In consideration of BHN's provision of the Services that I have requested, subject to applicable law, I AGREE AS FOLLOWS:
1. Important Information About This Agreement
(d) My acceptance of Services constitutes my acceptance of the terms and conditions contained in this Agreement. In the event that a portion of my Services is terminated, or any aspect of it is changed, any remaining service or replacement service will continue to be governed by this Agreement.
2. Payment; Charges
(a) I agree to pay BHN for (i) all use of my Services, (ii) installation and applicable service charges, (iii) BHN Equipment, and (iv) all applicable local, state and federal fees and taxes. Charges for the Services that I receive have been provided to me. Other charges are set forth on a separate price list that I have received and/or can be provided on request. I will be billed monthly in advance for recurring monthly charges. Other charges will be billed in the next practicable monthly billing cycle following use, or as otherwise specified in the price list. BHN may change both the fees and the types of charges (e.g., periodic, time-based, use-based) for my Services. If I participate in a promotional offer that requires a minimum time commitment and I terminate early, I agree that I am responsible for any early termination fees that were described to me at the commencement of such promotion. I understand that if I receive Services on a promotional or discounted plan, my rates will increase to standard rates for such Services at the end of the promotional or discount period.
(b) Charges for installation Services and related equipment available from BHN for a standard Services installation may be described in BHN's list of charges and any applicable Tariff(s) and/or can be provided on request. Non-standard installations, if available, may result in additional charges as described in BHN's list of charges. In addition, I agree to pay charges for repair service calls resulting from my misuse of BHN Equipment or for failures in equipment not supplied by BHN.
(c) If my Services account is past due and BHN sends a collector to my premises, a field collection fee may be charged. The current field collection fee is on the price list or can be provided on request. I will also be responsible for all other expenses (including reasonable attorneys' fees and costs) incurred by BHN in collecting any amounts due under this Agreement and not paid by me.
(d) All charges are payable on the due date specified, or as otherwise indicated, on my bill. I agree that late charges may be assessed if my account is past due. My failure to deliver payment by the due date is a breach of this Agreement. The current late fees are on the price list or can be provided upon request and, if applicable, will not exceed the maximum late fees as set forth by applicable law. BHN reserves the right to change the late fees.
(e) I agree that if my Services account with BHN is past due, BHN may terminate any of my Services or accounts, including Home Phone Service, in accordance with applicable law. If I have a credit due to me or a deposit is being held on any account with BHN, I agree that the credit or deposit may be used to offset amounts past due on any other account I may have with BHN without notice to me. To reconnect any terminated Services, I may be required, in addition to payment of all outstanding balances on all accounts with BHN, to pay reconnect charges or other charges (where applicable) and/or security deposits before reconnection.
(f) BHN may verify my credit standing with credit reporting agencies and require a deposit based on my credit standing or other applicable criteria. BHN may require a security deposit, or a bank or credit card or account debit authorization from me as a condition of providing or continuing to provide Services. If BHN requires a security deposit, the obligations of BHN regarding such security deposit will be governed by the terms of the deposit receipt provided by BHN to me at the time the deposit is collected. I agree that BHN may deduct amounts from my security deposit, bill any bank or credit card submitted by me, or utilize any other means of payment available to BHN, for any past due amounts payable by me to BHN, including in respect of damaged or unreturned Equipment.
(g) If I have elected to be billed by credit card, debit card or ACH transfer, I agree that I will automatically be billed each month for any amounts due under this Agreement. If I make payment by check, I authorize BHN and its agents to collect this item electronically.
(h) BHN may charge fees for all returned checks and account debit, bank card or charge card chargebacks. The current return/chargeback fees are listed in the list of charges on the price list or can be provided on request. BHN reserves the right to change return/chargeback fees.
(i) If I subscribe to HSD Service, I agree that BHN may bill any bank or credit card submitted by me, or utilize any other means of payment available for any past due amounts payable by me to BHN.
(j) All use of my Services, whether or not authorized by me, will be deemed my use and I will be responsible in all respects for all such use, including for payment of all charges attributable to my account (e.g., for VOD movies, , international long distance charges, etc.). BHN is entitled to assume that any communications made through my Services or from the location at which I receive the Services are my communications or have been authorized by me, and I authorize you to provide any Services to the person making such communications. My 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. I agree that all such charges incurred by me or attributed to my account will be my sole and exclusive responsibility and agree to pay the same when due, and shall indemnify and hold harmless the BHN Parties for all liability for such charges. I agree that BHN is not responsible or liable for the quality of any content, merchandise, products or Services (or the price thereof) made available to me via the Services, for the representations or warranties made by the seller or manufacturer of any such item, or for damage to or injury, if any, resulting from the use of such item.
(k) I acknowledge that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services BHN provides and consequently, uncertainty about what fees, taxes and surcharges are due from BHN and/or its customers. Accordingly, I agree that BHN 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 me, including any government imposed fees and taxes that become applicable retroactively. I further agree to waive any claims I may have regarding BHN's collection or remittance of such fees, taxes and surcharges. I further understand that I may obtain a list of the fees, taxes and surcharges that my local BHN office currently collects or passes through by contacting BHN directly.
(l) I agree that it is my responsibility to report BHN billing errors within 30 days from receipt of the bill so that service levels and all payments can be verified. If not reported within 30 days, the errors are waived.
(m) I agree that BHN has no obligation to notify me of, or change my rate to reflect, offers it may make to consumers that contain different prices for Services (or packages of Services) that are the same as, or similar to, the Services I receive.
3. Installation; Equipment and Cabling
(a) If I am not the owner of the house, apartment or other premises upon which BHN Equipment and Software are to be installed, I warrant that I have obtained the consent of the owner of the premises for BHN personnel and/or its agents to enter the premises for the purposes described in Section 3(d). I agree to indemnify and hold the BHN Parties harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement (including costs and reasonable attorneys' fees).
(b) I authorize BHN to make any preparations to the premises necessary for the installation, maintenance, or removal of equipment. BHN shall not be liable for any effects of normal Services installation and workmanship, such as holes in walls, etc., which may remain after installation or removal of the BHN Equipment, except for damage caused by negligence on the part of BHN.
(c) The BHN Equipment is and at all times shall remain the sole and exclusive personal property of BHN, and I agree that I do not become an owner of any BHN Equipment by virtue of the payments provided for in this Agreement or the Tariff(s) or the attachment of any portion of the BHN Equipment to my residence or otherwise. Upon termination of any Services, subject to any applicable laws or regulations, BHN may, but shall not be obligated to, retrieve any associated BHN Equipment not returned by me as required under Section 3(f) below. BHN will not be deemed to have "abandoned" the BHN Equipment if it does not retrieve such equipment.
(d) I agree to provide BHN and its authorized agents access to my premises during regular business hours upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace, alter or disconnect or remove the BHN Equipment, to install Software, to conduct service theft audits, or to check for signal leakage. I agree that BHN may have reasonable access to easements and BHN Equipment located on my grounds.
(e) BHN shall have the right to upgrade, modify and enhance BHN Equipment and Software from time to time through "downloads" from BHN's network or otherwise.
(f) If the Services are terminated, I agree that I have no right to possess or use the BHN Equipment related to the terminated Services. As required under Section 10(b), I agree that I must arrange for the return of BHN Equipment to BHN, in the same condition as when received (excepting ordinary wear and tear), upon termination of the Services. If I do not promptly return the BHN Equipment or schedule with BHN for its disconnection and removal, BHN may enter any premises where the BHN Equipment may be located for the purpose of disconnecting and retrieving the BHN Equipment. I will pay any expense incurred by BHN in any retrieval of the unreturned BHN Equipment. BHN may charge me a continuing monthly fee until any outstanding BHN Equipment is returned, collected by BHN or fully paid for by me in accordance with Section 3(g). The current fee is listed in the list of charges on the price list or can be provided on request.
(g) I agree to pay BHN liquidated damages in the amount demanded by BHN, but not to exceed that specified in the then-current manufacturer's price list for the replacement cost of the BHN Equipment without any deduction for depreciation, wear and tear or physical condition of such BHN Equipment if (i) I tamper with, or permit others to tamper with, BHN Equipment, (ii) the BHN Equipment is destroyed, lost, or stolen, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such destruction, loss, or theft, or (iii) the BHN Equipment is damaged (excluding equipment malfunction through no fault of my own) while in my possession, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such damage. I agree that these liquidated damages are reasonable in light of the problem of theft of cable Services; the existence of a "black market" in BHN Equipment; the ability of third parties to steal Services with unlawfully obtained BHN Equipment, causing loss of revenues for installation and service fees; and the difficulty in determining the actual damages that arise from the unauthorized tampering with, loss, destruction, or theft of BHN Equipment. I agree to return any damaged BHN Equipment to BHN.
(h) I agree that BHN may place equipment and cables on my premises to facilitate the provision of Services to me and to other locations in my area. The license granted under this Section 3(h) will survive the termination of this Agreement until the date that is one year from the date on which I first notify BHN in writing that I am revoking such license.
4. Use of Services; BHN Equipment and Software
(b) I agree that the Services I have requested are residential Services, offered for reasonable personal, non-commercial use only. I will not resell or redistribute (whether for a fee or otherwise) the Services, or any portion thereof, or charge others to use the Services, or any portion thereof. Among other things:
(i) If I receive Video Service, I agree not to use the Services for the redistribution or retransmission of programming or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of the Services to transmit or distribute the Video Service, or any portion thereof, to (or to provide or permit access by) persons outside the location identified in the Work Order (even if to a limited group of people or to other residences that I own or have the right to use), will constitute an enterprise purpose. I acknowledge that programs and other materials that I receive as part of the Video Service remain part of the Video Service even if I record or capture all or a portion of any such program or material in a data file or on a hard drive, DVR or similar device. If BHN determines in its sole discretion, that your use of the Video Service is excessive or in violation of this Agreement or not typical of a residential user of the Service, we reserve the right (i) immediately and without notice to terminate or modify your Video Service or (ii) assess additional charges for each month in which any excessive usage occurred.
(ii) If I receive Home Phone Service, I agree not to use the Services for telemarketing, call center, medical transcription, auto-dialing, continuous or extensive call forwarding, or facsimile broadcasting Services or for any enterprise purpose whether or not the enterprise is directed toward making a profit, or for any other use that results in excessive usage inconsistent with normal residential calling patterns. I agree that, among other things, my use of the Services to make available my Home Phone Service, or any portion thereof, to (or to provide or permit access by) persons outside the location identified in the Work Order (even if to a limited group of people or to other residences that I own or have the right to use), will constitute an enterprise purpose. If BHN determines in its sole discretion, that your use of the Home Phone Service is excessive or in violation of this Agreement or not typical of a residential user of the Service, we reserve the right (i) immediately and without notice to terminate or modify your Home Phone Service or (ii) assess additional charges for each month in which any excessive usage occurred.
(iii) If I receive HSD Service, I agree not to use the HSD Service for operation as an Internet service provider, for the hosting of websites (other than as expressly permitted as part of the HSD Service) or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of any form of transmitter or wide area network that enables persons or entities outside the location identified in the Work Order to use my Services, whether or not a fee is sought, will constitute an enterprise purpose. Furthermore, if I use a wireless network within my residence, I will limit wireless access to the HSD Service (by establishing and using a secure password or similar means) to the members of my household. If BHN determines in its sole discretion, that your use of the HSD Service is excessive or in violation of this Agreement or not typical of a residential user of the Service, we reserve the right (i) immediately and without notice to terminate or modify your HSD Service or (ii) assess additional charges for each month in which any excessive usage occurred.
(c) Theft or willful damage, alteration, or destruction of BHN Equipment, or unauthorized reception, theft or diversion of Services, or assisting such theft, diversion, or unauthorized reception is a breach of this Agreement and potentially punishable under law (including by way of statutory damages, fine and/or imprisonment). Nothing in this Agreement, including, Section 3(g) above, shall prevent BHN from enforcing any rights it has with respect to theft or unauthorized tampering of Services or BHN Equipment under applicable law.
(e) I agree that to the extent any Software is licensed (or sublicensed) to me by BHN, such Software is provided for the limited purpose of facilitating my use of the Services as described in this Agreement. I will not engage in, or permit, any additional copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited. I will return or destroy all Software provided by BHN and any related written materials promptly upon termination of the associated Services to me for any reason. Software licensed to me by my ISP or OLP, for instance my ISP's or OLP's client or browser software, is licensed under the ISP Terms or OLP Terms, as applicable, and is not the responsibility of BHN.
(g) I agree to be responsible for protecting the confidentiality of my screen names, passwords, personal identification numbers (PINs), parental control passwords or codes, and any other security measures made available, recommended or required by Bright House Networks. To the extent this information is acquired by any other person (through no fault of BHN), BHN may assume that I have authorized such person's use of the information. I also acknowledge that BHN's Services may from time to time include interactive features, the use of which may result in the transmission to, and use by, BHN or certain third parties of information that may constitute personally identifiable information (as such term is used in the Federal Communications Act of 1934) about me and for which BHN may be required, under the Federal Communications Act of 1934, to obtain my consent. I agree that BHN may seek such consents (or indications of my election to "opt in" to certain BHN programs) electronically, including through the use of a "click through" screen, and that BHN is entitled to assume that any such consent or opt-in election communicated through my Services or from the location at which I receive the Services is my consent or opt-in election or has been authorized by me.
(h) I agree that BHN has no liability for the completeness, accuracy or truth of the programs or information it transmits.
(i) Data Storage Services. I agree that any online or physical data storage services provided to me by BHN are used at my sole risk and that BHN will have no liability in the event my data is corrupted or lost as a result of or while using such services. I agree that when I return BHN Equipment to BHN, I am responsible for ensuring that all of my data is removed from such BHN Equipment and acknowledge that BHN has no responsibility for any such data that I do not remove.
5. Special Provisions Regarding Home Phone Service
(a) I acknowledge that the voice-enabled cable modem used to provide the Home Phone Service is electrically powered and that the Home Phone Service, including the ability to access 911 Services and home security and medical monitoring Services, may not operate in the event of an electrical power outage or if my broadband cable connection is disrupted or not operating. I acknowledge that, in the event of a power outage in my home, any battery installed inside my voice-enabled cable modem (whether self-installed or installed by BHN) may enable back-up service for a limited period of time or not at all, depending on the circumstances, and that the presence of the battery does not ensure that Home Phone Service will be available in all circumstances. I also acknowledge that, in the event of a loss of power that disrupts my local BHN cable system, the battery in my voice-enabled cable modem will not provide back-up service and the Home Phone Service will not be available. I further acknowledge that if I have a battery in my voice-enabled cable modem, I am responsible for monitoring, ordering & purchasing replacement batteries.
(b) I agree that BHN will not be responsible for any losses or damages arising as a result of the unavailability of the Home Phone Service (such unavailability due to outages or a suspension of my account), including the inability to reach 911 or other emergency Services, the inability to contact my home security system or remote medical monitoring service provider. I acknowledge that BHN does not guarantee that the Home Phone Service will operate with my home security and/or medical monitoring systems, and that I must contact my home security or medical monitoring provider in order to test my system's operation with the Home Phone Service. I agree that I am responsible for the cost of any such testing or any fees for configuring my home security or medical monitoring system to work with the Home Phone Service.
(c) The location and address associated with my Home Phone Service will be the address identified on the Work Order. I acknowledge that, under Section 4(d) of this Agreement, I am not permitted to move BHN Equipment from the location and address in which it has been installed. Furthermore, if I move my voice-enabled cable modem to an address different than that identified on the Work Order, calls from such modem to 911 will appear to 911 emergency service operators to be coming from the address identified on the Work Order and not the new address. I acknowledge that if I call 911 or another emergency Service through a personal computer's "click2call" capability from a location other than the address listed on my Work Order, then the emergency services may not respond to the location from where the 911 call was made.
(d) I agree to provide BHN and its authorized agents with access to my telephone inside wiring at the Network Interface Device or at some other minimum point of entry in order to provide the Home Phone Service over my existing in-home wiring.
(e) I agree that in the event of a material error or omission affecting my directory listing information, regardless of form or fault by BHN, including the erroneous inclusion in published directory listings of any information that I intend not to have published, my sole remedy shall be a service credit in an amount set by BHN's then-current standard policies or an amount prescribed by applicable regulatory requirements, whichever is greater. BHN shall have no other liability for errors, omissions or mistaken inclusions in directory listings.
6. Special Provisions Regarding HSD Service
(a) Description of HSD Service.
(b) I may rent a cable modem from BHN or may purchase a DOCSIS-compliant, BHN-approved cable modem from a third party provider. BHN reserves the right to provide service only to users with BHN-approved DOCSIS-compliant modems. Modems not BHN-approved may not function as intended and may not receive BHN advertised services.
(i) I acknowledge that material posted or transmitted through the HSD Service may be copied, republished or distributed by third parties, and that the BHN Parties will not be responsible for any harm resulting from such actions.
(ii) I grant to BHN, and I represent, warrant and covenant that I have all necessary rights to so grant, the non-exclusive, worldwide, royalty-free, perpetual, irrevocable, right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display in any media all material posted on the public areas of the HSD Service via my account and/or to incorporate the same in other works, but only for purposes consistent with operation and promotion of the HSD Service.
(iii) I agree that unsolicited email, or "spam," is a nuisance and that BHN and my ISP (and, if applicable, my OLP) are entitled to establish limits on the volume of email that I send. Such volume limits may be set by reference to a number of emails per day, week, month or year.
(d) Continuity of Service. In order to provide continuity of service to me, if my choice of ISP is no longer available over my local BHN cable system, I agree that BHN may provide me with an alternative ISP. In such event, BHN will notify me of the date as of which I will begin receiving service from the alternative ISP, the provision of which shall also be governed by this Agreement, and BHN will provide to me a price list for such alternative ISP service. I will have the right at any time to terminate the alternative ISP or to change my subscription to any other ISP then offered by BHN.
(e) Unfiltered Internet Access. I acknowledge that the ISP Service provides a connection to the Internet that may be unfiltered, and that the BHN Parties neither control nor assume responsibility for any content on the Internet or content that is posted by a subscriber. Although BHN or my ISP or OLP may make available certain parental control features, I acknowledge that such parental control features may not be entirely effective or foolproof and that, notwithstanding such features, I or members of my household may be exposed to unfiltered content.
(g) Responsibility for HSD Service. Each of BHN and my ISP (and, if applicable, my OLP) has responsibilities for the HSD Service. I acknowledge that each of my ISP and OLP may have one or more separate agreements, policies or other terms covering my rights and obligations with regard to the HSD Service ("ISP Terms" or "OLP Terms," as applicable) that are also binding on me. This Agreement does not cover any ISP or OLP features or Services that are not dependent upon distribution over BHN's cable systems (for example, dial up access or my use of ISP or OLP software that enables access to ISP or OLP features or Services through non-BHN access means) or that may otherwise be provided to me by ISP or OLP separately from the HSD Service under the ISP Terms or OLP Terms, as applicable. In the event of termination of the HSD Service, I must also contact my ISP (and, if applicable, my OLP) to ensure that these other features or Services (such as dial-up access) are properly continued or discontinued.
(h) Computer Requirements. I agree that each Computer will be free of harmful viruses and will need to meet certain minimum hardware and software requirements that will be specified for the HSD Service, and that such requirements may be changed from time to time by BHN or my ISP or OLP.
7. Support; Service and Repairs
(a) My Services include the right to request reasonable service and maintenance calls to check and correct problems with the Services. BHN will, at its own expense, repair damage to or, at BHN's option, replace BHN Equipment, and otherwise attempt to correct interruptions of the Services, due to reasonable BHN Equipment wear and tear, or technical malfunction of the system or network operated by BHN. The Subscriber Materials contain details on contacting BHN for this support.
(b) Unless I have obtained a BHN service protection plan (if available in my area), I agree that I am responsible for all wiring, equipment and related software installed in my residence that is not BHN Equipment or BHN-licensed Software and BHN will have no obligation to install, connect, support, maintain, repair or replace any Computer, television, telephone or telephone answering device, audiovisual recording or playback device (e.g., VCR, DVR, DVD), audio equipment, any software, or any cable modem, cabling or other equipment (other than BHN Equipment or BHN-licensed Software).
(c) I agree that BHN has no responsibility for the operation of any equipment, software or service other than the Services, the BHN Equipment and the BHN-licensed Software. For instance, I acknowledge that certain commercially available televisions, converter boxes and recording devices, which may be identified by their manufacturers as "cable ready" or "digital cable ready," may not be able to receive or utilize all available Services without the addition of a BHN converter box or other BHN Equipment for which a fee may be charged. I further acknowledge that, even if BHN furnishes other BHN Equipment to me that is compatible with my equipment, my equipment may not receive all Services available to customers using a BHN converter box. If I receive HSD Service, BHN has no responsibility to support, maintain or repair any equipment, software or service that I elect to use in connection with the HSD Service, whether provided by my ISP, my OLP or a third party. For assistance with technical problems arising from such equipment, software or Services, I should refer to the Subscriber Materials for information regarding the technical support provided by my ISP or OLP or to the support area of the ISP or OLP or to the relevant third party's material.
(d) If BHN determines that non-BHN cabling or equipment connecting my residence to BHN Equipment installed on the side of or adjacent to my residence (i.e., at a ground block) is the cause of a service problem, I agree that BHN may charge me to resolve such service problem. If available from BHN in my area, I may subscribe to a BHN service protection plan that covers service related calls within my residence. If any other support Services are available from BHN, such Services will be at additional charges as described in BHN's price list.
8. Service Interruptions; Force Majeure
(a) I agree that BHN has no liability for delays in or interruption to my Services except that, if for reasons within BHN's reasonable control, for more than twenty-four (24) consecutive hours, (i) service on all cable channels is interrupted, (ii) there is a complete failure of the HSD Service or (iii) there is a complete failure of the Home Phone Service, BHN will give me a prorated credit for the period of such interruption or failure if I request one within 30 days of the interruption or failure. Notwithstanding the above, BHN will issue credits for VOD, pay-per-view and pay-per-play events for service problems where a credit request is made within 30 days of the interruption or failure. In no event shall BHN be required to credit me an amount in excess of applicable service fees. BHN will make any such credit on the next practicable bill for my Services. State and local law or regulation may impose other outage credit requirements with respect to some or all of my Services. In such event, the relevant law or regulation will control.
(b) I acknowledge that BHN may conduct maintenance from time to time that may result in interruptions of my Services.
(c) The BHN Parties shall have no liability, except as set forth in Section 8(a), for interruption of the Services due to circumstances beyond its reasonable control, including acts of God, flood, natural disaster, vandalism, terrorism, regulation or governmental acts, fire, civil disturbance, electrical power outage, computer viruses or worms, strike or weather.
(d) BHN is only obligated to provide the above-referenced credits for loss of Services if BHN is billing me for the relevant Service at the time of the outage. If a third party, including my ISP or OLP, is billing me, I will look solely to such third party for a credit with respect to that Service.
9. Review and Enforcement
(c) I agree that BHN shall have the right to take any action that BHN deems appropriate to protect the Services, BHN's facilities or BHN Equipment.
10. Termination of Service
(a) Either BHN or I, each in our sole discretion, may terminate all or any portion of my Services at any time for any or no reason, in its sole discretion, in accordance with applicable law.
(b) If I am moving or wish to terminate all or any portion of my Services for any reason, I will notify BHN by phone or by mail as instructed in the Subscriber Materials in order to set up a disconnect appointment and provide BHN with access to my premises to disconnect the relevant Services and recover the BHN Equipment specified on the Work Order on a DATE PRIOR TO the last day of residency. This also applies if I am receiving a period of free or discounted Services. In other words, at the end of the free or discounted period, BHN is entitled to begin billing me for the usual charges associated with the relevant Services unless I take the appropriate steps to terminate the Services as described in this paragraph.
(c) I cannot terminate my Services by writing "Canceled" (or any other messages) on my bill or check, or by making a disconnect appointment that does not result in BHN's physical recovery of the BHN Equipment. In addition, I agree that any restrictive endorsements (such as "paid in full"), releases or other statements on or accompanying checks or other payments accepted by BHN shall have no legal effect.
(d) I acknowledge that notice given by me to BHN of termination of any Services may not be sufficient to terminate billing by any third party for additional or continuing Services, for example, billing by my ISP or OLP for continuing "dial up" access. I agree that I am solely responsible for contacting any such third party in addition to BHN to ensure that all such Services are terminated in accordance with the third party's terms of service, if applicable.
11. Disclaimer of Warranty; Limitation of Liability
(a) I AGREE THAT THE SERVICES ARE PROVIDED BY BHN ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. BHN MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE, OR THAT THE BHN EQUIPMENT WILL OPERATE AS INTENDED. IN PARTICULAR, I AGREE THAT MY USE OF THE HSD SERVICE (INCLUDING THE CONTENT, INFORMATION, SERVICES, EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO ME AND THE DOWNLOADING OF COMPUTER FILES) IS AT MY SOLE RISK AND THAT BHN DOES NOT WARRANT THAT THE HSD SERVICE OR EQUIPMENT PROVIDED BY BHN WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. I FURTHER AGREE THAT BHN IS NOT RESPONSIBLE FOR THE RECORDING OF OR FAILURE TO RECORD ANY PROGRAM OR PORTION THEREOF, OR FOR THE CONTENT OF ANY PROGRAM OR CONTENT ON MY DVR. WITHOUT LIMITING THE FOREGOING:
(i) ANY AND ALL PRODUCTS AND SERVICES PROVIDED BY BHN AND/OR ISP AND/OR OLP AND/OR ANY LONG DISTANCE PROVIDER AND/OR OTHER THIRD PARTY TO ME THAT ARE NOT PART OF THE SERVICES AS DEFINED HEREIN ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND THE BHN PARTIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH PRODUCTS OR SERVICES; AND
(ii) NONE OF THE BHN PARTIES MAKES ANY WARRANTIES AS TO THE SECURITY OF MY COMMUNICATIONS VIA BHN'S FACILITIES OR THE SERVICES (WHETHER SUCH COMMUNICATIONS ARE DIRECTED WITHIN THE SERVICES, OR OUTSIDE THE SERVICE TO OR THROUGH THE INTERNET), OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR MY EQUIPMENT OR COMMUNICATIONS. I AGREE THAT NONE OF THE BHN PARTIES WILL BE LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS. I HAVE THE SOLE RESPONSIBILITY TO SECURE MY EQUIPMENT AND COMMUNICATIONS.
(b) I ACKNOWLEDGE THAT BHN'S OR MY INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICES, BHN EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO MY COMPUTER(S), TELEPHONES AND TELEPHONE ANSWERING DEVICES, TELEVISIONS, RECORDING AND PLAYBACK DEVICES, AUDIO EQUIPMENT, OR ANY CABLE MODEM, CABLING OR OTHER EQUIPMENT OR HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. I SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER OR OTHER SOFTWARE OR DATA FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF THE BHN PARTIES, OR THEIR VENDORS, LICENSEES OR PROGRAMMERS, SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, SOFTWARE, HARDWARE, DATA OR FILES.
(c) EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN SECTIONS 9(a) AND 8(a) RESPECTIVELY, IN NO EVENT (INCLUDING NEGLIGENCE) WILL ANY BHN PARTY OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES (INCLUDING THE CONTENT INCLUDED THEREIN OR THE SERVICES ACCESSED THEREBY) OR EQUIPMENT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE USE OF OR INABILITY TO USE EMERGENCY 911 SERVICES; FOR ANY ERRORS, OMISSIONS, MISTAKEN INCLUSIONS OR PUBLICATION OF ANY DIRECTORY LISTING INFORMATION, REGARDLESS OF FORM; FOR ANY ACTION TAKEN BY BHN TO PROTECT THE SERVICES; OR THE BREACH BY BHN OF ANY WARRANTY.
(d) I AGREE THAT THE PROVISIONS OF THIS SECTION 11 SHALL APPLY TO ALL CONTENT OR SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICES, AND ARE FOR THE BENEFIT OF, AND MAY BE ENFORCED BY, ALL OF THE BHN PARTIES.
(a) I acknowledge that BHN has provided me a separate Privacy Notice, and that Notice is deemed to be a part of this Agreement. I expressly consent to the collection, use and disclosure of my customer information as set forth in the Privacy Notice and as permitted by federal law, including the Federal Communications Act of 1934, as amended.
13. Consent to Phone and Email Contact
(a) I consent to BHN calling the phone numbers I supply to it for any purpose, including the marketing of its current and future Services. I agree that these phone calls may be made using any method, including an automatic dialing system or an artificial or recorded voice. Upon my request, the phone numbers I have previously provided will be removed from BHN's phone marketing list. I can make this request by calling or writing my local BHN office and asking to be placed on BHN's Do Not Call List.
(b) I acknowledge that being included in any state or federal "do not call" registry will not be sufficient to remove me from BHN's phone marketing list.
(c) I consent to BHN emailing me, at any email address, including that of a wireless or mobile device, that I provide to BHN (or that BHN issues to me in connection with the Service), for any purpose, including the marketing of BHN's current and future Services. If my wireless or mobile provider charges me for receipt of such messages, I acknowledge and agree that I am responsible for paying such charges. I may revoke this authorization insofar as it relates to marketing messages at any time by calling or writing my local BHN office.
(a) If you have a Dispute (as defined below) with BHN that cannot be resolved, you or BHN may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
(b) As used in this Provision, the term "Dispute" means any dispute, claim or controversy between you and BHN regarding any aspect of your relationship with BHN or the BHN Parties that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory.
(c) Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BHN IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT. YOUR WRITTEN NOTIFICATION TO BHN MUST INCLUDE YOUR NAME, ADDRESS AND BHN ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH BHN THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH BHN OR THE DELIVERY OF SERVICES TO YOU BY BHN. IF YOU HAVE PREVIOUSLY NOTIFIED BHN OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
1. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES WHICH ARE SUBJECT TO SECTION 3 OF THE AGREEMENT), OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
3. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH BHN UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
(e) Exclusions from Arbitration. YOU AND BHN AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY BHN THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS;
(2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY'S INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE; (4) ANY DISPUTE THAT ARISES BETWEEN BHN AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. Section 522(9); AND (5) ANY DISPUTE THAT YOU PURSUE BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE.
(f) SPECIAL NOTE REGARDING ARBITRATION FOR CALIFORNIA CUSTOMERS:
IF YOU ARE A BHN CUSTOMER IN CALIFORNIA, BHN WILL NOT SEEK TO ENFORCE THE ARBITRATION PROVISION ABOVE UNLESS WE HAVE NOTIFIED YOU OTHERWISE.
(a) "Affiliated ISP" means Road Runner and any other ISP in which any BHN Party holds an ownership interest.
(b) "Agreement" means this Services Subscription Agreement, as it may be amended from time to time by BHN.
(c) "BHN" means the local Bright House Networks-affiliated cable operator that is providing the Services over its cable system, or any cable operator to whom BHN assigns this Agreement.
(d) "BHN Equipment" means any equipment provided by BHN to me including, but not limited to, converter boxes (also known as "set top" boxes), decoders, CableCARD™, terminals, cable modems, voice-enabled cable modems, remote control units, and any other equipment or materials provided to me by BHN for use in connection with the receipt of Services. BHN Equipment does not include any Network Interface Card ("NIC") installed in my Computer. BHN Equipment does not include any cable wiring, connectors, or mounting hardware installed by BHN which, upon installation, shall become my property. Cable wiring includes for aerial installations the wiring to the utility pole and for underground installations the wiring to the utility pole or pedestal. Ownership of BHN installed wiring and facilities in multiple dwelling units shall be governed by any agreement between BHN and the building owner and applicable rules and regulations of the Federal Communications Commission (“FCC”).
(e) "BHN Parties" means BHN and its corporate parents, affiliates and subsidiaries and their respective directors, officers, employees and agents.
(f) "Computer" means the personal computer(s) located at my residence that will be used to access the HSD Service, as specified on the accompanying Work Order.
(g) "Home Phone Service" means the BHN phone service that provides users with the ability to send and receive local and/or long distance calls and to access additional related features and functions through BHN's cable systems.
(h) "DVR" means a set-top box or other device enabled with a digital video recorder that is provided to me by BHN.
(i) "HSD Service" and "High Speed Data Service" mean the online content, features, functions and Services (which may include Internet access) of the ISP or OLP selected by me, as provided over BHN's cable systems.
(j) "Including" or "include" shall mean inclusion, without limitation.
(k) "ISP" means the Internet service provider selected by me from among those offered now or in the future by BHN for the HSD Service. My ISP is the entity that provides my Internet connectivity.
(l) "Maximum Throughput Rate" means the highest Throughput Rate provided by the level or tier of HSD Service to which I subscribe.
(m) "Me," "My," and "I" mean the account holder identified on the Work Order who is authorized by BHN to access and use the Services.
(n) "Network Management Tools" means tools and techniques that may be used by BHN as it determines appropriate in order to efficiently manage its network, ensure a quality user experience for its subscribers and ensure compliance with the Acceptable Use Policy. Examples of Network Management Tools can be found in the Acceptable Use Policy, http://brighthouse.com/.
(o) "OLP" or "On-line Provider" means a provider of on-line content, features, functions and Services that are used in conjunction with my ISP Service (and whose service may be purchased with an ISP Service as part of a combined offering) but that does not itself provide Internet connectivity.
(p) "Services" means any and all Services provided to me by BHN, which may include Video Service, High Speed Data Service, Home Phone Service and equipment based Services such as digital video recorder Services.
(q) "Software" means the computer software, if any, licensed by ISP or OLP to me to access the HSD Service, or licensed by BHN to me to facilitate installation or use of my ISP's or OLP's service or any other Services. Software also refers to any executable code that may be included in, downloaded to, or utilized by, any BHN Equipment.
(r) "Subscriber Materials" means the handbooks, manuals and other guide materials provided by BHN or any third party (including my ISP or OLP) regarding use of the Services.
(s) "Subscriber Privacy Notice" means the Subscriber Privacy Notice described in Section 12(a), as it may be amended from time to time by BHN.
(t) "Tariff(s)" means the materials describing the terms upon which BHN offers Home Phone Service, which have been filed at the Public Service Commission or comparable state agency serving the jurisdiction in which I live.
(w) "Video Service" means video and/or audio programming Services such as basic, standard, digital and premium Services, Services provided on a per-channel or per-program basis, pay-per-play, pay-per-view or VOD.
(x) "VOD" means video on demand.
(y) "Work Order" means the Bright House Networks work order provided to me in connection with the installation or commencement of my Service(s).
I agree to defend, indemnify and hold harmless the BHN Parties from and against any and all claims and expenses, including reasonable attorneys' fees, arising out of or related in any way to my use of the Services or otherwise arising out of the use of my account or any equipment or facilities in connection therewith, or my use of any other BHN products or Services or any ISP's or OLP's products or Services.
This Agreement will remain in effect until terminated by either party or superseded by a revised Subscription Agreement.
18. Interpretation; Severability
Except as explicitly stated in Section 14, in the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties as set forth herein, and the remainder of this Agreement shall remain in full force and effect.
19. Consent to Electronic Notice
I agree that failure by BHN to enforce any of its rights hereunder shall not constitute a waiver of any such rights. No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default.
I understand that my Services are being provided only to the location identified on my Work Order and that I am not allowed to transfer all or any portion of the Services, or BHN's Equipment, to any other person, entity or location, including a new residence. I agree that I may not assign or transfer this Agreement. BHN may transfer or assign any portion or all of this Agreement at any time without notice to me, and I waive any such notice which may be required.
22. Effect of Applicable Law; Reservation of Rights
23. Parental Control Device
I acknowledge that I have been advised of the availability of BHN's parental control device which can filter or block certain programming. Additional information about the device is available at www.brighthouse.com or contact BHN by phone.
24. Conflicting Terms
In the event of a conflict in the terms and conditions between this Residential Services Subscriber Agreement and the accompanying Work Order, then the terms and conditions of this Agreement shall control.
Serviceable areas only. Some restrictions apply. Products and price of equipment and services subject to change.
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Your California Privacy Rights