IMPORTANT INFORMATION, TERMS AND CONDITIONS REGARDING YOUR BLUE STREAM PHONE SERVICES
The following information, terms and conditions are provided to you regarding your subscription to Blue Stream Phone services. These are in addition to the terms and conditions set forth in the Blue Stream Subscriber Agreement (“Subscriber Agreement”) with Blue Stream (“BLUE STREAM”, “we,” “us,” “our”) for Blue Stream’ Voice over Internet Protocol Services (together with related 911/E911 and other services, “Blue Stream Phone”). The Subscriber Agreement incorporates any then-current pricing guide on www.MyBlueStream.com. Together, these documents set forth the terms and conditions under which residential customers (“Customer,” “you,” “your”) will be provided Advance Phone and, if necessary, devices used in connection with the Blue Stream Phone services, including the “BLUE STREAM Equipment” defined below.
WHEN YOU ENROLL IN, USE, OR PAY FOR THE BLUE STREAM PHONE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW AND IN THE SUBSCRIBER AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OR CONDITIONS, CANCEL THE BLUE STREAM PHONE SERVICES IMMEDIATELY BY CALLING OUR CUSTOMER SERVICE DEPARTMENT AT 954-753-0100 DURING NORMAL BUSINESS HOURS.
1. BLUE STREAM PHONE SERVICES.
a. Blue Stream Phone versus traditional telephone services. Blue Stream Phone services are not traditional telephone services, and Blue Stream (BLUE STREAM) provides them on an as-is basis. Important distinctions exist between traditional telephone services and the Blue Stream Phone services. Some but not all of these distinctions are outlined in our Blue Stream Subscriber Agreement. Because the Blue Stream Phone services are not designed for use in situations where error-free or uninterrupted service is essential, you expressly assume the risk of any damages from high-risk activities involving vital communications in which an error or interruption in the Blue Stream Phone services could lead to material injury to business, persons, property, or the environment.
b. Directory listings. Any phone numbers that you obtain from us will be listed in telephone directories unless you request an unlisted phone number, for which there may be an additional charge.
c. Changing your Blue Stream Phone services. You must contact us anytime you wish to upgrade or change your Blue Stream Phone Services. In certain instances, a service call may be required. A time will be scheduled for one of our trained technicians to stop by your home. There may be a fee to upgrade or change your Blue Stream Phone services. A Customer Service Representative can assist you in determining what, if any, costs are associated with the change you are requesting.
2. CUSTOMER EQUIPMENT, BLUE STREAM PHONE EQUIPMENT, AND BLUE STREAM’ ACCESS TO CUSTOMER PREMISES.
a. “Customer Equipment” that you must provide. In order to use the Blue Stream Phone services, you are required to provide certain equipment such as a phone handset or equivalent, phone inside wire and outlets, and a powered electrical outlet. Because we may have limited ability to install wire or outlets in a rental property, you may wish to provide a cordless phone if you live in a rental property so that you can use our Blue Stream Phone services throughout your unit.
b. Customer Equipment.
i. Maintenance. BLUE STREAM shall have no obligation to provide, maintain, or service any Customer Equipment.
ii. Specifications for Customer Equipment and Internet connection. Any Customer Equipment that you use in connection with the Blue Stream Phone services must meet our current minimum technical and other requirements. You may not use the Blue Stream Phone without an Blue Stream broadband high speed Internet connection.
iii. Non-Recommended Configurations. If you install or use in connection with the Blue Stream Phone services any Customer Equipment or an Internet connection that does not meet the minimum technical or other requirements described in Section 2.b.ii above (a “Non-Recommended Configuration”), you will not be entitled to customer support relating to any issues other than the quality of the signal delivered to the MTA.
c. “Blue Stream Phone Equipment.”
i. Ownership. “Blue Stream Phone Equipment” shall mean all equipment, such as MTAs, external cabling and related electronic devices, owned by BLUE STREAM. Blue Stream Phone Equipment will at all times remain the property of Blue Stream.
ii. Your responsibility for Blue Stream Phone Equipment. Blue Stream Phone Equipment is merely a means for us to provide you the Blue Stream Phone services, and we may remove or change it at our discretion. You may not to use Blue Stream Phone Equipment for any purpose other than to use the Blue Stream Phone services. Blue Stream will repair and maintain all Blue Stream Phone Equipment during the term of your subscription to the services. You cannot allow Blue Stream Phone Equipment to be serviced by anyone other than Blue Stream’ employees or agents. You are responsible for all BLUE STREAM equipment while in your possession. Damages beyond normal use, or failure to return the Blue Stream Phone Equipment, will result in additional fees being charged to you.
iii. Relocation: Blue Stream Phone services can only be used at your service address appearing in our records. If you attempt to install or use the MTA or Blue Stream Phone at another location, the Blue Stream Phone services, including but not limited to 911/E911, may fail to function or may function improperly. If you move the MTA or Blue Stream Phone services to another location without notifying BLUE STREAM, you do so in violation of the Blue Stream Subscriber Agreement and at your own risk, and Blue Stream reserves the right to terminate the Blue Stream Phone services immediately and without Notice, leaving you responsible for all outstanding charges, which immediately become due and payable. If you change residences, you must contact BLUE STREAM for information on whether the Blue Stream Phone services can be transferred to your new residence, to schedule a date to connect your new Blue Stream Phone services (if available), and to supply us with the date to disconnect the Blue Stream Phone services at your old address. There will be a nominal transfer fee charged to your account. If you plan to move outside BLUE STREAM’s service area, you must call us with the date to disconnect your Blue Stream Phone services.
d. Blue Stream’s access to customer premises and MTA:
i. Access. From time to time, BLUE STREAM may need to enter your service address (“Premises”) in order to install, maintain, repair, or remove the Blue Stream Phone services and Blue Stream Phone Equipment, including the Multimedia Terminal Adapter (MTA), also known as the phone modem.
Accordingly, as stipulated in the Blue Stream Subscriber Agreement, you authorize BLUE STREAM and its employees, agents, contractors, and representatives to enter the Premises as necessary, at a time agreeable to you and us.
ii. Authorization for access. You warrant either that you are the owner of the Premises, or if you are a tenant, that you have the authority to afford us access to the Premises. If you are not the owner of the Premises, you agree to supply us, if we ask, the owner’s name and address, and evidence or written consent from the owner that the owner has authorized you to grant access to the Premises and to install the Blue Stream Phone services.
iii. Affiliates and subcontractors. Blue Stream’ affiliates or subcontractors may perform some or all of the duties to install, maintain and/or repair Blue Stream Phone services.
3. LIMITATIONS ON 911/E911 SERVICES.
The Blue Stream Phone services include 911/Enhanced 911 functions (“911/E911”) that may differ from the 911 or Enhanced 911 functions furnished by traditional telephone companies, and that has certain limitations. CAREFULLY READ THE INFORMATION BELOW.
a. Your correct address is necessary. In order for your 911/E911 calls to be properly directed to emergency services, BLUE STREAM must have your correct service address. If you move the Blue Stream Phone services to a different address without BLUE STREAM’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong address, or the Blue Stream Phone services and 911/E911 services may fail altogether. Accordingly, you must call 954-753-0100 before you move the Blue Stream Phone services to a new address.
b. Delays in updating location information in emergency database. BLUE STREAM will need several business days to update your service address in the emergency database so that your 911/E911 calls can be properly directed. In the meantime, 911/E911 calls may be directed to your former address. As noted in Section 2.c.iii above, all changes in service address require BLUE STREAM’s prior approval.
c. Electric outages. BLUE STREAM’s Blue Stream Phone services use the electrical power in your home. If there is an electrical power outage, the MTA has battery backup providing up to 4 hours of backup power. If the battery is uncharged, discharges, is improperly installed or malfunctions during a power outage, 911/E911 calling will be interrupted.
d. Broadband outages and maintenance. All calls, including calls to 911/E911, may not be completed if there is a problem with network facilities, including network congestion, network/equipment/power failure, or another technical problem, or if the network is undergoing maintenance.
e. Network congestion; reduced speed for routing or answering 911 calls. There may be a greater possibility of network congestion and reduced speed in the routing of a 911 call made with the Blue Stream Phone services as compared to traditional telephone services. Affixed to your BLUE STREAM-provided MTAs are warning stickers that summarize the above limitations. If your BLUE STREAM-provide MTAs do not have such warning stickers, or if you require additional warning stickers, please contact our customer service department.
LIMITATION ON LIABILITY: PURSUANT TO THE BLUE STREAM SUBSCRIBER AGREEMENT YOU ACKNOWLEDGE AND AGREE THAT THE BLUE STREAM PARTIES AND THEIR UNDERLYING PROVIDERS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE, INABILITY TO DIAL 911/E911 USING THE BLUE STREAM PHONE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE BLUE STREAM PARTIES AND THEIR UNDERLYING PROVIDERS, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE BLUE STREAM PHONE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE BLUE STREAM PHONE SERVICES, INCLUDING THOSE RELATED TO 911/E911 SERVICES PROVIDED TO YOU IN CONNECTION WITH THE BLUE STREAM PHONE SERVICES.
4. INCOMPATIBILITY OF THE BLUE STREAM PHONE SERVICES WITH CERTAIN EQUIPMENT, SERVICES, AND ACTIVITIES. Blue Stream Phone may not support or be compatible with:
a. Non-Recommended Configurations as defined in Section 2.b.iii;
b. Certain non-voice communications equipment, including but not limited to alarm or home security systems that make automatic phone calls; medical monitoring devices; certain fax machines; and certain “dial-up” modems;
c. Rotary-dial phone handsets, pulse-dial phone handsets, and models of other voice-related communications equipment such as answering machines and traditional Caller ID units;
d. Casual/dial around (10-10) calling. If you want the ability to use the Blue Stream Phone services with 900 or 976 numbers, you must expressly request such service from BLUE STREAM.
e. 311, 511 or other x11 calling (other than 411, 611, 711, and 911); and
f. Other call types not expressly set forth in our product literature (e.g., outbound shore-to-ship calling and outbound satellite calling).
BY ACCEPTANCE OF BLUE STREAM PHONE SERVICES, YOU WAIVE ALL CLAIMS AGAINST THE BLUE STREAM PARTIES AND THEIR UNDERLYING PROVIDERS FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN BLUE STREAM’S EQUIPMENT OR THE BLUE STREAM PHONE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 9.a.
5. BILLING AND PAYMENT.
a. Charges, fees, and taxes that you must pay.
i. Charges. You agree to pay all charges associated with the Blue Stream Phone services. These charges may include but not be limited to installation charges, monthly service charges, usage charges, surcharges for international calls to wireless telephones, charges for the use of BLUE STREAM Equipment, charges for service calls, and other charges. Updated pricing guides can be found at www.MyBlueStream.com.
ii. Taxes and other fees. You agree to pay any and all applicable federal, state, and local taxes (however designated) levied upon us and our affiliates in connection with the sale, installation, use, or provision of the Blue Stream Phone services, and amounts that we may be required to collect or pay in support of statutory or regulatory programs, including but not limited to universal service fees, 911/E911 surcharges, telecommunications relay service surcharges, franchise fees, right-of-way fees, etc. Consult BLUE STREAM’s pricing guide for additional details.
iii. Notification of changes. We may change the fees and charges for the Blue Stream Phone services from time to time at our discretion; specifically, we may decrease fees and charges with or without advance Notice (as defined in Section 13.b), and we may increase fees and charges for the Blue Stream Phone by posting new pricing at www.MyBlueStream.com. Taxes and fees may be changed with or without Notice. You will also be responsible to pay any fees, payment obligations, and taxes that become applicable retroactively.
b. Commencement of billing. Billing for the Blue Stream Phone services will commence on the date that your service is installed by BLUE STREAM.
c. Per-call and measured-call charges. Our calling plans may not include certain call types. These call types will instead be charged on a per-call (e.g., operator services) or a measured basis (e.g., international calls). For billing purposes, a measured call begins when the call is answered by the called party or an automated answering device (such as an answering machine or fax machine); it ends when one of the parties disconnects the call. Measured calls are recorded in whole minutes, with partial minutes rounded up to the next whole minute. However, some providers (e.g., those involved in calls to foreign countries) charge BLUE STREAM, its affiliates or suppliers for a completed call when the called party’s line rings or after a certain number of rings. In these situations, BLUE STREAM will charge for the call as if it were answered by the called party. If a computed charge includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Consult BLUE STREAM’s pricing guide for information on per-call charges and the timing of measured-call charges.
d. Third-party charges that are your responsibility. The Blue Stream Phone services may allow you to access “dial-up” Internet service providers, other enhanced service providers (e.g., information services accessible through 800, 888, and 877 numbers), and other third-party providers. You acknowledge that you may incur charges with such providers that are separate and apart from the amounts charged by us. You agree that all charges payable to third parties, including all applicable taxes, are your sole responsibility. In addition, you are solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
e. Billing statements. BLUE STREAM will send you a billing statement once every month. All services are billed one month in advance, with the exception of per-call and measured-call charges and surcharges, which are billed after they have been incurred. Any changes you have made to your service will be reflected from the date of the change to the end of the billing period.
f. Payment due date; late payments; disconnection. Payment is due upon receipt of your billing statement. If your account has a balance due that is over 31 days old, you are subject to disconnection of your Blue Stream Phone services. Once your Blue Stream Phone services have been disconnected, the entire balance due, a reconnection fee, and one month’s service in advance must be paid prior to reconnection. Once payment has been made, your service will be reconnected at the first available opportunity. If your payment is returned to BLUE STREAM unpaid, you are immediately in default and subject to a returned check charge. A late fee will be assessed on your account if payment is not received before the next bill is rendered. You agree to pay BLUE STREAM its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under the Blue Stream Subscriber Agreement.
g. Billing questions. If you have any questions about any of the charges on your bill, you must contact Customer Service within 30 days after the billing date of the disputed charge. Otherwise, all charges are considered accurate and are due.
h. Payment options. We offer a variety of payment options:
• Pay in person at our offices during regular business hours.
• Pay in person after business hours by placing your payment in our drop box/slot
located at our offices.
• Mail your payment to the address on your billing statement.
• Pay by phone with a debit/credit card or by check.
• Pay automatically every month via your debit/credit card. Contact our office for details.
• Pay online at www.MyBlueStream.com
i. Our right to make credit inquiries. You authorize BLUE STREAM 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.
7. LIMITS ON YOUR USE OF THE SERVICES.
a. Acceptable use. You agree to ensure that all uses of BLUE STREAM’s Equipment and the Blue Stream Phone services installed at your premises (“use” or “uses”) are legal and that all uses by you or by any other person, whether authorized by you or not (“user”), comply with all applicable laws, regulations, and written and electronic instructions for use. BLUE STREAM reserves the right to act immediately and without Notice to terminate or suspend the Blue Stream Phone services and to remove from the Blue Stream Phone services any information transmitted by or to you or users if BLUE STREAM determines that such use or information does not conform with the requirements set forth in the Blue Stream Subscriber Agreement, interferes with BLUE STREAM’s ability to provide the Blue Stream Phone services to you or others, or reasonably believes that such use or information may violate any laws or regulations. BLUE STREAM’s action or inaction under this Section 7.a. shall not constitute review or approval of your or any other users’ use or information.
b. Residential use only. Unless you subscribe to a service plan that expressly permits otherwise, you agree to use the Blue Stream Phone services solely for residential purposes, however, you are permitted to use the Blue Stream Phone services to make business calls that are incidental to your personal and non-commercial use of the Blue Stream Phone services. You may not resell the Blue Stream Phone services. You expressly agree not to use the Blue Stream Phone for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for any other use that results in excessive usage inconsistent with normal residential calling patterns. If we determine, in our sole discretion, that the Blue Stream Phone services are being used in violation of the Blue Stream Subscriber Agreement, we reserve the right to immediately and without Notice to terminate or modify the Blue Stream Phone services and to assess additional charges for each month in which excessive usage occurred.
c. No tampering with Blue Stream Phone services or BLUE STREAM Equipment. You will not service, alter, modify, or tamper with BLUE STREAM Equipment or with the Blue Stream Phone services, or permit any other person (not expressly authorized by BLUE STREAM) to do so.
d. Your obligation to report theft of service immediately. Theft of the Blue Stream Phone services is against federal and state law. Such theft results in both increased cost and degradation of the quality of reception to honest customers. BLUE STREAM will continue to prosecute those guilty of stealing the Blue Stream Phone services to the fullest extent allowed by federal and state laws. All reports of theft will be fully investigated and appropriate action will be taken. You will be liable for all use of the Blue Stream Phone services using your MTA and for any and all stolen Blue Stream Phone services or unauthorized use of the Blue Stream Phone services. You agree to notify us immediately in writing or by calling our customer service department during normal business hours if you become aware at any time that the MTA is stolen or that your Blue Stream Phone services are being stolen or used without your authorization. Until such time as you notify us of theft or fraudulent or unauthorized use, you will be liable for any stolen, fraudulent, or unauthorized use of the Blue Stream Phone services. If you fail to notify us in a timely manner, your Blue Stream Phone services may be terminated without Notice, with additional charges to you.
e. Limits on your license to use firmware or software. The Blue Stream Phone services and BLUE STREAM Equipment, including any firmware or software embedded in BLUE STREAM’s Equipment or used to provide the Blue Stream Phone services, are protected by trademark, copyright, and other intellectual property laws and international treaty provisions. You are granted a revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with the Blue Stream Subscriber Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in BLUE STREAM’s Equipment or used to provide the Blue Stream Phone services. You expressly agree that you will use BLUE STREAM’s Equipment exclusively in connection with the Blue Stream Phone services. You shall not reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
BLUE STREAM reserves the right to maintain and upgrade its network to provide for the maximum possible reliability. Accordingly, you acknowledge and agree that BLUE STREAM may access through BLUE STREAM’s network BLUE STREAM’s Equipment, including the MTA that you are using with the Blue Stream Phone services in order to perform diagnostics, testing of, and updates to the firmware or software embedded in BLUE STREAM’s Equipment, including the MTA. (“Remote Maintenance”). The Remote Maintenance may require capture of packets received or transmitted by the Blue Stream Phone Services. Packets captured in the process of performing Remote Maintenance shall be used only for the purpose of Remote Maintenance. You authorize BLUE STREAM to perform such Remote Maintenance. Use of the Blue Stream Phone services through an interface device not provided by BLUE STREAM is prohibited, and BLUE STREAM reserves the right to terminate the Blue Stream Subscriber Agreement immediately and without Notice if you use such an interface device. You will indemnify and hold harmless the BLUE STREAM Parties and their underlying providers from and against any and all liability arising out of your use of such interface device with the Blue Stream Phone services.
f. Protection of BLUE STREAM’s information and marks. All Blue Stream Phone information, documents, and materials on our websites are protected by trademark, copyright or other intellectual property laws. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of BLUE STREAM are and shall remain the exclusive property of BLUE STREAM or its licensors. Nothing in the Blue Stream Subscriber Agreement shall grant you the right or license to use any of the marks.
8. REPRESENTATIONS AND WARRANTIES OF CUSTOMER. You represent and warrant that you are at least 18 years of age. You also represent and warrant that you have provided and will continue to provide to BLUE STREAM accurate, complete, and current customer information, including but not limited to your legal name, address, phone numbers, and payment data (including but not limited to credit card numbers and expiration dates). You agree that during the term of the Blue Stream Subscriber Agreement you will promptly notify us if there is any change in the information that you have provided to BLUE STREAM.
9. TERMINATION OF THE SUBSCRIBER AGREEMENT.
a. Termination by you. You may terminate the Blue Stream Subscriber Agreement for any reason at any time by providing notice of termination to BLUE STREAM by (i) sending a written notice to the postal address specified in Section 13.a; or (ii) calling Customer Service during normal business hours. All applicable fees and charges will accrue until the date of termination, but we will refund all prepaid monthly service fees charged for the Blue Stream Phone after the date of termination (less any outstanding amounts due BLUE STREAM).
b. Suspension and termination by BLUE STREAM. We may suspend your Blue Stream Phone services or terminate the Blue Stream Subscriber Agreement at any time for any reason. If we suspend your Blue Stream Phone services or terminate the Subscriber Agreement because you failed to comply in full with any term of the Subscriber agreement, we may do so at any time upon 7 days’ Notice, or upon less than 7 days’ Notice or without Notice where permitted by the Subscriber Agreement. If we suspend the Blue Stream Phone services or terminate the Subscriber Agreement for any other reason, we must first give you 7 days’ Notice. If we suspend the Blue Stream Phone services or terminate the Subscriber Agreement for a reason other than your violation of the Subscriber Agreement, all applicable fees and charges will accrue until the date of suspension or termination, but we will refund all prepaid monthly service fees charged for the Blue Stream Phone services after the date of termination (less any outstanding amounts due BLUE STREAM).You understand and acknowledge that all Blue Stream Phone services, including 911/E911, will be disabled because of termination of your account.
d. Your obligations upon termination. You agree that upon termination of the Subscriber Agreement you will do the following: (i) You will immediately cease use of the Blue Stream Phone services and all BLUE STREAM Equipment; and (ii) you will pay in full for your use of the Blue Stream Phone services and BLUE STREAM’s Equipment up to the later of the effective date of termination of the Subscriber Agreement or the date on which the Blue Stream Phone services are disconnected and all BLUE STREAM Equipment has been returned.
e. Retention of Rights. Nothing contained in the Subscriber Agreement shall be construed to limit BLUE STREAM’s rights and remedies available at law or in equity. BLUE STREAM and its suppliers reserve the right both during the term of the Subscriber Agreement and upon its termination to delete your voicemail, data, files, or other customer information that is stored on BLUE STREAM’s or its suppliers’ servers or systems, in accordance with our storage policies. You understand and acknowledge that we shall have no liability whatsoever as a result of the loss or removal of any such voicemail, data, files, or other customer information.
10. TRANSFER OF YOUR PHONE NUMBER. If you are switching to the Blue Stream Phone services from another service provider, you may not be able to transfer your existing phone number to the Blue Stream Phone services. If you switch from BLUE STREAM to another provider, you may not be able to transfer your phone number from BLUE STREAM to the new provider.
11. LIMITATION OF LIABILITY; INDEMNIFICATION; NO WARRANTIES; WARNINGS.
a. Limited Warranty. BLUE STREAM’S EQUIPMENT, INCLUDINT THE MTA, AND THE BLUE STREAM SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE BLUE STREAM PARTIES DO NOT WARRANT THAT BLUE STREAM’S EQUIPMENT, INCLUDING ANY MTAs PROVIDED BY BLUE STREAM, OR THE BLUE STREAM SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. THE BLUE STREAM PARTIES DO NOT WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE EXCLUDED.
BLUE STREAM will compensate you for a service interruption only in the event of complete failure of the Blue Stream Services because of a technical malfunction for 24 or more consecutive hours. In such case, your sole remedy, available upon your request, will be limited to a prorated credit against the net monthly recurring charge (exclusive of nonrecurring charges, other one-time charges, per call charges, measured charges, regulatory fees and surcharges, taxes, and other governmental and quasi-governmental fees). To qualify for the credit, you must request the credit from BLUE STREAM within 30 days of the failure. We shall not compensate you for any service interruption caused by a power outage or by Customer Equipment. Credits will be applied only against current and future fees payable by you for the Blue Stream services. Any credits provided by BLUE STREAM are at our sole discretion and in no event shall constitute or be construed as a course of conduct by BLUE STREAM.
b. Limitation of liability. EXCEPT AS SPECIFICALLY PROVIDED IN THE SUBSCRIBER AGREEMENT, IN NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY (INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, OR OTHERWISE), SHALL THE BLUE STREAM PARTIES OR THEIR UNDERLYING PROVIDERS HAVE ANY LIABILITY TO YOU OR TO ANY PERSON OR ENTITY FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, OR PERSONAL INJURIES (INCLUDING DEATH), RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, REMOVAL, OR USE OF THE BLUE STREAM SERVICES, INCLUDING LACK OF 911/E911 SERVICES OR DIALING ASSOCIATED WITH AN ALARM OR SECURITY SYSTEM, MEDICAL MONITORING DEVICE, FAX EQUIPMENT, DIAL-UP MODEMS, OR BLUE STREAM’S EQUIPMENT, MTAs PROVIDED BY BLUE STREAM, OR CUSTOMER’S RELIANCE ON OR USE OF BLUE STREAM’S EQUIPMENT, MTAs PROVIDED BY BLUE STREAM, OR THE BLUE STREAM PHONE SERVICES, INCLUDING BUT NOT LIMITED TO ANY MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURES OR MALFUNCTION, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, LOSS OF INFORMATION OR DATA, OR FAILURE OF PERFORMANCE OF BLUE STREAM’S EQUIPMENT, MTAs PROVIDED BY BLUE STREAM, OR THE BLUE STREAM PHONE SERVICES; OR (II) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF BLUE STREAM’S EQUIPMENT, MTAs PROVIDED BY BLUE STREAM, OR THE BLUE STREAM PHONE SERVICES BY CUSTOMER OR ANY OTHER PERSON OR ENTITY INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
c. Limitations on BLUE STREAM’s Liability for Directories and Directory Assistance. THE LIMITATIONS IN THIS SECTION 11.c SHALL APPLY WHERE WE MAKE AVAILABLE A DIRECTORY LISTING OR PUBLICATION OPTION. IF (i) ANY PHONE NUMBER FOR WHICH YOU HAVE REQUESTED UNLISTED STATUS IS PUBLISHED IN ANY DIRECTORY; (ii) ANY PHONE NUMBER FOR WHICH YOU HAVE REQUESTED NONPUBLISHED STATUS IS INCLUDED IN ANY DIRECTORY, ANY DIRECTORY ASSISTANCE DATABASE, OR IS OTHERWISE DISCLOSED TO ANY UNAUTHORIZED PERSON; (iii) ANY PHONE NUMBER WHICH YOU REQUESTED BE PUBLISHED OR LISTED IN ANY DIRECTORY OR DIRECTORY ASSISTANCE DATABASE IS NOT SO PUBLISHED OR LISTED, OR (iv) ANY PUBLISHED OR LISTED PHONE NUMBER CONTAINS MATERIAL ERRORS OR OMISSIONS, THEN THE TOTAL LIABILITY OF THE BLUE STREAM PARTIES IN CONNECTION WITH THE DESCRIBED ERROR OR OMISSION SHALL NOT IN THE AGGREGATE EXCEED THE MONTHLY CHARGES, IF ANY, WHICH YOU HAVE ACTUALLY PAID TO BLUE STREAM TO LIST OR NOT TO LIST OR TO PUBLISH OR NOT PUBLISH THE NUMBER FOR THE AFFECTED PERIOD. YOU SHALL HOLD THE BLUE STREAM PARTIES AND ITS UNDERLYING PROVIDERS HARMLESS AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE ERRORS AND OMISSIONS DESCRIBED ABOVE.
d. Customer’s indemnification obligations. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE SUBSCRIBER AGREEMENT, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD THE BLUE STREAM PARTIES AND ITS UNDERLYING PROVIDERS, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO OR ARISING OUT OF YOUR BREACH OF THE SUBSCRIBER AGREEMENT OR YOUR AND YOUR USERS’ USE OF THE BLUE STREAM PHONE SERVICES OR ANY BLUE STREAM EQUIPMENT OR MTA PROVIDED BY BLUE STREAM, INCLUDING BUT NOT LIMITED TO ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 SERVICES OR DIALING ASSOCIATED WITH AN ALARM OR SECURITY SYSTEM, MEDICAL MONITORING DEVICE, FAX EQUIPMENT OR DIAL-UP MODEM.YOU AGREE THAT THE BLUE STREAM PARTIES AND THEIR UNDERLYING PROVIDERS SHALL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS THAT ARISE FROM YOUR USE OF THE BLUE STREAM PHONE SERVICES, BLUE STREAM’S EQUIPMENT, OR ANY MTA PROVIDED BY BLUE STREAM. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS.
e. Limitations on BLUE STREAM’s liability for Customer Equipment and software. Customer Equipment may be damaged or suffer service outages as a result of the installation, use, inspection, maintenance, repair, and removal of BLUE STREAM’s Equipment and the Blue Stream Phone services, or upgrades to firmware or software embedded in BLUE STREAM’s Equipment or the MTA used with the Blue Stream Phone services. Except for gross negligence or willful misconduct by us, the BLUE STREAM Parties shall have no liability whatsoever for any damage, loss, or destruction to the Customer Equipment. Use of certain features of the Blue Stream Phone services may require special software, applications, or access to web portals. BLUE STREAM makes no representation or warranty that any software or application installed on your computer or web portal does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to its software, files, and data as a result of any such virus or other harmful feature. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your computer, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your system. THE BLUE STREAM PARTIES AND THEIR UNDERLYING PROVIDERS SHALL HAVE NO 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.
BLUE STREAM does not represent, warrant, or covenant that the installation of the special software or applications described in the preceding paragraph or access to our web portals will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including but not limited to your computer. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES.YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER THE BLUE STREAM PARTIES OR THEIR UNDERLYING PROVIDERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
f. Limitations on BLUE STREAM’s liability for third parties. Notwithstanding anything to the contrary in the Subscriber Agreement, you acknowledge and understand that we may use third parties to provide components of the Blue Stream Phone services, including without limitation their services, equipment, and infrastructure. BLUE STREAM is not responsible for the performance or non-performance of third-party services, equipment, or infrastructure, whether or not they constitute components of the Blue Stream Phone services. BLUE STREAM shall not be bound by any undertaking, representation, or warranty made by an agent or employee of BLUE STREAM or of our underlying providers in connection with the installation, maintenance, or provision of the Blue Stream Phone services, if that undertaking, representation, or warranty is inconsistent with the terms of the Subscriber Agreement. The limitations of liability set forth in Sections 11.b and 11.c apply to any acts, omissions, and negligence of the BLUE STREAM Parties and their underlying providers which, but for that provision, would give rise to a cause of action in contract, tort, or any other legal doctrine.
g. Customer’s sole remedies. Your sole and exclusive remedies under the Subscriber Agreement are as expressly set forth in the Subscriber Agreement. The liability of the BLUE STREAM Parties and their underlying providers is limited as set forth by the Subscriber Agreement, or, where applicable law limits such limitations of liability, to the maximum extent permitted by law.
h. Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in the Subscriber Agreement shall survive the termination of the Subscriber 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.
12. ARBITRATION. EXCEPT FOR CLAIMS BY BLUE STREAM FOR NONPAYMENT FOR, THEFT OF, OR MISUSE OF THE BLUE STREAM PHONE SERVICES, OR FOR INJUNCTIVE RELIEF, AS DESCRIBED BELOW, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THE SUBSCRIBER AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES. CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED. THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT UNDER OR IN CONNECTION WITH THE SUNSCRIBER AGREEMENT SHALL NOT HAVE THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAYBE SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW. NO CLAIM SUBJECT TO ARBITRATION UNDER THE SUBSCRIBER AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW. THE ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION. IF ANY PORTION OF THIS SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL CONTINUE TO BE ENFORCEABLE. This Section 12 shall survive the termination of your Blue Stream Phone services with BLUE STREAM.
a. How to contact BLUE STREAM. For any inquiries or notices required in connection with the Subscriber Agreement, you may contact us (i) in writing to our Customer Service Department at 12409 NW 35th Street, Coral Springs, FL 33065 or (ii) on our customer service line at 954-753-0100 during normal business hours.
b. How you will receive Notices. BLUE STREAM MAY DELIVER THE SUBSCRIBER AGREEMENT, UPDATES TO THE SUBSCRIBER AGREEMENT, PRICING GUIDES, OR ANY OTHER COMMUNICATIONS, DISCLOSURES, OR NOTICES TO YOU BY POSTING THEM TO OUR WEBSITE LOCATED AT www.MyBlueStream.com, BY SENDING THEM VIA EMAIL, U.S. MAIL, OR OVERNIGHT MAIL TO YOUR PHYSICAL ADDRESS OF RECORD, OR THE EMAIL ADDRESS ON BLUE STREAM’S ACCOUNT RECORDS, OR BY DELIVERING THEM BY HAND AT THE TIME OF INSTALLATION, REPAIR, MAINTENANCE OR REMOVAL OF THE BLUE STREAM PHONE SERVICES (“NOTICE”). YOU AGREE THAT ANY ONE OF THE FOREGOING WILL CONSTITUTE SUFFICIENT NOTICE.
c. Your system requirements. To view the Subscriber Agreement online, receive electronic Notices, and to access and retain electronic Notices and other records in connection with the Services, your system must be able to access the public Internet and ACC’s website at www.MyBlueStream.com, and must be able to run Adobe Acrobat software. By using the Blue Stream Phone services, you represent to us that you satisfy the system requirements of this Section 13.c.
d. Assignment of this agreement to other parties. BLUE STREAM may assign its rights and obligations under the Subscriber Agreement, without Notice, to (i) any affiliate of BLUE STREAM; (ii) to any party acquiring all or substantially all of the assets or stock, by merger, or otherwise, of BLUE STREAM; or (iii) to any person or entity purchasing or otherwise acquiring the BLUE STREAM video system serving you. You may not assign or transfer the Subscriber Agreement without BLUE STREAM’s prior consent.
e. General. The Subscriber Agreement and any pricing guide provided to you by BLUE STREAM are incorporated by reference and constitute the entire agreement and understanding between the parties with respect to the subject matter of the Subscriber Agreement, and they supersede and replace any and all prior written or verbal agreements. If there is a conflict between the Subscriber Agreement and our pricing guide, the terms and conditions of the pricing guide shall take precedence in the resolution of the conflict. If any portion of the Subscriber Agreement or the pricing guide is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy here under shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy here under preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by law. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of the Subscriber Agreement or the pricing guide.
g. Changes to the Blue Stream Phone services and the Agreement. If you continue to use the Blue Stream Phone after any modification of the Subscriber Agreement or the Blue Stream Phone services, you shall be deemed to have accepted the modification. If you do not agree to any modifications, you must immediately stop using the Services and notify BLUE STREAM that you are terminating the Subscriber Agreement. You will then be entitled to a refund of any unused portion of any recurring monthly service fee for the Blue Stream Phone that has been paid by you in advance, less any outstanding amounts due BLUE STREAM for equipment or other applicable fees and charges).