This Portal User Agreement (“Agreement”) is made by and between Connect Holding II LLC dba "Brightspeed" and any person that completes the acceptance process for this Agreement (“Customer”). The terms of this Agreement apply to Customer’s use of the portal(s) it accesses beyond this point (the “Portals”). This Agreement controls over any previous portal terms accepted by Customer. Customer purchased service (“Service”) under a separate agreement with Brightspeed Communications, LLC or one of its affiliates (“Underlying Agreement”). The Underlying Agreement controls over this Agreement with respect to the Service(s), unless otherwise set forth in the Underlying Agreement or in an order. Capitalized terms not defined in this Agreement are defined in the Underlying Agreement. This Agreement is effective on the date it is accepted by Customer and governs Customer’s use of the Portals and associated user guides and documentation (collectively, “Portal Service”). By accepting this Agreement or accessing or using any part of the Portal Service, Customer agrees to be bound by the terms of this Agreement and to the extent that this Agreement is accepted through a Brightspeed online acceptance tool, Customer will: (a) provide its electronic signature affirming it understands and intends that the Agreement is a legally binding agreement and the equivalent of a signed, written contract; and (b) consents to the creation of an electronic record of this Agreement. If Customer does not agree to the terms of this Agreement, Customer must not accept this Agreement and Customer may not access or use any part of the Portal Service.
Only an authorized user of Customer (as defined below) may access the Portal Service. By accessing the Portal Service, Customer’s authorized users represent that they are authorized by Customer to view the information available and/or take those actions it submits via the Portal Service, all of which are binding upon Customer. Brightspeed may deny access to the Portal Service, in its sole and absolute discretion, at any time and for any or no reason.
The Portal Service is a web-based application providing Customer with visibility into and control over aspects of certain of its services from the Underlying Agreement(s) via a graphical user interface. Customer grants Brightspeed the right to view, use, copy, and transmit Customer data and information obtained through the rendering of the Services via the Portal Service. Brightspeed’s provision and Customer’s use of the Portal Service will be in accordance with Brightspeed’s standard policies and technical requirements which are incorporated by this reference. Customer must provide, at Customer’s expense, all communications services, equipment, and third party software necessary to use the Portal Service. Customer agrees to promptly pay to Brightspeed any fees applicable to Customer’s use of the Portal Service. As of the effective date of this Agreement, no fees are charged for the Portal Service (unless otherwise set forth in a Customer order). If and to the extent that Brightspeed provides service performance or other network monitoring information, such information is indicative only and shall not necessarily be used to determine the applicability of service credits or other contract remedies. Brightspeed may change the features, functionality of and/or the information available through the Portal Service in its sole and absolute discretion, including discontinuing any functionality or discontinuing the Portal Service completely. Brightspeed has the right at any time to modify or add to the terms or fees applicable to Customer’s use of the Portal Service (collectively, “Revision”). Such Revision will be effective immediately upon Brightspeed’s notice to Customer, which may be given by any commercially reasonable means including without limitation, posting on the Portal Service Web site, or by electronic or conventional mail. IF ANY REVISION MATERIALLY AND ADVERSELY AFFECTS CUSTOMER’S USE OF THE PORTAL SERVICE, CUSTOMER MAY TERMINATE THIS AGREEMENT UPON NO LESS THAN SEVEN DAYS WRITTEN NOTICE TO BRIGHTSPEED AT THE NOTICE ADDRESS OR WEBSITE LISTED IN THE UNDERLYING AGREEMENT, OR, IF THERE IS NO NOTICE ADDRESS IN THE UNDERLYING AGREEMENT, TO: 717 McGilvery Street, Fayetteville, NC 28301 Attn.: Notice Coordinator. AFTER SUCH TERMINATION, CUSTOMER WILL NOT HAVE ANY RIGHT TO USE THE PORTAL SERVICE. CUSTOMER’S CONTINUED USE OF THE PORTAL SERVICE FOLLOWING BRIGHTSPEED’S NOTICE OF ANY REVISION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT AND THE REVISION.
Brightspeed grants to Customer a personal, non-exclusive, non-transferable, non-sublicenseable, limited, and revocable license to use the Portal Service in accordance with this Agreement. This license commences upon Customer acceptance of these terms and remains in force until: (a) terminated upon 30 days written notice by either party to the other party; (b) terminated by Brightspeed without prior notice upon Customer’s breach of this Agreement, the Underlying Agreement(s), or as otherwise permitted under this Agreement; (c) the termination or expiration of all Underlying Agreements which could utilize the Portal Service; or (d) Brightspeed, at its sole discretion, elects to discontinue offering the Portal Service. Customer is expressly prohibited from: (a) using the Portal Service for any purpose other than Customer's own internal business purposes as reasonably intended under this Agreement; (b) allowing anyone other than Customer's representatives previously identified to Brightspeed to have access to the Portal Service; (c) making copies of the Portal Service documentation or the software underlying the Portal Service Web site; (d) making any modifications, enhancements, adaptations, derivative works, or translations of the Portal Service or underlying software; or (e) attempting to reverse engineer, disassemble, reverse translate, customize, or decompile the Portal Service or component software in order to misuse, manipulate, or use the Portal Service for purposes other than that for which it was intended, or derive the source code therefrom or for any other reason. Brightspeed reserves the right to seek all remedies available at law and in equity for any breach of this Agreement, including the right to block Customer’s access to the Portal Service or to suspend or terminate Brightspeed’s provision of the Portal Service to Customer. Customer will be responsible for all use of Customer’s account (whether or not under any screen name or user identification or password) and for ensuring that all use of Customer’s account complies fully with the provisions of this Agreement. Customer will be responsible for protecting the confidentiality of Customer’s passwords, user names, and other Customer specific access information. Customer will be responsible for all activities and charges resulting from their use, including unauthorized use. Customer agrees to promptly notify Brightspeed of any unauthorized use or access to the Portal Service.
In the course of providing Portal Service to Customer, Brightspeed will have access to certain billing and usage-related information about the quantity, technical configuration, type, destination, location and amount of use of Customer’s telecommunications services. Under federal law, Customer has a right to, and Brightspeed has a duty to protect, the confidentiality of this information. This information may be useful to tailor products and services to Customer’s needs and to enhance Brightspeed’s ability to meet Customer’s needs. By accepting this Agreement, Customer expressly authorizes Brightspeed, its affiliates, or its agents, to use such information to determine if Customer could benefit from other services offered by Brightspeed, its affiliates, or its agents, and market them to Customer. Customer may withdraw its authorization at any time by expressly telling Brightspeed and it will not affect the quality of Service provided to Customer.
Neither party will: (a) disclose any of the terms of the Agreement; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the confidential information received from the other party. Confidential information will not include Customer data. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under the Agreement. Each party will limit disclosure and access to confidential information to those of its employees, contractors, attorneys or other representatives who reasonably require such access to accomplish the Agreement’s purposes and who are subject to confidentiality obligations at least as restrictive as those contained herein.
In some, but not all circumstances, Customer may submit Customer orders through a third-party sales organization participating in Brightspeed’s indirect sales channel program (“Authorized Third-Party Sales Agent”). If Customer uses an Authorized Third-Party Sales Agent to procure Service from Brightspeed, Customer authorizes and directs Brightspeed to disclose to the Authorized Third-Party Sales Agent Confidential Information about Customer’s services including, without limitation, information available to Customer via the Portal Service, and all Customer Proprietary Network Information (“CPNI”) as defined by applicable law. Such information may include information that relates to the quantity, technical configuration, type, destination, location, and amount of use of telecommunications services Customer subscribes to from Brightspeed, and information contained in the bills pertaining to telephone exchange service or telephone toll service that Brightspeed provides to Customer.
If you have been designated as the Delegated Administrator or Customer System Administrator, you are responsible for setting up and keeping current all security and administration of Customer’s use of Portal Service, including but not limited to: (a) assigning each user a separate ID for entry into Portal Service; (b) assigning levels of permission for each user to ensure that users have access only to those aspects of Portal Service if such user has authority to act for Customer; (c) ensuring users who should no longer have access are denied access to Portal Service; (d) vetting any End User to whom you provide Portal Service access; and (e) ensuring that any End User Portal Service access you provide is subject to confidentiality and other terms no less stringent than those set forth in this Agreement.
Customer will provide Brightspeed, on a controller-to-controller basis, with the personal data of any Delegated Administrator, Customer System Administrator and other users as necessary to facilitate such individuals’ access to and use of the Portal Service on Customer’s behalf. As used herein, “personal data” means information relating to an identified or identifiable natural person and as defined under applicable laws. Customer shall at all times comply with applicable laws and regulations relating to the protection of personal data (the “Privacy Laws”), including, without limitation, the European Union General Data Protection Regulation (Regulation (EU) 2016/679) in its capacity as a data controller with respect to the personal data it provides to Brightspeed pursuant to this Agreement, including, without limitation, ensuring it has the necessary permissions to provide Brightspeed with such information (by consent or otherwise), providing appropriate notices regarding the provision of personal data to Brightspeed, and notifying Brightspeed of any request by a data subject to exercise their rights to the extent granted by applicable Privacy Laws. Brightspeed shall at all times comply with its obligations as a data controller under the applicable Privacy Laws with respect to any personal data it receives from Customer under this Agreement, including, without limitation, providing appropriate notices about Brightspeed’s use of the personal data, limiting the processing of the personal data to the purposes for which it was provided, and responding to any requests received by Brightspeed from data subjects seeking to exercise their rights to the extent granted by applicable Privacy Laws. By providing contact information for Customer and Delegated Administrators, Customer represents and warrants that for each individual whose contact information is provided in the Portal, Customer has: (1) provided the individual links to the Brightspeed Privacy Notice, and the Enterprise Privacy Notice; and (2) obtained the explicit, written, consent of the individual to be contacted by Brightspeed or its affiliates or agents and sub-contractors using that contact information, including mobile phone numbers and email addresses. Brightspeed communications may include marketing or advertising content and may be performed via automated telephone dialing equipment and artificial and prerecorded messages. This consent is not a condition of purchase. Any marketing or advertising communications will include the ability to opt-out of future marketing communications.
Nothing in the Agreement or the performance thereof will convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors. Neither party will use the name or marks of the other party or any of its affiliates for any purpose or issue any press release or public statement relating to this Agreement without the other party’s prior written consent.
ACCESS TO AND USE OF THE PORTAL SERVICE IS PROVIDED TO CUSTOMER "AS IS" AND “AS AVAILABLE.” ALL RISKS PERTAINING TO THE USE OF THE PORTAL SERVICE ARE ASSUMED BY CUSTOMER.
Neither party will be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data, or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary, or punitive damages arising out of the operation of Portal Service or the performance or failure to perform under this Agreement.
BRIGHTSPEED MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
All use of the Portal Service and Brightspeed’s network must conform to an applicable Acceptable Use Policy (“AUP”). Customer agrees to defend, indemnify, and hold harmless Brightspeed, its affiliates, agents, and contractors from any and all claims, liabilities, costs, and expenses, including reasonable attorneys' fees, arising from or related to use or modification of Portal Service by Customer or Customer’s members, end-users, customers, agents, or any other third parties who utilize or access the Portal Service (“End Users”) via Customer accounts or on Customer’s behalf.
This Agreement will be governed and construed in accordance with the laws of the State of New York, without regard to its choice of law rules. Each party will comply with all applicable laws, rules, and regulations associated respectively with Brightspeed’s delivery or Customer’s use of the Portal Service under the Agreement. This Agreement constitutes the entire and final agreement and understanding between the parties with respect to the Portal Service and supersedes all prior agreements relating to Portal Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) under this Agreement will constitute a waiver of such right(s).
The relationship between the parties is not that of partners, agents, or joint ventures.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. However, either party may assign its rights and obligations under this Agreement without the consent of the other party: (1) to any subsidiary, parent, or affiliate that controls, is controlled by, or is under common control with that party; (2) pursuant to the sale or transfer of substantially all of the business or relevant assets of that party; or (3) pursuant to any financing, merger, or reorganization of that party. This Agreement will apply to any permitted transferees or assignees. Any assignee of Customer must have a financial standing and creditworthiness equal to or better than Customer's.
This Agreement is intended solely for Brightspeed and Customer, and not to benefit any other person or entity (e.g., End Users). If any term of this Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaining terms will remain in effect. No failures by either party to enforce any right(s) under this Agreement will constitute a waiver of such right(s). All terms of this Agreement that should by their nature survive the termination of this Agreement will so survive. Neither party will be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused by a force majeure event as defined in the Underlying Agreement. This Agreement constitutes the entire agreement between Customer and Brightspeed with respect to Customer’s use of the Portal Service.
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