1. THE SERVICES.
bcn.net provides certain Internet based services, such as broadband connectivity and email, as well as customer support and account management services. We have agreed to provide Broadband Services to you. We may provide additional Services to you. The specific Services and speeds of those Services that will be provided to you under this Agreement are set forth in your Pricing Schedule.
The Services may be provided through or supported by a third party telecommunications provider, which retains the right to cancel or modify the Service before or after installation at its sole discretion at any time. Although pre-qualification provides a good measure of certainty regarding Service availability, it is not a guarantee of Service.
The Broadband Service is a best-effort service and circuit uptime is not guaranteed. The Broadband Services do not include a provision for credits for any down time. If you need a connection with a Service Level Agreement (SLA) that defines procedures and credits for down time, please contact us about alternative services that may be available to you, such as T1, dedicated lines, etc.
Your Internet connectivity speed will vary depending on the plan, line capabilities (e.g., loop length, line condition, gauge of copper wire and phone company provisioning), your distance from the local service provider's central office, Internet congestion, the upload and download speed of your destination server, and many other factors. The maximum speed is stated under optimal conditions and may vary significantly. Speeds are subject to a 20% overhead (e.g., 768k stated speed = 768k times 80% throughput = 614k actual speed). All circuits are provisioned at the highest attainable speed rate for their specific line and come with no minimum speed guarantees. At present, we do not cap or limit any bandwidth or downloads, but reserve the right to change this policy if we determine to do so, in our sole discretion, or if our telecommunications provider imposes such limits or requests that we impose such limits.
2. SUBSCRIBER INFORMATION AND REPRESENTATIONS.
The Broadband Service is provided either as a 'Residential Service' or 'Business Service' depending on how it is to be used. You must choose the type of service during the ordering process. By ordering Residential Services, you are representing that the Services provided to you under this Agreement will not be used substantially for business. Residential Services are intended to be used only for personal/family use and are not to be principally used by a business organization in its operations (although it is recognized that from time to time individuals may use residential Services in connection with their employment by a third party employer and such use, if not a substantial use of the Services, shall not constitute a 'Business Service'). If at any time it is determined by us that you are using the Residential Services as a "Business Service," you will be responsible to pay additional charges and fees applicable to those Services, including any termination charge that may apply if such Business Services are not available.
In ordering and using the Services, you represent that you are at least eighteen (18) years of age, have the legal capacity and authority to enter into this Agreement and affirm that any information you supply to us is correct and complete. You understand that bcn.net relies on the information you supply and that providing false or incorrect information may result in Service delays or the suspension or termination of your Service. You agree to promptly notify bcn whenever your relevant personal or billing information changes, including without limitation, your name, address, telephone number, and billing/payment account, including any applicable credit card number and/or expiration date. Your Services may be suspended and late fees or reconnect fees may apply if your payment account information expires.
3. GENERAL PRICING AND FEES.
bcn prices are shown in the applicable Pricing Schedule and you will be charged based on the Plan and Options selected during the ordering process. If you selected a "Month to Month" Plan, if available, you will initially be charged the monthly price(s) listed on the Pricing Schedule corresponding to your chosen Plan and Options. However, these monthly prices are subject to increase to bcn's general then current prices at any time. If you selected a "1 Year Contract" Plan, you are deemed an "Annual Subscriber" and will pay the monthly price(s) listed on the Pricing Schedule corresponding to your chosen Plan and Options.
4. SETUP AND ACTIVATION FEES.
If you are a month-to-month Subscriber, a non-refundable activation fee of one hundred and ninety-nine dollars ($199.00) will be charged unless otherwise stated in the applicable Pricing Schedule or Order.
5. PAYMENT, LATE FEES AND OTHER CHARGES.
Unless set forth in writing, there is no money back guarantee for any Services. There are no pro-rated refunds for unused time, including for pre-paid plans. Unless otherwise stated in the Pricing Schedule, we will invoice and charge you monthly at the beginning of each month. During your first month of Service, you will be charged on a pro-rated basis for the first partial month of Service. All payments are processed electronically, so you must provide us with a valid credit or debit card and keep such information updated. If your payment fails to process at any time during this Agreement, bcn.net may deny, discontinue or otherwise suspend your Service until full payment is received. You are still responsible for paying any applicable fees while Services are suspended due to non-payment. All accounts suspended for non-payment are subject to a twenty five dollar ($25.00) re-activation fee.
You must provide notice of any disputed charges within sixty (60) days from the date of such charge together with sufficient information and detail for us to be able to evaluate the dispute no dispute can be made with regard to such charges after expiration of such time period. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and other applicable fees and charges, as imposed by the collection agency. You agree to pay a twenty-five dollar ($25.00) service charge on all returned checks, disputed credit cards, and credit card chargebacks. Past due accounts will accrue a monthly charge of one and one-half percent (1.5%) of the past due balance or one dollar ($1.00), whichever is greater.
We require you to use our supplied Internet equipment (Comtrend modem) with the Services. Use of a third-party modem will not be supported. You will have the option to either (a) purchase a modem for a non-refundable fee.
Purchased equipment is warrantied from manufacturing defects for a period of one year from the date of purchase. Should a field technician or support representative determine that your modem does not function correctly and you are within one year of your modem purchase date, we will replace the modem with a comparable no cost to you other than applicable field technician dispatch fees. Purchased equipment is only warranted at the speed and location of your initial order. Should you make any changes to your account including but not limited to moving your service, upgrading your service or requiring a reconnect of your service for any reason you may be required to purchase or lease new equipment.
Depending on suppliers and availability, a modem we supply may either be a single port or multi-port modem. The modem may or may not have wireless capabilities built in. Should you wish to connect multiple computers to your Internet connection (wired or wirelessly) and your supplied modem does not come with multiple ports or wireless capabilities, you may connect a third party router to the modem. bcn does not provide support for router(s) or any third party equipment. If your router(s) or any third party equipment are not compatible with the Service it does not relinquish you from your obligations under this Agreement, and you remain responsible for monthly Service fees, Early Termination Fees and all other fees, charges and other obligations provided for in this Agreement should you choose to terminate service.
This Agreement is effective as described above and shall continue until such Services are terminated by you or us pursuant to this Agreement. bcn is not responsible to notify an Annual Subscriber upon expiration of any annual plan. It is the responsibility of each Annual Subscriber to know or confirm when the applicable annual plan expires.
8. TERMINATION BY SUBSCRIBER.
You may terminate this Agreement at any time for any reason by providing BCN with thirty (30) days written notice requesting termination of Services. You are still responsible to pay all fees and other charges accrued or otherwise payable under the terms of this Agreement. The thirty (30) day period begins on the date on which BCN receives your valid written termination request. A monthly Subscriber's termination will be effective on the later of (a) the end of last day of the calendar month during which such thirty (30) day period ends (e.g., a valid written termination request received by bcn any time during January will result in termination effective at the end of February) or (b) the end of last day of the calendar month requested by the Monthly Subscriber. An Annual Subscriber's termination, if received by bcn at least thirty (30) days prior to the end of the twelve (12) month term, will be effective at the end of such twelve (12) month term, or such earlier date as the Subscriber requests, and such Annual Subscriber must pay, in addition to all fees and other charges accrued or otherwise payable under the terms of this Agreement, an early termination fee equal to the lesser amount of two hundred and fifty dollars ($250.00) or the amount that would otherwise be payable through the end of the annual plan ("Early Termination Fee"). In the event an Annual Subscriber terminates this Agreement prior to the end of the initial twelve (12) month term because of a service-related problem not caused by the Subscriber that bcn has failed to cure after what DSL Extreme determines in its sole discretion to be a reasonable amount of time based on the circumstances, the Subscriber is entitled to a waiver of the Early Termination Fee. For clarity, problems with inside wiring is not considered a service-related problem under the preceding sentence. For such waiver to apply, the reason for the waiver stated above must have occurred before termination and the Subscriber must report such reason for termination to bcn in its valid written termination request. bcn must in turn be given the opportunity to resolve the problem and the Subscriber must be willing to troubleshoot with bcn as well as be available for and authorize and pay for the dispatch of a network provider technician. bcn does not monitor Subscriber accounts for activity, and absence of activity or cancellation of a Subscriber's telephone line will never constitute a termination request with respect to the Services. A written termination request is valid only if it includes your Broadband phone number, main username, date you wish the service to be cancelled and the reason for canceling. It must be submitted to us using one of the following methods:
1. Online at http://www.bcn.net/cancel/
2. e-mail firstname.lastname@example.org
3. Via mail to:
Berkshire County Network
Attn: Cancellation Department
1 East Hoosac St.
Adams MA 01220
9. TERMINATION BY BCN.NET.
If, in our sole discretion, (a) you are in breach of any of the terms of this Agreement (including for non-payment) or the Acceptable Use Policy or any other policy incorporated herein; (b) you use the Services in a way that is prohibited by law or that is disruptive to, adversely impacts or causes a malfunction to the Service, our servers or other equipment, or the use and enjoyment of other users; (c) you act in an abusive or menacing manner when dealing with BCN's technical support staff, customer service staff or any other BCN employees or representatives; (d) we receive an order from a court to terminate your Service; or (e) BCN for any reason ceases to offer the Service, then BCN at its sole election may terminate or suspend your Service immediately without notice. For a termination in accordance with this paragraph, you remain liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the Early Termination Fee and equipment charges set forth herein, if applicable, provided the Early Termination Fee will not apply if we terminate the Service in accordance with subparagraph (e) for no reason or default by you.
10. TERMINATED SUBSCRIBER.
We may, in our sole discretion, refuse to accept your request or application for renewal or resubscription following a termination or suspension of your Service. If your Service is terminated for any reason, you may, upon approval by BCN, submit a new order and enter into a new Agreement and must pay a new setup or activation fee. In addition you still remain responsible for any applicable charges and fees including any applicable termination fee. Any remaining balance and fees from your original agreement must be paid prior to reconnecting service. Upon termination of your account or your use of the Service, we have the right to immediately delete all data, files and other information stored in or for your account without further notice.
Unless you request otherwise, we will work to provide you the earliest available installation and activation date. Any installation date we provide to you is only an estimate and is not a guaranteed installation date. You agree that circumstances may arise which delay installation or activation and any such delay will not be considered a breach of this Agreement by BCN. Payment for your initial month's service (and if applicable: setup fees, installation fees, and equipment) must be received prior to your activation date in order for your setup instructions and IP information to be released to you. If your payment is not received by your activation or turn-on date, you will be responsible for the Service fees even though your IP and setup information has not been provided to you. Your computer must be equipped with an Ethernet Network Interface Card (NIC) for proper Broadband operation. BCN does not include a PCI NIC as part of the modem package.
Self-installation, if available, allows a Subscriber to self-install the necessary equipment. This option provides service to the minimum point of entry ("MPOE") of your residence or office. Your MPOE is normally located outside your building. Inside wiring and inside wiring repair is not included with this option. If inside wiring or inside wiring repair is required, you must contract with a third party professional for such work at your own cost. Faulty inside wiring is not grounds for cancellation of your contract. Multi-line phones, phone systems, alarm system or special phone configuration may require a professional installation or special multi-line phone filters. BCN does not provide nor is responsible for any special equipment, including but not limited to a POTS splitter or multi-line phone filters. A required professional installation, need for special equipment in order to establish a connection or an incompatible phone line or phone system is not grounds for cancellation of the Services or this Agreement.
If self-installation is not available or a professional installation is required, installation personnel will need to be dispatched to your premise to complete the professional installation. A professional installation fee of one hundred ninety-nine dollars ($199.00) will apply unless otherwise stated in the applicable pricing schedule. A professional installation includes configuring the modem for service. If necessary, the technician may perform up to one hour of inside wiring work, including the installation of a new jack or new wiring for any Services. If additional inside wiring work is required, you agree to pay one hundred dollars ($100.00) per each additional hour, billed in one hour increments. DSL Extreme does not warranty any inside wiring work and engages independent contractors to perform such work. You agree that any such technician or other person dispatched to troubleshoot your line is not an employee or agent of BCN and BCN is not liable for any damages, costs or expenses relating to or arising from any acts, errors or omissions by any such technician or other person. You will be required to sign or confirm an agreement with any technician.
13. DIAL-UP SERVICE.
The Services under this Agreement do not include dial-up access. You can add dial-up access service for an additional twenty dollars ($20.00) per month. We can provide a list of locations where dial-up access is available, as it may not be available in all locations. We will not be responsible for any phone charges incurred while dialing our service. You should check with your local phone company to make sure the number you use is a local, toll-free call from your area. If you add dial-up service, it is licensed to a single account for one connection at any given time. Simultaneous logins are not allowed, and will result in suspension of your dial-up access. Dial-up service is not intended to be a dedicated line. Dedicated modems or unmonitored modems connected via dial-up service on a continuous basis are not allowed and will result in the cancellation of your dial-up access.
14. TECHNICAL SUPPORT.
BCN assumes that you have a basic understanding of your computer. BCN will not train you in basic computer skills (e.g., Opening a Web Brower and browsing the Internet). Technical support is intended to facilitate the setup of your properly functioning computer system for access to the Services. Your computer must recognize the network card, and receive network link connectivity before any technical support may be provided. Support is only available for computers running recent versions of the Macintosh or Windows operating systems. Our technical support staff is not trained to, has no obligation to and will not assist you in installing and/or troubleshooting modems, network cards, routers, complex network configurations or telephone lines, neither will they provide any technical assistance or support for any third party Software. BCN is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. It is your responsibility to initiate and be available for technical support during BCN's hours of operation. If you wish to utilize BCN's technical support, you must be available to help troubleshoot the connection or computer setup. We do not provide on-site technical support. However phone company technicians may be dispatched to troubleshoot the circuit with your approval. You are solely responsible for all charges involved with dispatching a technician to troubleshoot your line. Charges are currently one hundred fifty dollars ($150.00) per visit or truck roll, which includes one hour of work and one hundred dollar ($100.00) for each additional one hour of work billed in one hour increments. All such charges are subject to change with no prior notice. You agree that any such technician or other person dispatched to troubleshoot your line is not an employee or agent of BCN and BCN is not liable for any damages, costs or expenses relating to or arising from any acts, errors or omissions by any such technician or other person. A one hundred dollar ($100.00) fee will apply for any missed appointments, missed field technician dispatches or missed professional installation appointments.
16. EMAIL, ANTI-SPAM AND ANTI-VIRUS.
BCN provides one (1) primary email address and a limited number of additional email addresses per Subscriber account. The primary email address username is selected and reserved during the order process. All mail stored on the server for an account that has been deactivated will be automatically removed and cannot be recovered. BCN is not responsible for any lost email due to an account being deactivated. The anti-spam and anti-virus filters are services available for Subscribers. The anti-spam and anti-virus features are on by default. The anti-virus server software is a commercially available third party product designed to stop viruses before they reach your mailbox. We take no responsibility for your computer and any viruses not blocked by the software. We highly recommend using third party virus protection software that runs on your computer in addition to the anti-virus filter to better ensure virus protection. DSL Extreme takes no responsibility for legitimate virus free email that is blocked by virus software.
The anti-spam filter protection help protect clients from receiving spam in their Inbox. The spam that is filtered will be moved to a folder labeled "SPAM" and can be accessed from the webmail interface (http://www.bcn.net/webmail). Messages will be stored in the SPAM folder and can be retrieved for up to thirty (30) days. Messages thirty (30) days or older will automatically be permanently deleted by the server. It is the Subscriber's responsibility to check these messages to ensure no legitimate email was filtered. BCN is not responsible for any email messages, legitimate or not, that are filtered or deleted by the spam filtering software. BCN currently utilizes the everyone.net platform to provide mail service to Subscribers. As a Subscriber, you agree to the terms of service that are located at http://www.bcn.net/enduseremail. BCN reserves the right to change mail platforms and mail options at any time without prior notification.
17. MOVING YOUR SERVICE.
Subscribers are permitted to move their Service to a new location where dsl is available.
18. CHANGING SUBSCRIPTIONS.
You may change your plan speed at any time.
19. IP ADDRESSES.
Dynamic IP Subscriptions allow Subscribers to obtain up to 1 public IP that can change at any time. Static IP Subscriptions are available in increments of one static IP addresses at an additional cost as listed in the Pricing Schedule. Upon expiration, cancellation or termination of this Agreement, a Subscriber must relinquish any IP addresses or address blocks assigned to them by BCN. BCN may choose to assign any Subscriber on Dynamic or Static IP Subscriptions a new IP address at any time with no prior notice.
20. ACCEPTABLE USE.
You agree to use the Services in accordance withBCN's acceptable use policy ("Acceptable Use Policy") published at http://www.bcn.net/acceptable. BCN reserves the right to make changes to the Acceptable Use Policy without notice.
22. PORT FILTERING.
A port 25 (outgoing mail) filter is applied to all Subscribers to prevent against spam generated from our network. DSL Extreme reserves the right to block any port without prior notice to protect the network and its Subscribers from potential virus attacks spreading over a certain port.
23. WARRANTIES AND LIMITATIONS OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED BY BCN HEREUNDER AND IN CONNECTION WITH THE SERVICES IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY BCN (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT), BCN (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY DSL EXTREME OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF DSL EXTREME TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
BCN DOES NOT WARRANT OR GUARANTEE THAT BCN BROADBAND SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF BCN HAS ACCEPTED YOUR ORDER FOR BROADBAND SERVICE. THE PROVISIONING OF BROADBAND SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR DSL EXTREME SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY DSL EXTREME -PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
BCN DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY BCN WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. BCN SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. BCN MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. BCN MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL BCN (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF BCN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION ALSO APPLY TO BCN'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH BCN (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), DSL EXTREME'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
BCN RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS BCN (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEMENT OR SUBJECTING BCN (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIONAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF BCN (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
DSL Extreme or third parties may provide links to websites other than http://www.bcn.net. Because BCN has no control over such websites, you acknowledge and agree that BCN is not responsible for the availability of such external sites or links and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that DSL Extreme will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
You agree to defend, indemnify and hold harmless BCN from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement or the Acceptable Use Policy by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, any software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
BCN may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service) by posting such revisions to our website at http://www.bcn.net/terms. Subscribers agree to visit this page and the links thereon periodically to be aware of and review any such revisions. Increases to the monthly price of the Service for Monthly subscribers shall be effective beginning with the calendar month following the calendar month in which such increases are posted. Revisions to any other terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Subscriber accepts and agrees to the revisions and to abide by them. Any Subscriber who does not agree to the revision(s) must terminate their Service immediately.
You agree not to assign or otherwise transfer this Agreement in whole or in part. Any attempt to do so shall be void. BCN may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
28. CHOICE OF LAW.
You and DSL Extreme agree that the substantive laws of the State of Massachusetts, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND BCN CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN BERKSHIRE COUNTY, MASSACHUSETTS FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including Massachusetts laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
BCN's failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
30. THINGS BEYOND BCN'S CONTROL.
BCN will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
31. ENTIRE AGREEMENT.
This Agreement, including all policies posted on bcn's website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and bcn with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
Notices by bcn to you shall be deemed given: (a) when sent to your email address, (b) when deposited in the United States mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your home, as applicable.
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.