Terms & Conditions
Last Updated: September 21, 2023
- Internet Security. Maintaining the security of your personal computer is an important part of protecting your own privacy and of helping us protect our network and customers’ service. a. What You Can Do – You should follow our Acceptable Use Policy found at mybluepeak.com/AUP and use and regularly update your antivirus software, firewall, wireless network security, and operating system to prevent unauthorized access by others and harm from various forms of viruses. You should regularly back up your computer to preserve your files, including email or other messages you want to keep. Persons with questionable intent may use the Internet or email to pose as someone you trust or do business with. You should always be sure who you are dealing with before clicking on an internet link or giving personal information. To avoid all these and other forms of attacks, we encourage you to visit our website at www.mybluepeak.com or the Federal Trade Commission (“FTC”) at http://www.ftc.gov for regular updates and tips on protecting yourself. Bluepeak and our customer service department may take protective action related to the Services or contact you directly with information from time to time to help maintain the security of the Services. Moreover, since we cannot control web sites or Services operated by third parties, you should review their terms of service and privacy. While we take reasonable steps to protect your Services, we highly recommend that you regularly change your login password, using hard-to-guess combinations of numbers and letters. Once communications enter the Internet, it is possible for them to be accessed by third parties over whom we have no control. b. Spam – Bluepeak tries to prevent and to block spam, and we encourage your help by preventing unauthorized access to your computer. We suggest that you remain up-to-date on ways to avoid and combat spam by watching for advice and tips on our website at www.mybluepeak.com. We may use email to send transactional or relationship messages related to your service. If you prefer, you may opt-out of other marketing messages we may send by any of the methods set forth in Section 2 above (Use, Disclosure, Sharing and Retention of Personal Information).
- Security of Information. We have implemented measures intended to protect your personal information from accidental loss and from unauthorized access, use, alteration and disclosure. For our most sensitive databases, we use encrypted formats within controlled and secure environments that have restricted access. Please note that the electronic transmission of information is not completely secure. We cannot guarantee that the security measures we have in place to safeguard personal information will never be defeated or fail, or that such measures will always be sufficient or effective. Data breach notifications shall be sent out in accordance with applicable laws. Any transmission of personal information is at your own risk.
- Children’s Privacy. The websites provided by Bluepeak are not directed at, nor intended for use by, children under the age of 13. If you believe your child may have provided us with personal information, you can contact us at the return address on this notice or found on your monthly bill and we will delete the information. You can find more information about protecting children’s privacy by contacting the FTC or viewing its website at http://www.ftc.gov. As a provider of an electronic communications service, we are required by law to report any evidence we may become aware of relating to violations of laws concerning child pornography.
- Customer Rights. As a customer, you may review your Personal Information maintained by us by contacting a Customer Care representative. We will need a reasonable amount of time to collect the information and remove any references to other customers. You may request correction of any errors in Personal Information that we collect or maintain pertaining to you. You have the right under federal law to enforce your legal privacy rights concerning our collection, use, and sharing of your Personal Information.
- Other Agreements. Other terms and conditions affect our Service offerings, including certain Cable Television service contracts, our Acceptable Use Policy (located at http://www.mybluepeak.com/AUP), tariffs, network transparency disclosures, and the Residential User Agreement (located at http://www.mybluepeak.com/residential-user-agreement) for our websites. Changes in our service offerings, the law, and policy may cause us to make changes to this and other policies from time to time in our sole discretion.
BY PLACING AN ORDER WITH CLARITY TELECOM, LLC D/B/A BLUEPEAK, OR ANY OF ITS AFFILIATES (INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “BLUEPEAK”), CUSTOMER HEREBY AGREES TO THE TERMS OF THIS BLUEPEAK RESIDENTIAL USER AGREEMENT (THIS “AGREEMENT”).
- The terms and conditions of this Agreement apply to the provision of any and all telecommunications and related services (“Services”) provided by Bluepeak to Customer. See our Residential User Terms for the complete terms and conditions applicable to Customer, which are each incorporated herein by this reference.
- 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. Customer may terminate this Agreement by providing thirty (30) days’ advance written notice to Bluepeak. Bluepeak may terminate 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 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.
- RATES AND CHARGES. The rates and charges for the Services are set forth in the Residential User Terms, 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 Residential Customer Terms, Bluepeak’s standard retail rates shall apply. Customer shall make all payments when due as set forth in Section 5 below.
- 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 and/or as specified on the Bluepeak website at www. mybluepeak.com.
- 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 on or about the 1st of each month for the prior month’s usage-based Services (including pro-rata charges for new services added during the prior month) and in advance for the current month’s monthly charges. All bills are due and payable upon receipt. If Customer’s bill is not paid by the date listed on the bill (the “Due Date”), Customer shall pay Bluepeak, in addition to the amount of the bill, a monthly late charge of $10. 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. 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, non-recurring online payments will be charged a $1.99 processing fee.
- 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, 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 the Customer Equipment or has obtained the authority to give Bluepeak access to the Customer Equipment. 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, 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.
- 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.
- 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.
- 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.
- 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 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.
- 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.
- 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.
- 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.
- NO WARRANTY; LIMITATION OF LIABILITY. BLUEPEAK MAKES NO WARRANTIES ABOUT THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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 OR AGENTS) BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMERS, CLIENTS OR GOODWILL 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. THE PROVISIONS OF THIS SECTION 11 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 11 SHALL SURVIVE THE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY OR THE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
- Under federal law, Customer has the right, and Bluepeak has a duty, to protect the confidentiality of information about the amount, type, and destination of Customer’s service usage (CPNI). Customer hereby consents to the sharing of Customer’s CPNI or other personal information with Bluepeak, Inc. and its affiliates, agents and contractors, solely for the purpose of developing or bringing to Customer’s attention any products and services, or in the event of any merger, sale of some or all of the company assets or acquisition as well as in any insolvency, bankruptcy or receivership proceeding in which CPNI or other personal information would be transferred as one of the business assets of the company. This consent survives the termination of Customer’s Service and this Agreement, and is valid until revoked by Customer. To revoke this consent at any time, Customer must notify Bluepeak in writing at 5100 S. Broadband Lane, Sioux Falls, SD 57108, Attn: Customer Service and provide the following information: (a) Customer name; (b) Service billing address, (c) telephone number including area code; and (d) service account number. Revoking consent will not affect the Customer’s current Services.
- 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.
- 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.
- 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: Compliance Officer, or if by email, to firstname.lastname@example.org. Notice shall be deemed given upon receipt.
- 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.
- This Agreement, along with the Residential User Terms, represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the parties relating to the Services. Customer may not assign any rights or obligations under this Agreement without Bluepeak’s prior written consent. Bluepeak may freely assign this Agreement, in whole or in part, without Customer’s prior written consent. Any modification to this Agreement shall be in writing signed by authorized representatives of both parties. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of, a breach or default by the other, 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 of South Dakota, without regard to its conflict of laws principles. Each party consents to personal jurisdiction in the state and federal courts of the State of South Dakota.
Last Updated: December 20, 2021
This policy covers the use of internet related services provided by Clarity Telecom, LLC d/b/a Bluepeak (“Bluepeak”). This policy, Bluepeak’s Acceptable Use Policy (this “AUP”), governs the use of internet-related services provided by Bluepeak. All contractual terms in a Services Agreement (defined below) and tariff terms also apply.
In this AUP, “Service(s)” refers to any internet-related service you are receiving from Bluepeak or its affiliates including but not limited to dial-up, Wireless, High Speed Internet Access, Dedicated Internet access, Managed Service, web hosting, data center hosting, Enterprise hosting, or Unified Messaging. By using any such Bluepeak Service you agree to abide by and be bound by the terms and conditions of this AUP. This AUP may be revised by Bluepeak at any time by posting on the Bluepeak website and the revised version will be effective as of the date it is posted. Your use of any Service after posting of an updated version of this AUP shall constitute your acceptance of all such revisions.
2. VIOLATION OF THIS ACCEPTABLE USE POLICY
Your violation of this AUP may result in Bluepeak taking actions ranging from a warning to suspension of your privileges or termination of your Services. Bluepeak may, but is under no obligation to, provide you with advance notice of an AUP violation, via email or otherwise, and request that such violation be immediately corrected prior to taking action. Bluepeak reserves the right to act immediately and without notice to suspend or terminate services in response to a court order or other legal requirement that certain conduct be stopped. Bluepeak may also suspend or terminate Services without notice to you if it determines, in its sole discretion, that your conduct does or may:
- Expose Bluepeak to sanctions, prosecution or civil action;
- Cause harm to or interfere with the integrity, functionality, or normal operations of the Services or Bluepeak’s networks or facilities;
- Interfere with another person’s use of Bluepeak’s services or the Internet;
- Damage or disparage the reputation of Bluepeak or its services; or
- Otherwise present a risk of harm to Bluepeak or Bluepeak’s customers or their employees, officers, directors, agents, etc., or any third party.
If Bluepeak is alerted to or otherwise becomes aware of violations or potential violations of this AUP, Bluepeak will take whatever measures it deems necessary and appropriate to stop or prevent those violations. Without limiting the generality of the foregoing, Bluepeak (a) may refer potential violations of laws to the proper authorities, (b) may cooperate in the investigation of any suspected criminal or civil wrong, and (c) will cooperate with authorities when required to do so by law, subpoena, or when the public safety is at risk. Bluepeak assumes no obligation to inform you that your information has been provided to law enforcement authorities and, in some cases, may be prohibited by law from providing such notice. Bluepeak shall not be liable for any damages of any nature suffered by you or any other customer, user, or third party resulting in whole or in part from Bluepeak’s exercise of its rights under this AUP.
III. PROHIBITED USES AND ACTIVITIES
General Use Policy
You are responsible for complying with the AUP. You are also responsible for all activity that occurs under your account, including the actions of others who may be using the Services under your account. You must respond in a timely manner to complaints concerning misuse of the Services provided to you by Bluepeak.
Abuse of Email/Spamming
Mass emailing and “mail-bombing” (sending mass email or deliberately sending very large attachments to one recipient) are prohibited. Business-class accounts may have different volume limitations and usage will be judged by the type of account and use. Forging email headers (transmission information) is prohibited. Using another person’s computer, without authorization, to send multiple email messages or to retransmit email messages for the purpose of misleading recipients as to the origin of the email is prohibited. Use of email to harass or intimidate other users is prohibited.
Violation of the CAN-SPAM Act of 2003, or of any state or federal law regulating email, is a violation of this AUP and Bluepeak reserves the right to seek damages and other available relief from you and/or any third parties, as applicable. For purposes of this AUP, the existence and scope of such violations are determined by Bluepeak in its sole discretion.
No Resale/Sharing of Services
You are prohibited from reselling the Service or otherwise making the Service available to third parties (for example, through Wi-Fi or other methods of networking), in whole or in part, directly or indirectly, unless expressly permitted by a substantive agreement between you and Bluepeak (a “Services Agreement”).
You agree that you will not make the Service available to anyone other than your family and household guests, if you have a residential account, or business or your business’ authorized employees, if you have a business account, or unless done with Bluepeak’s prior written approval in accordance with a Services Agreement.
- CUSTOMER CONDUCT
Illegal Activity/Tortious Conduct
Use of the Services to violate any local, state or federal law or regulation, also violates this AUP. Prohibited activities also include, but are not limited to:
- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate or facilitate a violation of this AUP or any law, including without limitation facilitation of the means to spam, infringe on copyrights and pirate software;
- Transmitting any defamatory, libelous, fraudulent, deceptive, indecent, offensive or obscene materials;
- Using the Services to deliver spyware, or secretly, deceptively or illegally obtain the personal information of third parties (phishing, etc.);
- Intentionally or negligently spreading computer viruses;
- Exporting software or technical information in violation of U.S. export control laws;
- Gaining unauthorized access to private networks;
- Engaging in the transmission of pirated software;
- Unauthorized copying, distribution, or display of copyrighted material of Bluepeak or any third party;
- Conducting or participating in illegal gambling, soliciting for illegal pyramid schemes through electronic mail, or USENET postings;
- Violating rules, regulations, and policies applicable to any network, server, computer database, web site, or ISP that you access through the Services;
- Threatening, harassing, abusing, or intimidating others;
- Engaging in activity, illegal or not, that Bluepeak determines in its sole discretion, to be harmful to its subscribers, operations, or networks;
- Making fraudulent offers of products, items or services; or
- Creating or attempting to utilize a domain name that is defamatory, fraudulent, indecent, offensive, deceptive, threatening, abusive, harassing, or which damages the name or reputation of Bluepeak.
Third Party Rules; Usenet
You may have access through the Services to search engines, subscription Web services, chat areas, bulletin boards, Web pages, USENET, or other services that promulgate rules, guidelines or agreements to govern their use. Failure to adhere to any such rules, guidelines, or agreements shall be a violation of this AUP. Bluepeak reserves the right not to accept postings from newsgroups where we have actual knowledge or reasonably suspect that the content of the newsgroup violates the AUP.
- NETWORK MANAGEMENT
Bluepeak may establish appropriate limitations on bandwidth, data storage, or other aspects of the Service by amending this AUP. Subscribers must comply with all such limitations prescribed by Bluepeak.
It is your responsibility to ensure the security of your network and the equipment that connects to our Services. You are required to take all necessary steps to secure and manage the use of the Services received from Bluepeak in such a way to assure that network abuse and/or fraudulent activity is prevented. Violations of system or network security may result in criminal and/or civil liability.
Failing to secure your system against abuse or fraudulent activity is a violation of this AUP. You are responsible for configuring and securing your network and the Services you receive to prevent unauthorized access to your systems and/or the Bluepeak network. You are also responsible for any fraudulent activity that may occur due to your failure to secure your network and Services. You will be responsible if unknown third parties utilize your Services at any time for the purpose of illegally distributing licensed software, engaging in abusive behavior or engaging in any type of fraudulent, offensive or illegal conduct. You may not, through action or inaction (e.g. failure to secure your network), allow others to use your network for illegal, fraudulent or inappropriate uses, and/or any other disruptive, provoking, or abusive behavior that is in violation of this AUP or the agreement for the Services you have subscribed to.
Responsibility for Content
You are responsible for any content you send or receive through the Service.
If applicable, your password provides access to your individual account. It is your responsibility to keep your password secure. You are responsible for any and all access to or use of the Services through your account. Attempting to obtain or using another user’s account password is prohibited.
Web Hosting and Data Center Hosting Surveillance
Bluepeak performs routine surveillance of its networks in connection with its web hosting, data center hosting, and related services. Although Bluepeak will not, as an ordinary practice, proactively monitor your activities for violations of this AUP, there may be instances in which Bluepeak, through its routine surveillance finds violations of this AUP, and reserves the right to take whatever action it deems appropriate, in its sole discretion.
- CONTACT INFORMATION
Contact for Reporting Abuse
Any party seeking to report a violation of this AUP may contact us via email at:
Contact for Copyright Infringement
Bluepeak complies with the Online Copyright Infringement Liability Limitation Act of 1998. 17 USC § 512 (“Act”). As required by the Act, we have a policy that reserves our right to terminate Services to subscribers who repeatedly infringe copyrights. In the event that we receive a determination that any subscriber or account holder has infringed another’s copyright through the use of our system or network, we reserve the right to terminate Service to that subscriber after receiving notice of any further copyright infringement by that subscriber. Bluepeak accommodates and does not interfere with standard technical measures to identify and protect copyrighted works, subject to the limitations of the Act.
Notices and counter-notices related to claimed copyright infringements should be directed to the following designated agent:
Clarity Telecom, LLC d/b/a Bluepeak
Attn: Copyright Agent
7979 E. Tufts Ave.
Denver, CO 80237
Bluepeak is dedicated to providing the best products and services. All purchases are covered by a 30-day money-back guarantee, subject to the limitations in this Refund Policy.
When you buy our products/services, your purchase is covered by our 30-day money-back guarantee. If you are, for any reason, not entirely happy with your service within the first 30 days after you receive it, we will cheerfully issue a full refund. Refund checks may be issued to customers for various circumstances including: disconnection of service, moved, deceased, credit balance, etc. No refunds will be issued for any reason beyond 30 days from the date you receive your products/services.
To request a refund, simply contact us at 888-975-4BLU. Please include your account information from your invoice and tell us why you’re requesting a refund – we take customer feedback very seriously and use it to constantly improve our products and quality of service.
All refund requests are subject to approval by the Bluepeak regional manager or customer service manager. All refund requests must then be submitted to Accounts Payable for further approval and issuance of a refund check. No refunds will be provided for services delivered in full such as installation service or for lost, damaged, or altered products. It can take 4-6 weeks to process the refund.
Bluepeak Business Services Agreement
BY ENTERING INTO AN ORDER WITH CLARITY TELECOM, LLC D/B/A BLUEPEAK, OR ANY OF ITS AFFILIATES (INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “BLUEPEAK”), CUSTOMER HEREBY AGREES TO THE TERMS OF THIS MASTER SERVICES AGREEMENT (THIS “AGREEMENT”). ALL ORDERS AND ANY TERMS AND CONDITIONS, GUIDEBOOKS AND SERVICE GUIDES, PROVIDED ON BLUEPEAK’S WEBSITE, AS MODIFIED FROM TIME TO TIME, ARE INCORPORATED BY REFERENCE INTO THIS AGREEMENT AS IF THOSE DOCUMENTS ARE SET FORTH ORIGINALLY HERE.
- 1.1 “Effective Date” is the date that the last Party signs the Agreement.
- 1.2 “Order” means a written, electronic or verbal order, or purchase order governed by the terms and conditions of this Agreement, submitted or confirmed by Customer and accepted by Bluepeak, which identifies specific Services; quantity ordered; Bluepeak’s Agreement number, title, and execution date; billing address; ship to address; and service/installation address, as Verbal Orders are deemed confirmed upon Customer’s written acknowledgement, or Customer’s use, of a Service.
- 1.3 “Services” means wireline or wireless business communications services not governed by Tariffs, including basic or telecommunications services, information or other enhanced services, and non-regulated professional services provided by Bluepeak to Customer pursuant to an Order.
- Services and Facilities. Bluepeak agrees to provide Customer with a broadband Internet connection, as provided in the accompanying Order during the Term of this Agreement (the “Services”).
- PAYMENT AND CHARGES
- 3.1 Rates and Charges. Customer will pay Bluepeak the rates and charges for the Services set forth in this Agreement and any Order under this Agreement, including all charges associated with establishing Customer’s Services or related to Bluepeak’s installation or provisioning costs.
- 3.2 Rate Adjustments. Bluepeak may impose additional fees, charges or surcharges on Customer to recover amounts that Bluepeak is required or permitted to collect, or pay to others in support of, or to comply with, statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs.
- 3.3 Bluepeak’s rates and charges for the Services do not include taxes. Notwithstanding any other provision of this Agreement, if Customer is required by law to make a deduction or withholding from any amount due to Bluepeak, Customer must notify Bluepeak in writing. Bluepeak will then increase the gross amount of Customer’s invoice so that, after Customer’s deduction or withholding for taxes, the net amount paid to Bluepeak will not be less than the amount Bluepeak would have received without the required deduction or withholding.
- 3.4 Unless otherwise set forth in an Order, any and all invoicing for Services shall be submitted to Customer for payment within thirty (30) days of the Service being provided. Customer is responsible for all charges, no matter the interval at which they are billed. Any objection to billed charges must be reported to Bluepeak within sixty (60) days of the invoice date.
- 3.5 Unless otherwise set forth in an Order, Bluepeak shall invoice Customer in advance at Customer’s notice address specified in the Order (or at such other address of which Customer may advise Bluepeak in writing) for all Services and additional services provided during each calendar month or other mutually agreeable billing cycle. Customer shall pay Bluepeak for all Charges upon receipt of the invoice. Account is/will be considered past due thirty (30) days after invoice date and late fees will be assessed on the last business day of the month at 1.5% per month. Service is subject to suspension or termination if an account remains unpaid for a period of sixty (60) days or more from the date of billing. Customer agrees to reimburse Bluepeak for all reasonable expenses, including reasonable attorney’s fees, for collection of past due accounts.
- 3.6 Disputed Invoice If Customer disputes a charge in good faith, Customer may withhold payment of that charge if Customer makes timely payment of all undisputed charges within the payment period, as described in Section 2.5, and provides Bluepeak with a written explanation of the reasons for Customer’s dispute of the charge. Customer must cooperate with Bluepeak to promptly resolve any disputed charge. If Bluepeak determines, in good faith, that the disputed charge is invalid, Bluepeak will notify Customer and, within five business days of receiving notice, Customer must pay the charge.
- 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, during the Agreement Term, 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 the Agreement. Bluepeak may provide Customer’s payment history or other billing information to any credit reporting agency or industry clearinghouse.
- 5.1 Orders are binding only upon acceptance in writing by Bluepeak. Bluepeak will notify Customer of rejected orders.
- 5.2 Customer may cancel an Order at any time before Bluepeak delivers the Services listed in the Order or Services begin, but Customer must pay any actual costs Bluepeak incurs due to Customer’s cancellation.
- WARRANTIES. THE SERVICES PROVIDED BY BLUEPEAK UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPATIBILITY OF SOFTWARE OR EQUIPMENT, OR ANY RESULTS TO BE ACHIEVED WITHOUT LIMITING THE FOREGOING, BLUEPEAK MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY SERVICE OR PRODUCT WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF HACKING OR SIMILAR MALICIOUS ACTIVITY, OR ANY ACT OR OMISSION OF THE CUSTOMER.
- EQUIPMENT AND FACILITIES. Bluepeak shall not be responsible for the installation, operation, or maintenance of any Customer-provided communications equipment. Where such equipment is connected to the facilities furnished by Bluepeak pursuant to this Agreement, the responsibility of Bluepeak shall be limited to the furnishing of facilities offered under this Agreement and to the maintenance and operation of such facilities. Notwithstanding the above, Bluepeak shall not be responsible for: (a) the transmission of signals by Customer-provided equipment or for the quality of, or defects in, such transmission; (b) the reception of signals by Customer-provided equipment; or (c) network control signaling where such signaling is performed by Customer-provided network control signaling equipment.
- INSTALLATION. Customer will reasonably cooperate with Bluepeak or its agents in connection with installation of the Customer is responsible for damage to Bluepeak-owned facilities and 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.
- CUSTOMER RESPONSIBILITIES
- 9.1 Acceptable Use Policy (AUP). With the purchase of Services that connect to the Internet, Customer must comply with Bluepeak’s Acceptable Use Policy posted on its website and as amended from time to time.
- 9.2 Abuse and Customer will not use Services: (1) for fraudulent, abusive, unlawful or destructive purposes, including unauthorized or attempted unauthorized access to, or alteration, abuse or destruction of, Bluepeak or any third party information; (2) in any manner that causes interference with Bluepeak’s or another’s use of the Bluepeak- provided network; or (3) 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.
- 9.3 Customer represents that it is not a reseller of any telecommunication services provided under this Agreement as described in the Telecommunications Act of 1996, as amended, or applicable state law and acknowledges it is not entitled to any reseller discounts under any laws.
- 9.4 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.
- PRIVACY AND CONFIDENTIALITY
- 10.1 By providing Services, Bluepeak does not require or intend to access any confidential health related information of Customer’s clients, which may include group health plans, that constitutes Protected Health Information (“PHI”), as defined in 45 C.F.R. §160.103 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”).
- 10.2 Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of Neither Party will disclose any Confidential Information (defined below) received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in this Agreement. This obligation will continue until two years after the Agreement expires or terminates. Confidential Information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party’s technology, business affairs, trade secrets, development and research information, and marketing or sales plans (collectively the “Confidential Information”). The receiving party may disclose Confidential Information to its subsidiaries, Affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party’s rights as this provision.The parties will use Confidential Information only for the purpose of performing under this Agreement or for the provision of other Bluepeak services. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (A) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or omission of the receiving party; (C) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (D) is developed independently by the receiving party without reference to the Confidential Information, or (E) is required to be disclosed by law, regulation, or court or governmental order. The parties acknowledge that the receiving party’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of the Agreement, the disclosing party may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not limit any other remedies available to either party. The party who breached or threatened to breach its nondisclosure obligation under the Agreement will not raise the defense of an adequate remedy at law. Bluepeak will not be deemed to have accessed, received, or be in the possession of Customer Confidential Information solely by virtue of the fact that Customer transmits, receives, accesses or stores such information through its use of Bluepeak’s Services.
- 11.1 Direct Each party’s maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party’s negligent or willful misconduct; and (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in the aggregate, in any 12-month period, an amount equal to Customer’s total net payments for the affected Services purchased in the month preceding the month in which the event giving rise to the claim occurred. Customer’s payment obligations, Customer’s liability for early termination charges, and the parties’ indemnification obligations under the Agreement are excluded from this provision.
- 11.2 Consequential NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
- 11.3 Unauthorized Access and Except for physical damage to Customer’s transmission facilities or Customer premise equipment directly caused by Bluepeak’s negligence or willful misconduct, Bluepeak is not responsible for unauthorized access to, or alteration, theft, or destruction of, Customer’s data, programs or other information through accident, wrongful means or any other cause while such information is stored on or transmitted across Bluepeak-provided network facilities or Customer-provided equipment.
- 12.1 Mutual Indemnification for Personal Injury, Death or Damage to Personal Each party will indemnify and defend the other party, its directors, officers, employees, agents and their successors from and against all third-party claims for damages, losses, liabilities, or expenses, including reasonable attorneys’ fees, arising directly from performance of this Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligence or willful misconduct of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents.
- 12.2 Customer 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:
- A – Customer’s failure to obtain required permits, licenses, or consents necessary to enable Bluepeak to provide the Services (e.g., landlord permissions or local construction licenses). This provision does not include permits, licenses, or consents related to Bluepeak’s general qualification to conduct business;
- B – 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: (1) for libel, slander, invasion of privacy, infringement of copyright, and invasion or alteration of private records or data; (2) for infringement of patents arising from the use of equipment, hardware or software not provided by Bluepeak; and (3) based on transmission and uploading of information that contains viruses, worms, other destructive media or other unlawful content; or
- C – Bluepeak’s failure to pay any tax to the extent that Bluepeak relied on Customer’s claimed legitimate exemption under applicable law.
- 12.3 Bluepeak Indemnification. Bluepeak will indemnify and defend Customer, Customer’s officers, directors, agents, and employees and their successors against third-party claims enforceable in the United States alleging that Services as provided infringe any third-party United States patent or copyright or contain misappropriated third-party trade secrets. Bluepeak’s obligations under this Section will not apply if the infringement or violation is caused by Customer’s modification to Bluepeak-provided software, equipment or Services; combination of Bluepeak-provided Services or products with other services or products; functional or other specifications that were provided by or requested by Customer; or Customer’s continued use of infringing Services after Bluepeak provides reasonable notice to Customer of the infringement. For any third-party claim that Bluepeak receives, or to minimize the potential for a claim, Bluepeak may, at its sole option, procure the right for Customer to continue using the Services; replace or modify the Services with comparable Services; or terminate the affected Services or this Agreement.
- 12.4 Rights of Indemnified To be indemnified, the party seeking indemnification must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim); give the indemnifying party full and complete authority, information and assistance for the claim’s defense and settlement; and not, by any act, admission, or acknowledgement, materially prejudice the indemnifying party’s ability to satisfactorily defend or settle the claim. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim’s settlement or defense.
- 12.5 The foregoing provisions of this Section state the entire liability and obligations of the indemnifying party and any of its Affiliates or licensors, and the exclusive remedy of the indemnified party, with respect to the claims described in this Section 11.
- TERM AND TERMINATION
- 13.1 Agreement Term. The period set forth in the Order during which Bluepeak provides Services to Customer is defined as the “Agreement ” This Agreement applies from the Effective Date until the Agreement Term expires or terminates. Bluepeak will not accept Orders for Services after expiration of the Agreement Term, but this Agreement will continue to apply to Orders properly placed during the Agreement Term. If Customer continues to use maintenance or managed Services following the termination or expiration of the Agreement Term or an Order issued during the Agreement Term for such Services, Bluepeak may, at its sole discretion, provide those Services on a time and material basis at Bluepeak’s then-current rates without applying any discounts or credits under the Agreement, however, this Agreement will govern Bluepeak’s provision of such Services.
- 13.2 Service Order Term. Individual Orders may carry their own service Term and/or termination procedures that apply to that specific contracted service, and in such case, such Term and procedures shall govern the service provided under the Order only.
- 13.3 Termination by Either Party. Except as otherwise provided herein, either Party may terminate this Agreement, without liability of any kind, in the event of the other Party’s material breach that remains uncured thirty (30) days after the non-breaching Party provides written notice of such breach. The Service may be Terminated by Bluepeak, with or without notice: (i) if acts of Customer, including furnishing false credit information, indicate intent to defraud Bluepeak; (ii) Customer has not paid amounts due; (iii) if Customer violates regulatory requirements, federal or state law or intentional abuse of the Service. Bluepeak may also terminate this Agreement or any Order for convenience by providing thirty (30) days advance written notice.
- 13.4 Early Termination. In the event of any early termination other than for Bluepeak’s material breach, Customer shall pay the remaining months to fulfill the Term times the monthly Rate on the Order.
- 13.5 Term Expiration. Upon Term expiration, Customer may continue the Service according to renewal options made available by Bluepeak (if any) at that time. If Customer does not elect an additional service period or does not request discontinuance, then the Service Term will automatically renew for the same service period.
- FORCE MAJEURE
- 14.1 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.
- GOVERNING LAW; ALTERNATE DISPUTE RESOLUTION
- 15.1 Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of South Dakota without regard to its choice of law provisions.
- 15.2 Waiver of Jury Trial and Class Action. Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to this Agreement on a class or consolidated basis or in a representative capacity.
- 15.3 Alternate Dispute Resolution. Any dispute arising out of or relating to this Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures: Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”). Any Dispute not resolved through Negotiation shall be resolved by arbitration in accordance with the United States Arbitration Act (and other applicable federal law) and/or Arbitration rules of the State of South Dakota. The arbitration will be held at a regional location in the State of South Dakota using one arbitrator, unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel. The arbitrators may award costs and/or attorneys’ fees to the prevailing party. The Parties further agree that the arbitrator shall-have no authority to award non-monetary or equitable relief, and any monetary award shall not include punitive damages. Nothing contained in this section will limit either Party’s ability to seek injunctive relief in any court. The Parties will mediate and arbitrate disputes in confidence. Each Party shall bear its own costs incurred in connection with the arbitration. Other costs will be allocated as the arbitrator directs. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF SUCH CLAIM OR DISPUTE.
- Customer may not assign any rights or obligations under this Agreement or an Order without Bluepeak’s prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to an Affiliate or an entity that has purchased all or substantially all of Customer’s Bluepeak may assign this Agreement or an Order, in whole or in part, without Customer’s prior written consent.
- 17.1 Notices required under this Agreement must be submitted in writing to the Party’s address for notice listed in this Agreement or Order and, in the case of a dispute, notices must also be sent to:
- in the case of Bluepeak:
Clarity Telecom, LLC d/b/a Bluepeak
Attn: Compliance Officer
5100 S. Broadband Lane
Sioux Falls, SD 57108
- in the case of Customer: to the address set forth on the applicable Order.
- in the case of Bluepeak:
- 17.1 Notices required under this Agreement must be submitted in writing to the Party’s address for notice listed in this Agreement or Order and, in the case of a dispute, notices must also be sent to:
BUSINESS SERVICE ORDER
Name of Customer/Business:
|New vs Existing
|*Pricing subject to approval after internal review* Total:
|Promotional Offer Details:
|Directory Listing Information – Address:
|YP Heading: SIC Code: YPH Code:
This Service Order is subject to and is hereby incorporated by reference into the Business Services Agreement between the Customer named on this Service Order and Clarity Telecom, LLC d/b/a Bluepeak. You agree and understand that prices do not include taxes, fees or surcharges, which may include government-imposed fees and taxes, government program fees (such as TRS and universal service), and non-governmental fees and charges (such as the Broadcast TV surcharge and other programming cost recovery fees, subscriber line charges, line fees, access charges and carrier service fees and will vary depending upon your service location and the services to which you subscribe. The taxes, fees and surcharges may be changed at any time. During the initial term of this Service Order, your quoted MRC for Internet services will not change. Video service prices are subject to annual increases.
Bluepeak Statement Supporting a Free and Open Internet
Net Neutrality is on the national stage for debate. We want you to know that Bluepeak supports net neutrality provisions for an Open Internet.
What is Net Neutrality?
Net neutrality is the principle that internet service providers (ISPs) should provide all online content equally without favoring or blocking specific products, websites or types of content. In short, it means that all traffic on the internet is equal and equally accessible.
NETWORK TRANSPARENCY STATEMENT
Bluepeak provides this Network Transparency Statement in accordance with the FCC’s Restore Internet Freedom Rules to ensure that you have sufficient information to make informed choices about the purchase of broadband services. Information about Bluepeak’s other policies and practices concerning broadband are available at www.mybluepeak.com
Bluepeak engages in network management practices that are tailored and appropriate for achieving optimization on the network considering the particular network architecture and technology of its broadband Internet access service. Bluepeak’s goal is to ensure that all of its customers experience a safe and secure broadband Internet environment that is fast, reliable and affordable. Bluepeak wants its customers to indulge in all that the Internet has to offer, whether it is social networking, streaming videos and music, to communicating through email and videoconferencing.
Bluepeak’s network management includes congestion- and security-protocol-management and customers generally will not be impacted by the protocols and practices that Bluepeak uses to manage its network.
A. Bluepeak Network Transparency Disclosures
Bluepeak uses various tools and industry standard techniques to manage its network and deliver fast, secure and reliable Internet service. Bluepeak believes in full transparency and provides the following disclosures about its network management practices:
- Blocking: Bluepeak does not block or discriminate against lawful content.
- Throttling: Bluepeak does not throttle, impair or degrade lawful Internet traffic.
- Affiliated Prioritization: Bluepeak does not prioritize Internet traffic and has no plans to do so.
- Paid Prioritization: Bluepeak has never engaged in paid prioritization. We don’t prioritize Internet for consideration to benefit particular content, applications, services or devices. Bluepeak does not have plans to enter into paid prioritization deals to create fast lanes.
- Congestion Management: Bluepeak monitors the connections on its network in the aggregate on a continuous basis to determine the rate of utilization. If congestion emerges on the network, Bluepeak will take the appropriate measures to relieve congestion.
On Bluepeak’s network, all customers have access to all legal services, applications and content online and, in the event of congestion, most Internet activities will be unaffected. Some customers, however, may experience longer download or upload times, or slower surf speeds on the web if instances of congestion do occur on Bluepeak’s network.
Customers using conduct that abuses or threatens the Bluepeak network or which violates the company’s Acceptable Use Policy, Internet service Terms and Conditions, or the Internet Service Agreement will be asked to stop any such use immediately. A failure to respond or to cease any such conduct could result in service suspension or termination.
Bluepeak’s network and congestion management practices are ‘application-agnostic’, based on current network conditions, and are not implemented on the basis of customers’ online activities, protocols or applications. Bluepeak’s network management practices do not relate to any particular customer’s aggregate monthly data usage.
Bluepeak monitors its network on a continuous basis to determine utilization on its network. Bluepeak also checks for abnormal traffic flows, network security breaches, malware, loss, and damage to the network. If a breach is detected or high volume users are brought to light by complaint, Bluepeak provides notification to the customer via email or phone. If a violation of Bluepeak’s policies has occurred and such violation is not remedied, Bluepeak will seek to suspend or terminate that customer’s service.
- Application-Specific Behavior: Except as may be provided elsewhere herein, Bluepeak does not currently engage in any application-specific behaviors on its network. Customers may use any lawful applications with Bluepeak.
- Device Attachment Rules: Customers must use PPPoE for authentication of point to point connections between devices on the network. There is a limit of one (1) PPPoE session per account. For best results, DSL modems, wireless modems, or other proprietary network gateways used on the Bluepeak broadband network should be provided by Bluepeak. Customers may attach devices of their choosing to their modems, including wired or wireless routers, laptops, desktop computers, video game systems, televisions, or other network-enabled electronics equipment. However, customers are responsible for ensuring that their equipment does not harm Bluepeak’s network or impair the service of other customers. Bluepeak is not responsible for the functionality or compatibility of any equipment provided by its customers. Customers are responsible for securing their own equipment to prevent unauthorized access to Bluepeak’s broadband network by third parties and will be held responsible for the actions of such third parties who gain unauthorized access through unsecured customer equipment.
- Network Security: Bluepeak knows the importance of securing its network and customers from network threats and annoyances. The company promotes the security of its network and patrons by protections from such threats as spam, viruses, firewall issues, and phishing schemes. Bluepeak also deploys spam filters in order to divert spam from an online customer’s email inbox into a quarantine file while allowing the customer to control which emails are identified as spam.
As its normal practice, Bluepeak does not block any protocols, content or traffic for purposes of network management, but Bluepeak may block or limit such traffic as spam, viruses, malware, or denial of service attacks to protect network integrity and the security of our customers.
B. Network Performance
- Service Descriptions
Bluepeak deploys Internet access to its subscribers through hardwired broadband access (Cable modem, DSL, Fiber, and Point to Point Fixed LTE Wireless)
- Network Performance
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.
However, the bandwidth speed at which a particular distant website or other Internet resources may be downloaded, or the speed at which your customer 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 your own computer equipment, including a wireless router. In addition, your service performance may be affected by the inside wiring at your premise. Accordingly, you, the customer, must consider the capabilities of your own equipment when choosing a Bluepeak broadband service. Your computers and/or wireless or other networks in your homes or offices may need an upgrade in order to take full advantage of the chosen Bluepeak broadband plan.
For the wireless service, Bluepeak measures Bit Error Rate (BER) and the Received Signal Strength Indicator (RSSI) parameters for transmission rates, latency, and traffic every 15 min. For DSL, Fiber and Cable Modem service, Bluepeak measures traffic every 5 min. All services are best effort.
Bluepeak tests each service for actual and expected access speeds at the time of network installation to demonstrate that the service is capable of supporting the advertised speed.
Based on the network information Bluepeak receives from its monitoring efforts, Bluepeak’s network is delivering data transmission rates advertised for the different high-speed Internet services. To be sure, Bluepeak has implemented a program of testing the performance of its network by using a test protocol similar to the one sanctioned by the FCC. We installed specific network performance monitoring equipment at aggregation points across our network and conducted a series of tests using this equipment. Bluepeak reports the results of this testing below. This result applies to both upload and download data rates, and applies for measurements made both at peak times and over a 24-hour period:
DOWNLOAD & UPLOAD SPEEDS, LATENCY
|MEASURED (PEAK TIMES)
|15 Mbps or Higher
|15 Mbps or Higher
|100 Mbps or Higher
|100 Mbps or Higher
|150 Mbps or Higher
|150 Mbps or Higher
|200 Mbps or Higher
|200 Mbps or Higher
|1000 Mbps or Higher
|1000 Mbps or Higher
|1 Gbps or Higher
|1 Gbps or Higher
|2 Gbps or Higher
|2 Gbps or Higher
|5 Gbps or Higher
|5 Gbps or Higher
|MEASURED (PEAK TIMES)
|3 Mbps or Higher
|3 Mbps or Higher
|10 Mbps or Higher
|10 Mbps or Higher
|20 Mbps or Higher
|20 Mbps or Higher
|30 Mbps or Higher
|30 Mbps or Higher
|1 Gbps or Higher
|1 Gbps or Higher
|2 Gbps or Higher
|2 Gbps or Higher
|5 Gbps or Higher
|5 Gbps or Higher
|LATENCY (PEAK TIMES)
- Impact of Non-BIAS Data Services
The FCC has defined Non-Broadband Internet Access Services (Non-BIAS) to include services offered by broadband providers that share capacity with Broadband Internet Access Services (BIAS) (previously known as “Specialized Services”) also offered by the provider over the last-mile facilities. At this time, Bluepeak is not offering any non-BIAS data services.
- Commercial Terms
Pricing and additional service information may be found www.mybluepeak.com.
In addition to this Network Transparency Statement, patrons may also find links to the following on the Bluepeak Website:
For questions, complaints or requests for additional information, please contact Bluepeak at:
- Business Office at 1-888-975-4258
- Email at email@example.com
These terms and conditions (“Terms”) apply to your use of the text messaging (“Alerts”) offered by Clarity Telecom, LLC d/b/a Bluepeak and its affiliates (collectively, “Bluepeak”, “us”, and “our”). The Alerts are available only to subscribers of Bluepeak services. These Terms apply in addition to all other terms, agreements, and policies that apply to the Bluepeak services.
Receiving Alerts and your Acknowledgments. In order to use the Alerts, you may be required to provide information about yourself (such as account identification, phone number(s), and contact details) to verify your status as the account holder or authorized person on the Bluepeak account. By providing your mobile phone number(s) to Bluepeak and its affiliates and consenting to receive further updates via Alerts, you provide us with your express consent to receive Alerts (Short Messaging Service “SMS” and Multimedia Messaging Service “MMS”) at that number and (i) acknowledge and represent to us that you are the authorized user of the mobile phone(s) that you link to our text message service or have been granted permission by the authorized user of the mobile phone(s) to enroll such mobile phone(s) in the service; (ii) you grant Bluepeak express consent to send text messages to that (those) mobile phone(s) through your wireless phone carrier unless and until such permission is revoked in accordance with these Terms; (iii) you agree your receipt of SMS and/or MMS messages from Bluepeak is NOT a violation of state or federal rules including, but not limited to, the Telephone Consumer Protection Act (TCPA) or Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act; (iv) you understand that your wireless carrier may charge you additional message and data fees for receipt of our text messages; and (v) by granting such permission to Bluepeak you hereby consent to receive such messages in spite of the fact that your number may otherwise be on the federal or a state’s do-not-call list, and you agree, to the maximum extent permitted by law, that such text messages shall not be in violation of such do-not-call list(s) or related restrictions.
Types of Alerts: Informational and emergency Alerts may be activated on your account automatically, you may receive enrollment confirmation messages, or both may occur. These messages allow us to inform you about planned and unplanned service outages in your area, appointment reminders, as well as remind you about important account information (invoice availability, balance due and payment due dates, payment confirmations, and other issues). If you do not wish to receive such alerts, you must notify us as indicated below. We may also inform you about the availability of special promotions that we are offering through text messages.
Stopping Alerts: Alerts can be cancelled at any time by texting “STOP” from your mobile phone in response to a text message from Bluepeak, or texting “STOP” to 888-975-4258. You agree that your prior express consent to receive Alerts shall continue indefinitely unless and until you cancel your prior express consent through the means mentioned in this paragraph. Other methods or means attempted to revoke your prior express consent may cause unnecessary delay or be ineffective and you hereby release Bluepeak from any liability related to your efforts to revoke your prior express consent by methods or means other than texting “STOP” (without spaces or other words) to 888-975-4258. If you are revoking your consent by texting “STOP” to 888-975-4258 (or in response to a Bluepeak Alert), your text message should contain only the word “STOP” without any additional words, spaces, or characters either before or after the word “STOP.” Bluepeak will reasonably endeavor to comply with other text (email or phone) communications in which you indicate a clear and unmistakable intent to revoke your prior permission; however, you (a) understand that text messages to 888-975-4258 go to an automated number that is not monitored by a human, and the ability to interpret your intent is severely restricted and, therefore, (b) you hereby release Bluepeak from any liability for your efforts to revoke your permission via a text message that does not strictly comply with the terms stated in this paragraph. Furthermore, by activating Alerts, you hereby grant Bluepeak express permission (without qualification) to respond to your cancellation request, whether that request came through a telephone call with a Bluepeak employee or by texting “STOP,” with a confirmatory text message in return that will (i) confirm receipt of your cancellation request as well as (ii) indicate that you will no longer receive Alerts from Bluepeak. Furthermore, you agree that Bluepeak will reasonably endeavor to send you the aforementioned confirmatory cancellation text message in a timely manner.
However, you hereby release Bluepeak from any liability related to a confirmatory text message or the timeliness in which you receive one.
Please note that this section only pertains to Alerts. Regardless of your choices in this section, you will remain opted in to other Bluepeak communications you have consented to, including email communications.
Get Help or Support: To get help or answers to your questions, visit our website at https://mybluepeak.com/help/ (Select “Text Us with Bluepeak Touch”), text the word HELP without additional characters to 888-975-4258 for assistance with Alerts (you must be registered with Alerts for this function to work), or call 888-975-4258.
Cost of Alerts: Bluepeak does not charge to send you Alerts. However, depending on the plan you subscribe to with your wireless carrier, message and data rates may be applied by your wireless carrier. Check with your wireless carrier for your plan details.
Message Frequency: Message frequency will be at least monthly, but ultimately depends on the type of alerts sent to your mobile phone, the manner in which you conduct account activities, as well as the number of planned or unplanned maintenance events scheduled in your area. Customers can typically expect 3 – 5 Alerts per month.
Carriers Supported List: The following carriers are currently supported by Bluepeak’s text alert service: AT&T, Alaska (ACS Wireless), Alltel Wireless, Appalachian Wireless, Bluegrass Cellular, Boost Mobile, C Spire Wireless, Carolina West Wireless, Cellcom, Cellone Nation, Cellular One of East Central Illinois, Charlton Valley Cellular, Chat Mobility, Cincinnati Bell, Coral Wireless, Cricket (Leap Wireless), Cross (d/b/a Sprocket), DTC Wireless, Duet IP, Element Mobile, EpicTouch, GCI Communications, Golden State Cellular, Illinois Valley Cellular, Immix/Keystone Wireless, Inland Cellular, iWireless, Leaco, MetroPCS, Mosaic, Nemont/Sagebrush, NTELOS, Nex-Tech Wireless, Nextel Communications, Northwest Missouri Cellular, Panhandle Wireless, Peoples Wireless, Pine Cellular, Pioneer, Plateau Wireless, Revol Wireless, Rina-Custer, Rina-All West, Rina-Cambridge Telecom Coop, Rina-Eagle Valley Comm, Rina Farmers Mutual Telephone Co, Rina—Nucla Nutria Telephone Co, Rina-Silver Star, Rina-South Central Comm, Rina-Syringa, Rina-UBET, Rina-Manti, South Canaan/Cellular One of NEPA, Sprint PCS Wireless, T-Mobile, Thumb Cellular, US Cellular, Union Wireless, United Wireless, Verizon Wireless, Viaero Wireless, Virgin Mobile, and West Central Wireless (WCC).
Changes to these Terms: Bluepeak reserves the right to amend these terms or cancel the Alerts at any time, including to change, modify, add to, update, or remove Terms (collectively “amend” or “update”). Please check these Terms on a regular basis for changes. If we choose to amend the Terms, we will update the “Last Updated” date at the top of the Terms and posted the updated version. Your continued use and acceptance of Alerts after changes are posted will mean that you accept the terms as amended by the posted changes and agree to be bound by them.
No Guarantee or Warranties: Alerts use wireless service provider networks to deliver SMS and/or MMS (text) service; however, Bluepeak does not operate the wireless networks. Bluepeak is not liable for the availability (or lack thereof) of wireless network coverage, the failure of the wireless networks to complete a transaction, deliver an Alert or message, or otherwise interfere with the timeliness or transmission of SMS and/or MMS or the Alerts. Bluepeak disclaims any responsibility for any wireless service used to access the Alerts. Alerts are only for customers based in the United States. Customer understands and acknowledges that Alerts are not intended to be accessed from outside of the United States. In addition, because Bluepeak does not operate or control the wireless networks used to access the Alerts, we cannot guarantee the privacy or security of wireless data transmissions. Please check with your wireless service provider for information about its privacy and security practices. Bluepeak is not responsible for incomplete, lost, late, or misdirected messages, including (but not limited to) undelivered messages resulting from any form of filtering by your wireless carrier or service provider. Bluepeak also makes no representations or warranties whatsoever regarding Alerts. The services are provided on an “as is” and “as available” basis. Bluepeak and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Bluepeak, its subsidiaries, affiliates, officers, agents, employees, partners, and licensors make no warranty that (a) the Alerts will meet your requirements; (b) the Alerts will be uninterrupted, timely, secure, or error-free; or (c) the results that may be obtained from the use of the Alerts will be accurate or reliable.
Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE THAT BLUEPEAK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR ANY OTHER DAMAGES, EVEN IF BLUEPEAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, ARISING OR RESULTING FROM OR IN ANY WAY RELATING TO YOUR USE OR RECEIPT OF OR FAILURE TO RECEIVE ALERTS. OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL BLUEPEAK, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY THE USE OF OR RELIANCE ON INFORMATION OBTAINED THROUGH THE ALERTS. THE SERVICE IS PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” BLUEPEAK AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, USEFULNESS, TIMELINESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH THE SERVICE, NOR DO THEY GUARANTEE THAT THE SERVICE WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHERMORE, BLUEPEAK SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO DELAYS IN THE TRANSMISSION OF MESSAGES DUE TO CIRCUMSTANCES OUT OF BLUEPEAK’S CONTROL.
Indemnity: To the maximum extent permitted by applicable law, you hereby agree to indemnify and hold harmless Bluepeak, its subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use or receipt of or failure to receive Alerts or your failure to notify Bluepeak that you have changed your telephone number.
Termination: Bluepeak reserves the right, in its sole discretion, to cancel or suspend its Alerts services, in whole or in part, for any reason, with or without notice to you.
Governing Law and Jurisdiction; Enforceability: Governing law and enforceability of these Terms will be the same as those that apply to your services’ otherwise applicable terms and conditions. In case of a conflict or ambiguity regarding governing law in such otherwise applicable terms and conditions, these Terms will be construed under the laws of the State of South Dakota. These Terms, and your relationship with Bluepeak under them, shall be governed by the laws of South Dakota. By using the Alerts, you consent to the exclusive jurisdiction of the state and federal courts in South Dakota in all disputes arising out of or relating to these Terms and the Alerts. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of these Terms, and the remaining portions shall remain in full force and effect.
Terms and Conditions Incorporated Herein: You agree that for all matters not explicitly addressed herein, including general terms applicable to both email and Alerts, Bluepeak ’s Terms and Conditions (the “Bluepeak Terms and Conditions”) shall apply and are hereby incorporated herein by reference. In addition, you hereby reaffirm your agreement to the Bluepeak Terms and Conditions, and your continued use and acceptance of Alerts will mean that you accept the Bluepeak Terms and Conditions then in effect.