Bluewave Internet Terms and Conditions
PLEASE READ THIS AGREEMENT CAREFULLY. ALL OF THE TERMS OF THIS AGREEMENT AFFECT YOUR LEGAL RIGHTS, INCLUDING A BINDING ARBITRATION PROVISION IN SECTION 11 APPLICABLE TO ALL SERVICES
- Introduction. This Agreement for Services (“Agreement”) sets forth the terms and conditions under which Bluewave or one or more of its subsidiaries or affiliates by applicable regulatory, franchise or license authority (“Bluewave” or “us”) agrees to provide Services to you (“Customer” or “you”), and under which you, the Customer, agree to accept the Service. For the purpose of this Agreement, “affiliate” means any entity that controls, is controlled by or is under common control with Bluewave. Bluewave Services may include, but are not limited to, high speed Internet service including Wi-Fi (“Bluewave Internet”).
You will be bound by the terms and conditions in this Agreement applicable to the Services provided. Your use of the Services is also subject to any license agreements relating to any software used in connection with the Services. This Agreement incorporates by reference the terms and conditions of all other service agreements, tariffs and other documents applicable to the Bluewave Services including without limitation: (i) the Customer Privacy Notice, and (ii) if you subscribe to Bluewave Internet, the Acceptable Use Policy. Each Service is provided subject to local and international laws, statutes, regulations, and ordinances applicable to such Service (“Applicable Law”).
- Entire Agreement. This Agreement and all of the documents specifically incorporated herein constitute the entire Agreement between you and Bluewave for the Services. No prior agreement and no written or oral statement, advertisement, or Service description will contradict, explain or supplement it.
- Acceptance of Agreement. Your Agreement with Bluewave starts when you accept and continues until your subscription to the Services is terminated, except as otherwise stated herein. Certain provisions of this Agreement will survive termination. You accept this Agreement when you first do any of the following (“Acceptance”): (i) sign this Agreement by written or electronic signature, (ii) inform us electronically or orally of your acceptance of this Agreement, (iii) activate any Service provided under this Agreement through a method provided by Bluewave, or (iv) use or pay for, in whole or in part, your Service.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS AND CONDITIONS AND THE RATES AND CHARGES AS LISTED ON THE BLUEWAVE WEBSITE, IN YOUR WELCOME KIT, ON YOUR TRANSACTION SUMMARY OR, IF APPLICABLE, THE APPLICABLE TARIFFS ON FILE AT REGULATORY AGENCIES AND/OR SERVICE GUIDES. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT USE THE SERVICES AND IMMEDIATELY TERMINATE YOUR SUBSCRIPTION TO THE SERVICES AND THIS AGREEMENT BY CALLING BLUEWAVE AT THE CUSTOMER SERVICE NUMBER ON YOUR BILL OR ON BLUEWAVEFIBER.COM AND RETURN ALL BLUEWAVE EQUIPMENT, SOFTWARE, AND ASSOCIATED MATERIALS TO BLUEWAVE.
- Changes to Agreement. Bluewave reserves the right to modify any of the terms and conditions of this Agreement including any aspect of the Services in its sole discretion at any time with or without notice. Such changes may include for example, changes to rates, the rate plan structure, or payment policies for the Services, rearrangement, deletion or addition of programming, changes to the features and content of the Services, configuration and capacity of Services, changes in the features, functionality and technical requirements for Bluewave Equipment and Customer Equipment, use of vendors to provide Services, limitations of liability, procedures for disputes and policies for termination. Unless this Agreement or applicable law specifies otherwise, Bluewave will give you thirty (30) days prior notice of any significant change to this Agreement. If you find the change unacceptable, you have the right to cancel your Services. However, if you continue to receive Services after the end of such thirty (30) day period, you will be considered to have accepted the changes. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
- Your Subscription. You represent to Bluewave that you are at least 18 years old. Your use of the Services is personal to you. If you permit other persons to use the Services, you agree that you are solely responsible and liable for any and all breaches of this Agreement, whether such breach results from your use or use by another person using the Services provided to you, Bluewave Equipment, or Licensed Software. You are responsible for contacting the Bluewave customer service number listed on your monthly Bluewave bill immediately upon the occurrence of any change in the status of your account, such as, without limitation, a change in individuals authorized to use your account (“Authorized Users”) and any changes to your contact information such as name, email address, or phone number. Failure to do so is a breach of this Agreement.
- Consent to Contact You. In order to contact you more efficiently, Bluewave and our affiliates may at times contact you using autodialer technology, prerecorded or artificial voice message calls, or text messages at the phone number(s) you have provided us. You agree that we and our service providers or agents may place such calls or texts to communicate with you about your account, service(s) and equipment, and service agreements, including (but not limited to): (i) providing notices related thereto, (ii) resolving technical or billing issues, (iii) informing of installation or other service appointments, (iv) data usage, (v) investigating or preventing fraud, and/or (vi) collecting a debt or outstanding balance (“Informational Communications”). Also, we may share your phone number(s) with such service providers or agents with whom we hire to assist us in carrying out these Informational Communications, but will not share your phone number(s) with any third parties for their own purposes without your consent. Applicable standard telephone minute, data and/or text charges may apply. We and our service providers or agents, however, will not use autodialer technology, or texts to contact you for marketing purposes unless we receive your prior express written consent as required under federal law. Prior express written consent is not required in order to obtain or use Bluewave’s products and services or to receive Informational Communications from Bluewave. If Bluewave is required by law to obtain your prior express consent—either verbal or written—to receive autodialed calls, prerecorded or artificial voice message calls, or text messages and you have provided Bluewave such consent, you may revoke this consent at any time by contacting Bluewave and informing Bluewave of your desire to stop receiving such calls or text messages for Informational Communications purposes and/or for marketing purposes.You consent to Bluewave recording phone conversations between you and Bluewave for quality assurance and analytics purposes. Your use of recording devices to record telephone conversations transmitted over the Services is at your own risk provided that your use complies with all local and international laws.
- Charges and Billing.
- How We Bill You. Services are provided to you on a month-to-month basis. You will generally be billed monthly, in arrears, for recurring service charges, equipment charges, and fees. Your first bill will include any Bluewave equipment charges, deposits, and installation charges, as well as pro-rated charges from the date you first begin receiving Services, monthly recurring charges for the next month and charges for non-recurring services you have received. You may be billed for some Services individually after they have been provided to you; these include charges for pay-per-view movies or events, interactive television, and e-commerce. If you receive Services under a promotion, after the promotional period ends, the then-current regular retail rate for the Service(s) will apply. The retail rates for Bluewave Services and Bluewave Equipment may be found on the Bluewave Website, in your Welcome Kit, by calling your local Bluewave office. You may cancel your Services at the end of the promotional period by contacting Bluewave.PLEASE NOTE that some accounts may not be subject to the monthly billing cycle. If your account is not subject to the monthly billing cycle, please defer to your Bluewave bill to provide information regarding your due date and the amount due to Bluewave by such date.
We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to the outstanding charges in the amounts and proportions that we determine.
- Charges and Rates. You agree to pay by the due date on your Bluewave bill all charges associated with the Services and that you or anyone using your account or services incurs including, without limitation, all recurring and non-recurring fees. Non-recurring fees may include but are not limited to (i) installation, activation, and reactivation fees, (ii) certain equipment fees (iii) charges for pay-per-use services such as pay-per-view, on demand, events and adult programming, (iv) charges for certain premium channels or tiers, or (v) charges for telephone features or phone usage charges such as, per-minute long distance calls, directory assistance, or operator-assisted calls. Rates and charges may vary depending upon the Services rendered and Bluewave may change the rates for the Services from time to time.All fees do not apply to all Services.
- Governmental Taxes and Fees. You must pay all local and international taxes, franchise fees and any other fees or payment obligations imposed by government or quasi-governmental bodies however described, levied or assessed which are applicable to the Services or Bluewave Equipment we provide you. Unless required by Applicable Law, we may elect not to provide notice of a change in fees or taxes. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES OR SURCHARGES THAT BECOME APPLICABLE RETROACTIVELY.
- Other Surcharges and Fees. You must pay all surcharges and fees we may assess in connection with the Services or the Bluewave Equipment (collectively “Surcharges”). These Surcharges may include, but are not limited to, broadcast surcharges, federal Universal Service fees, carrier cost recovery fees, FCC Access Fees, subscriber line charges, network interface fees, network access charges, and any other regulatory and administrative costs we incur to provide the Services and comply with governmental programs.
- Third-Party Charges. You acknowledge that you may incur charges with third-party providers such as for accessing on-line services, calling parties who charge for their telephone-based services, purchasing or subscribing to other offerings via the Internet, or interactive options on your video service that are separate and apart from amounts charged by us. You are solely responsible for all such charges payable to third parties, including all applicable taxes, fees or surcharges. In addition, you are solely responsible for protecting the security of credit card, debit card, other financial information, or other personal information provided to others in connection with such transactions.
- Unreturned Equipment Charges. If you downgrade or disconnect Bluewave Service and do not promptly return the Bluewave Equipment or if it is returned damaged (“Unreturned Equipment”), the damages Bluewave will incur will be difficult to ascertain. Therefore, you agree to pay, and Bluewave may charge your account, a liquidated damages amount equal to Bluewave’s reasonable estimates of the replacement costs and incidental costs that Bluewave incurs; provided, however, that such amount will not exceed the maximum amount permitted by law (“Unreturned Equipment Charge”).
- Unauthorized and Disputed Charges. If you do not agree with a charge on your bill or you believe it is an unauthorized charge you must (i) pay undisputed amounts by the due date listed on your bill and (ii) notify Bluewave no later than sixty (60) days after the date of the bill (or such later date as required by law) of the disputed or unauthorized charges by calling or writing to us at the number and address specified on your bill and submit any documentation or other information to substantiate your claim of unauthorized charges. You waive any disputes or credits that you do not report within this 60 day period. Bluewave will investigate any disputed charges and will use reasonable efforts to advise you of the results of our investigation within thirty (30) days after Bluewave’s receipt of your notice of dispute. Bluewave may, in its sole discretion, waive such charges. You will be responsible for charges or other obligations or liabilities associated with any improper, illegal or unauthorized use of the Services, Licensed Software and Bluewave Equipment as described in Section 21 below.
- Payment by Credit Card or Check. If you use a credit card to pay for the Services, use of the card is governed by the card issuer agreement, and you must refer to that agreement for your rights and liabilities as a cardholder. If Bluewave does not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you make payment by check, you authorize Bluewave to collect your check electronically. You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on or accompanying checks or other payments accepted by Bluewave and any such notations shall have no legal effect.
- Late or Non-Payments. If you fail to make full payment by the payment due date set forth on your bill statement, Bluewave reserves all rights it may have, subject to Applicable Law, to terminate Service or place the Services in Soft Disconnection (defined below), remove Bluewave Equipment, collect the full amount due, including, without limitation, any applicable interest, costs of collection (including attorneys’ fees and third party agent collection fees), late fees (subject to local law and regulations), door collection fees, bank fees and any other applicable fees, charges or payments. Any balance amount that remains delinquent may be referred to a third party for collections. Once the debt is referred to a third party for collection, you may be subject to and agree to reimburse Bluewave for additional fees, including reasonable attorneys’ fees and arbitration fees, and fees related to costs and expenses.If you resume Services after any suspension, we may require you to pay a reconnection fee. If you reinstate any or all Services after disconnection, we may require you to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
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- Returned Payment. If your payment by check is returned, your payment via credit card is denied, or your electronic funds transfer is denied due to insufficient funds, or a closed account, you authorize Bluewave to make a one-time electronic fund transfer from your account to collect the amount of the payment plus any applicable returned payment fees of up to the maximum amount allowed by law or regulation.
- Our Right to Make Credit Inquiries. YOU AUTHORIZE BLUEWAVE TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION IN YOUR FILE, AND TO DISCLOSE THIS INFORMATION CONCERNING YOU TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES. Bluewave will not discriminate in the application of its credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by either Bluewave or its third party credit bureau will be done in conformance with the requirements of all applicable local and international laws.
- Access to Your Premises. You agree to allow Bluewave and/or our agents to enter the property at which the Services and/or Bluewave Equipment will be provided to you (the “Premises”), upon your request, to install, configure, upgrade, maintain, inspect, change, repair and/or remove the Service and/or Bluewave Equipment. You warrant that you are either the owner of the Premises or, if you are not the owner of the Premises that you have obtained the consent of the owner for Bluewave or its agents to access the Premises for the purposes described herein including, without limitation, consent to attach Bluewave Equipment to the outside of the Premises. In addition, you agree to supply us or our agent, if we ask, the owner’s name, address and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises. If installation of Services or Bluewave Equipment by Bluewave at your Premises is required, Bluewave will schedule one or more installation and/or service appointments with you as needed and you agree to be present or to have a responsible representative, 18 years or older, present at the Premises during such appointments. You will be responsible for payment of any charges accessed by Bluewave for visits to your Premises to install, maintain, inspect, repair or remove any Services, Bluewave Equipment or Customer Equipment, including, without limitation, in response to any difficulty caused, in whole or in part, by Customer Equipment, or other equipment, services or facilities not provided by Bluewave, for service calls at times other than normal business hours, and for any non-routine installation or maintenance. Charges for visits to your Premises can be found on the Bluewave Website or by calling Bluewave Customer Care at the number located on your bill statement.
9. Customer Equipment.
- Definition. “Customer Equipment” means any equipment, software, hardware or services supplied by you to use in conjunction with the Services or the Bluewave Equipment. You warrant that you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment. Customer Equipment is your sole responsibility including all costs of installation, maintenance and repair. You agree to allow us and our agents the rights to insert cable cards and other hardware in the Customer Equipment, send software, firmware, and/or other programs to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You are responsible and liable for any degradation or any interruption of Service, damage to Bluewave Equipment, loss of data, loss of your stored content or other consequences that you, Bluewave or any third party may suffer resulting from your use of Customer Equipment, including any Customer Equipment to which Bluewave or its agents has sent software, firmware or other programs. Bluewave has no responsibility or liability for any loss of stored content or any damage to Customer Equipment.
- Technical Requirements for Customer Equipment. All Customer Equipment must comply with Bluewave’s technical requirements which we may post on the Bluewave Website and change from time to time (“Technical Requirements”). We will not be obligated to provide Service or support where your Customer Equipment fails to conform to Bluewave’s Technical Requirements. Neither Bluewave nor any of its affiliates, suppliers or agents warrant that Customer Equipment not meeting Bluewave’s Technical Requirements will enable you to successfully install, access, operate, or use the Services. You acknowledge that any such installation, access, operation, or use could cause Customer Equipment to fail to operate or cause damage to Customer Equipment, you, your Premises or Bluewave Equipment. Neither Bluewave nor any of its affiliates, suppliers or agents shall have any liability whatsoever for any such failure or damage. Bluewave reserves the right to deny you customer support for the Services and/or terminate Services if you use Customer Equipment not meeting the Technical Requirements.
- Changes and Upgrades. You acknowledge that Bluewave may install Licensed Software and may send firmware and other code updates or downloads to Customer Equipment which will ensure full functionality of the Service and may alter, add to, or remove features or functionalities of Customer Equipment with or without notice to you and you agree that such changes may be performed at any time and in any manner. Periodically you may need to acquire new or additional Customer Equipment to continue to use the Service or receive the best quality of Service.
- Bluewave Equipment.
- Definition. “Bluewave Equipment” means any equipment provided or leased to you by Bluewave or our agents with or without a separate charge or fee in connection with the Services. Bluewave Equipment also includes any software, firmware, or other programs contained within the Bluewave Equipment and Customer Equipment. Examples of Bluewave Equipment includes any provided gateways, routers, cable modems, miniboxes/DTAs, voice-capable modems, wireless gateway/routers, converters/receivers/set top boxes, digital adapters, remote controls, etc. Bluewave Equipment does not include equipment you may purchase at retail or from Bluewave directly that may perform some or all of the functions of Bluewave Equipment. You agree that Bluewave Equipment will remain the property of Bluewave and you will not acquire any ownership or other interest in any Bluewave Equipment or any network facilities, cabling or software by virtue of any payment made pursuant to this Agreement or by any attachment of the Bluewave Equipment to the Premises. You agree that Bluewave Equipment will not be deemed fixtures or in any way part of the Premises. You agree to use Bluewave Equipment only for receiving and/or using the Services pursuant to this Agreement.
- Changes and/or Upgrades. Bluewave may upgrade, replace, remove or otherwise change the Bluewave Equipment at our discretion at any time any Service is active (including Soft Disconnection) or following the termination of your Services. You consent to such changes including software, firmware and other code updates or downloads, with or without notice to you, which may alter, add to, or remove features or functionalities of the Bluewave Equipment or Service. You acknowledge and agree that our addition or removal of or change to the Bluewave Equipment may interrupt your Services. Bluewave may, at its option, install new or reconditioned Bluewave Equipment, including replacing your existing Bluewave Equipment, for which you may incur a fee. You agree that such changes may be performed within Bluewave’s sole discretion at any time and in any manner. If Bluewave requests that you replace, or offers to replace your equipment in order to provide you with better Service or stronger security, and you do not do so, Bluewave is not responsible for any resulting degradation of service or security vulnerabilities.
- Tampering and Unauthorized Use. You are responsible and may be liable for all Bluewave Equipment on your Premises and in your possession. You may not sell, lease, abandon, or give away the Bluewave Equipment. You agree that you will not and you will not permit others, including without limitation any other provider of video, telecommunications or Internet services, to use, rearrange, disconnect, abandon, remove, relocate, repair, service, alter, modify, tamper or otherwise interfere with the Bluewave cable network, the Services, or any of the Bluewave Equipment including software, firmware, or code changes without Bluewave’s prior written consent, which Bluewave may withhold in its sole discretion. Such prohibition includes, without limitation, attaching or permitting others to attach any unauthorized devices to our cable network, the Services, or the Bluewave Equipment, using or permitting others to use equipment that causes interference with reception equipment, or otherwise degrades our cable network signal quality or strength or creates signal leakage, altering a cable modem, router or gateway to change its downloading or uploading capacity, or altering identifying information such as serial numbers or logos. If you make or assist any person to make any unauthorized connection or modification to Bluewave Equipment or the Services or any other part of our cable network, we may terminate your Services and recover such damages as may result from your actions. You also agree that we may recover damages from you for tampering with any Bluewave Equipment or any other part of our cable network or for receiving unauthorized Services. The unauthorized reception of the Services may also result in criminal fines and/or imprisonment. You agree that you will not allow anyone other than Bluewave or its agents to service the Bluewave Equipment.
- Damaged or Lost Bluewave Equipment. You agree to pay the full retail cost for the repair or replacement of any Bluewave Equipment or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Bluewave in obtaining or attempting to obtain possession of any Bluewave Equipment.
- Return of Bluewave Equipment. You agree that in the event you terminate your Service, you will return, in person, all Bluewave Equipment to any Bluewave office within thirty (30) days of notifying Bluewave of your decision to terminate your Service, unless otherwise instructed in writing by a Bluewave representative. If you downgrade your Services and the Bluewave Equipment that you possess is no longer required to support your new Bluewave Services, you must promptly return such Bluewave Equipment and , if applicable, exchange any advanced Bluewave Equipment (e.g. HD or DVR receiver) for standard Bluewave Equipment (e.g. standard digital receiver). Such Bluewave Equipment must be returned to any Bluewave office, in person, within thirty (30) days of notifying Bluewave of your decision to downgrade your Services, unless otherwise instructed in writing by a Bluewave representative. The returned Bluewave Equipment must be in good condition and without any encumbrances, except for ordinary wear and tear resulting from proper use. If you fail to return such Equipment as provided herein, charges applicable to that Bluewave Equipment may continue to apply until such Equipment is returned. Notwithstanding anything to the contrary contained herein, the provisions of this Section 10(5) shall apply to any Bluewave Equipment associated with Bluewave Internet Services developed, offered or provided by Bluewave now or in the future. If you return your Bluewave Equipment to Bluewave by mail, you will be responsible for (i) any damage to the Equipment as assessed by Bluewave upon receipt, (ii) the replacement cost of such Equipment if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs, unless Bluewave provides written notice in advance that it will pay such costs. This provision shall survive the termination or expiration of this Agreement.
- 11. ARBITRATION OR SMALL CLAIMS ACTIONS.
WE HOPE TO MAKE YOU A HAPPY CUSTOMER, BUT IF THERE'S AN ISSUE THAT NEEDS TO BE RESOLVED, THIS SECTION OUTLINES WHAT'S EXPECTED OF BOTH OF US. YOU AND TBI BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS' FEES, AN ARBITRATOR CAN AWARD THEM TOO. WE ALSO BOTH AGREE THAT:
- THE ARBITRATION ACT 1986 FOR DOMESTIC AND THE BERMUDA INTERNATIONAL CONCILIATION AND ARBITRATION ACT OF 1993 FOR INTENATIONAL DISPUTES, APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES) WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS. YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF THE BETTER BUSINESS BUREAU (“BBB”), OR GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
- UNLESS YOU AND TBI AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN BERMUDA. YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE www.bermudalaws.bm OR FROM US. FOR CLAIMS OF $10,000 OR LESS, YOU CAN CHOOSE WHETHER YOU WOULD LIKE THE ARBITRATION CARRIED OUT BASED ONLY ON DOCUMENTS SUBMITTED TO THE ARBITRATOR, OR BY A HEARING IN–PERSON OR BY PHONE.
- THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE BERMUDA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR SHALL NOT HAVE THE POWER TO DETERMINE THAT CLASS ARBITRATION IS PERMISSIBLE. THE ARBITRATOR ALSO SHALL NOT HAVE THE POWER TO PRESIDE OVER CLASS OR COLLECTIVE ARBITRATION, OR TO AWARD ANY FORM OF CLASSWIDE OR COLLECTIVE REMEDY. INSTEAD, THE ARBITRATOR SHALL HAVE POWER TO AWARD MONEY 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. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. NO ARBITRATION RULE WILL APPLY IF IT CONFLICTS WITH THE PROVISIONS OF THIS AGREEMENT. IN ADDITION, NOTWITHSTANDING ANY CONTRARY PROVISION IN THE ACTS OR BBB RULES, THE ARBITRATOR WILL BE BOUND TO APPLY LEGAL PRINCIPLES AND THE LAWS THAT GOVERN THIS AGREEMENT, AND DOES NOT HAVE THE POWER TO AWARD ANY RELIEF THAT IS NOT AUTHORIZED BY SUCH LAWS.
- IF EITHER OF US INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO TBI SHOULD BE SENT TO NOTICEOFDISPUTE@TELEBERMUDA.COM OR TO TBI DISPUTE RESOLUTION MANAGER, 71 North Shore Road, Hamilton Parish, BERMUDA CR01. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF WE ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION. TBI WILL PAY ANY FILING FEE CHARGES FOR YOU FOR ARBITRATION OF THE DISPUTE. IF YOU PROVIDE US WITH SIGNED WRITTEN NOTICE THAT YOU CANNOT PAY THE FILING FEE, TBI WILL PAY THE FEE DIRECTLY TO THE ARBITRATOR. IF THAT ARBITRATION PROCEEDS, WE'LL ALSO PAY ANY ADMINISTRATIVE AND ARBITRATOR FEES CHARGED LATER.
- WE MAY, BUT ARE NOT OBLIGATED TO, MAKE A WRITTEN SETTLEMENT OFFER ANYTIME BEFORE THE ARBITRATION EVIDENTIARY HEARING BEGINS (OR, IF THERE IS NO EVIDENTIARY HEARING, BEFORE THE PARTIES COMPLETE SUBMISSION OF THEIR EVIDENCE TO THE ARBITRATOR). THE AMOUNT OR TERMS OF ANY SETTLEMENT OFFER MAY NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR ISSUES AN AWARD ON THE CLAIM. IF YOU DO NOT ACCEPT THE OFFER AND THE ARBITRATOR AWARDS YOU AN AMOUNT OF MONEY THAT IS MORE THAN OUR OFFER BUT LESS THAN $5000, OR IF WE DO NOT MAKE YOU AN OFFER AND THE ARBITRATOR AWARDS YOU ANY AMOUNT OF MONEY BUT LESS THAN $5000, THEN WE AGREE TO PAY YOU $5000 INSTEAD OF THE AMOUNT AWARDED. IN THAT CASE WE ALSO AGREE TO PAY ANY REASONABLE ATTORNEYS' FEES AND EXPENSES, REGARDLESS OF WHETHER THE LAW REQUIRES IT FOR YOUR CASE. IF THE ARBITRATOR AWARDS YOU MORE THAN $5000, THEN WE WILL PAY YOU THE AMOUNT AWARDED.
- AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
- IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION 19.3 CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
- IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND TBI AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND TBI UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
- Assignability. This Agreement and the Services furnished hereunder may not be assigned by you. You agree to notify us immediately of any changes of ownership or occupancy of the Premises. We may freely assign our rights and obligations under this Agreement with or without notice to you.
- Term. This Agreement will be in effect from the time that the Services are activated until (i) it is terminated as provided for by this Agreement or by any addendum to this Agreement or (ii) it is replaced by a revised Agreement. Unless prohibited by Applicable Law, either you or Bluewave may terminate this Agreement at any time without cause by providing the other party with no less than twenty-four (24) hours written notice of such termination. Bluewave may also terminate Service without notice to you if you fail to pay for Service or otherwise breach this Agreement, if you violate the law or Bluewave policies, or if you misuse the Services or Bluewave Equipment. You may terminate any particular Service and this Agreement will remain in effect for any Services you continue to subscribe to, use or pay for. Prior to affecting such termination, or any other change to your account, Bluewave may undertake actions to verify your identity and confirm your election. Subject to Applicable Law or the terms of any agreements with governmental authorities, all applicable fees and charges for the Services will accrue until this Agreement has terminated, the Services have been disconnected, and all Bluewave Equipment has been returned. We will refund all prepaid monthly charges or fees charged for Services after the date of termination (less any outstanding amounts due Bluewave for the Services, affiliate services, Bluewave Equipment, or other applicable fees and charges). In the event of termination by you, you must notify Bluewave Customer Care at the number located on your billing statement. In the event of termination by Bluewave, Bluewave may notify you of such termination by electronic or other means.
- Obligations Upon Termination. You agree that upon termination of this Agreement you will do the following: (i) you will immediately cease all use of the Services and all Bluewave Equipment; (ii) you will pay in full for your use of the Services up to the date that this Agreement has been terminated and the Services are disconnected; (iii) within ten (10) days of the date on which Services are disconnected, you will return all Bluewave Equipment as provided in Section 7(f); and (iv) you will return or destroy all copies of any Licensed Software provided to you pursuant to this Agreement. Upon our request during regular business hours at a time agreed upon by you and us, you will permit us and our employees, agents, contractors, and representatives to access the Premises during regular business hours to remove all Bluewave Equipment and other material provided by Bluewave. You are responsible for storing or retrieving any emails, voice mail messages, and material stored in Bluewave’s online backup service, or other information you wish to retain after termination of the Service. Bluewave is authorized to delete any files, programs, data and email messages associated with any terminated account.
- Proration of Charges Upon Termination. If Services are terminated, charges will accrue through the date that Bluewave fully processes the termination. You agree to pay Bluewave on a pro-rated basis for any use by you of any Bluewave Equipment or Services for a part of a month. You must pay all outstanding charges, including payment of any bills that remain due. You must reimburse us for any reasonable costs we incur; including attorneys’ fees, to collect charges owed to us. If you want us to renew the Services after termination, we may require that you pay a deposit. For some Services, Bluewave may require a minimum thirty (30) day charge regardless of the activation or cancellation date.
- Software and Intellectual Property. Bluewave grants you a limited, nonexclusive, nontransferable and nonassignable license to install and use Bluewave’s software which includes software from third party licensors (“Licensed Software”) solely in order for you to access and use the Services. Bluewave may modify the Licensed Software at any time, for any reason, and without providing notice of any such modification to you. The Licensed Software constitutes confidential and proprietary information and contains trade secrets and intellectual property of Bluewave and its licensors which is protected under Applicable Law. All right, title, and interest in and to the Licensed Software will remain with Bluewave and its licensors. You agree not to translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Licensed Software or any part thereof. You have a license to use the Bluewave Equipment, content, Service, Licensed Software and/or applications provided by Bluewave and/or third party providers (collectively “Suppliers”). You agree, however, that all such content and Licensed Software will remain the sole property of Bluewave or its Suppliers and that no additional rights arise from this grant of use. By subscribing to Services, You waive any claim against Bluewave or its Suppliers in connection with this Agreement and agree that Bluewave and its Suppliers have the right to enforce this provision. You acknowledge and agree that neither Bluewave nor its Suppliers can provide uninterrupted or error-free service and that Bluewave’s and its Supplier’s liability is limited as described in Section 19 below. You also agree to comply with the terms and conditions of all end user software license agreements provided to you in order for you access and to use the Services, particularly Bluewave Internet. Your right to use the Licensed Software, Service, or content ends upon termination of this Agreement.You are solely responsible and liable for all material that you upload, post, email, transmit or otherwise make available via the Services, including, without limitation, material that you post to any Bluewave website, third party website, or any third party vendor’s service (such as a social media site) that is used by Bluewave. Bluewave does not claim ownership of material you submit or make available for inclusion on the Service. However, with respect to material you submit or make available for inclusion on publicly accessible areas of the Service, you grant Bluewave a world-wide, royalty free and non-exclusive license to use your material in connection with Bluewave’s businesses including, but not limited to, the rights to copy, distribute, publicly perform, publicly display, transmit, publish your name or identifier in connection with the material, and to prepare derivative works. No compensation will be paid with respect to the use of your material.
In your use of the Services and/or Bluewave Internet, you may encounter various types of links that enable you to visit websites operated or owned by third parties (“Third Party Site”). These links are provided to you as a convenience and are not under the control or ownership of Bluewave. The inclusion of any link to a Third Party Site is not an endorsement by Bluewave of the Third Party Site, an acknowledgement of any affiliation with its operators or owners, or a warranty of any type regarding any information or offer on the Third Party Site. Your use of any Third Party Site is governed by the various legal agreements and policies posted at that website.
15. Use of Services.
- Compliance with the Law. You agree that you will comply with all current and future laws regarding the Services. If you violate the law in connection with your use of the Services, Bluewave Equipment, or Licensed Software, Bluewave may suffer harm and will have all remedies available at law or in equity, including injunctive relief. Content derived from the Service, Bluewave Equipment, the Licensed Software, and any accompanying information is subject to applicable export control laws and regulations. You agree not to export or re-export such content, to any countries that are subject to restrictions or upload through the Services any material in violation of such restrictions.
- Misuse of Services. You agree to not misuse the Services, Bluewave Equipment, or Licensed Software. Such misuse includes but is not limited to: (i) violation of Applicable Law as described above; (ii) use in a manner that adversely interferes with Bluewave’s network or reputation; (iii) any unauthorized or fraudulent use of or access to the Services such as to avoid paying for Services; (iv) use in a manner that infringes the intellectual property or other rights of any third party including copying, modifying, reverse engineering, uploading, downloading or reselling any content or Licensed Software; (v) sending content or messages or otherwise engaging in communications that are abusive, obscene, lewd, lascivious, filthy, excessively violent, harassing, illegal, fraudulent, threatening, defamatory or an invasion of privacy; (vi) modifying or tampering with Bluewave Equipment in any manner other than as expressly authorized by Bluewave; (vii) engaging in telemarketing, fax broadcasting, spam, junk or other unsolicited email; (viii) intercepting a third party’s communications or accessing or attempting to access another party’s account or otherwise circumvent any security measures; (ix) uploading any virus, worm or malicious code; (x) using automated connections that allow web broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing; (xi) networking hacking and “denial of service” attacks; or (xii) using unauthorized software or devices to maintain continuous active Internet connection when the connection would otherwise have entered idle mode.You will not use the Bluewave Equipment at any time at an address other than the Premises without our prior written authorization. You agree and represent that you will not resell or permit another to resell the Services in whole or in part. You will not use or permit another to use the Bluewave Equipment or the Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted Bluewave policy applicable to the Services. Use of the Bluewave Equipment or Services for transmission, communications or storage of any information, data or material in violation of any local regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Bluewave Equipment and/or Services at the Premises and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable Bluewave policies including, but not limited to, acceptable use and privacy policies. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. You agree to indemnify, defend and hold harmless Bluewave and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Services, the Bluewave Equipment and/or the Customer Equipment or the breach of this Agreement or any of the applicable Bluewave policies by you or any other user of the Services at the Premises.
- Monitoring Compliance. Although Bluewave is not obligated to monitor the Services, Bluewave may perform tests and inspections to confirm that you are complying with this Agreement. Bluewave may, without notice, suspend, restrict access to or terminate your Service, or remove or make unavailable any content and/or monitor, review, retain and/or disclose any content or other information in Bluewave’s possession about or related to you or your use of the Services as Bluewave deems necessary to satisfy any Applicable Law, regulation, legal process or governmental request.
- Theft of Service. Tampering with or altering a cable system or converter to receive unauthorized services is a Federal crime punishable by fines and/or imprisonment. We may conduct periodic system checks and audits to detect the unauthorized receipt of Service.
- Content and Data Management by Bluewave. We reserve the right to: (i) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple Bluewave servers for back-up and maintenance purposes; and (b) block or remove any unlawful content you store on or transmit to or from any Bluewave server. We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access.
- Security Responsibilities. You agree that you are solely responsible for maintaining the security of your and any other users’ computers, devices and data, including without limitation, encryption of data and protection of any passwords and personal and other data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE. Use of the Bluewave network for the distribution, operation, and maintenance of malicious software (viruses, bots, worms, Trojan horses, etc.) is prohibited. Communications to malicious domain names (e.g., domain names used by networks of machines running malicious software) and to malicious Internet protocol addresses (e.g., IP addresses used by networks of machines running malicious software) may be redirected by Bluewave to our network security systems at any time without notice as a countermeasure against the operation of malicious software such as “botnets” in the Bluewave network. Bluewave’s security systems may retain certain information such as the date and time of the malicious communication, the IP address it originated from, the domain name involved, and other technical information for cybersecurity purposes.
- Availability of and Changes to Service. The Service you select may not be available in all areas or at the rates, speeds, or bandwidth generally marketed, and some locations may not qualify for the Service even if initial testing showed that your address was qualified. Bandwidth is provided on a per-line (not a per-device) basis. The bandwidth available to each device connected to the network will vary depending upon the number, type and configuration of devices using the Service and the type of use (e.g., streaming media), among other factors. The speed of the Service will vary based on network or Internet congestion, your computer configuration, the condition of your telephone line and the wiring inside your location, among other factors. We and our affiliates, suppliers and agents reserve the right, at any time, with or without prior notice to you, to restrict or suspend the Service to perform maintenance activities and to maintain session control.
17. Limitations on Use of the Services. You acknowledge and agree that Bluewave (i) is not responsible for invalid destinations, transmission errors, or the corruption of your data; and (ii) does not guarantee your ability to access all websites, servers or other facilities or that the Services are secure or will meet your needs. You acknowledge that the Services will allow access to information which may be sexually explicit, obscene or offensive, or otherwise unsuitable for children. You agree that the supervision of use of the Services by children is your responsibility and that Bluewave is not responsible for access by you or any other users to objectionable or offensive content. WE STRONGLY RECOMMENDSTHE USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE. You agree that Bluewave assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any content, advice or opinions contained in any emails, message boards, chat rooms, websites or in any other public services or social networks, and that we do not endorse any advice or opinion contained therein. Bluewave does not monitor or control such services, although we reserve the right to do so. You represent that when you, or your users’ transmit, upload, download, post or submit any content, images or data using the Services you or your users have the legal right to do so and that your or your users’ use of such content, images or data does not violate the copyright or trademark laws or any other third party rights.
18. Disclaimer of Warranties. YOU ACKNOWLEDGE THAT THE SERVICES, BLUEWAVE EQUIPMENT, AND LICENSED SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES. BLUEWAVE MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT AS TO THE SERVICES, BLUEWAVE EQUIPMENT, AND/OR THE LICENSED SOFTWARE PROVIDED TO YOU. BLUEWAVE DOES NOT MANUFACTURE THE BLUEWAVE EQUIPMENT, DEVICES OR LICENSED SOFTWARE AND IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS ON THE PART OF ANY MANUFACTURER, SPECIFICALLY INCLUDING A MANUFACTURER OF CUSTOMER EQUIPMENT OVER WHICH YOU RECEIVE THE SERVICES. UNLESS OTHERWISE RESTRICTED OR PROHIBITED BY APPLICABLE LAW, BLUEWAVE DOES NOT WARRANT THAT THE SERVICES, BLUEWAVE EQUIPMENT OR LICENSED SOFTWARE WILL BE ACCURATE, COMPLETE, ERROR-FREE, WITHOUT INTERRUPTION, FREE FROM VIRUSES OR OTHER MALICIOUS AGENTS EVEN IF ANTI-VIRUS MECHANISMS ARE DEPLOYED. BLUEWAVE DOES NOT WARRANT THAT ANY COMMUNICATION WILL BE TRANSMITTED UNCORRUPTED OR AT ANY UPSTREAM OR DOWNSTREAM SPEED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THOSE PROVISIONS MAY NOT APPLY TO YOU. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW. THIS SECTION WILL CONTINUE IN EFFECT AFTER THIS AGREEMENT TERMINATES.
19. Limitation of Liability.
- Application. The limitations of liability set forth in this Section 19 apply to any acts, omissions, and negligence of Bluewave and its underlying third-party service providers, affiliates, suppliers or agents which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine. This Section 19 will continue in effect after this Agreement terminates.
- Limitation. Neither Bluewave nor any of its affiliates, suppliers or agents will be liable for damages for failure to furnish or the degradation or interruption of any Services, for a problem with the interconnection of Services, for any loss of data or stored content, for identity theft, or for any files or software damage, regardless of cause, or for a problem with the service or equipment of a third party.
- Damage to Person or Property. Neither Bluewave nor any of its affiliates, suppliers or agents will be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of Bluewave Equipment, Licensed Software, from use of Services or any content contained therein including interactive or 3D television Services, from support for the Services, or from inclusion, omission, or error relating to information about you in any published or electronic directory we may offer. You recognize that you have an obligation to exercise caution and personal responsibility including adhering to all manufacturers’ warranties accompanying any Bluewave or Customer Equipment or any other equipment used in connection with the Services and to make sure that your use of the Services and Bluewave Equipment does not subject you or others to danger.
- Customer Equipment. Customer Equipment may be damaged or suffer service outages as a result of the installation, self-installation, use, inspection, maintenance, updating, repair, and removal of Bluewave Equipment, Customer Equipment and/or the Services. Except for gross negligence or willful misconduct, neither Bluewave nor any of its affiliates, suppliers or agents shall have any liability whatsoever for any damage, loss, or destruction to the Customer Equipment.
- Other Equipment. By accepting this Agreement, you waive all claims against Bluewave for interference, disruption, or incompatibility between the Bluewave Equipment or the Services and any other service, systems, or equipment. In the event of such interference, disruption, or incompatibility, your sole remedy shall be to terminate the Services in accordance with Section 13.
- Software. When you use certain features of the Services, such as online features, you may require special software, applications, and/or access to the Internet. Bluewave makes no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through Bluewave Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Services if a virus or other harmful feature or software is found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your Customer Equipment. NEITHER BLUEWAVE NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.In addition, as part of the installation process for the software and other components of the Services, system files on your Customer Equipment may be modified. Bluewave does not represent, warrant or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation your computers, or cause the loss of files. Bluewave does not represent, warrant, or covenant that the installation of the special software or applications or access to Bluewave Internet will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including, but not limited to, your computers. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER BLUEWAVE NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
- Disruption of Service. Bluewave shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or Customer Equipment; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within 60 days of such interruption, to a pro rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Services interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES. Any credits provided by Bluewave are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Bluewave.
- Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation, their services, equipment, infrastructure, or content. Bluewave is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure, or content, whether or not they constitute components of the Services. Bluewave shall not be bound by any undertaking, representation or warranty made by an agent, or employee of Bluewave or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Services, if that undertaking, representation, or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Services, including without limitation that of content providers. Bluewave is not responsible for any services, equipment, infrastructure, and content that are not provided by us, even if they are components of the Services, and we shall have no liability with respect to such services, equipment, infrastructure, and content. You should address questions or concerns relating to such services, equipment, infrastructure, and content to the providers of such services, equipment, infrastructure, and content. We do not endorse or warrant any third-party products, services, or content that are distributed or advertised over the Services.
- Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement. Any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
- Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER BLUEWAVE NOR ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TRESPASS, CONVERSION, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
- Any direct, indirect, incidental, special, treble, punitive, exemplary, or consequential losses or damages, including, but not limited to, loss of profits, loss of earnings, loss of business opportunities, personal injuries, or death that result directly or indirectly from or in connection with (i) your reliance on or use of the Bluewave Equipment or the Services; (ii) the installation, self-installation, maintenance, failure, or removal of the Services including, but not limited to, any mistakes, omissions, interruptions, computer or other hardware or software breach, failures or malfunctions, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in transmission, or failure of performance of the Services, the Bluewave Equipment, or the Customer Equipment, or any other mistakes, omissions, loss of call detail, e-mail, voicemail, or other information or data; (iii) the use of Bluewave Equipment or Customer Equipment to provide the Services, including, but not limited to, damages resulting from others accessing Customer Equipment, Bluewave’s network, or the contents of your transmissions made through the Services, or your use of file sharing, print sharing, or other capabilities that allow others to gain access to your computer network; and
- Any losses, claims, damages, expenses, liabilities, legal fees, or other costs that result directly or indirectly from or in connection with any allegation, claim, suit, or other proceeding based upon a contention that the use of the Bluewave Equipment or the Services by you or any other person or entity infringes upon the contractual rights, privacy, confidentiality, copyright, patent, trademark, trade secret, or other intellectual property rights of any third party.
- Indemnification. You hereby indemnify and hold harmless Bluewave and its affiliates, suppliers and agents from any third-party claims, actions, proceedings, damages and liabilities, including attorneys’ fees, arising out of (i) your use, or other users use, of your Services or Bluewave Equipment; (ii) any act in violation of any law committed by you including any use of the Services that may infringe on the patent, copyright, trademark or other intellectual property right or privacy right of any third party; (iii) any breach by you of this Agreement; (iv) any content or software displayed, distributed, or otherwise disseminated by you or other users of your Services; (v) your failure to safeguard your passwords or other account information, (vi) your failure to replace Customer or Bluewave Equipment when requested by Bluewave, and (vii) any claims or damages arising out of the lack of 911/e911 or dialing associated with a home security, home detention, or medical monitoring system. This Section will continue in effect after this Agreement terminates.
In the course of providing services to you, we may collect certain information that is made available to us solely by virtue of our relationship with you, such as information about the quantity, technical configuration, type, destination and amount of your use of the telecommunications services you purchase. This information and related billing information is known as Customer Proprietary Network Information, or CPNI. (CPNI does not include your name, address, and phone number.) We may use this information, without further authorization by you, to offer you: (i) services of the type you already purchase from us, and (ii) the full range of products and services available from TBi and other TBi companies that may be different from the type of services you currently buy from us. Use of your information will permit us to offer you a package of services tailored to your specific needs. Without further authorization by you, we may also share your information with other TBi companies with whom you already have an existing service relationship.
- Governing Law. This Agreement will be governed by the laws of Bermuda.
- Notices. When this Agreement requires notice from you to Bluewave, you agree to provide us with written notice to the address specified on your bill or as instructed on the Bluewave Website or by calling us. Notice by calling us will be effective as of the date our records show that we received your call.You agree that we may provide you with notice by (i) sending it via Postal Mail or commercial overnight mail to your last known billing address in Bluewave’s account records, (ii) including the notice on or with your Bluewave bill, (iii) sending notice to your email address on Bluewave’s account records, (iv) hand delivery, or (v) other lawful means, and you agree that any of the foregoing will constitute sufficient notice and you waive any claims that these forms of notice are insufficient or ineffective.
- Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
- Waiver and Strict Performance. Bluewave’s failure to require your strict performance of any term of this Agreement will not be a waiver of Bluewave’s right to require strict performance of any term or condition herein.