IMPORTANT NOTICE REGARDING DISPUTE RESOLUTION

PLEASE READ THIS AGREEMENT CAREFULLY. IT INCLUDES:

• A MANDATORY BINDING ARBITRATION CLAUSE THAT REQUIRES DISPUTES TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN IN COURT.
• A WAIVER OF THE RIGHT TO A JURY TRIAL.
• A WAIVER OF THE RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR OTHER REPRESENTATIVE PROCEEDINGS.

BY USING THE SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE, YOU MUST NOT USE THE SERVICES.

1. Overview

The terms and conditions of this Residential User Agreement (“Agreement”) apply to the provision of any and all internet, telecommunications and related services (“Service” or “Services”) provided by Bluepeak to Customer.

2. Term and Termination

The term of this Agreement shall commence upon the initial installation or activation of any Service and shall continue in full force and effect on a month-to-month basis unless earlier terminated in accordance with the terms of this Agreement. Bluepeak may terminate Services and this Agreement at any time upon written notice to Customer. Customer shall pay to Bluepeak, immediately upon request, all sums then due and unpaid at the time of termination and return all Bluepeak Equipment (as defined hereinafter) to Bluepeak within ten (10) days of the date on which the Services are disconnected. Customer must return all Bluepeak Equipment in working order, with the exception of normal wear and tear. If Customer fails to return the Bluepeak Equipment or returns the Bluepeak Equipment other than in good working order, Bluepeak may charge Customer its then-current standard replacement fee for such Equipment. Bluepeak has the right to retrieve any Bluepeak Equipment you fail to return.

3. Rates and Charges

The rates and charges for the Services are set forth in the Service Order signed by Customer, together with any and all of Bluepeak’s tariffs, as applicable and as amended from time to time. With respect to any Service provided by Bluepeak to Customer for which a rate is not specified in the Service Order, Bluepeak’s standard retail rates shall apply. Customer shall make all payments when due as set forth in Section 5 below.

4. Taxes and Surcharges

In addition to the rates and charges for the Services, Customer shall be responsible for payment of all local, state and federal taxes, fees and surcharges, however designated, imposed on or based upon the provision, sale, or use of the Services and any related equipment, excluding taxes based on Bluepeak’s net income. Customer shall be responsible for payment of all surcharges in effect from time to time, including but not limited to USF surcharges, as required or permitted by applicable law, regulation or tariff or as specified on the Bluepeak website at www.MyBluepeak.com.  The taxes, fees, and surcharges may be changed at any time.  Current fees and surcharges are specified on the Bluepeak website at www.mybluepeak.com/feesandsurcharges/.

5. Billing and Payment

Billing for any Service shall commence immediately following delivery of the Service to Customer’s service address(es). Customer will receive a bill in advance for each month’s Services. All bills are due and payable on the date listed on the bill (“Due Date”). If Customer’s bill is not paid by the Due Date, Customer shall pay Bluepeak, in addition to the amount of the bill, a monthly late charge.  Customer must provide Bluepeak with written notice of any disputed charge(s) within thirty (30) days after the invoice date listed on the bill or Customer shall be deemed to have waived its right to dispute the charges. Customer shall pay the invoiced amount by the Due Date, provided that payment of an invoice shall not be deemed a waiver of Customer’s right to later dispute an invoice within the time period established in this Section. The dispute notice must be in writing and include reasonable detail information concerning the disputed charges and reasons for the dispute. Bluepeak and Customer shall attempt in good faith to promptly resolve any objection to the invoiced amount. If the dispute is resolved in favor of Customer, Bluepeak shall issue a credit on Customer’s subsequent invoice for the disputed amount. If Bluepeak initiates legal proceedings to collect any amount due hereunder and Bluepeak substantially prevails in such proceedings, then Customer shall pay the reasonable attorneys’ fees and costs incurred by Bluepeak in prosecuting such proceedings and any appeals therefrom. In the event Customer fails to pay any invoice when due, or provide Bluepeak with a notice of dispute, Bluepeak shall notify Customer regarding its failure to pay such invoice. If, after Bluepeak has provided such notice, Customer fails to pay such invoice(s) within 5 days after receipt of such notice, Bluepeak may, in addition to any other rights and remedies available to Bluepeak, suspend service under this Agreement until all outstanding invoice(s) are paid in full. If the Services are suspended due to late payment, a reconnect fee may be added to the bill to reinstate the Services.  In addition, Bluepeak may elect to terminate this Agreement and shall be entitled to seek and exercise such rights and remedies that may otherwise be permitted hereunder or at law or in equity. Onetime payments with a Bluepeak representative or via automated phone system will be charged a fee.

6. Customer Premises and Equipment

To provide the Services, Bluepeak may need to enter Customer’s home or other property where the Services will be provided (the “Premises”). Bluepeak may enter the Premises to install, make minor alterations to the Premises as necessary, configure, maintain, inspect, upgrade, replace, and remove the Services or to retrieve Equipment. Customer represents and warrants that Customer owns the Premises or has obtained the authority to give Bluepeak access to the Premises. Customer represents and warrants that Customer owns any equipment that is not Bluepeak Equipment or has obtained the authority to give Bluepeak access to such equipment. Customer further agrees and understands that Customer is responsible for locating and marking any non-utility wires or pipes prior to the drop bury and/or Bluepeak installation (as well as notifying Customer’s landlord, if applicable, to locate and mark any non-utility wires or pipes).  This includes, but is not limited to, locating and marking any and all underground dog fencing, sprinkler system pipes, drain or any other system or network buried within the intended burial path not located by local utilities. Bluepeak may certify certain Customer equipment or recommend particular configurations. Any other Customer equipment or configuration may not meet Bluepeak’s minimum technical or other specifications (a “Non-Recommended Configuration”). Bluepeak reserves the right to deny support for the Services, or terminate the Services, if Customer uses a Non-Recommended Configuration. BLUEPEAK SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT OR FOR CUSTOMER’S FAILURE TO LOCATE AND MARK ANY AND ALL NON-UTILITY WIRES OR PIPES (NOT LOCATED BY LOCAL UTILITIES) AS SET FORTH ABOVE, EXCEPT DUE TO BLUEPEAK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR DOES BLUEPEAK MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT NON-RECOMMENDED CONFIGURATIONS. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY BLUEPEAK THAT CAUSES DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT, BLUEPEAK WILL PAY, AT BLUEPEAK’S SOLE DISCRETION, FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THE FOREGOING REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.

7. Bluepeak Equipment

“Bluepeak Equipment” means all new or reconditioned equipment that Bluepeak provides or leases to Customer, including without limitation cabling or wiring, electronic devices, set-top boxes, adapters, telephones, gateways, optical network terminals, extenders, antennas, modems, routers, CableCARDs, and any other hardware, software, and programs contained within Bluepeak Equipment or downloaded to Customer equipment by Bluepeak. Customer may use the Bluepeak Equipment exclusively in connection with Customer’s authorized use of the Services. Bluepeak Equipment does not constitute a fixture, and shall not be deemed affixed to or a fixture of, the Premises. Bluepeak shall determine, in its sole discretion, which models of Bluepeak Equipment it provides to Customer and may remove or change the Bluepeak Equipment at Bluepeak’s discretion at any time the Services are active or following the termination of the Services, which removal or change may interrupt the Services. Customer may not tamper with, sell, lease, abandon, or give away the Bluepeak Equipment, or permit any other service provider to use the Bluepeak Equipment, at any time. The Bluepeak Equipment may only be used on the Premises unless expressly permitted by Bluepeak. IF CUSTOMER ATTEMPTS TO INSTALL OR USE THE BLUEPEAK EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE PREMISES OR A LOCATION OTHERWISE EXPRESSLY AUTHORIZED BY BLUEPEAK, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. Customer may not allow anyone other than Bluepeak or its agents to service the Bluepeak Equipment. Customer is solely responsible for loss, repair, replacement, and other costs, damages, fees, and charges if Customer does not return the Bluepeak Equipment to Bluepeak in undamaged, good working condition (normal wear and tear excepted). Bluepeak at all times shall retain title to and ownership of the Equipment.  For purposes of clarity, Customer at all times shall retain title to and ownership of the “cable home wiring”, as such term is defined at 47 C.F.R.§76.804, and Customer shall at all times be solely responsible to inspect, maintain, repair, upgrade and replace such cable home wiring as required to receive Services.  

8. Credit Approval

Bluepeak’s provision of Services is subject to the credit approval of Customer. As part of the credit approval process, Bluepeak may require Customer to provide a deposit or other security.  Additionally, if Customer’s financial circumstances or payment history becomes reasonably unacceptable to Bluepeak, Bluepeak may require adequate assurances of future payment as a condition of continuing provision of the Services.  Customer’s failure to provide adequate assurances required by Bluepeak is a material breach of this Agreement.  Bluepeak may provide Customer’s payment history or other billing information to any credit reporting agency or industry clearinghouse.

9. Security

Bluepeak has adopted and implemented, and will maintain, a corporate information security program designed to protect Customer information, materials and data accessed and possessed by Bluepeak from loss, misuse and unauthorized access or disclosure. Such program includes formal information security policies and procedures. The Bluepeak information security program is subject to reasonable changes by Bluepeak from time to time. Bluepeak’s standard service offerings do not include managed security services such as encryption, intrusion detection, monitoring or managed firewall. Customer is responsible for selecting and using the level of security protection needed for all Customer data stored or transmitted via the Service and using reasonable information security practices, including those relating to the encryption of data.

10. Customer Responsibilities

Customer acknowledges that operation of the Services is dependent on the following, each of which Customer shall be solely responsible for providing: (a) broadband Internet connectivity; (b) all equipment, software, facilities and/or Internet Protocol connectivity necessary to reach and interoperate with the Service and the Bluepeak network, including a direct, wired connection to the ONT (Optical Network Terminal); and (c) all other equipment, software and other facilities to be installed, including without limitation, cables, routers, ethernet adapters and/or ports. Customer will reasonably cooperate with Bluepeak or its agents to install the Services. Customer is responsible for damage to Bluepeak-owned facilities and Bluepeak Equipment located on Customer premises, excluding reasonable wear and tear, or damage caused by Bluepeak. Bluepeak may refuse to install Services or may discontinue and disconnect Services without notice, if any condition on Customer’s premises is unsafe or likely to cause injury to any person using Services. 

11. Customer Notification Authorization

Customer agrees by submitting a mobile number and or email address, Customer is consenting to Bluepeak’s communications with Customer by phone, text, and email. Communication will include but will not be limited to installation / service reminders, account status, payment due date, payment confirmation, account changes, promotional offers and outage information. This is a free service from Bluepeak. However, a customer’s mobile service provider may charge Customer to send/receive text messages depending on the terms of Customer’s mobile account.

12. Unauthorized Use of Services

Customer will not use Services: (a) for fraudulent, abusive, unlawful or destructive purposes, including unauthorized or attempted unauthorized access to, or alteration, abuse or destruction of, any Bluepeak or third-party information; (b) in any manner that causes interference with Bluepeak’s or another’s use of the Bluepeak- provided network; or (c) for any other purpose not specifically authorized by this Agreement. Customer will cooperate promptly with Bluepeak to prevent third parties from gaining unauthorized access to the Services via Customer’s facilities. Bluepeak shall have the right (but not the obligation) to take protective action against Customer in order to protect Bluepeak’s network from any unauthorized use, which protective action may include, without limitation, the temporary blocking of Customer’s traffic until the applicable problem is resolved in Bluepeak’s reasonable discretion.

13. Indemnification

Customer will indemnify and defend Bluepeak, Bluepeak’s officers, directors, agents, and employees and their successors, against all third-party claims for damages, losses, liabilities or expenses, including reasonable attorneys’ fees, arising out of Customer’s transmissions, or transmissions by parties authorized by Customer, of, information, data, or messages over the Bluepeak-provided network leading directly or indirectly to third-party claims: (a) for libel, slander, invasion of privacy, infringement of copyright, and invasion or alteration of private records or data; (b) for infringement of patents arising from the use of equipment, hardware or software not provided by Bluepeak; and (c) based on transmission and uploading of information that contains viruses, worms, other destructive media or other unlawful content.

14. No Warranty; Limitation of Liability

BLUEPEAK MAKES NO WARRANTIES ABOUT THE BLUEPEAK EQUIPMENT OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BLUEPEAK DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON BLUEPEAK’S BEHALF AND THE CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF BLUEPEAK. THIRD-PARTY ITEMS ARE PROVIDED AS IS AND WITHOUT WARRANTY. IN NO EVENT SHALL BLUEPEAK (OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND THEIR SUCCESSORS) BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITIES, LOSS OF CUSTOMERS, CLIENTS OR GOODWILL) PUNITIVE, OR EXEMPLARY DAMAGES, ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, AND REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE. BLUEPEAK’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICE PROVIDED TO CUSTOMER (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE INSTALLATION, DELAY, PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR RESTORATION OF ANY SUCH SERVICE) OR BREACH OF THIS AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE LIMITED TO A MAXIMUM OF A TOTAL AMOUNT OF ALL FEES PAID BY CUSTOMER TO BLUEPEAK IN THE MOST RECENT THREE-MONTH PERIOD HEREUNDER EXCEPT TO THE EXTENT LIABILITY CANNOT BE LIMITED UNDER APPLICABLE LAW. THE PROVISIONS OF THIS SECTION CONSTITUTE AN ALLOCATION OF RISK BETWEEN THE PARTIES AND THE PRICE CHARGED CUSTOMER IS BASED ON SUCH ALLOCATION OF RISK. THE TERMS OF THIS SECTION SHALL SURVIVE THE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY OR THE TERMINATION OF THIS AGREEMENT FOR ANY REASON.

15. DMCA

Bluepeak is committed to complying with U.S. copyright and related laws, and expects all of our customers, users, and visitors (collectively and each individually, “users”) to comply with these laws. Users may not store any material or content on, or access, share, or disseminate any material or content over, any of our product or service offerings that in any manner that infringes third party intellectual property rights, including U.S. copyright rights.

We comply with the Digital Millennium Copyright Act (“DMCA”) and provide a method for copyright owners to communicate information about alleged infringements to us, and for us to inform our users about them, as further described below. Users may receive notices or alerts if their Bluepeak account is identified by a copyright owner as having been used in connection with acts of alleged copyright infringement. We understand that copyright owners may use their own notification of claimed infringement form that satisfies the requirements of the DMCA. If you are the owner of a copyrighted work who believes that your rights under U.S. copyright law have been infringed by our subscribers or any material on our offerings, you can report that to us by sending our authorized agent a properly authenticated notification of claimed infringement that satisfies the requirements of the DMCA to the address listed below:

DMCA Notifications

Copyright Manager—Network Operations Center

Address: 4600 S. Ulster, Ste. 1300 Denver, CO 80237

Phone:1-888-975-4258

Email: Abuse@MyBluepeak.com

Bluepeak maintains a policy to terminate a Bluepeak account, in appropriate circumstances, where any user of the account is a repeat infringer of third-party copyright rights under our repeat infringer policy. Our policy includes graduated or escalated alerts of alleged infringements, required action by users for certain alerts, suspension of a Bluepeak product or service offering, the application of other interim measures determined in Bluepeak’s sole discretion to the offering, and, in appropriate circumstances, termination of the offering (and other services provided by Bluepeak to the user). We also reserve the right to terminate our offerings at any time with or without notice for any affected user who we, in our sole discretion, believe is infringing any copyright or other intellectual property rights.

16. Internet Services Disclosure Statement

Bluepeak makes every effort to support advertised speeds and will dispatch repair technicians to Customer sites to perform speed tests as needed to troubleshoot and resolve speed and application performance caused by Bluepeak’s network.  Bluepeak measures availability, latency, and aggregate utilization on the network and strives to meet internal service level targets.  Internet speeds are not guaranteed and may vary.  However, the bandwidth speed at which a particular distant website or other Internet resources may be downloaded, or the speed at which Customer’s information may be uploaded to a distant website or Internet location is affected by factors beyond Bluepeak’s control, including the speed of the connection from a distant web server to the Internet, congestion on intermediate networks, and/or limitations on Customer’s computer equipment, including a wireless router.  In addition, Customer’s Service performance may be affected by the inside wiring on Customer’s premises.   Other factors include, without limitation, the number of workstations and/or devices using a single connection.  Accordingly, Customer must consider the capabilities of Customer’s own equipment when choosing a Bluepeak Service. Customer’s computers and/or wireless or other networks in Customer’s homes or offices may need an upgrade in order to take full advantage of the chosen Bluepeak plan.

17. 911 Service

BY ACTIVATING AND PAYING FOR THE SERVICES, CUSTOMER AGREES TO THE LIMITATIONS OF BLUEPEAK’S 911 EMERGENCY DIALING SERVICE (THE “911 SERVICE”) SET FORTH HEREIN AND UNDERSTANDS THE DISTINCTIONS BETWEEN SUCH 911 SERVICE AND TRADITIONAL 911 or E911 CALLS. Bluepeak is not responsible for any 911 Service failures or outages, including such failures or outages related to the loss of electrical power, connectivity, suspension or termination by Customer’s broadband or Internet service provider, the blocking of ports by Customer’s broadband or Internet service provider, or resulting from local or national disasters.  Emergency personnel do not receive Customer’s phone number or physical location when a 911 call using the 911 Service is routed to a national emergency call center. Customer acknowledges and agrees that a national emergency call center may disclose Customer’s name and address to all third parties with providing emergency services, including, without limitation, call routers, call centers and local emergency centers. Customer must register with Bluepeak each primary phone number and address that Customer uses for the 911 Service and will receive an email confirmation from Bluepeak that the 911 Service has been activated for that primary phone number. If Customer fails to update such phone number and address or uses the 911 Service prior to receiving such email confirmation from Bluepeak, any 911 calls made using the 911 Service may be sent to an emergency center near the previously registered address. Customer may only register one address at a time for each corresponding phone number.

18. Notices

All notices and communications required or permitted under this Agreement shall be in writing and shall be given by personal delivery, recognized national overnight courier service (i.e. Federal Express), by registered or certified mail, return receipt requested, or by email, addressed to: (a) in the case of Customer, to the address provided at the time of Customer’s purchase of the Services; and (b) if to Bluepeak, to 5100 S. Broadband Lane, Sioux Falls, SD57108, Attn: Customer Service Department, or if by email, to customerservice@mybluepeak.com. Notice shall be deemed given upon receipt.

19. Force Majeure

Neither party shall be liable to the other, nor shall any remedy be extended, for any failure of performance under this Agreement (other than failure to make payments) proximately due to causes beyond that party’s reasonable control, including but not limited to: acts of God, fire, explosion, flood, earthquake, tornado, storms, any law, order, regulation, action or request of any government or regulatory entity or agency, or any civil or military authority; emergencies; civil unrest, insurrections, riots, wars; power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like.  Upon the occurrence of any such events, the affected party shall use its reasonable efforts to notify the other Party of the nature and extent of any such condition.

20. Miscellaneous

No consent by Bluepeak to, or waiver of, a breach or default by Customer, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default. If any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State where the Services are provided, without regard to its conflict of laws principles.

21. Severability

If any provision of this Agreement, or the application of any such provision to any person or circumstance, is held to be invalid, illegal, or unenforceable under applicable law, the remainder of this Agreement shall remain in full force and effect and shall be construed in a manner that most closely reflects the original intent of the Parties. To the extent permitted by law, the Parties agree that such unenforceable provision shall be modified or limited to the minimum extent necessary to make it valid, enforceable, and consistent with the Parties’ original intent. If such modification or limitation is not possible, the provision shall be deemed severed from the Agreement, and the remainder shall continue in effect. Notwithstanding the foregoing, if the provisions related to dispute resolution, binding arbitration, class action waiver, or jury trial waiver are found to be invalid or unenforceable with respect to any claim, then such claim shall proceed exclusively in a court of competent jurisdiction as set forth in this Agreement, and the Parties hereby waive, to the fullest extent permitted by law, any right to a trial by jury for such claim. This severability clause shall survive the termination or expiration of this Agreement.

22. Waiver of Jury Trial

TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, OR ANY TRANSACTION CONTEMPLATED HEREBY.

THIS WAIVER APPLIES TO ANY LEGAL CLAIM, ACTION, OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, STATUTE, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO CLAIMS FOR FRAUD, MISREPRESENTATION, NEGLIGENCE, OR BREACH OF DUTY.

EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT AND THAT EACH PARTY HAS HAD AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL REGARDING THE IMPLICATIONS OF THIS WAIVER.

THIS JURY TRIAL WAIVER SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

23. BINDING ARBITRATION AND CLASS WAIVER OF ANY RIGHT TO PURSUE ANY CLAIM OR ACTION RELATING TO THIS AGREEMENT ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

Any claim, dispute or controversy arising out of or relating to this Agreement Equipment or the Services (collectively referred to as “Dispute”) shall be resolved with the following procedures:

• Informal Resolution. In the event of any Dispute, the Parties shall first attempt to resolve the Dispute informally and in good faith. The complaining Party must provide written notice to the other Party identifying the issue and proposed resolution. The Parties shall cooperate in good faith to resolve the Dispute within thirty (30) days of such notice (the “Negotiation”). If the Dispute is not resolved within that period, either Party may proceed to arbitration as set forth below.
• Binding Arbitration. (i) Any Dispute for less than one million dollars ($1,000,000) not resolved through Negotiation shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as modified by this Agreement. The arbitration shall be conducted by a single arbitrator in the county of the customer’s billing address or another mutually agreed location, or, at the election of either Party, conducted telephonically, virtually, or by video conference to the extent permitted by the AAA. (ii) Any Dispute for one million dollars ($1,000,000) or more not resolved through Negotiation shall be resolved exclusively and finally by binding arbitration and the arbitration shall be conducted in Denver, Colorado and administered under the AAA Commercial Arbitration Rules as modified by this Agreement, unless the Parties mutually agree otherwise. The arbitration shall be conducted by a panel of three arbitrators, each of whom shall have at least ten (10) years of experience in commercial or telecommunications law.
  
  For purposes of both 23(b)(i) and (ii), (1) the arbitration shall be conducted in the English language; (2) judgment on the arbitrator’s award may be entered in any court of competent jurisdiction; (3) the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., governs the interpretation and enforcement; (4) the arbitrator(s) may award costs and/or attorneys’ fees to the prevailing party; (5) the arbitrator(s) shall-have no authority to award non-monetary or equitable relief; (6) any monetary award shall not include punitive damages; (7) the arbitration, including the results, shall be confidential between the parties and neither shall disclose any information relating thereto to any other person (except its attorneys and legal representatives on a need-to-know basis) or as required by law; (8) subject to (4), each party shall bear its own costs incurred in connection with the arbitration; (9) other costs will be allocated as the arbitrator directs; and (10) the decision of the arbitrator(s) shall be final and binding, except for any appellate right which may exist under the FAA.
• Class Action Waiver. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BRING OR PARTICIPATE IN ANY CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THE PARTIES AGREE THAT ANY DISPUTE SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT ON A CLASS OR COLLECTIVE BASIS. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONSOLIDATE CLAIMS OR AWARD RELIEF TO ANYONE OTHER THAN THE INDIVIDUAL PARTIES.
• Opt-Out Right. Customer may opt out of this arbitration agreement by providing written notice to Bluepeak within thirty (30) days of entering into this Agreement. The opt-out notice must include the Customer’s full name, billing address, account number (if applicable), and a clear statement that the Customer does not wish to resolve disputes through arbitration. Opt-out notices must be sent to: 4600 S. Ulster, Ste. 1300, Denver, CO 80237.
• Exclusions. Nothing in this Section shall be deemed to prohibit either Party from seeking: (i) equitable or injunctive relief in a court of competent jurisdiction to prevent actual or threatened misuse of confidential information or intellectual property; or (ii) relief with a regulatory agency with jurisdiction over telecommunications or internet services.
• Survival. This Section survives any termination or expiration of this Agreement.
• The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act. The arbitration, including the results, shall be confidential between the parties and neither shall disclose any information relating thereto to any other person (except its attorneys and legal representatives on a need-to-know basis). Each party shall bear its own costs incurred in connection with the arbitration. Other costs will be allocated as the arbitrator directs. 

© Bluepeak, all rights reserved (rev 6/2025)