Brightspeed Website User Agreement

6. Content Provided to Brightspeed.

a. Order Information. Brightspeed may establish and implement processes and procedures impacting orders that are placed on, through, or with the assistance of Brightspeed Websites, including requiring you to validate information or placing limits on the quantity, nature, or type of Brightspeed Products available to you. In its sole discretion, Brightspeed may cancel or reject orders for Brightspeed Products at any time.

b. Content You Submit to Brightspeed. Some Brightspeed Websites permit you to post content, including data, photos, text, audio, video, graphics, and ideas (collectively, "User Content"). You represent and warrant that you own or have control over all rights to the User Content you provide on a Brightspeed Website, there is no confidentiality obligation or expectations of any kind, and such User Content does not violate the terms of this Agreement. You will indemnify Brightspeed for all claims resulting from the User Content you provide on a Brightspeed Website. You agree to provide Brightspeed with a royalty-free, perpetual, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display all such provided User Content, in whole or part, worldwide and/or to incorporate it in other works in any form now known or later created, and create and exercise the same rights with respect to such other works. You also permit any user of a Brightspeed Website to access, display, save, distribute, reproduce and prepare derivative works of such User Content. You grant Brightspeed the right to use your name in connection with the User Content, including the right to use your name in advertising and marketing materials. Any use by Brightspeed of User Content shall not require permission from you or payment to you or any other party. No compensation will be paid to you by Brightspeed or any third party related to any type of use, distribution, or publishing of such User Content in any way or forum. Brightspeed has no duty or obligation to validate, use, access, post, or distribute such User Content, and Brightspeed has no duty or obligation regarding confidentiality of any User Content. Brightspeed, in its sole discretion, may remove, refuse to use or access, or not permit others to use or access at any time without notice. You accept full responsibility and any liability for User Content you access, upload, transmit, transfer, or view by or through a Brightspeed Website and the Internet, and Brightspeed has no responsibility, accepts no liability, and does not endorse such User Content, including any statements, positions, opinions, advice, suggestions, errors, defamatory content, slander, libel, inaccuracies, obscenity, profanity, or pornography that may be contained in User Content. Brightspeed values any feedback you may have about a Brightspeed Website. However, if you send us any type of communication concerning the Brightspeed Website or any Brightspeed Product, the content of your communication will be treated as nonproprietary and nonconfidential (even if marked confidential or similar denotation) and will become Brightspeed property to use, reproduce, disclose, and distribute for any purpose whatsoever, without limitation to the extent permitted by applicable law and without compensation to you.

7. Access to and Permissible Use of Brightspeed Websites. You agree not to use any Brightspeed Website for any unlawful, abusive, or fraudulent purpose, including without limitation, using a Brightspeed Website brand, avoids your obligation to pay for Brightspeed Products, constitutes a criminal offense, gives rise to a civil liability, or otherwise violates any law or regulation. Brightspeed will make reasonable attempts to provide uninterrupted service, but there may be instances where a Brightspeed Website is delayed, impaired or impossible (collectively, "Technical Issues"). Should you experience any Technical Issues, you are to promptly contact Brightspeed. Brightspeed will not be liable to you for any loss of information, blockages or delays affecting data, information, notifications, purchases, deliveries or any other aspect of a Brightspeed Website due to Technical Issues. You will use Brightspeed Websites in a manner consistent with this Agreement, and not take any of the following actions with respect to any Brightspeed Website or use a Brightspeed Website to provide, post, transmit, email, link or otherwise make available any content in a manner that:

a) uses any robot, spider, or other such programmatic or automatic device, inducing but not limited to automated dial-in or inquiry devices, to obtain information from a Brightspeed Website or otherwise monitors or copies any portion of a Brightspeed Website or a Brightspeed Product;

b) contains software viruses, worms, time bombs, corrupted files, trojan horses or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair or limit the functioning of any software, hardware, network, server or communications systems or equipment;

c) disrupts, interferes or inhibits any other user from using or enjoying a Brightspeed Website or other affiliated or linked websites, material, contents, products and/or services, including Brightspeed Products;

d) creates a false identity for the purpose of misleading others;

e) prepares, compiles, uses, downloads or otherwise copies any user information and/or usage information for any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such information to any third party;

f) uses any Brightspeed domain name as a pseudonymous return email address;

g) constitutes or contains any offer for unsolicited or unauthorized advertising or offers for goods or services or any advertising or promotional materials, except in those areas specifically designated for such purpose, including junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;

h) provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;

i) attempts to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into the software or any content or a Brightspeed Website;

j) reproduces, duplicates, copies, sells, trades, resells or exploits for any commercial purposes, any portion of a Brightspeed Website, use of a Brightspeed Websites, or access to a Brightspeed Website;

k) publishes, publicly performs or displays, or distributes to any third party any content, including reproduction on any computer network or broadcast or publications media;

l) systematically collects and uses any content including the use of any data mining, or similar data gathering and extraction methods;

m) makes derivative uses of a Brightspeed Website or any content on a Brightspeed Website;

n) uses, frames, or utilizes framing techniques to enclose any portion of a Brightspeed Website (including images found at a Brightspeed Website or any text or the layout/design of any page or form contained on a page);

o) is unlawful and/or, in Brightspeed's sole discretion, is harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, invasive of another's privacy, or racially, ethnically or otherwise offensive, hateful or abusive;

p) infringes someone else's patent, trademark, trade secret, copyright or other intellectual property or other rights, or attempts to remove any proprietary notice or labels from any content on a Brightspeed Website;
q) advocates or solicits violence, criminal conduct or the violation of any local, state, national or international law or the rights of any third party;
r) is deceptive in any way, including any offers to sell fraudulent goods or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity;
s) specifically advertises firearms or ammunition, tobacco, alcohol, illegal drugs, or other contraband;

t) contains a charity request, petitions for signatures, chain letters or letters relating to any type of scheme or program; and/or
u) modifies, translates, decompiles, disassembles, uses reverse engineering or otherwise attempts to derive the source code for the computer systems and other technology that operate a Brightspeed Website. For purposes of this Agreement, "reverse engineering" includes the examination or analysis of a Brightspeed Website to determine the source code, structure, organization, internal design, algorithms or encryption devices of a Brightspeed Website's underlying technology.

8. Disclaimer of Warranties. Brightspeed makes no warranty, guarantee, or representation that your use of any Brightspeed Website will be protected from viruses, security threats, or other threats or vulnerabilities. Brightspeed also does not warrant that information on Brightspeed Websites, including information related to Brightspeed Products, is accurate, complete, or current. It is possible that pricing or service capabilities described for Brightspeed Products on Brightspeed Website have changed. In all such instances, Brightspeed will make reasonable efforts to address the error as soon as practicable. Brightspeed Websites and all related information, content, and supporting systems are made available to you "as is", "with all faults", and "as available" and Brightspeed does not warrant, in any way, the availability, accuracy, completeness, currentness, suitability, reliability, title, usefulness, noninfringement, merchantability, or fitness for a particular purpose of such items. You access Brightspeed Websites at your own risk. You understand and agree that you are solely responsible for any damages to your computer system or loss or theft of data or information that results from your use of Brightspeed Websites or downloading of any material accessed from or otherwise provided through a Brightspeed website. Brightspeed does not guarantee that Brightspeed Websites or any of its websites will be error-free, continuously available, or free of harmful components, including, without limitation, viruses, worms, trojan horses, or other programs that are capable of disabling, damaging, interfering, altering, intercepting, or otherwise impacting or affecting a Brightspeed Website or any Brightspeed systems, network, or services, or your computer, mobile device, supporting equipment, or any other hardware, software, network, or other systems.

9. Limitations of Liability. 

a. General. UNDER NO CIRCUMSTANCES WILL BRIGHTSPEED, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS, LICENSORS, SUPPLIERS AND CONTRACTORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FOLLOWING (EXCEPT THIS LIMITATION SHALL NOT APPLY TO A PARTY WHOSE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT CAUSED YOUR DAMAGES OR LOSS):

(1) ANY ACT OR OMISSION BY YOU OR ANOTHER PERSON OR ENTITY,

(2) ANY FAILURE OR DELAY IN MAKING BRIGHTSPEED WEBSITES AVAILABLE TO YOU FOR ANY REASON AT ANY TIME,

(3) ANY CONTENT OR INFORMATION ACCESSED WHILE YOU USE BRIGHTSPEED WEBSITES,

(4) ANY LOSS OR LACK OF PRIVACY AS TO, USE OR MISUSE OF, THEFT OF, DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF ANY OF YOUR SOFTWARE, FILES, INFORMATION, OR DATA, INCLUDING YOUR IDENTIFIERS, ACCOUNT INFORMATION, AND PAYMENT INFORMATION ,

(5) ANY TRANSACTION PERFORMED OR ATTEMPTED TO BE PERFORMED ON OR THROUGH A BRIGHTSPEED WEBSITE,

(6) ANY CONTENT OR INFORMATION CREATED OR ACCESSED WHILE YOU USE BRIGHTSPEED WEBSITES,

(7) ANY OTHER CAUSE OF ACTION RESULTING FROM YOUR USE OR ATTEMPTED USE OF BRIGHTSPEED WEBSITES IN ANY MANNER.

THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES REGARDLESS OF THE LEGAL THEORY UNDER WHICH LIABILITY IS ASSERTED (WHETHER IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE), AND REGARDLESS OF WHETHER BRIGHTSPEED HAS BEEN ADVISED OF THE POSSIBILITY OF LIABILITY, LOSS, OR DAMAGE, TO DAMAGES OF ANY KIND, INCLUDING COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OF OPPORTUNITY OR USE, LOSS OR MISUSE OF INFORMATION OR DATA, DIMINUTION IN VALUE, AND COST OF REPLACEMENT SERVICES. IN THE EVENT APPLICABLE LAWS IN CERTAIN STATES DO NOT PERMIT APPLICATION OF THIS LIMITATION OF LIABILITY OR LIMIT ITS APPLICABILITY, YOU AGREE THE AGGREGATE LIABILITY OF BRIGHTSPEED IN SUCH INSTANCES FOR LIABILITY THAT WOULD HAVE OTHERWISE BEEN LIMITED BY THIS SECTION WILL NOT EXCEED ONE HUNDRED DOLLARS ($100) OR THE MINIMUM AGGREGATE LIABILITY ALLOWED BY APPLICABLE LAW. THE LIMITATIONS IN THIS SECTION ALSO ARE SUBJECT TO SECTION 12(b)(ii)(C).

10. Indemnification. You agree to indemnify, defend and hold harmless Brightspeed, its officers, directors, employees, agents, shareholders, licensors, suppliers and any third party information providers from and against all claims, demands, actions, losses, expenses, damages and costs, including reasonable attorneys' fees, made by a third party arising from or in connection with any violation of this Agreement or applicable law by you, any violation of any rights of a third party by you, and any information or content that you submit, use, post, transmit, or make available to Brightspeed, including provided through a Brightspeed Website.

11. Governing Law. This Agreement and any disputes, claims, actions, and lawsuits arising out of or related to this Agreement shall be governed by the law of the state in which you receive the Services that are the subject of the dispute, claim, action or lawsuit.

12. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES ON AN INDIVIDUAL BASIS (AS OPPOSED TO ON A CLASS, REPRESENTATIVE, MASS, COLLECTIVE, CONSOLIDATED, OR COORDINATED BASIS), THROUGH PRE-SUIT DISPUTE RESOLUTION, AND IF APPROPRIATE, BY COURT ACTIONS DECIDED BY A JUDGE (NOT BY A JURY). IT LIMITS YOUR TIME TO NOTIFY BRIGHTSPEED OF A DISPUTE AND LIMITS YOUR TIME TO FILE ANY CLAIM, DISPUTE, ACTION, OR LAWSUIT. This Section governs all disputes, claims, actions, or lawsuits between you and Brightspeed arising out of or relating to this Agreement, Services, Software, and/or Equipment, regardless of the legal theory.

a.  Pre-Filing Requirements. Before filing or commencing any lawsuit, claim, or action in any court, you must first present any claim or dispute to Brightspeed in writing in a manner reasonably sufficient to allow Brightspeed a fair and adequate opportunity to resolve the dispute without litigation (“Notice of Claim”). Any Notice of Claim should be emailed to legalaffairs@brightspeed.com or mailed to Brightspeed, Attn: Litigation Department, 717 McGilvery Street, Fayetteville NC 28301

THESE PRE-FILING REQUIREMENTS ARE MATERIAL TERMS OF THIS AGREEMENT PROVIDING YOU AND BRIGHTSPEED WITH SUBSTANTIVE, NOT MERELY PROCEDURAL, RIGHTS. YOUR FAILURE TO ABIDE BY THEM MAY BE GROUNDS FOR DISMISSAL OF ANY LAWSUIT.

(i)  Notice of Claim Must Be on an Individual Basis. Your Notice of Claim must be on your own individual behalf and shall not be made on a class, representative, mass, collective, consolidated, or coordinated basis. Without limiting the generality of the requirement that any Notice of Claim must be on an individual basis, it is a violation of this agreement for two or more claimants to include claims in a single Notice of Claim or attempt to settle simultaneously their disputes, unless the two claimants are joint, named account holders of the same Brightspeed account.

(ii) Fair and Adequate Opportunity to Resolve the Dispute.

(A) Brightspeed commits to work with you in good faith to resolve any disputes you may have. For your individual Notice of Claim to provide Brightspeed a fair and adequate opportunity to resolve the dispute without litigation, your Notice of Claim must include:

(1)  the Brightspeed Website(s) related to the claim or dispute, the approximate dates on which you visited those sites, and your general activities while visiting those sites (e.g., comparing Brightspeed products, paying your Brightspeed bill);

(2)  the Brightspeed account number(s) for the account(s) related to the claim or dispute, if any;

(3)  a reasonable description of the facts underlying the claim or dispute;

(4)  an estimate of your money damages and how those damages were calculated;

(5)  a description of any relief sought other than money damages; and

(6)  supporting documentation.

In addition to the information provided in your Notice of Claim, you also agree to respond within a reasonable time to any request from Brightspeed for additional information to support or clarify your claim or dispute.

(B)  If your individual Notice of Claim includes any claim based on any alleged false statement, fraud, deception, or misrepresentation, then your individual Notice of Claim also must identify:

(1)  the content of any alleged false or misleading statement or advertisement;

(2) the approximate date(s) on which you received, heard, or read that statement or advertisement;

(3) how you received that statement or advertisement; and

(4) if the alleged false or misleading statement was made by a particular person, that person’s name or affiliation with Brightspeed (e.g., Brightspeed employee, Brightspeed-authorized service technician, or contractor).

(C)  Using information you provide pursuant to Sections 12(a)(ii)(A) and (B), (Brightspeed will use reasonable efforts to search for and identify records of your account history, if any, that might be helpful in resolving your dispute. Brightspeed will also attempt to contact you directly to discuss your dispute. If you do not provide the information required by Sections 12(a)(ii)(A) and (B), Brightspeed is not obligated to search its records.

(iii)  60-Day Pre-Filing Period. If you and Brightspeed are unable to resolve your claim or dispute within 60 days after Brightspeed receives your Notice of Claim that meets the requirements of Sections 12(a)(i) and 12(a)(ii) (“60-Day Pre-Filing Period”), you may file a court action consistent with these Dispute Resolution Terms. If your Notice of Claim is deficient, incomplete, or defective because it is not made on an individual basis, as set forth in Section 12(a)(i), or because it does not include the information required by Section 12(a)(ii), then the 60-Day Pre-Filing Period will not begin until the first date on which Brightspeed has received information correcting those deficiencies or defects. Further, if your Notice of Claim otherwise meets the requirements of Sections 12(a)(i) and 12(a)(ii), but you fail to respond to a reasonable request from Brightspeed for missing or additional information about your claim or dispute, then the 60-Day Pre-Filing Period will pause and not begin again until you provide the requested missing or supporting information.

(iv)  Pre-Filing Tolling Period. Any deadline to file a lawsuit will be extended up to a maximum of 60 consecutive days after Brightspeed receives your Notice of Claim (“Pre-Filing Tolling Period”). If you fail to respond to a reasonable request from Brightspeed for missing or additional information, then the Pre-Filing Tolling Period will end 14 consecutive days after the date of Brightspeed’s request.

b.   WAIVER OF ANY RIGHT TO PROCEED ON A CLASS, REPRESENTATIVE, MASS, COLLECTIVE, CONSOLIDATED, OR COORDINATED BASIS. By this Agreement, both you and Brightspeed waive any right to pursue any disputes and claims on a class, representative, mass, collective, consolidated, or coordinated basis.

(i) Examples of Class, Representative, Mass, Collective, Consolidated, or Coordinated Bases. Without limiting the generality of the requirement that disputes and claims be pursued and resolved in court solely on an individual basis, it is a violation of this agreement for two or more claimants to (1) include claims in a single Notice of Claim; (2) pursue their claims in a single court action; or (3) attempt to settle simultaneously their disputes, unless the two claimants are joint, named account holders of the same Brightspeed account.

(ii) Consideration for Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis. As consideration for the Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis in this Section 12, Brightspeed agrees that:

(A)  Brightspeed will reimburse you for filing fees you incur for filing any lawsuit in small claims court, so long as your filing was consistent with these Dispute Resolution terms, regardless of whether you prevail on any claim in small claims court;

(B)  If you both (1) prevail on a claim in court and (2) receive an award of actual damages that exceeds Brightspeed’s highest offer of settlement during the 60-Day Pre-Filing Period, Brightspeed will reimburse you for your reasonable attorneys’ fees, as well as any costs and expenses you or your attorney reasonably incurred for investigating, preparing, and pursuing your claims. The calculation of actual damages for purposes of this section excludes any award of attorneys’ fees, statutory minimum damages, statutory multiple damages or penalties, consequential damages, exemplary or punitive damages, and any other costs or expenses incurred in pursuing your claims;

(C)  Nothing in this Agreement, including the limitations on liability in Section 9, will prevent or limit the recovery of statutory remedies; and

(D)  Brightspeed will waive its right to any award of attorneys’ fees, costs, and expenses to which it might be entitled as a prevailing party in the lawsuit you filed, except that Brightspeed retains its right, as allowed by applicable law, to seek attorneys’ fees, costs, and expenses on the basis that your claim was frivolous or otherwise brought in bad faith or for the purpose of harassment.

Your right to attorneys’ fees, costs, and expenses provided by this Section 12(b)(ii) is not intended to limit your rights to recover these items under applicable law (if any such rights exist). If applicable law entitles you to a greater award of attorneys’ fees, costs, and expenses than allowed under Section 12(b)(ii), you may recover that greater amount. However, you may not recover duplicative awards of attorneys’ fees, costs, and expenses under both Section 12(b)(ii) and applicable law.

(iii)  Consideration for Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis not severable from Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis. If a court deems Section 12(b) (Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis) unenforceable as to your claims or action, then Section 12(b)(ii) (Consideration for Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis) shall also be unenforceable and severed from this agreement.

c.  Waiver of Right to Jury Trial. Both you and Brightspeed waive the right to a jury trial on your individual claims. To the extent court action is appropriate under this Agreement, any trial of your claims and Brightspeed’s defenses or counterclaims shall be to a judge or court presiding without a jury (i.e., a “bench trial”), except as provided in Section 12(d).

d.  Waiver of Jury Trial Not Servable from Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis. If a court deems Section 12(b) (Waiver of Any Right to Proceed on a Class, Representative, Mass, Collective, Consolidated, or Coordinated Basis) unenforceable as to your claims or action for any reason, the Waiver of Right to Jury Trial in Section 12(c) shall be unenforceable and severed from this agreement.
 

e.  Limitation on Time to File Any Claim, Dispute, or Lawsuit. you must notify Brightspeed of any dispute arising out of or relating to this Agreement as soon as it is discovered, but in any event, within 6 months after it is discovered. you accept all charges not disputed within 6 months of your disputed invoice. Any lawsuit arising out of or relating to this Agreement must be filed within one year after the cause of action arises. The foregoing limitations shall not apply where PROHIBITED by applicable law. If a court deems either of the foregoing limitations unenforceable, the limitation(s) found UNENFORCEABLE shall be extended by the minimum time necessary to make the limitation(s) enforceable.

13. General.

a. Notice. If we send you a notice, it will be considered given when deposited in the U.S. Mail or with overnight courier mail, addressed to you at your billing address or other address you have provided us, hand-delivered to you, or distributed via email to the then-current email address provided to us by you. Our notice to you will also be effective if provided on your invoice or by telephone, or, when posted online, the actual date such notice is posted to http://www.brightspeed.com. If you want to provide notice to us related to any matter other than a dispute covered by Section 12, you agree to notify Brightspeed customer service at the number listed on your invoice and provide all requested information, email us at legalaffairs@brightspeed.com, or send us mail addressed to Brightspeed, Attn: Litigation Department, 717 McGilvery Street, Fayetteville NC 28301. You agree that Brightspeed may contact you via email at the email address you provide to us when you use Brightspeed Websites or any subsequent email address you provide us. You will provide us with any changes to your email address by updating that address in the manner prescribed to you by Brightspeed.

b. Other. This Agreement, together with the other agreements, disclosures, and policies and posted information referenced herin, constitutes the entire agreement between you and Brightspeed related to Brightspeed Websites, and any other written or oral statements do not change this Agreement. Neither the course of conduct between you and Brightspeed nor trade practices will act to modify any provision of this Agreement. Brightspeed may assign its rights and duties under these terms to any party at any time without notice to you. If any provision of this Agreement is found to be unenforceable or invalid, this Agreement's unaffected provisions will remain in effect. If either you or Brightspeed fails to enforce or waives any requirement under this Agreement that does not waive that party's right to later enforce that requirement in the future.