Updated: June 12, 2020
Thank you for choosing Bel Air Internet (“BAI”) as your Service(s) provider. This Service Agreement (“Agreement”), along with BAI’s Acceptable Use Policy and Privacy Statement, set forth the obligations, terms and conditions each Subscriber is required to adhere to when utilizing any BAI Service.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION, AS THIS IS A BINDING LEGAL CONTRACT BETWEEN BAI AND THE SUBSCRIBER, AND SUPERSEDES ALL PRIOR COMMUNICATIONS AND AGREEMENTS WITH RESPECT TO THE SUBJECT MATTER.
By clicking “I Agree” or “I Accept,” or by utilizing any BAI Service, software or hardware provided by BAI or its suppliers, each Subscriber is agreeing that they: (1) have read and understand this Agreement, BAI’s Acceptable Use Policy and Privacy Statement; and (2) agree to all terms and conditions contained within therein. BAI reserves the right to modify this Agreement at any time by posting a revised and updated version on its website; therefore, you should look at these terms regularly. Each time that you (or anyone authorized by you) use any BAI Service, you are reaffirming your acceptance of the then-current Agreement. If you do not wish to be bound by this Agreement, BAI’s Acceptable Use Policy or Privacy Statement, you may not access or utilize any BAI Service.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION, WHICH REQUIRES THAT ANY DISPUTE BETWEEN YOU AND BAI, EXCEPT FOR NON-PAYMENT OR LATE PAYMENT AND BREACH OF ANY OBLIGATION OF CONFIDENTIALITY OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT FOR WHICH AN INJUNCTION MAY BE SOUGHT, IS SUBJECT TO A CLASS ACTION AND JURY TRIAL WAIVER, AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ SECTION 9 OF THIS AGREEMENT CAREFULLY, AS IT SETS FORTH THE ARBITRATION TERMS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. DEFINITIONS. “BAI,” “We,” “Our,” and “Us” means Bel Air Internet, LLC and its subsidiaries, agents, employees, successors and assigns; and (b) “You,” “Your,” “Their,” “They,” “Subscriber,” “User,” and “Customer” mean any individual or entity represented by that individual which subscribes to any BAI Service.
2. SERVICES. BAI offers internet, telephone, managed Wi-Fi, IPTV television, and satellite television services (individually the “Service;” collectively the “Services”). Subscriber acknowledges that this Service Agreement contains terms and conditions that apply to the Services collectively, as well as each Service individually, and agrees that they have read and understand all terms and conditions which apply to their selected Service(s).
2.1. INTERNET, MANAGED WI-FI AND TELEPHONE SERVICE. BAI offers internet, managed Wi-Fi and VOIP services to its Customers.
2.1(a). Managed Wi-Fi Service Description. BAI offers managed Wi-Fi service to its residential customers via its Rover service, to its commercial customers via Xenia, as well as other managed Wi-Fi solutions for (but not limited to) temporary events, venues and other commercial spaces. In order to utilize Rover or Xenia, the Subscriber must also be subscribed to a BAI internet service plan, as Rover and Xenia only operate on BAI’s network. Additionally, all Users must be located within the coverage area of an available access point, and utilize a device which meets the technical requirements for Wi-Fi service.
2.1(b). Performance Characteristics. Subscriber acknowledges and agrees that BAI only guarantees its internet speeds over hard-wired connections that are directly connected to a BAI approved router, and which are measured with a machine capable of testing accurate speeds. As such, Subscriber acknowledges and agrees that BAI cannot and does not guarantee internet speeds, reliability or performance to any non-BAI equipment, via any non-BAI certified cabling, or over a Wi-Fi connection, as BAI cannot account for wireless interference or other obstructions which may interfere with the signal. Thus, Subscriber further acknowledges and agrees that by using wireless equipment to connect to the internet, Subscriber’s service may be impacted, and that such interference can affect the speed and quality of Subscriber’s service. Subscriber acknowledges and agrees that the introduction of physical obstructions or devices which interfere with Subscriber’s wireless connection in Subscriber’s residence and/or community is beyond BAI’s control. As such, Subscriber agrees that BAI is not responsible for any interference or the effect interfering devices may have on Subscriber’s service, speed or quality.
2.1(c). Security. Subscriber acknowledges that the transmission of information via internet and/or Wi-Fi may not be secure. Although BAI makes every effort to ensure the integrity and security of its network and systems, BAI makes no warranties or representations as to the security of Subscriber’s communications and/or transmissions. Subscriber hereby agrees that neither BAI nor any of its affiliates, subsidiaries, officers, managers, employees or agents shall be liable for any third-party’s unauthorized access or misuse of Subscriber’s account, and that Subscriber is solely responsible for such unauthorized access and/or misuse.
2.1(d). Subscriber Account. Subscriber hereby acknowledges that each account provides one connection to the Service. Although Subscriber may share the Service among the computers within their residence, Subscriber acknowledges and agrees that it is their sole responsibility to install and maintain a means of sharing the connection and securing your home network. BAI has no such obligation, and shall not provide the equipment, knowledge or labor to aid Subscriber in sharing their connection. BAI may refer Subscriber to independent contractors that provide in-home networking services, but BAI does not warrant or guarantee the work performed by any third party, including any independent contractors with which BAI may hold agreements.
2.2 THEATV SERVICE
2.2(a). Description. BAI provides an internet-based video service which allows Subscribers to view live and on-demand programming (“Content”) via its TheaTV application. Subscriber acknowledges that the Service and availability of the Content, as well as the compatible streaming devices through which the Service is available, as described in Section 2.2(g), may change from time to time. BAI, thus, reserves the right to make modifications to the Content and/or Service, as necessary to continue its operation of the Service. Subscriber agrees that BAI shall not be liable to them for any such modifications.
2.2(b) Eligibility. Only residents of the State of California who are 18 years old or older, and subscribers of a BAI internet service plan are eligible to register for TheaTV. Subscriber acknowledges that the TheaTV application is only operable when connected to BAI’s internet network, and is not accessible on any other internet network. Subscriber further acknowledges that some Content may not be suitable for children under a certain age, and agrees to supervise their children’s access to and use of the Content.
2.2(c). Registration. To register for TheaTV, Subscriber must already be a subscriber to a BAI internet plan, or must subscribe to a BAI internet plan when registering for this Service. Subscriber will be required to download the application from a supported streaming device, provide certain information (e.g. username and password), and agree to this Service Agreement. Subscriber is solely responsible for all activities which occur on or through their account, and should thus, maintain the confidentiality of their username and password. Subscriber agrees that should there be any unauthorized use of their account, they will notify BAI immediately.
2.2(d). Viewing Limitations. Subscriber acknowledges and agrees that the Service is only for Subscriber’s personal, non-commercial use, and that Subscriber shall only utilize the Service to view the Content on a streaming-only basis through the TheaTV application. Subscriber acknowledges and agrees that they shall not rebroadcast, redistribute, or retransmit the Content, and that the Content may not be displayed or otherwise made available to anyone other than Subscriber. Subscriber further acknowledges and agrees that the sharing of Subscriber’s account information to any party outside of Subscriber’s service location for the purpose of allowing them to access the Service via Subscriber’s subscription is strictly prohibited. In the event that BAI determines that any individual(s) other than Subscriber is accessing the subscription, BAI reserves the right to terminate the Service, in its sole discretion.
2.2(e). Blackouts. Subscriber acknowledges that certain Content, including sporting events, may be blacked out in your service location, or otherwise made unavailable due to legal, contractual or other restrictions. Subscriber acknowledges that BAI has no control over when such blackouts occur, and that the restrictions are decided by the entities that own the local broadcasting rights.
2.2(f). Ownership and License. BAI and its licensors retain all rights, title and interest to the Services, as well as any and all Content owned or controlled by BAI’s licensors. Subscriber acknowledges that the Services and the Content are subject to and protected by intellectual property laws; however, subject to any restrictions contained herein, BAI grants Subscriber a personal, revocable, non-exclusive, non-transferable, limited right to install, access and use the TheaTV application on any supported device(s) which are owned and operated solely by Subscriber, strictly in accordance with the terms and conditions set forth herein, and all applicable laws and regulations.
2.2(g). Compatible Streaming Devices. Subscriber acknowledges that the TheaTV application is available on numerous streaming devices, but is not available or supported by any Roku devices. Subscriber further acknowledges and agrees that Subscriber is solely responsible for purchasing, setting up, troubleshooting and servicing the applicable streaming device for use with TheaTV, and BAI has no such responsibility.
2.2(h). Limitation on Streams. Subscriber acknowledges that the Content may be concurrently streamed on up to five (5) devices at one time; however, the actual number of concurrent streams available to Subscriber shall vary and be limited by the subscription selected.
2.2(i). DVR Service. The TheaTV application also includes DVR functionality, which allows Subscriber’s to record and store a limited amount of Content for a period of time. Subscriber acknowledges that the amount of Content they are able to store may depend on the subscription selected. Subscriber further acknowledges that BAI does not guarantee error-free recording or storage, and agrees that in the event that Subscriber is unable to access any recorded Content, for any reason whatsoever, BAI shall not be liable to Subscriber.
2.3. DIRECTV SERVICE
2.3(a). Description. BAI is an authorized reseller of DirecTV’s satellite television programming. As such, Subscriber acknowledges that although Subscriber is signing up for DirecTV’s service through BAI, the actual programming shall be provided to Subscriber by DirecTV; thus, Subscriber acknowledges and agrees that BAI shall have no responsibility for any outages or signal related issues.
2.3(b). DirecTV Protection Plan. By signing up for DIRECTV, you are automatically enrolled into BAI’s DTV Protection Plan at a rate of $5.95 per month. This plan covers service to the centralized DIRECTV system at your property for all related issues, as well as remote support for the equipment in Subscriber’s unit. This protection plan does not, however, cover on-site service calls for individual equipment, which may result in an additional fee. Enrollment in BAI’s Protection Plan is required in order for BAI to sign Subscriber up for DIRECTV. In the event that Subscriber fails pay the $5.95 per month charge, Subscriber hereby agrees to pay a service fee of $120 per hour, with a two (2) hour minimum charge, each time Subscriber requests any service covered under the Protection Plan.
2.3(c). Early Termination Fee. Subscriber acknowledges and agrees that in the event that Subscriber terminates their contract with DirecTV prior to the expiration of the then-in-effect contract term, Subscriber shall pay BAI a $200 cancellation fee immediately upon termination. Subscriber further acknowledges that this fee is in addition to, separate and apart from any cancellation or early termination fee(s) charged to Subscriber by DirecTV.
3. CONTENT AND INTELLECTUAL PROPERTY RIGHTS
3.1. Content. Subscriber acknowledges that information, communications, photographs, videos, graphics, software, music, sounds and other materials may be accessible through use of the Service(s). Subscriber further acknowledges that, as a matter of policy, BAI does not pre-screen such materials, but that BAI has the right, but not obligation, to remove from its servers’ materials that BAI, in its sole discretion, determines to be in violation of its Acceptable Use Policy. Subscriber further acknowledges that BAI does not have the capability to monitor, review, restrict, edit or remove materials made available to Subscriber by third-parties on the internet, and agrees that it is Subscriber’s responsibility to evaluate the materials. Subscriber agrees to bear all risks associated with the use of any materials, including any reliance on the accuracy, completeness, or usefulness of such materials. The fact that BAI provides a link to a particular web page is not an indication that it endorses that site’s policies or the content or products available on that site.
3.2 Intellectual Property Rights. Subscriber acknowledges that certain materials provided through the Service may be protected by copyright, trademark and other intellectual property rights. Subscriber agrees that the use of such materials is governed by all applicable laws and regulations, as well as by any further restrictions placed on such materials by their owners and licensors. Subscriber further acknowledges that the Service may be used to place materials in certain public areas (e.g. message boards, newsgroups, forums, and public mailing lists), and that BAI is a distributor, not publisher, of information disseminated by persons using the Service. Subscriber agrees that by posting, uploading or transmitting materials to any public area, Subscriber is requesting that BAI make such materials available to others, and acknowledges that placing such materials in a public area will result in copies of such material being transmitted to others. Subscriber acknowledges and agrees that by posting, uploading or transmitting materials to any public area, Subscriber: (i) grants BAI a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, adapt, publish, distribute, display and create derivative works from such materials (in whole or in part), and to incorporate it into other works in any form, media or technology (whether now known or later developed); and (ii) warrants that the owner of any rights in the material, including intellectual property rights, has waived such rights and has given Subscriber the right to grant the license described above. Subscriber agrees that all liability arising out of any violation of this Section shall be within the scope of the indemnity set forth in Section 9.3.
4. SUBSCRIPTION TO SERVICES
4.1. Bundled Services. Should Subscriber choose to subscribe to any BAI bundled package, Subscriber acknowledges that the discounted pricing of such package is due solely to Subscriber’s election to bundle those specific Services. In the event that Subscriber elects to terminate one or more of the Services within the bundled package, Subscriber agrees that after such termination, Subscriber shall be charged full price for all remaining Services and shall no longer be entitled to any discounted pricing.
4.2. Trial or Discount Periods. Subscriber acknowledges that the Service(s) subscription may begin at a discounted price for a specified period of time, or that BAI may offer special pricing, at its discretion, for specified periods. Subscriber further acknowledges that if the Service(s) are not terminated, in accordance with Section 8, prior to the end of the discount period, Subscriber shall be charged the regular rate of the Service(s). BAI provides notice of the terms of the discount period at the time it is applied; however, Subscriber acknowledges that no additional notice will be sent by BAI or received by Subscriber indicating that the discount period is about to end or has ended, or that BAI has begun charging the regular rate for the Services.
4.3. No Community Affiliation. Subscriber acknowledges that BAI is not directly affiliated with any community, developers of residences or homeowner’s association. Subscriber further acknowledges and agrees that residence in, or ownership of property in a community in which BAI offers service, does not entitle any person to become a subscriber, sustain a subscription or access the Service(s). BAI shall determine, it its sole discretion, who may subscribe to its Service(s).
4.4. Subscriber Relocation. Subscriber acknowledges and agrees that the Services are not transferable in the event Subscriber leaves their service address, and that doing so is not grounds for termination of this Agreement. New owners or tenants of a former Subscriber’s residence must apply to BAI for service, and agree to the terms and conditions of this Agreement.
In the event Subscriber has signed a Term Contract, as defined in Section 8.3, or an equipment lease, and Subscriber relocates during the contract term, Subscriber may elect to either (1) continue the contract and pay a relocation fee equivalent to all of BAI’s costs incurred in removing its equipment and establishing a connection at Subscriber’s new location; or (2) terminate the Term Contract and/or equipment lease and pay the early termination fee described in Section 8.3.
4.5. BAI Right to Terminate or Alter. Subscriber acknowledges and agrees that BAI may, in its sole discretion, discontinue or alter any service level or aspect of the Service at any time, with or without notice, and without liability.
4.6. Subscriber’s Use of the Service(s). Subscriber acknowledges and agrees that BAI may establish general, non-discriminatory practices and limits concerning the use of the Service(s), and that BAI may implement prioritization practices in connection with accessing the Service(s). Subscriber further acknowledges that any limits BAI establishes may vary by subscriber based upon factors determined by BAI in its sole discretion, which may or may not include, among others, a subscriber’s chosen service level, specific usage patterns, and/or geographic location. Subscriber acknowledges and agrees that BAI reserves the right to change these general practices and limits at any time, in its sole direction, with or without notice.
4.7. Subscriber’s Account. Subscriber acknowledges and agrees that they are solely responsible and liable for any and all activity, by any person, which occurs on or through the use of their account, and that all other users of Subscriber’s account shall be bound by this Agreement as if they were the Subscriber. Subscriber further acknowledges and agrees that they are solely responsible for maintaining the confidentiality of the network passwords, and for any liability resulting from the disclosure of the passwords. Subscriber agrees to immediately notify BAI upon becoming aware that their account is or possibly is being used without authorization.
4.8. Access to the Service(s). Subscriber acknowledges and agrees that it is their sole responsibility to ensure that their computer system and software meets the current minimum requirements necessary to use the Service(s). From time to time, the computer equipment required to access and use the Service(s) may change, which may result in Subscriber’s computer equipment ceasing to be adequate to access the Service. Subscriber acknowledges and agrees that they are solely liable for upgrading their computer systems and software to meet the then-current minimum system requirements.
4.9. Equipment. In the event that Subscriber’s subscription to the Service(s) required BAI to provide equipment for Subscriber’s use in connection with the Service(s), Subscriber agrees to accept full financial responsibility for any loss or damage caused to such equipment (excluding product defects or other damage entirely outside of Subscriber’s control). Subscriber acknowledges and agrees that it is their responsibility to ensure that BAI’s equipment is not removed from the service location upon Subscriber vacating such location. In the event that BAI’s equipment is removed, in violation of this Agreement, Subscriber hereby authorizes BAI to charge the MSRP for any and all equipment removed from the service location to Subscriber’s credit card and/or direct-debit account information on file.
5.1. Fees. Subscriber acknowledges that they are solely responsible for any charges to their account, as well as for any activities conducted through their account by Subscriber or any other person. Subscriber further acknowledges that in addition to their monthly subscription fee, Subscriber is solely responsible for the payment of all applicable taxes, fees and charges associated with Subscriber’s account. BAI reserves the right to at any time, in its sole discretion, change its fees and charges for use of portions of the Service, to institute new or additional fees, and to change its policies, methods, and procedures with respect to pricing, billing, cancellations and surcharges.
5.2. Payment Method. In signing up for Service(s), Subscriber expressly authorizes BAI and its agents to charge all fees, applicable taxes and any other charges incurred in connection with Subscriber’s use of the Service(s) with the credit card or payment method Subscriber has designated. Subscriber acknowledges and agrees that such authorization shall remain valid throughout the duration of the subscription. Subscriber further acknowledges and agrees that if a credit card is used to pay for the Service(s), a three-percent (3%) processing fee shall be added to the transaction. Further, in the event that BAI does not receive payment from the card issuer or its agents, Subscriber agrees to immediately pay all amounts due, upon demand.
5.3. Monthly Billing. Subscriber acknowledges that, unless other arrangements with BAI are made in a writing signed by both parties, payment for the Service(s) are automatically billed each month on or about the first day of each month, and will continue to be billed automatically on a month to month basis until the Service(s) are terminated by Subscriber in accordance with Section 8. Subscriber further acknowledges that BAI charges by the month, not the day; and therefore, agrees that there will be no proration, refund or credit for any unused portion of the month.
5.4. Late Payments. Subscriber acknowledges and agrees that each monthly payment is due by the first day of each month. In the event that BAI does not receive Subscriber’s payment in full within thirty (30) days of the applicable invoice date, an additional 1.5% interest charge per month (or the highest amount permissible by law) shall be applied to Subscriber’s invoice until the balance has been paid in full. Additionally, Subscriber acknowledges and agrees that BAI may suspend or terminate Subscriber’s access to the Service(s) and Subscriber’s account at any time, with or without written notice, for non-payment of any fees or charges due to it, and that Subscriber shall remain liable for any and all payments due under this Agreement while the Service is suspended.
5.5. Reporting of Billing Error. In the event that Subscriber believes that a billing error has occurred, Subscriber acknowledges and agrees that BAI must be notified, in writing, of the alleged error no later than 45 days after the alleged billing error occurred. Subscriber further acknowledges and agrees that if BAI is not notified within 45 days of the alleged error, the billed amount will be deemed to have been accepted by Subscriber, and Subscriber agrees to release BAI from any liability for any alleged error or discrepancy.
6. WARRANTIES AND REPRESENTATIONS BY SUBSCRIBER
6.1. Subscriber warrants and represents that they are at least 18 years of age, and that they possess the legal right and capacity to enter into this Agreement and use the Service(s) in accordance with this Agreement. Subscriber hereby agrees to be financially responsible for their, and anyone utilizing the Service(s) via Subscriber’s account, use of the Service(s).
6.2. Subscriber warrants and represents that the information that has been provided to BAI in order to register for the Service is accurate, current and complete. Subscriber acknowledges and agrees that it is their sole responsibility to keep all information updated and current.
6.3. If Subscriber is a legal entity, the individual signing on behalf of the entity hereby warrants and represents that they are duly authorized to execute and deliver this Agreement on behalf of such legal entity. The signatory acknowledges that this Agreement is being signed on behalf of the entity to whom the benefit of the Service shall be conferred, and agrees that such entity shall comply with and be bound by the terms and conditions set forth herein.
7. NO WARRANTIES BY BAI
7.1. Subscriber acknowledges and agrees that their use of the Service is at their sole risk, and that although the Service provides access to the internet, the internet is not owned, operated or managed by BAI.
7.2 With respect to any information, goods and/or services provided or accessed on or through the Service, or otherwise available on the internet, BAI: (i) has no responsibility or obligation with respect to, and does not endorse, any information, good or service; (ii) makes no warranties, whatsoever, express or implied with regard to any information, good or service, including, without limitation, warranties of accuracy, completeness, usefulness, merchantability, safety or fitness for a particular purpose; (iii) will not be a party to any transaction between you and any other user of the Service; and (iv) will not be liable, under any circumstance, for any loss, cost or damage arising, directly or indirectly, from any act or omission of any person or from any information, good or service; except to the extent the foregoing may not be disclaimed under law. BAI does not assume liability to subscribers or others for any failure to enforce the Acceptable Use Policy.
7.3. BAI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. BAI DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY PARTICULAR SPEED. THE SERVICE, SOFTWARE, AND HARDWARE ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY BEL AIR INTERNET, ITS EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS OR AUTHORIZED USERS WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
8. TERMINATION AND REFUND POLICY
8.1. Notice of Termination of Service. Subscriber acknowledges and agrees that the Service(s) may be cancelled at any time by sending written notice of such cancellation to BAI at email@example.com. Such notice must include Subscriber’s full name, service address, termination date and the reason for terminating the service. Subscriber acknowledges that BAI does not accept cancellations over the phone, and agrees that requests to cancel Service(s) shall only be effective if done in accordance with this Agreement.
8.2. Effective Date of Termination. All cancellations must be made in accordance with Section 8.1, and will be considered effective only after Subscriber has received a confirmation email from BAI with their cancellation effective date. Subscriber acknowledges and agrees that BAI charges by the month, and not the day, and there will be no proration of days for a refund, or a credit for any unused days of the month; and thus, all cancellations will become effective as of the last day of the month. As such, Subscriber acknowledges and agrees that in order for a cancellation to be effective as of the following month, and for Subscriber to not be liable and charged the full monthly price on the first the month, Subscriber shall provide notice of cancellation, as described in Section 8.1, to BAI no later than the 25th of the month.
8.3. Term Contracts and Equipment Leases. Subscriber acknowledges and agrees that if a contract for a specified term (“Term Contract”) or equipment lease was entered into with BAI in connection with the provision of Service(s), Subscriber is bound by the terms of those agreements. Subscriber further acknowledges that in the event that the terms or conditions of the Term Contract and/or equipment lease conflict with the terms of this Agreement, the terms and conditions of the Term Contract and/or equipment lease shall prevail.
Subscriber further acknowledges and agrees that pricing under the Term Contract and/or equipment lease is predicated on the length of the term. Thus, in the event that Subscriber terminates the Term Contract and/or equipment lease prior to the end of the term, Subscriber agrees that they are liable for the following fees: (1) “Pre-Installation Termination Fee” equal to one (1) month of the total monthly recurring fees under the Term Contract and/or lease agreement, should Subscriber terminate prior to installation taking place; or (2) an “Early Termination Fee” equal to the total amount of monthly fees remaining under the Term Contract and/or equipment lease should Subscriber terminate after installation. Subscriber further acknowledges and agrees that these fees shall become immediately due upon termination, and hereby authorizes BAI to charge Subscriber’s credit card or direct-debit account on file for the full amount of such fees.
8.4. Return of Leased Equipment Upon Termination. Subscriber agrees that if any equipment was leased from BAI, upon the termination of the Service(s), Subscriber shall return all leased BAI equipment within 15 days from the time the Service(s) are cancelled. Failure to do so may result in Subscriber being charged the MSRP for any and all leased equipment not returned to Subscriber’s credit card and/or direct-debit account information on file.
8.5. BAI Termination Rights. Subscriber acknowledges and agrees that BAI may, in its sole discretion, terminate Subscriber’s access to the Service(s) and/or Subscriber’s account at any time, with or without notice, for non-payment of any fees or charges due on Subscriber’s account, or for any violation of this Agreement or BAI’s Acceptable Use Policy. BAI hereby reserves the right to terminate or temporarily suspend an account, without warning, if BAI believes, in good faith, that such disconnection or suspension would prevent or stop a violation of this Agreement or its Acceptable Use Policy. Subscriber further agrees that in the event that BAI does terminate Subscriber’s access to the Service(s) and/or Subscriber’s account for the aforementioned reasons, Subscriber shall remain liable for any and all fees, if any, due under this Agreement. BAI also reserves the right to terminate Subscriber’s access to the Service(s) and to their account, without cause, by notifying Subscriber of BAI’s intent to do so 15 days in advance.
Upon termination, Subscriber shall have no right to continue use of the Service(s), or to access any stored content on the Service(s), and all such content shall be forfeited. Subscriber acknowledges that if an account on the Service is terminated, any unread e-mail(s) sent prior to termination may be deleted.
8.6 Subscriber Termination Rights. Subscriber acknowledges and agrees that if they are dissatisfied with this Agreement, any terms, policies or practices of BAI in operating the Service(s), any content available through the Service(s), or any change to any of the foregoing, Subscriber’s sole recourse is to cancel the Service. Subscriber, however, shall remain liable for any and all fees, if any, due under this Agreement.
8.7. Application for Service After Termination. BAI reserves the right to refuse the application or reapplication of anyone whose account has been cancelled for a violation, or anyone whom BAI suspects is acting on behalf of someone whose account has been canceled for a violation. BAI also reserves the right to cancel or suspend all other accounts belonging to Subscriber if one of Subscribers accounts is involved in a violation.
9. LIMITATION OF LIABILITY, DISPUTE RESOLUTION AND INDEMNIFICATION
9.1. Limitation of Liability. SUBSCRIBER AGREES THAT UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE AND FUNDAMENTAL BREACH WILL BAI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS, SUPPLIERS, OR ANYONE ELSE INVOLVED IN PROVIDING THE SERVICE(S) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES INCURED BY SUBSCRIBER OR ANY OTHER PERSON USING SUBSCRIBER’S ACCOUNT FROM OR THROUGH THE USE OF OR INABILITY TO USE THE SERVICE(S) OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATIONS OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BAI’S RECORDS, PROGRAMS OR SERVICES. BAI’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE, HARDWARE OR THE SERVICE(S) WILL BE REPLACEMENT OF MEDIA CONTAINING THE SOFTWARE OR HARDWARE THAT BAI DEEMS TO BE DEFECTIVE OR THE TOTAL AMOUNT OF SERVICE FEES PAID BY SUBSCRIBER DURING THE PRIOR TWELVE-MONTH PERIOD, IF ANY. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS, BAI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2. Dispute Resolution. SUBSCRIBER AGREES THAT ALL DISPUTES, CLAIMS, AND CONTROVERSIES BETWEEN YOU AND BAI ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BREACH THEREOF (EXCEPT FOR NON-PAYMENT OR LATE PAYMENT AND BREACH OF ANY OBLIGATION OF CONFIDENTIALITY OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT FOR WHICH AN INJUNCTION MAY BE SOUGHT) SHALL BE SETTLED BY ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED BY ONE ARBITRATOR UNDER THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE POWER OF THE ARBITRATOR SHALL BE LIMITED TO THAT POSSESSED BY A SUPERIOR COURT JUDGE IN CALIFORNIA. THE ARBITRATOR IS PROHIBITED FROM AWARDING DAMAGES OR REMEDIES IN EXCESS OF THOSE ALLOWED BY THE PROVISIONS OF THIS AGREEMENT. THE DECISION AND AWARD OF THE ARBITRATOR SHALL BE FINAL, BINDING, AND NOT APPEALABLE, AND JUDGMENT ON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION SHALL BE HELD IN LOS ANGELES COUNTY, CALIFORNIA, AND THE AWARD SHALL BE DEEMED TO BE MADE IN CALIFORNIA.
9.3 Indemnification. SUBSCRIBER AGREES TO INDEMNIFY BAI FOR ANY VIOLATION OF THIS AGREEMENT, THE ACCEPTABLE USE POLICY, OR APPLICABLE LAW THAT RESULTS IN LOSS TO BAI OR THE BRINGING OF ANY CLAIM AGAINST BAI BY ANY THIRD PARTY. SUBSCRIBER FURTHER AGREES TO PAY ANY DAMAGES AWARDED AGAINST BAI, PLUS COSTS AND REASONABLE ATTORNEYS’ FEES RESULTING FROM SUBSCRIBER’S VIOLATION OF ANY PART OF THIS AGREEMENT OR ACCEPTABLE USE POLICY.
10.1. Force Majeure. BAI is not liable nor in default for any delay or failure in performance under this Agreement resulting from any acts of God, weather conditions, strikes, accidents, inability to secure labor, fire regulations or restrictions imposed by any government or governmental agency, or any other delays resulting from anything beyond the control of BAI. If BAI is prevented from performing by any cause of force majeure, then both Subscriber and BAI’s performance shall be suspended without penalty to either party for any such services not delivered.
10.2. Severability. In the event that any provision contained herein is deemed, for any reason, to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall not be affected, and shall remain in full force and effect. Further, if any provision is invalidated, Subscriber and BAI hereby agree to enter negotiations for a replacement provision.
10.3. Non-Waiver. The failure or delay of BAI to insist upon the strict performance of any provision of this Agreement shall not be considered as a waiver of any right BAI may have by reason of the default, any subsequent default of the same, or any other provision contained herein. Further, no waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.
10.4. Governing Law. This Agreement and its enforcement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflicts-of-law principles. Subject to section 9.2 above, Subscriber consents to the exclusive jurisdiction of the state and federal courts situated in the State of California in connection with any action arising under this Agreement or relating to the Service(s), and to having any judgment or order from such jurisdiction recognized in any other court, tribunal or other governmental body in order to have the same enforced against Subscriber. Any cause of action brought by or on behalf of Subscriber with respect to this Agreement, the Service(s) or Software must be commenced pursuant to section 9.2 above within one year after the claim or cause of action arose.
10.5. Attorneys’ Fees and Costs. In any legal proceeding brought to enforce or interpret any term of this Agreement, the prevailing party shall have the right to recover from the other, in addition to any other relief, all costs and expenses, including, but not limited to, reasonable attorneys’ fees, collections fees and court costs, incurred by the prevailing party.
10.6. Entire Agreement. This Agreement, together with all incorporated documents, if any, shall constitute the entire agreement between Subscriber and BAI with respect to the subject matter herein. This Agreement supersedes all prior and contemporaneous negotiations, understandings, agreements, conditions, warranties and representations concerning the subject matter contained herein.