Digital Agreement

DIGITAL VIDEO SERVICE AGREEMENT

1.             Terms and Conditions of Service.  Your use of Butler-Bremer Communications digital video service is governed by this Agreement.  This Agreement becomes a binding contract upon installation of service.  By using the service you agree to comply with all of the terms, conditions and provisions contained in this Agreement.  In the event of default, you agree to pay to Company its reasonable damages, costs and expenses, including attorneys’ fees and collection agency fees, incurred in enforcing its rights under this Agreement.

2.             Service Term. 

You will receive service on a month-to-month basis continuing at the Company’s then applicable service fee until service is terminated by you or canceled by the Company in accordance with this Agreement.

• Monthly service fee is exclusive of applicable state and federal taxes or applicable regulatory fees.
• Monthly service fee is exclusive of applicable charges for premium or on demand tiers or services which are independently priced and may be ordered by customer subject to the Company’s current pricing.
• Unless otherwise specified, the minimum service term is one month.
• Regardless of service term, all equipment remains property of the Company.  Failure to return such equipment following termination of service will result in replacement charges, including $215 per set-top-box, $75 per cable modem and $300 per digital video recorder box.

3.             Monthly Charges.  You agree to pay for all services provided, including charges, for installation, equipment, services provided on a per-channel or per-program basis, any other services and all applicable local, state or federal fees and taxes.  All charges will be billed monthly.  Payment is due upon your receipt of the monthly invoice. A customer account is in default if payment is not received by the due date stated on the invoice. If payment by check is returned unpaid, the customer account is immediately in default and subject to a returned check charge in the maximum amount permitted by law.  Accounts unpaid 10 days after the due date may have service disconnected.  An additional installation charge and/or a minimum service term may be required to restore service.  For more details, refer to your monthly bill or contact a customer service representative.

4.             NO WARRANTY OF SERVICE.  THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR DEGRADATION OF QUALITY. NEITHER THE COMPANY NOR ITS EMPLOYEES OR AGENTS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF SERVICE OR EQUIPMENT THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD. STATEMENTS AND DESCRIPTIONS CONCERNING SERVICE OR EQUIPMENT, IF ANY, BY THE COMPANY’S EMPLOYEES, AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AND MAY NOT BE RELIED UPON AS A WARRANTY OF ANY KIND. 

5.             Scope of Service.  Service is the Company’s furnishing of digital video programming service.  From time to time the Company may change or delete its services, and may change its service and other charges.  The Company will give you reasonable prior notice of increases or other changes in its charges in conformity with applicable law.  You understand and agree that, without liability to the Company, the content, programs, and/or formats of the services may be discontinued, modified, or changed by the owners of such services at any time without prior notice to you.  The Company cannot control the lawful “blacking out” of certain special events or programs, and the Company has no responsibility for such matters.

6.             Service Accounts.  Service accounts are assigned to customers only, and the customer signing this Agreement shall be treated as the account owner for all purposes.  You may not assign or transfer your rights or obligations under this Agreement without the express written consent of the Company.  Unless consent is granted, all accounts must be closed and reopened under the name of a new customer for issuance of a new account number.  You are responsible for keeping all billing data with the Company up-to-date and accurate.  Furnishing false data to the Company is grounds for immediate disconnection of service and may subject you to civil or criminal liability.

 7.             Theft of Service or Willful Damage to Equipment.  The receipt of service without proper payment to the Company is a crime.  The law prohibits: (a) theft or unauthorized reception of video programming; (b) assisting theft or unauthorized reception of video programming (including the manufacturing or sale of equipment intended for such unauthorized use); and (c) willful damage, alteration or destruction of equipment or facilities installed in or located on your premises or otherwise provided to you by the Company.  You may be subject to both civil and criminal penalties for such conduct.

8.             Ownership of Equipment.  For purposes of this Agreement “equipment” includes all equipment installed in or on your premises by the Company including, without limitation, set top boxes (STB), digital video recorders (DVR), modems, switches, and remote controls.  All equipment provided and installed by the Company shall remain the sole and exclusive property of the Company, unless otherwise specified in writing by the Company or as provided by applicable law. 

9.             Damaged, Lost, or Stolen Equipment.  You are responsible for the safe keeping of all equipment placed in or on your premises. In the event that the equipment is destroyed, damaged, lost or stolen while in your possession, you shall be liable for the cost of repair or replacement of the equipment. 

10.          Return of Equipment.  In the event service is discontinued, disconnected or otherwise terminated by you or the Company, you agree to return all Company equipment in good working order.  If any Company equipment is not returned in good working order, the Company may bill you for all or a portion of the cost to repair or replace the damaged equipment.  If any equipment is not returned within 30 days of the date service is terminated, the Company may bill you for the full replacement cost of the unreturned equipment.

11.          Service and Repairs.  The Company undertakes reasonable efforts to maintain its network and respond to service calls in a timely manner.  The Company will repair damage to equipment or interruption of service due to reasonable wear and tear or technical malfunction.  Physical damage to equipment caused by your intentional or negligent misuse is your sole responsibility, and you shall pay the Company its then current rate for the cost of repair or replacement.

 12.          Access on Premises.  The Company may enter into, upon and over your premises periodically during the term of this Agreement to install, connect, inspect, maintain, repair or alter its outlets and equipment.  To the extent the same is consistent with your ownership of the premises, you grant the Company a temporary and permanent easement to construct, install, maintain, and/or replace transmission facilities and all other equipment necessary or convenient in connection with the provision of video programming services.  In the event you are not the owner of the premises upon which the Company modem and other equipment are to be installed, you warrant to the Company that you have obtained the consent of the owner of the premises for the Company to make installation and maintenance contemplated by this Agreement.  If you are not the owner of such premises, you agree to indemnify and hold the Company harmless from and against any claims of the owner arising out of the performance of this Agreement.

 13.          Customer Equipment.  You shall not connect more than one television and/or stereo receiver to an outlet without notifying the Company of the connection.  The Company assumes no responsibility for the operation, maintenance, or repair of any equipment owned by you, including but not limited to televisions, VCRs, audio receivers or other devices.  The Company shall assume no liability for damage to equipment due to circumstances beyond its control, including, without limitation, acts of God, natural disaster, fire, civil disturbance, strike, or weather. 

 14.           Installation and Maintenance.  You agree to indemnify and hold the Company and its employees and agents harmless from all claims, demands and causes of action of every nature or kind, caused by, arising from or developing out of or as a result of any act or failure to act by the Company in connection with the installation, connection, maintenance, operation, failure and removal of any equipment or other technology provided by the Company, except those claims, demands and causes of action caused solely by the gross negligence or willful misconduct of the Company. You expressly assume all risks associated with installation, connection, maintenance, operation, failure and removal of such items, and the Company shall not be responsible or liable for any damage to, or loss or destruction of, any television, VCR, audio receiver or any other equipment owned by you.

15.           Limitation of Liability.  The Company shall not be liable for any delay or failure to provide service at any time or from time to time, or any interruption or degradation of service quality that is caused by any of the following:

• an act or omission of an underlying carrier, programming provider, service provider, vendor or other third party;
• equipment, network or facility failure;
• equipment, network or facility upgrade or modification;
• force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
• equipment, network or facility shortage;
• equipment or facility relocation;
• service, equipment, network or facility failure caused by the loss of power;
• any act or omission by you or any person using the service; or
• any other cause that is beyond the Company’s control, including, without limitation, a failure of or defect in any hardware, software or equipment.

 In any event, the Company’s aggregate liability under this Agreement shall not exceed the service charges with respect to the affected service for the applicable time period.

16.          DISCLAIMER OF LIABILITY FOR CERTAIN DAMAGES.  IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICE, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS.  THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT THE COMPANY WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

17.          Termination by Customer.  You may terminate service at any time by notifying the Company or a representative thereof, and directly surrendering equipment to the Company. Account holders are liable for all services rendered by the Company prior to your notice of intent to terminate service.  You are liable for all services rendered until the time that equipment is returned.  If service is terminated prior to the expiration of the initial service term, customer is subject to termination charges equal to service fees for the minimum term.  Information regarding an intended moving or disconnection date must be communicated to the Company business office during normal business hours.

18.          Disconnection or Discontinuance of Service by Company. The Company reserves the right to suspend or discontinue service generally, or to disconnect your service, at any time in its sole and absolute discretion. If the Company discontinues service generally, or disconnects your service without cause, you will only be responsible for charges (if any) accrued and unpaid through the date of disconnection, including a pro-rated portion of the final month’s charges. If your service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current service term, including, without limitation, unbilled charges plus the applicable early termination fee, all of which will immediately become due and payable. The Company will pursue collection for unpaid amounts on disconnected accounts and may report failure to pay to credit bureaus.

19.          Survival. The provisions of this Agreement that by their sense and context are intended to survive the discontinuance or disconnection of your service shall survive such discontinuance or disconnection.

20.          No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

21.          Governing Law. This Agreement and the relationship between you and the Company shall be governed by and construed in accordance with the substantive laws of the State of Iowa, without regard to the principles of conflicts of law.

22.          No Waiver of Rights. The Company’s failure to exercise or enforce any right under or provision of this Agreement shall not constitute a waiver of such right or provision.

23.          Entire Agreement. This Agreement constitutes the entire agreement between you and the Company and governs the use of service by you, members of your household, guests and employees. This Agreement supersedes any prior agreements between you and the Company and any and all prior or contemporaneous statements, understandings, writings, commitments or representations concerning its subject matter.

24.          Severability. If any part or provision of this Agreement is legally declared invalid or unenforceable, that part or provision will be construed consistent with applicable law as nearly as possible, and the remaining parts and provisions will remain in full force and effect.  Such invalidity or non-enforceability will not invalidate or render unenforceable any other part or provision of this Agreement.