BLUE STREAM BUSINESS CLASS SERVICE AGREEMENT
This Blue Stream Business Class Service Agreement sets forth the terms and conditions under which Blue Stream will provide to Customer the services, Internet, Cable and Phone (the “Service” or “Services”), indicated in this Agreement as shown in the attached summary of Services or other similar document or work order form (“Service Order”). We sometimes refer to the Customer as “you” or “your” and we refer to Blue Stream as “Blue Stream”, “we”, “us” or “our.”
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY STOP THE USE OF THE SERVICE(S) AND NOTIFY BLUE STREAM SO THAT YOUR ACCOUNT MAY BE CLOSED.
1. Subscription to Services. By signing or electronically submitting this Agreement with BLUE STREAM, Customer subscribes to the Services identified on the Service Order. The Service Order shall become binding on the Parties when (i) it is specifically accepted by BLUE STREAM either electronically or in writing, (ii) BLUE STREAM begins providing the Services described in the Service Order, or (iii) BLUE STREAM begins installation for delivery of the Services described in the Service Order, whichever is earlier; provided, however, the Parties agree and acknowledge that the binding effect of the Service Order and this Agreement is contingent upon BLUE STREAM’s engineering review to determine the serviceability of the premises. If BLUE STREAM determines that the premises do not meet its serviceability requirements, the Service Order and this Agreement shall be of no further force or effect. When a Service Order becomes effective, it shall be deemed part of and shall be subject to this Agreement.
Upon installation and connection of the necessary facilities and equipment to provide the Services, or in the case of Phone, the day Phone Service is activated, BLUE STREAM shall notify Customer that the Services are available for use, and the date of such notice shall be called the “Commencement Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Commencement Date shall not relieve Customer of his/her/its obligation to pay applicable Service charges.
2. Terms and Conditions of Service. Customer’s use of BLUE STREAM’s Services is specifically subject to this Agreement and Customer’s agreement to: (i) the Business Customer General Terms and Conditions located at https://www.mybluestream.com (the “General Terms”), which may be modified by BLUE STREAM from time to time in accordance with the General Terms and applicable law, and which are incorporated herein by reference and made a part of this Agreement; and (ii) use the Services strictly in accordance with any operating, privacy and/or use policies, and applicable service guides, located at https://www.mybluestream.com or otherwise communicated to you, specifically including any acceptable use policy (the “Service Policies”), which Service Policies may be modified by BLUE STREAM from time to time, and which Service Policies are incorporated herein by reference and made a part of this Agreement are specifically incorporated by this reference and control in the event of a conflict with any other provision of this Agreement. Any new terms or policies adopted by BLUE STREAM or any modifications to the existing terms and/or policies will, subject to any notice provisions of the General Terms and applicable law, become effective upon posting a new version of the document on the BLUE STREAM Web site at https://www.mybluestream.com (or any successor URL(s)). Accordingly, customers and users of the BLUE STREAM Services should regularly visit our Web site and review these terms and conditions policy to ensure that their activities conform to the most recent version. Notwithstanding the forgoing, if BLUE STREAM makes a change to the General Terms that applies to Customer and is material and adverse to Customer, Customer has thirty (30) days following notice of the change to terminate this Agreement without the imposition of early termination charges. Customer’s continued receipt of Services shall be deemed acceptance of any such change. If BLUE STREAM agrees not to apply the changed Terms to you, the Agreement is not subject to early termination. In the event of inconsistency among these documents, precedence will be as follows: (1) any jointly executed amendment or addendum to this Agreement (“Addendum”), (2) the General Terms, (3) the Service Policies, and (4) this Customer Agreement.
3. Pricing. During the initial Term of the Agreement, your quoted monthly recurring charge for Internet and Phone Services will not change. Video Service prices are subject to increase at any time with prior written notice to you. Other prices are subject to change at any time. Prices and price guarantees do not include taxes, fees or surcharges, including but not limited to government imposed fees and taxes, government program fees (such as 911, TRS and universal service) and non-governmental fees (such as subscriber line charges, line fees, access charges, carrier service fees and broadcast TV fee, sports surcharge and other programming cost recovery surcharges) and will apply and vary depending upon your service location and the Services to which you subscribe. Not all taxes, fees and surcharges apply to all Services. The taxes, fees and surcharges may be changed at any time.
4. Payment; Charges
(a) You agree to pay BLUE STREAM for (i) all use of your Services (including, if BLUE STREAM is the party billing you for ISP or OLP Service, for your subscription to your choice of ISP or OLP, as applicable), (ii) installation and applicable service charges, (iii) BLUE STREAM Equipment and (iv) all applicable local, state and federal fees and taxes, all in accordance with this Agreement.
(b) If you receive VoIP Service, the fees and charges for VoIP Service begin to accrue on the Install Date, as defined in this Agreement.
(c) All charges are payable on the due date specified, or as otherwise indicated, on my bill. You agree that late charges may be assessed, subject to applicable law, on amounts that are past due. Your failure to deliver payment by the due date is a breach of this Agreement. The current late fees will be provided upon request and, if applicable, will not exceed the maximum late fees as set forth by applicable law. BLUE STREAM reserves the right to change the late fees.
(d) You agree that if your Services account with BLUE STREAM is past due, BLUE STREAM may terminate any of your Services or accounts, including VoIP Service, in accordance with applicable law. If you have a credit due to your or a deposit is being held on any account with BLUE STREAM, the credit or deposit may be used to offset amounts past due on any other account you may have with BLUE STREAM without notice to you. To reconnect any terminated Services, you may be required, in addition to payment of all outstanding balances on all accounts with BLUE STREAM, to pay reconnect charges or trip charges (where applicable) and/or security deposits before reconnection.
(e) BLUE STREAM may verify my credit standing with credit reporting agencies and require a deposit based on your credit standing or other applicable criteria. BLUE STREAM may require a security deposit or a bank or credit card or account debit authorization from you as a condition of providing or continuing to provide the Services. If BLUE STREAM requires a security deposit, the obligations of BLUE STREAM regarding such security deposit will be governed by the terms of the deposit receipt provided by BLUE STREAM to you at the time the deposit is collected. You agree that BLUE STREAM may deduct amounts from your security deposit, bill any bank or credit card submitted by you or utilize any other means of payment available to BLUE STREAM for any past due amounts payable by you to BLUE STREAM, including in respect of damaged or unreturned Equipment.
(f) If you have elected to be billed by credit card, debit card or ACH transfer, you agree that you will automatically be billed each month for any amounts due under this Agreement. If you make payment by check, you authorize BLUE STREAM and its agents to collect this item electronically.
(g) BLUE STREAM may charge fees for all returned checks and account debit, bank card or charge card chargebacks. The current return/chargeback fees can be provided on request. BLUE STREAM reserves the right to change return/chargeback fees.
(h) If you subscribe to HSD Service, you acknowledge that, even if BLUE STREAM is billing for the HSD Service, your ISP or OLP may require a bank or credit card or account debit authorization or other assurance of payment from you, including for charges for additional or continuing Services outside the HSD Service billed by BLUE STREAM that are payable under the ISP Terms. You agree that BLUE STREAM or your ISP (and, if applicable, OLP) may bill any bank or credit card submitted by you to your ISP or OLP or utilize any other means of payment available to your ISP or OLP for any past due amounts payable by you to BLUE STREAM. You also agree that responsibility for billing for your HSD Service subscription may be changed between BLUE STREAM and your ISP or OLP upon notice to you.
(i) All use of your Services, whether or not authorized by you, will be deemed your use and you will be responsible in all respects for all such use, including for payment of all charges attributable to your account (e.g., for VOD movies, merchandise ordered via Internet, international long distance charges, etc.). BLUE STREAM is entitled to assume that any communications made through your Services or from the location at which you receive the Services are your communications or have been authorized by you. You are legally responsible for all costs and charges associated with communications made through your Services or from the location at which you receive the Services, whether made by you or a third party. Your Services may contain or make available information, content, merchandise, products and services provided by third parties and for which there may be charges payable to third parties (which may include your choice of ISP or OLP and/or entities affiliated with BLUE STREAM). You agree that all such charges incurred by you or attributed to your account will be your sole and exclusive responsibility and agree to pay the same when due, and shall indemnify and hold harmless BLUE STREAM for all liability for such charges. You agree that BLUE STREAM is not responsible or liable for the quality of any content, merchandise, products or services (or the price thereof) made available to you via the Services, for the representations or warranties made by the seller or manufacturer of any such item, or for any damage or injury, if any, resulting from the use of such item.
(j) You acknowledge that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services BLUE STREAM provides and, consequently, uncertainty about what fees, taxes and surcharges are due from BLUE STREAM and/or its customers. Accordingly, you agree that BLUE STREAM has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to you. You further agree to waive any claims you may have regarding BLUE STREAM’s collection or remittance of such fees, taxes and surcharges. You further understand that you may obtain a list of the fees, taxes and surcharges that BLUE STREAM currently collects or passes through by writing to BLUE STREAM at the following address and requesting same: BLUE STREAM, 12409 NW 35th Street, Coral Springs, FL 33065; Attention: Subscriber Tax Inquiries (?).
(k) You agree that it is your responsibility to report BLUE STREAM billing errors within 30 days of receipt of the erroneous bill so that Service levels and all payments can be verified. If not reported within 30 days, you agree that any errors are therefore waived.
5. PHONE SERVICE E911 NOTICE. In some of our service areas, BLUE STREAM offers interconnected voice over IP (“VoIP”) Phone Services, which may include Hosted VoIP Services. Our VoIP Phone Services have certain limitations and restrictions that do not generally apply to traditional circuit switched phone services. IF YOU ARE SUBSCRIBING TO BLUE STREAM’S VOIP PHONE SERVICE, YOU ACKNOWLEDGE RECEIPT AND UNDERSTANDING OF THE FOLLOWING E911 NOTICE: BLUE STREAM’S VOIP PHONE SERVICE ALLOWS YOU TO BLUE STREAMESS E911 SERVICES. YOU WILL NOT BE ABLE TO BLUE STREAMESS E911, HOWEVER: (I) IN THE EVENT OF A POWER OUTAGE BEYOND THE DURATION OF ANY BACK-UP POWER SOURCES. BLUE STREAM MAY PROVIDE A BATTERY BACK-UP WHICH WILL PROVIDE POWER TO THE BLUE STREAM MODEM FOR A LIMITED PERIOD OF TIME IN THE EVENT OF A POWER OUTAGE. BATTERY BACKUP IS NOT GUARANTEED, AND DOES NOT SUPPLY POWER TO THE PHONE ITSELF. YOU SHOULD NOTIFY BLUE STREAM IMMEDIATELY IF THE BATTERY IS LOW, EXHAUSTED OR INOPERABLE. IF BLUE STREAM DOES NOT PROVIDE A MODEM OR BACKUP BATTERY POWER FOR BLUE STREAM SERVICES UTILIZING A TELEPHONE CABLE MODEM, YOU MUST PROVIDE IT AND IT WILL REMAIN YOUR RESPONSIBILITY IN ALL RESPECTS; (II) IN THE EVENT OF A NETWORK OUTAGE; OR (III) DURING PERIODS WHEN YOUR BROADBAND CONNECTION IS UNAVAILABLE. YOU SHOULD NEVER MOVE THE LOCATION OF YOUR BLUE STREAM PROVIDED BLUE STREAM MODEM OR PHONE EQUIPMENT WITHOUT NOTIFYING US. THE ADDRESS ASSOCIATED WITH AN E911 CALL IS THE AUTHORIZED ADDRESS WHERE BLUE STREAM SERVICE WAS ORIGINALLY PROVIDED. IF YOU MOVE THE BLUE STREAM MODEM OR OTHER BLUE STREAM PHONE EQUIPMENT FROM THE ORIGINAL SERVICE LOCATION, A CALL TO E911 USING THAT EQUIPMENT WILL STILL IDENTIFY THE ORIGINAL SERVICE LOCATION. YOU ARE AWARE THAT THERE MAY BE A DELAY OF AT LEAST ONE BUSINESS DAY AFTER INSTALLATION OF SERVICE FOR E911 SERVICE AVAILABILITY. YOU AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, BLUE STREAM SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR INABILITY TO ACCESS THE SERVICES, INCLUDING E911 SERVICES.
6. CPNI Approval. Customer has a right, and we have a duty, under federal law, to protect the confidentiality of customer proprietary network information (“CPNI”). CPNI includes information such as the quantity, technical configuration, type, destination, location and amount of use of a telecommunications service. We desire to use your CPNI (or disclose or permit access to our agents and affiliates that provide communications related Services) to market communications related services (such as Internet and cable services) to you. IF YOU APPROVE, YOU DO NOT HAVE TO TAKE ANY ACTION. HOWEVER, YOU DO HAVE THE RIGHT TO RESTRICT OUR USE OF YOUR CPNI. You may deny or withdraw our right to use your CPNI at any time by calling us at 954-753-0100. If we do not hear from you within 30 days of this notification, we will assume that you approve our use of CPNI for the purpose of providing you with information about other communications-related services. Denial of approval will not affect the provision of any Services to which you subscribe. Approval or denial of approval for use of CPNI outside of the Service to which you subscribe is valid until you affirmatively revoke or limit your approval or denial.
7. Porting of Telephone Numbers. Until your telephone number is ported to us, your existing local exchange carrier will be responsible for providing access to emergency services such as 911. You agree that, during this porting process, we assume no responsibility and have no liability for the accuracy of the local exchange carrier records or its ability to provide access to 911 services.
8. Telephone Authorization and New Telephone Numbers. To complete a phone order, you must execute a Letter of Agency (“LOA”) and submit it to BLUE STREAM, or otherwise complete a third party verification process. New Telephone numbers are subject to change prior to the install. Customers should not print their new number on stationery or cards until after the install is complete.
9. Directory listings. Our liability for any errors or omissions in any directory listings (including liability for failing to publish a listing or publishing an “unlisted” listing) is limited to the amounts paid by you to BLUE STREAM for the listing service.
10. Term and Termination; Early Termination Fee. The term of this Agreement begins on the Commencement Date and continues for the term specified in the Service Order. The then current General Terms, Service Policies and pricing will apply during any renewal Term. Rates for the Services and associated discounts are based on Customer’s Agreement to purchase such Services for the entire applicable Term. Notwithstanding anything in the Agreement to the contrary, Customer’s termination of the Agreement before the expiration of the agreed upon Term without cause or BLUE STREAM’s early termination of the Agreement for cause, will require that Customer pay to BLUE STREAM an early termination fee calculated as follows: (a) all unpaid amounts for Services provided through the date of termination; plus (b) all related reasonable expenses of BLUE STREAM including, but not necessarily limited to, construction and installation costs, discounts, credits or competitive contract buyout charges and/or all previously waived non-recurring charges for the Services; plus (c) 100% of the monthly recurring charges at the rates stated in an applicable Service Order form for all months remaining in the applicable Service Order Term. Customer’s reduction of Services (“downgrade”) before the expiration of the agreed upon Term without cause will require that Customer pay to BLUE STREAM an early termination fee calculated as follows: (a) all unpaid amounts for Services provided through the date of the downgrade; plus (b) all related reasonable expenses of BLUE STREAM including, but not necessarily limited to, construction and installation costs, discounts, credits or competitive contract buyout charges, all previously waived non-recurring charges for the Services and/or costs associated with implementing the downgrade; plus (c) 100% of the difference between the monthly recurring charges at the rates stated in the original Service Order form and the monthly recurring charges at the rates for the downgraded service, for all months remaining in the applicable Service Order Term.
Unless otherwise agreed to by Customer, non-bulk video Services are not subject to early termination fees. Customer agrees that BLUE STREAM’s damages for early termination would be difficult to determine and the termination charges specified herein constitute liquidated damages and are not a penalty. Month-to-month service agreements may be terminated on thirty (30) days prior written notice. If Customer provides notice of termination as specified in this Section but retains BLUE STREAM Service, the Customer will be converted automatically to a month-to-month agreement at the end of the current term, and Customer’s pricing for the Service will be modified to reflect BLUE STREAM’s current month-to-month pricing schedule. To terminate this Agreement in accordance with this Section, Customer must notify BLUE STREAM Customer Care by written notice to BLUE STREAM at BLUE STREAM Internet, Cable & Phone, Attn: VP of Business Operations, 12490 NW 35th Street, Coral Springs, FL 33065. The rights and remedies set forth herein shall be in addition to any and all other legal, equitable and administrative rights and remedies available to BLUE STREAM.
11. Access to Premises and Installation of System. Customer grants BLUE STREAM the right to install, inspect, replace, repair, relocate, alter, operate, remove and maintain its equipment (the “system”) in, under and upon the premises at the designated service location(s). Customer, at no cost to BLUE STREAM, shall secure and maintain all necessary rights of access to the service location(s) for BLUE STREAM to install, operate and remove its equipment and provide the Services. If necessary, Customer shall assist BLUE STREAM in securing a right of entry or other access rights, including an easement, from the land and/or building owner. BLUE STREAM in its discretion may use any existing cable, conduit or other facilities located within the premises. Customer shall pay any agreed upon custom installation fee. If BLUE STREAM’s access rights to the service location are terminated or restricted, early termination fees will apply.
12. Limitation of Liability: BLUE STREAM’s total liability to Customer in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) proven direct damages or (b) the aggregate amount of payments made by Customer to BLUE STREAM during the six (6) month period immediately preceding the month in which the circumstances giving rise to the claim occurred.
13. Indemnification: Customer shall indemnify, defend and hold harmless BLUE STREAM and its affiliates, employees, directors, officers, representatives, subcontractors, interconnection service providers, suppliers and agents (“Indemnified Parties”) from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements (collectively, “Claims”), to the extent any such Claim is asserted by a third party against any Indemnified Party, directly or indirectly, by reason of or resulting from any Customer failure to perform an obligation under this Agreement or any action or inaction of Customer or its employees or agents that is illegal or constitutes negligence or intentional misconduct, or as a result of: (i) claims for libel, slander, infringement of copyright or unauthorized use of trademark, logo, trade name or service mark arising out of use of any service; (ii) claims for patent infringement arising from combining or connection of facilities to use BLUE STREAM’s network; (iii) claims for damage to property and/or personal injuries (including death) arising out of the negligence or willful act or omission of Customer; and (iv) claims that the content or the actions of Customer violate any law or regulation.
14. DISCLAIMER OF WARRANTIES: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, BLUE STREAM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY BLUE STREAM SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. RCN SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.
Disclaimer of Certain Damages:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
15. Force Majeure: Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure to full obligations under this Agreement due to causes beyond a Party’s reasonable control, including but not limited to: acts of God, flood, extreme weather, fire or other natural calamity, terrorist attack, any law, order regulation or action of any governmental entity or civil or military authority, power or utility failures, cable cuts, unavailability of rights-of-way, national emergencies, riots, wars, strikes, lock-outs work stoppages or other labor difficulties. A Force Majeure event shall not excuse the obligation to make a payment due pursuant to this Agreement, except to the extent that the Force Majeure event physically interferes with and delays delivery of the payment.
16. Commercial Use Restrictions on Video. Customer shall not, and shall not authorize or permit any other person to: order or request pay-per-view, VOD or premium programming for receipt, exhibition or taping in a commercial establishment, nor may Customer exhibit or assist in exhibiting pay-per-view, VOD or premium programming in a commercial establishment, unless expressly authorized in writing to do so, in advance, by both BLUE STREAM and our program provider. Customer shall indemnify and hold BLUE STREAM harmless against and from any violation of this provision.
17. Miscellaneous. All modifications to this Agreement, if any, must be in writing, executed by an authorized BLUE STREAM Director or Vice President and the Customer. All other attempts to modify this Agreement shall be void and non-binding on BLUE STREAM. This Agreement shall be governed by and construed in accordance with federal law, the regulations of the FCC and the internal laws of the state and locality in which the Service is provided, without regard to any conflicts of law provisions. Customer may not assign or otherwise transfer this Agreement in any manner without BLUE STREAM’s prior written consent. The Parties acknowledge that BLUE STREAM is subject to the provisions of its local and/or state franchise agreements, and applicable federal, state and local laws and regulations (“Applicable Law”). Any duty or promise of BLUE STREAM under this Agreement that conflicts with any provision of Applicable Law is to that extent void. Notwithstanding, the terms of this Agreement are considered severable, and in the event that any term is rendered unenforceable due to any such conflict or is otherwise found to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the Parties, and the remainder of this Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement to be effective on the latest date that either party signed this Agreement, as shown below.
BLUE STREAM INTERNET, CABLE AND PHONE CUSTOMER
Print Name: __________________
Print Name: ___________________
Services Address: ______________
By signing, I represent, warrant and acknowledge that: (i) I am at least 18 years of age and the owner of or tenant in the premises at the service location(s) identified in the Service Order and have authority to authorize the work or service specified in, and to be bound by, the Service Order and this Agreement; (ii) BLUE STREAM may contact me at the phone number above (or such other phone number or email address provided by me to BLUE STREAM), which may include autodialed calls, pre-recorded or artificial voice messages, and mobile service commercial email messages; (iii) BLUE STREAM manages its Internet Network according to specific Practices and Procedures, which can be found at https://www.mybluestream.com; (iv) the Agreement is subject to automatic renewal and early termination fees; and (v) I have read, understood and agree to the contractual terms and notices set forth in this Agreement, including those related to the PHONE SERVICE E911 NOTICE. The applicable General Terms, and Service Policies can be found at https://www.mybluestream.com.