HIGH SPEED INTERNET AGREEMENT
1. PREAMBLE. This Agreement and the policies referenced herein govern your relationship with Bruce Telephone Company (“BTC”) relating to the provision by BTC to you (“Customer”) of High Speed Internet Service. The “High Speed Internet Service” consists of high speed internet access, along with various other internet-related services such as email.
2. TERM OF SERVICE. The High Speed Internet Service shall commence on the Service Commencement Date, which shall be the later of the above referenced Estimated Service Commencement Date or the day immediately following the date on which BTC notifies Customer that the High Speed Internet Service is ready for use, and shall continue for the length of term for such service stated herein (“Term”). The parties acknowledge and agree that the Estimated Service Commencement Date is an estimate, and that BTC shall not be liable to customer in any way for failure to commence the High Speed Internet Service before such date.
3. RENEWAL TERM. Subject to the provisions of Section 4, this Agreement shall automatically renew for additional consecutive terms of 24 months (“Renewal Term”) unless Customer provides written notice of the intent not to renew the terms of the Agreement thirty (30) days prior to the expiration of the then expiring term.
4. CHARGES AND PAYMENT. Except as otherwise provided, the monthly charge for the High Speed Internet Service provided by BTC during the Term shall be that charge stated herein, and the charges for each month’s High Speed Internet Service during the Renewal Term shall be based upon the then-current monthly charges provided by any applicable tariff or BTC’s standard charge for the same or similar services (“Monthly Charge”). BTC shall invoice Customer for High Speed Internet Service on a monthly basis for the Monthly Charge, and Customer’s payment for each invoice shall be received by BTC within ten (10) calendar days of the invoice date (“Due Date”). All non-recurring installation charges, if any, stated herein shall be due on the Due Date of the first invoice. The first Monthly Charge shall be prorated from the Service Commencement Date through the end of the calendar month in which the Service Commencement Date occurs. Any applicable surcharge, federal, state, local, excise, or sales tax or similar levy, chargeable to or against BTC because of the High Speed Internet Service provided by BTC to Customer, shall be a charge to and paid by Customer in addition to the Monthly Charge.
5. APPLICABLE TARIFFS. This Agreement is subject to and controlled by the provisions of BTC’s lawfully filed and approved state and federal tariffs relating to the services provided in this Agreement, and all changes and modifications to said tariffs as may be made from time to time, including all provisions limiting BTC’s liability and disclaiming warranties (“Applicable Tariffs”), which are incorporated herein. All appropriate tariff rates and charges shall be included in the provision of the High Speed Internet Service. The Applicable Tariffs shall supersede any conflicting provisions of this Agreement in the event any part of this Agreement conflicts with terms and conditions of BTC’s lawfully filed tariffs.
6. EQUIPMENT. Customer understands and acknowledges that, for BTC to provide the High Speed Internet Service, certain equipment needed for minimum system requirements (“Equipment”) must be maintained by Customer. Customer acknowledges that minimum system requirements are subject to change depending upon the specific installation environment provided by Customer, and BTC makes no representation or warranty that additional Equipment will not be needed. Customer agrees to purchase, provide and maintain in good working condition and repair, at Customer’s sole cost and expense, the Equipment necessary for the High Speed Internet Service provided by BTC. BTC may, at Customer’s request, install the Equipment at Customer’s location(s). Customer agrees to provide an installation environment and electrical and telecommunications connections as provided for in any applicable supplier or manufacturer installation manual or as otherwise specified by the supplier of manufacturer of the Equipment.
7. DESCRIPTION OF SERVICE; LIMITATIONS AND INTERRUPTIONS. The High Speed Internet Service is a “best effort” service. The advertised speeds for the level of service that you subscribe to, as set forth on BTC’s website and/or in this Agreement, represent BTC’s good faith effort to quantify the typical speeds that the average customer can expect to receive during typical traffic periods. The actual speed you experience may vary depending on several factors including customer location, destination on the internet, traffic on the internet, line quality, and other factors beyond BTC’s control. BTC may interrupt the High Speed Internet Service for scheduled or emergency maintenance or as otherwise set forth in the Agreement. Also, your High Speed Internet Service may be interrupted to allow BTC to undertake network management activities. BTC reserves the right to apply commercially reasonable spam, fraud, and abuse prevention methods to inbound and outbound e-mail. BTC additionally reserves the right to apply other practices, as described in the BTC Acceptable Use Policy. A copy of the AUP is also available at BTC’s office at 101 Public Square, Bruce, Mississippi, 38915.
9. ACCOUNT, PASSWORD, AND SECURITY. Upon registration, you may receive, upon request, (1) a username and password and (2) other account information. You will be responsible for use of the High Speed Internet Service by any person who connects to your internet service, whether or not you specifically authorize such person’s use or actions, including maintaining the confidentiality of your username and password. You must notify BTC immediately upon discovering any unauthorized use of your account information. Usernames, passwords, email addresses, and IP addresses are BTC’s property and BTC may alter or replace them at any time. You are solely responsible for (1) maintaining the security of your computer(s) and data, including protection of your username and password, (2) the encryption of data, and (3) the back-up and restoration of your computer and data. BTC recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
10. E-MAIL ACCOUNTS. Email accounts exceeding 1 Gigabyte in size may be inactivated until you reduce the size of the mail being stored or until additional storage capacity is purchased, if available. Cancellation of your High Speed Internet Service for any reason, either by you or by BTC, will result in the cancellation of email service and the deletion of all files stored in or for your account.
11. MONITORING. BTC has no obligation to monitor the High Speed Internet Services or your email or web space, but may do so and may disclose information regarding use of the services for any reason to any party if BTC, in its sole discretion, believes that it is reasonable to do so, including to satisfy laws, regulations, or governmental or legal requests, operate the service properly, or to protect itself and its users. BTC may immediately remove from its servers any material or information which BTC, in its sole and absolute discretion, determines to infringe another person's property rights or to violate BTC's Acceptable Use Policy.
12. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. Customer agrees to comply with all laws, regulations and orders relating to this Agreement and the use of the High Speed Internet Service. Customer agrees and acknowledges that it is solely responsible for the payment of all license fees, assessments and sales, rental, use, property, excise and other taxes or surcharges or fees now or hereafter imposed by any governmental body or agency upon the High Speed Internet Service. Any fees, taxes or other lawful charges paid by BTC in connection with the Equipment or use thereof or provision of service hereunder, (exclusive of any taxes based on the net income of BTC) shall become immediately due from Customer to BTC. This provision shall survive the termination of this Agreement and the use of the High Speed Internet Service pursuant hereto.
13. DEFAULT. Customer shall be in default of this Agreement if one or more of the following occurs: (a) Customer fails to make payments when due; (b) Customer becomes insolvent; (c) Customer fails to keep any promise contained in this Agreement, credit application, or any other agreement with BTC; (d) Customer makes any statement or provides any information that is untrue or inaccurate at the time it was made or provided; (e) Customer fails to provide any additional deposit BTC may require; or (f) Customer exceeds its credit limit, if any.
14. REMEDIES. Upon the occurrence of any default or breach of this Agreement by Customer, and at any time thereafter, BTC may, in its sole discretion, do any one or more of the following: (a) terminate the Agreement; (b) declare all sums then due and all sums to become due hereunder (including any residual amount) for the remainder of the Term of Agreement immediately due and payable; or (c) exercise any other right or remedy which may be available to it under applicable law. Customer shall be liable for all reasonable attorneys’ fees and other costs and expenses resulting from the default or the exercise of BTC’s remedies. No remedy referred to in this paragraph is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to BTC at law or in equity. No express or implied waiver by BTC of any default shall constitute a waiver of any other default by Customer or a waiver of any of BTC’s rights. The parties agree and acknowledge that the remedies afforded by this paragraph are an agreed measure of damages and are not a forfeiture or penalty. In the event customer does not return any equipment owned by BTC, he or she will be charged up to the full replacement cost of any non-returned BTC-owned equipment.
15. LIMITATION OF LIABILITY. BTC SHALL HAVE NO RESPONSIBILITY, LIABILITY, OR OBLIGATION TO CUSTOMER, ITS AGENTS, OR CUSTOMERS FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOSS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, COST OF REPLACEMENT SERVICES, LOSS OF CUSTOMERS OR AGENTS, OR LOSS OF USE, REGARDLESS OF WHETHER COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, BY REASON OF ANY ACT OR OMISSION IN CONNECTION WITH OR UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY DEFECT OR DELAY IN AVAILABILITY; (B) FOR THE INACCURACY OF ANY INFORMATION OR THE INADEQUACY OF ANY PROCEDURES OR PERSONNEL; OR (C) ANY LOSS, INJURY, OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS OMISSIONS, DELAYS OR INTERRUPTIONS IN THE HIGH SPEED INTERNET SERVICE PROVIDED HEREUNDER. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE LIABILITY OF BTC FOR DAMAGES AND/OR LOSSES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS AND DEFECTS IN HIGH SPEED INTERNET SERVICE OR EQUIPMENT FURNISHED BY BTC AND NOT CAUSED BY THE ACTS OR OMISSIONS OF CUSTOMER, EXCEED THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF TIME DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, OR DEFECT IN HIGH SPEED INTERNET SERVICE OR EQUIPMENT OCCURS.
16. DISCLAIMER OF WARRANTY. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT BTC DISCLAIMS ANY WARRANTIES OF ANY TYPE OR KIND REGARDING THE SERVICES WHICH ARE THE SUBJECT OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
17. INDEMNIFICATION. Customer agrees to indemnify and save BTC harmless from any claims, costs, or liabilities arising, directly or indirectly, out of libel, slander, or infringement of copyright resulting from transmission over BTC’s facilities; from claims for infringement of patents arising from use of Customer equipment and systems in combination with facilities and Equipment of BTC; and from all other claims arising out of any act or omission of Customer in connection with the use of the High Speed Internet Service or Equipment furnished by BTC.
18. FORCE MAJEURE. BTC shall not be in default under this Agreement if and to the extent that any failures or delays in BTC’s performance of one or more of its obligations hereunder is caused by any of the following conditions and BTC’s performance of such obligation or obligations shall be excused and extended for and during the period of any such delay: acts of God; hurricane; fire; flood; failures, shortages, or unavailability or other delay in the delivery by a third party supplying services, equipment, fiber, or network to BTC to the extent such unavailability or delay is not within the reasonable control of BTC; government codes, ordinances, laws, rules, regulations, or restrictions; strikes or other labor disputes; acts of terrorism; or any other cause beyond the reasonable control of BTC. BTC represents that it shall use commercially reasonable efforts to repair fiber cuts and equipment failure in a diligent manner. In the event that such force majeure event extends for more than ninety (90) days, Customer may terminate this Agreement or the applicable High Speed Internet Service upon written notice to BTC.
19. NOTICES. Notices required under this Agreement shall be in writing and delivered personally, by professional courier, or by certified mail return receipt requested, to the parties at the addresses set forth in this Agreement (or at such other addresses as shall be given in writing by either party to the other). All notices shall be effective upon receipt.
20. ASSIGNMENT. This Agreement and any contractual rights or remedies available to BTC hereunder shall be freely assignable, in whole or in part, by BTC. Additionally, BTC may sell or assign its interest, in whole or in part, in any telecommunication facilities utilized to provide the High Speed Internet Service. Customer shall not assign this Agreement or its rights hereunder without the written consent of BTC to such assignment. Any such transfer without the consent of BTC is void.
21. MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Time is of the essence with respect to this Agreement. Customer shall promptly execute and deliver to BTC such further documents and take such further action as BTC may request in order to give effect to the intent and purpose of this Agreement. All indemnifications, releases, limitations of liability, disclaimers of warranties, limitations of remedies, the agreement to arbitrate, the restrictions upon use of the High Speed Internet Service and/or the Equipment and the rights of BTC to take action necessary to remain in compliance with any applicable tariff or license, including its right to retake possession of or disable the Equipment, all as more particularly set for herein, shall survive the termination of this Agreement and discontinuation of the High Speed Internet Service.
22. GOVERNING LAW, ARBITRATION. This Agreement shall be binding when accepted by BTC in the State of Mississippi and shall be governed by the laws of the state of Mississippi. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof shall be submitted to binding arbitration before a panel consisting of three arbitrators at a mutually agreeable site in Mississippi, or if no site can be agreed upon, then in Bruce, Mississippi. Such arbitration shall be binding upon both Customer and BTC and shall be in accordance with the rules of the American Arbitration Association (“AAA”), including selection of the arbitrators, which shall be accomplished in accordance with the rules of the AAA. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The parties further agree that the prevailing party in such arbitration shall be entitled to recover the costs of such arbitration from the other party, including reasonable attorneys’ fees. This Agreement to arbitrate shall not in any way impair or lessen the remedies available to BTC in the event of default by Customer as more particularly set forth above. This agreement to arbitrate shall be specifically enforceable under applicable law in any court having jurisdiction thereof.
23. CREDIT INVESTIGATION. By execution of this Agreement, Customer authorizes BTC to conduct an investigation into its creditworthiness, including obtaining credit histories and making inquiries of other business, banks and lending institutions concerning the creditworthiness of Customer. Customer hereby releases BTC from any and all claims arising against BTC or its affiliates in connection with such investigation and agrees to indemnify and hold BTC harmless from any and all liability, damages and costs, including attorney’s fees, arising in connection with such investigation. Customer acknowledges and agrees that BTC may terminate this Agreement any time before the Service Commencement Date in the event BTC determines in its sole discretion that Customer’s creditworthiness is not acceptable and that Customer cannot provide sufficient additional security to BTC.
24. ENTIRE AGREEMENT; MODIFICATION. Subject to any applicable Tariff, this Agreement correctly sets forth the entire agreement between BTC and Customer with respect to the High Speed Internet Service by BTC to Customer. To the extent, if any, the terms of this Agreement and any Applicable Tariff conflict, then the Applicable Tariff shall control. This Agreement and the Service Agreement may be modified or amended only in writing signed by both parties.
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REVISED AND EFFECTIVE AS OF DECEMBER 5, 2023.