertising purposes, but not for business or operational purposes.

Subscriber may opt out of email marketing and advertising from Desert Winds Wireless or its Affiliates using the “Unsubscribe” mechanism in each email. Before Desert Winds Wireless sends Subscriber a text for any reason, or sends Subscriber a pre-recorded call that contains advertising or marketing information, Desert Winds Wireless will secure Subscriber’s prior written express consent, which can be given via a voice recording, email, text message, postal mail, or telephone key press. Non-telemarketing pre-recorded calls do not require Subscriber’s prior express consent in writing, unless they are sent to a wireless device. Subscriber understands, acknowledges and agrees that such texts and pre-recorded telemarketing calls may be sent using an autodialer and are not conditioned on your purchase of the Services. Subscriber may opt out of receiving text messages any time by replying “STOP” or “UNSUBSCRIBE” to the text message. Subscriber may opt out of receiving pre-recorded calls by the opt-out instructions in the call. However, Subscriber will continue to receive calls related to debt-collection and Subscriber’s current service. Subscriber may also opt-out of First Party Advertising, but not Contextual Advertising, as detailed in the “Use of Personal Information for Marketing or Advertising Purposes” section above.

Subscriber may not opt out of Desert Winds Wireless’s use of cookies or other similar technology, or use of Subscriber’s Personal Information and Non-Personal Information for Desert Winds Wireless’s internal analytics used to monitor activity on Desert Winds Wireless’s Site, measure Desert Winds Wireless Services’ performance, or to operate and protect the Desert Winds Wireless Network.

Will this Privacy Policy ever change?

Yes, because Desert Winds Wireless is constantly working to improve and introduce new features or products in our Services, we will need to update this Privacy Policy from time to time as our business practices change and service offerings increase, and/or there are changes in local, state or federal laws. Additionally, Desert Winds Wireless will also make stylistic, organizational and/or grammatical changes to present Desert Winds Wireless privacy practices in a Subscriber friendly easy to read manner. Desert Winds Wireless will alert Subscribers to any such changes by placing a notice on www.desertwinds.net/privacy-policy with the effective date of the revised Privacy Policy, and/or by sending Subscribers an email, or by some other means to the extent required by law. Subscribers are always responsible for reading and understanding all notices posted on Desert Winds Wireless’s Site, whether their contact information is updated or not. Subscriber’s continued use of the Services or Site after notice of any changes have been provided will indicate Subscriber’s acceptance of such changes, except where further steps are required by applicable law.

Use of Subscriber’s Personal Information is primarily governed by the Privacy Policy in effect at the time Subscriber subscribed to the Service or visited the Desert Winds Wireless Site. If Desert Winds Wireless elects to use or to disclose Personal Information in a manner that is materially different than that stated in the Privacy Policy in effect at the time you subscribed to the Services or visited the Desert Winds Wireless Site, Desert Winds Wireless will provide Subscriber with an opportunity to consent to such use or disclosure. Depending on the circumstances, that consent may include an opt-out.

What if you have questions or comments about this Privacy Policy?

If you have any questions or concerns regarding Desert Winds Wireless’s privacy practices and policies, please contact Desert Winds Wireless at management@desertwinds.net.

© Copyright 2020, EV Holdings 1 LLC D/B/A Desert Winds Wireless, Internet Xpress (“Desert Winds”). All Rights Reserved.

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