Terms of Service
TERMS OF SERVICE FOR SUBSCRIBERS
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. ARBITRATION TERMS FOR SUBSCRIBERS ARE SET FORTH BELOW. PLEASE READ THE TERMS APPLICABLE TO YOU CAREFULLY.
The property management company, property owner, or landlord (the “Owner”) of [Name of Property] (the “Property”) has selected Aerwave, Inc. (“we”, “us”, or “Aerwave”) to be the wireless internet service provider for the residents and guests of the Property.
As a resident of the Property, you may subscribe to have Aerwave provide internet access services (the “Service”) to your residence. In order to have the Service provided to your residence unit, you must agree to these Terms of Service and establish an account with Aerwave to become a subscriber. If you become a subscriber, you, the holder of any sub-account created by you, and any of your authorized users will be deemed “you”, “your”, or “Subscriber” under these Terms of Services.
These Terms of Service, including any schedules hereto and any terms incorporated herein by reference (the “Agreement”) along with the applicable policies and additional terms which Aerwave makes you aware of, including those listed below, set forth your obligations, the obligations of Aerwave, and the rules you must follow when using the Services.
Your contract with us includes this Agreement, and also includes the following materials:
- Your Customer Service Summary/Order Confirmation Letter or communication (if applicable);
- Aerwave’s Acceptable Use Policy;
- Any other documents incorporated by reference herein or therein.
You must accept this Agreement as a condition of receiving the Service. By accepting this Agreement, you confirm you are a capable adult over the applicable age of majority (e.g., eighteen (18) years of age in most U.S. states and territories; nineteen (19) in Alabama and Nebraska; and twenty-one (21) in Mississippi and Puerto Rico – an “Adult”). You are responsible for ensuring that all use of the Service complies with this Agreement, and you will be deemed to have breached this Agreement if you or any other person, whether or not authorized by you, uses the Service in a manner inconsistent with this Agreement. By enrolling in, activating, using, or paying for the Service, you agree to the terms and conditions in this Agreement, including, but not limited to, the prices, charges, and terms and conditions provided to you in marketing and informational materials associated with the Service, all of which are incorporated herein by reference.
DESCRIPTION OF THE SERVICES
Internet service is composed of broadband access to Internet, and offers you a capability for acquiring or retrieving information from; generating, storing, transforming, processing, or utilizing information on; or making available information to other Internet end points connected directly or indirectly to Aerwave’s network, comprised of, but not limited to, whether owned, leased, or managed, certain networking equipment, fiber cabling, switching and routing equipment, licensed radio waves, access points, wireless access points, servers, and software, among others (collectively, “Aerwave Network”), by Aerwave. Unless otherwise specified, Services from Aerwave include the following:
1. DNS Services: Domain Name System (or “DNS”) services translate domain names into the numerical Internet Protocol (“IP”) addresses needed for locating and identifying computer services and devices within the underlying network protocols commonly used to organize the Internet.
2. IP Addresses: Unless otherwise specified, the Service may include a dynamic IP address, a static IP address, or a multiple static IP address service (as applicable), at the sole discretion of Aerwave. Static IP addresses are not available with all Services or all tiers within certain Services. Unless otherwise specified, a dynamic IP address is a single Internet address intended for use with a single member account (an “Account”) and any associated sub-accounts (“Sub-Accounts”), and a static IP address or multiple static IP address is intended for use with a single computer or a network of devices, computers and/or servers using either network address translation or assigning multiple static IP addresses to each device. You may not use the Service in a manner that is inconsistent with these intended uses. Unless otherwise specified, Aerwave Services will support both IPv6 and IPv4 Internet addresses; however, to reach IPv6-exclusive Internet content, some of your equipment may require upgrades or replacement.
3. Interconnection: Because the Internet consists of multiple interconnected networks and most Internet end points (for example, websites and other content providers) are not directly connected to the Aerwave Network, Aerwave must connect to and exchange traffic with other networks to provide its subscribers the capability of uploading data to or downloading data from Internet end points that are connected to those networks. To that end, Aerwave has entered into commercially negotiated agreements to exchange traffic with such networks on mutually agreeable terms. Aerwave does not warrant that it will establish or expand the connections between its network and other networks except on such mutually agreeable terms. To the extent Aerwave is unable to reach agreement on terms of interconnection or network expansion with these other networks, it could affect your Service. Aerwave therefore makes no promise, express or implied, that you will be able to upload data to or download data from Internet end points connected to other networks at any particular speed.
“Speed” of Internet Services
Aerwave offers many broadband Internet access service options, each of which has a specific service capability speed range. The term “speed” is commonly used as a shorthand way to describe the capacity at which a particular broadband Internet access service can transmit data. This capacity is typically measured in the number of kilobits, megabits, or gigabits that can be transmitted in one second (“Kbps”, “Mbps”, or “Gbps”, respectively). Some applications like a short email without attachments or basic web browsing do not require high service capability speeds to function optimally, while other activities like transferring large data files can be performed faster with higher-speed services. Your service capability speed may not be suitable for some applications, particularly those involving real-time or near real-time, high-bandwidth uses such as streaming video or video conferencing.
Aerwave offers specific tiered speeds of service, as outlined on our website. These speeds listed identify the “Expected Speeds” of the downstream and upstream rates at which your “Connection” (as those terms are defined below) transfers Internet access data between the network interface device at your location to the point you connect to the Aerwave Network. Because many different factors can affect the performance of broadband Internet access service delivered to a particular location or individual, Aerwave does not guarantee specific performance levels for broadband Internet access services. Instead, Aerwave manages its network to provide overall median performance consistent with the Expected Speeds.
“Connection.” Because service performance varies on an end-to-end basis, the service capability speeds of Aerwave are limited to, and measured between, the equipment utilized to provision your Service at two points on the Aerwave Network, sometimes referred to as the “Connection.” The Connection constitutes only one segment of the end-to-end transmission path connecting the end-user to Internet Web sites or content providers.
“Expected Speeds.” Because there are many factors which may impact the speed experienced by any particular Internet user at any particular time (as described in more detail below), the “Expected Speed” represents an anticipated, theoretical speed of the Connection, based on network design and engineering, measured over time. At any moment in time, a particular observed speed will vary from the Expected Speed. However, Aerwave manages its network toward an overall median speed consistent with the Expected Speed.
Other Factors That Impact Speed
In addition to issues presented by the various technologies over which an Internet access may operate on an end-to end basis, end-to-end performance of your Service will also depend on a variety of other factors, including (but not limited to): the number of subscribers simultaneously using the network; specific characteristics of the location from which you are accessing the Internet; specific characteristics of your intended destination on the Internet; overall traffic on the Internet; Wi-Fi connectivity; the servers with which you must communicate with in order to reach your intended destination and/or access the content you are trying to access; internal and external network management factors (including “Overhead,” which refers to the various control and signaling data required to achieve the reliable transmission of Internet access data); and, the networks you and others are using when communicating. Consequently, Aerwave does not guarantee the performance of your Service on an end- to-end basis. This is also why third-party speed tests which include other portions of the overall Internet connection beyond the Connection itself may yield results which are outside the Expected Speeds for your particular service plan if applicable. Aerwave expressly disclaims any warranty with respect to the outcome of these third-party speed tests.
Download and Upload Speeds
The term “download” generally refers to the process of a user utilizing their local device or computer to access information stored on a remote device, computer or server connected to the Internet and includes activities ranging from “surfing” the Internet, to downloading a file to streaming video. The term “upload” generally refers to the process of a user sending information from their device or computer to a remote device, computer or server connected to the Internet. Unless otherwise specified, references to the “speed” of a Service will solely be with respect to the download speed of that Service. Similarly, unless otherwise specified, Aerwave makes no guarantee that the upload speed of a particular Internet Service will be the same as the download speed, either in terms of the applicable speed range or in terms of actual performance at any given moment. As a result, and as a result of the many other factors that might affect speed at any given moment, the actual upload and download speed of any Service will vary greatly from time to time and day to day.
Services are not available in all areas and may not be available at certain speed tiers (or at all) at any given location where Aerwave operates (a “Location”). The availability of any Service may also be subject to various limitations upon the capacity of the various technologies utilized in Aerwave Network to support a given number of customers on any particular Service and/or Speed tier in a given area (“Capacity Limitations”). Some Services are more likely to be subject to Capacity Limitations. When a particular part of the Aerwave Network is approaching a Capacity Limitation, it can be very difficult for Aerwave to predict exactly when or how that Capacity Limitation will impact upon the availability of a particular Service to a particular Location. For all those reasons, Aerwave makes absolutely no guarantee as to the availability of any Service at any particular location.
Changes to Services
Aerwave reserves the right to modify or discontinue any Service (including rates and charges), temporarily or permanently. If Aerwave makes a change that would have a material impact on your Service, Aerwave will endeavor to provide you with reasonable notice of any such change. Your continued subscription to the Service after the effective date of the change constitutes your acceptance of the changes and the associated terms and conditions.
REGISTRATION AND MEMBERSHIP
- Member Account. When you complete the registration process for the Service, you become the “Member Account” holder. To be a Member Account holder you must either be: (i) 18 years or older, if an individual, or (ii) be a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement and acting through your duly authorized representative. You will be asked to choose a unique “Member ID” for your account.
- Sub Accounts. Unless otherwise specified, Member Account holders may also create up to 4 accounts with separate login credentials that are linked to the Member Account (each a “Sub Account”). Each Sub Account will also be required to accept this Agreement and complete the Sub Account registration.
Member Account responsibility
The Member Account holder is responsible for all activity associated with the Member Account and any of its Sub Accounts, including all fees and charges, whether the charges are incurred by the Member Account or the Sub Accounts.
All information that you provide to Aerwave must be accurate, including your name, address, credit or charge card numbers and expiration dates, and any payment information (“Registration Data”). You are responsible for keeping all Registration Data accurate and must provide changes promptly to us via your online account portal.
Authority and Authorized User(s)
You may authorize spouses, partners, family or other household members or designated persons to act on your behalf in managing your Member Account, including changing or adding equipment and programming: (i) by providing such person access to your confidential account password or passcode; (ii) by updating your account information to add authorized user(s); (iii) by granting authorizations and/or ordering permissions to Sub Account holder(s); and/or (iv) by granting anyone primary or secondary online access to manage your account (each such person, an “Authorized User”). Further, if you are not present and/or do not affirmatively identify yourself as the Member Account holder at the time of any Service installation, you hereby authorize any Adult who is present to act on your behalf, including accepting this Agreement and any related agreements required in connection with the completion of the installation and/or the activation of the Service and approving any changes to your Services. You may also authorize these persons, along with guests known to you, to access your Services, subject to your obligations at all times to maintain adequate security controls regarding access to your accounts, your network and the Services and to ensure that all such individuals comply with the provisions of this Agreement.
You will receive a password associated with your Member ID upon completing the Service registration process. Your account password must be provided to engage in most online or telephonically enabled account management functions. You agree to keep confidential all passwords, IP addresses, and computer names and are solely responsible for any liability or damages resulting from your failure to maintain that confidentiality. You are also solely and fully responsible and liable for all activities that occur under your password, Member ID, or IP address. You agree to do all of the following:
- immediately notify Aerwave if you suspect any breach of security such as loss, theft, public use, or unauthorized disclosure or use of your Member Account or Sub Account, password, Member ID, or any credit or charge card number provided to Aerwave by calling Customer Service;
- immediately notify Aerwave if you wish to remove an Authorized User from your account;
- ensure that you exit from your account at the end of each session; and,
- periodically change your password. There is a risk that other users may attempt to access your computer through the Internet or connected networks. You acknowledge this risk as inherent to the shared nature of the Service and you agree to take full responsibility for taking adequate security precautions and safeguarding your data from loss.
Use by Children
Aerwave is concerned about the safety and privacy of all its users, particularly children. For this reason, children under the age of 13 should not be permitted to access the Service unless added as a Sub Account by a Member Account holder who is their legal guardian. You understand that by adding a child to your Member Account, you are giving your child access to features that are available as part of the Service (including email, message boards, clubs, and instant messages) and the Internet. Please remember that the Service is designed to appeal to a broad audience. It is your responsibility to determine whether the features provided through the Service are appropriate for a minor. Aerwave suggests that you take advantage of the access controls offered with the Service, which allow you, as the Member Account holder, to block access to certain types of Web content you may feel are inappropriate for minors. However, Aerwave also recommends that you remain diligent in the supervision of any minors in their use of the Service and the Internet. Access controls provided through the Service are intended as a guide only. Neither Aerwave nor its licensors can be responsible for any content accessed by you or minors, whether or not you take advantage of the access controls provided through the Service. In addition, neither Aerwave nor its licensors guarantee the accuracy of such access controls, and you agree that you will not hold Aerwave liable for any loss or damage of any kind incurred as a result of the use of such access controls.
PRICING; SUBSCRIPTION TERMS, FEES & PAYMENT
When you purchase and subscribe to the Service, you agree to a stated price and plan. Pricing and plans may change at any time at Aerwave’s sole discretion. Aerwave is not required but will make commercially reasonably efforts to promptly inform you of any anticipated or actual changes in pricing or plans. Your continued use of the Services after a pricing or plan change represents your agreement to the price or plan change.
Your subscription begins as soon as you complete the sign-up process and have access to the Services. The subscription term will run concurrently with the term of your lease (the “Subscription Term”). If your lease renews, then your subscription to the Services will automatically renew for the term of your renewed lease. During the Subscription Term, you will be automatically billed the then current rate for your subscription plan, plus any applicable taxes until your subscription is cancelled or terminated in accordance with our cancellation terms (see Termination or Cancellation of Services), or are no longer a resident of the Property where the Services are provided. If your payment method fails or you fail to provide a payment timely in accordance with the terms of the monthly invoice, Aerwave may suspend your subscription without notice.
Fees and Payment
You agree to pay in full each month: (i) the full monthly charge specified for the Services that are offered on a monthly subscription basis to which you have subscribed; (ii) any late fees and other applicable Service charges, if applicable; and, (iii) any applicable taxes.
Free Trial Period
At its sole discretion, Aerwave may choose to offer eligible new customers a trial of its Services at no charge to the Subscriber. Your 30 day trial period begins immediately after you complete the initial sign-up process and have access to the Services. At the end of your free trial period, your Subscription Term to Aerwave’s Services begins. You will be charged the applicable monthly rate for the Services at the end of the free trial period. If you cancel your subscription before the end of your trial period, you will not be charged. You may cancel your trial at any time by visiting your Aerwave Account page or by contacting Customer Support. Your eligibility to use an Aerwave free trial offer is determined solely by Aerwave and is a one-time offer to eligible customers. Your access to any free trial offer is provided at Aerwave’s sole discretion. If you cancel before your trial period end, you are not eligible for another free trial period, even if you sign-up using a different email address or phone number.
Method of Payment
All fees will be paid by Subsciber within 10 days of invoice, unless the Subscriber pays for the Services via (i) credit card or (ii) the monthly charge is included as part of a multi-item bill or otherwise itemized or included as part of a monthly rental statement received by the Subscriber from the Owner of the Property where the Subscriber resides. Subscribers will automatically receive an online bill (see below), unless you specifically request a paper bill by calling Customer Service.
Credit Card Billing
You may choose to provide us with a credit card number from a card issuer that we accept to activate your Service. If so, you hereby authorize Aerwave to charge and/or place a hold on your credit card with respect to any unpaid charges for your Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that this Agreement shall be accepted as authorization to the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that this Agreement shall be accepted as authorization to the issuer of the credit card to pay all such amounts. You authorize Aerwave and/or any other company who bills products or services, or acts as billing agent for Aerwave, to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full. You agree to provide Aerwave with updated credit card information upon the request of Aerwave and any time the information you previously provided is no longer valid. You acknowledge and agree that neither Aerwave nor any Aerwave affiliated company will have any liability whatsoever for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your credit card. If you mistakenly provide a debit card number, instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number. In the event you are enrolled, or later enroll, in an automatic payment or electronic funds transfer plan, you agree that all sums described herein may be charged, at the option of Aerwave, to the account number provided for such automatic payment or electronic funds transfer plan. When payment is made by credit card or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer. If charges cannot be processed through your credit card, or if your bank draft or electronic funds transfer is returned for insufficient funds, we may suspend or terminate your Services.
You must register online to establish an account and provide a billing email address. You will then be able to view and pay your bill online by logging on to your account (username and password required). You understand that you have sole responsibility for the security of your password and you are solely responsible for notifying Aerwave if your password is lost or stolen. Aerwave is not liable for any claims, costs, damages, or expenses arising from a lost, misplaced, or stolen password. If you have forgotten your password or want to change your password for any reason, you may request to reset your password online. It is your responsibility to notify Aerwave immediately if your contact information changes.
If you believe you have been billed in error for your Services, please notify us within 60 days of the billing date by contacting Customer Service. Aerwave will not issue refunds or credits after the expiration of this 60 day period, except where required by law or regulation.
Refunds and credits
Except as otherwise required by applicable law, any amounts refunded in the form of bill credits, cash payments, or any other form shall be inclusive of all applicable taxes that were originally paid on such amounts. Credit amounts, such as customer loyalty rewards, that do not represent a refund of, or a discount to, the price paid for any good or service will not result in the refund of any previously paid tax, fee, or surcharge.
ACCESS TO SERVICE VIA WI-FI
Wi-Fi is a family of wireless networking technologies, based on the IEEE 802.11 family of standards, which are commonly used for local area networking of devices and Internet access. In order to use your Service over Wi-Fi, you must have Wi-Fi enabled devices that (a) meet U.S. and Wi-Fi Alliance standards; (b) are compatible with the Wi-Fi network being generated by the applicable Wi-Fi Equipment; and (c) are capable of running IP and related protocols. Aerwave makes available certain Wi-Fi networking equipment (“Wi-Fi Equipment”) that service as points of access to connect to the Internet, providing you with the Service. The Wi-Fi enabled device you are utilizing must be in close enough proximity to the Wi-Fi Equipment to achieve connectivity to the Service. Actual Wi-Fi coverage and quality may vary depending upon the location of the Wi-Fi Equipment, the location of the applicable Wi-Fi enabled device and conditions in and around the premises in which both the Wi-Fi Equipment and the Wi-Fi enabled device operate. Aerwave strives to provide the best possible wireless coverage of the installed Wi-Fi Equipment that it utilizes, however, Aerwave makes no guarantees, expressed or implied, of performance.
User Private Network
Aerwave makes available a private network, delivered through a unique Service Set Identifier (“SSID”) that you can manage as part of the Services (a “User Private Network”). User Private Networks require the creation of a password to gain access to the User Private Network, which you will create and manage. You are required to create a User Private Network in order to subscribe to the Services, although you are not required to connect to your User Private Network in order to gain access to the Internet (for example, you may connect to a Guest Network delivered over Aerwave’s Wi-Fi Equipment to gain access to the Internet). You are responsible for managing all devices that connect to the Services through your User Private Network. Aerwave manages the delivery of the Services by using certain security tools (e.g., private virtual LAN (“VLAN”) or subnets), however it makes no representation to the absolutely security of a User Private Network. Aerwave may provide you with tools or software to assist you in managing one or more aspects of your User Private Network (which software would then be included in the term “Software” as used herein below), but you remain solely responsible for all aspects of your User Private Network, including any activity by children or other guests that you may allow (either intentionally or unintentionally, through lack of adequate security measures) to access your Services via your User Private Network. For that reason, Aerwave recommends that you take all necessary measures to ensure adequate network security and to closely monitor use of your Services and your User Private Network by anyone accessing your home network, especially children. Your User Private Network may not be available at all locations at all times. In the case where your Private Network is not accessible, Aerwave will make available a shared network (e.g., a Guest Network) to provide access to the Internet.
At some Locations, Aerwave will make available a limited user Wi-Fi network for use by guest users (a “Guest Network”). Users of the Guest Network will be subject to the terms set forth in the Terms of Service for Guests .
As part of the Services, you have access to certain specifications and settings as related to your User Private Network, including the blocking of access to certain websites or content (“URL Filtering”). Should you choose to utilize URL Filtering as part of the Services, those settings are made available on your User Private Network.
Shared Use of Wi-Fi Equipment
Aerwave delivers the Services over Wi-Fi Equipment which may be shared by multiple users. In Locations where many users are using the Wi-Fi Equipment simultaneously, performance, and consequently speeds may be temporarily impacted.
At some Locations, you may have a choice of Internet speed limits. Aerwave may implement a dynamic caching web proxy that stores popular HTTP content at the Location which minimizes bandwidth consumption thereby reducing congestion.
Aerwave reserves the right to engage in reasonable network management practices, and to protect its broadband network from harm, compromised capacity, degradation in network performance or service levels, or uses of the Service which may adversely impact access to or the use of the Service by other customers. Reasonable network management practices that Aerwave may adopt include, but are not limited to, the following: (i) a cap on data usage; (ii) a modification of a Location’s serving facility or service technology; and/or (iii) a modification of or a limitation on a Subscriber’s data throughput speed or data consumption.
A very small percentage of Subscribers use the Service in a way that creates harm to the network, compromised capacity, degradation in network performance or service levels, or which may adversely impact access to or the use of the Service by other Subscribers. In the event that Aerwave adopts a network management practice which will apply to your Service, we will provide you with a notice, by Web posting, bill insert, email, letter, and/or other appropriate means, which describes the network management practice, explains how it will work, and explains how it could impact your Service.
EQUIPMENT & SOFTWARE
Other than the equipment and/or software provided to a Location for purposes of delivering Services (collectively, the “Aerwave Equipment”), you must provide all additional equipment, devices, and software necessary to receive the Service. Any equipment or software that was not provided to you by Aerwave, is not the responsibility of Aerwave and Aerwave will not provide support for, or be responsible for ongoing maintenance of such equipment.
Regardless of whether the equipment used to access your Service (modem, gateway, or otherwise) is owned by you or Aerwave, Aerwave reserves the right to manage such equipment for the duration of your Service and retains exclusive rights to data generated by the equipment. Neither you nor a third party may change, interfere with, or block access to equipment, the data or settings while you continue to receive the Service.
Unless otherwise expressly agreed to the contrary, Aerwave makes no warranty with regard to the technology used to provision any particular Service. Aerwave reserves the right, in its sole and absolute discretion, to make changes to the technology used to provision all or any portion of any Service. So long as the essential functionality of the Service from a user perspective is not negatively impacted in a material way by any change in technology, Aerwave has no obligation to notify you of any changes in technology and changes in technology will not affect your rights or obligations with respect to the Service you have purchased.
For any particular Service, the technology utilized to provision different portions of the Service may vary significantly. In those circumstance, and unless otherwise expressly agreed to the contrary, Aerwave shall only be responsible for the technology utilized to provision the Connection. Aerwave further has no control over and makes no warranties with respect to the technology utilized by content providers for purposes of operating the servers which an end user must access in order to receive access to the content.
Any Aerwave Equipment, including modems, routers, antennas or gateways, will be either a new or a fully inspected and tested refurbished unit. Aerwave will repair or replace damaged Aerwave Equipment as Aerwave deems necessary.
If the Aerwave Equipment was damaged due to your intentional acts, negligence, or use inconsistent with this Agreement, as determined by Aerwave, you will be responsible for the price of repair or replacement. Any tampering with the Aerwave Equipment, including, for example, opening and attempting to modify the Aerwave Equipment, or attempting to connect the equipment to other hardware, will be treated as damage due to your intentional acts or negligence. You agree that you will use the equipment only for its intended use, and not for any other purpose (such as on another Aerwave Network, or on another provider’s (non-Aerwave) network). You agree to use appropriate and reasonable care in using any and all Aerwave Equipment. Tampering with the Aerwave Equipment, or attempting to connect the Aerwave Equipment to other hardware, other than for the specific use of the Services, will be treated as damage due to your intentional acts or negligence.
Access and Installation of Aerwave Equipment
It may be required that Aerwave and its subcontractors or designees will need reasonable access to your dwelling unit in order to install, maintain, and repair certain hardware or other physical component of the Service. You may authorize any other adult resident or guest at your residence (each, an Authorized User for purposes of this Agreement) to grant access to your dwelling unit for these purposes. You understand and agree that Aerwave may drill, cut, and otherwise alter improvements on the premises (including walls, flooring, and/or other surfaces) in order to install, maintain, or repair the Service.
Power and Battery Backup
Note that in the event of a power interruption to the Property or the Location, Aerwave Equipment without battery backup may not function correctly or at all. This may disrupt your Service as well as any additional services that use Aerwave’s Equipment for transport (e.g., Voice over IP, including e911), or require an internet connection, to operate properly. Aerwave will have no liability for loss of any Service(s), whether provisioned by Aerwave or a third party, in the event of interruption of power, with or without battery backup present in the Aerwave Equipment.
Theft or Misuse
You agree to notify Aerwave immediately, in writing or by calling Customer Support, if any Aerwave Equipment located within your dwelling unit is stolen or if you become aware at any time that Services are being stolen or fraudulently used. When you call or write, you must provide a detailed description of the circumstances of the theft, including documentation of theft or fraudulent use of the Aerwave Equipment or Services (such as a copy of a police report).
Software – End User License Agreement
If you have connected to the Service by downloading or installing software made available by Aerwave, either directly or through one or more vendors (the “Software”), your use of that Software is subject to the End User License Agreement that accompanied that Software. Otherwise, Aerwave, or its applicable third-party licensors, grants you a personal, non-exclusive right and license to use the object code of any software provided to you in conjunction with the Service on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Aerwave for use in accessing the Service. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement. Aerwave, or applicable third-party licensors may provide Software upgrades, updates, or supplements (such as, but not limited to, adding or removing features or updating security components). You understand, whether the equipment is owned by you or Aerwave, that Aerwave, or the applicable third-party licensor, has the unrestricted right, but not the obligation, to upgrade, update, or supplement the Software on your equipment at any time.
None of the software or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the United States has embargoed goods, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. The Software and any underlying technology may not be exported outside the United States or to any foreign entity or “foreign person” as defined by U.S. government regulations, including without limitation, anyone who is not a citizen, national, or lawful permanent resident of the United States.
YOUR USE OF THE SERVICES
Restrictions on Use
Your use of the Service is subject to Aerwave’s Acceptable Use Policy (“AUP”) and is hereby incorporated into the Agreement as though fully set forth herein. In accordance with the AUP, Aerwave reserves the right to deny, disconnect, modify, and/or terminate, without notice, the Member Account or the Service provided by Aerwave to any Subscribers whose use of the Service violates the AUP. Examples of violations of the AUP include, but are not limited to: (i) unlawful activities, (ii) violation of intellectual property rights, (iii) publication or dissemination of threatening material, (iv) inappropriate interaction with minors, (v) Spam/Email/Usenet abuse, (vi) uses which are harmful to or interfere with the use of the Aerwave Network or its systems, or the network of any other provider, (vii) uses which interfere with the use or enjoyment of the Services received by others, and, (viii) uses that constitutes a security risk or a violation of privacy. In addition, Aerwave reserves the right to terminate or suspend the Service for any of the reasons set forth in the AUP, including when Aerwave reasonably determines that your use of the Service (including use by others under a Master Account or any Sub Account) may expose Aerwave to sanctions, prosecution, civil action or any other liability, see the AUP for a more detailed discussion of the policy.
The Service is provided for your use only (unless otherwise specifically stated) and you agree not to, whether for a fee or without charge, reproduce, duplicate, copy, sell, transfer, trade, resell, re-provision, redistribute, or rent the Service, your membership in the Service, any portion of the Service, use of the Service, or access to the Service, including, but not limited to, reselling capabilities enabled or used by a specific application (including, without limitation, Voice Over Internet Protocol (VoIP) via wired, wireless, or other means). For example, you agree that the Service is not to be used to trunk or facilitate public internet access (“hotspots”) or any other public use of the Service, or for any high-volume purpose. All aspects of the Service, except that portion provided by third party providers, is copyrighted and property of Aerwave.
Copyright Infringement & Digital Millennium Copyright Act
You are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity), or other proprietary right of any party unless you own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through the Service(s). Aerwave assumes no responsibility, and you assume all risks, regarding the determination of whether material is in the public domain, or may otherwise be used by you for such purposes. Aerwave respects the intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) and other applicable laws, Aerwave has adopted and maintains a policy that provides for termination of Service in appropriate circumstances of the account(s) of customers who are repeat copyright infringers. Aerwave may limit, suspend or terminate your service at any time with or without notice to you.
Aerwave’s policies may be revised from time to time and, in addition, Aerwave may in its sole discretion voluntarily participate, on terms acceptable to Aerwave, in copyright alert and graduated response programs with other stakeholders.
You are responsible for management of your information, including but not limited to back-up and restoration of data, erasing data from disk space you control, and changing data on or settings for your modem and/or router. Aerwave is not responsible for the loss of your data or for the back-up or restoration of your data regardless of whether this data is maintained on our servers or your computer server. You, and not Aerwave, are entirely responsible for all content that you upload, download, post, email, transmit or otherwise make available by use of the Service (“User Content”). Aerwave does not claim ownership of User Content. However, with respect to User Content you submit to Aerwave, you grant Aerwave a nonexclusive, unrestricted, irrevocable, worldwide, sublicensable, transferable, perpetual, unlimited, assignable, fully paid up and royalty-free right to copy, display, edit, publish, prepare derivative works of, distribute, process, analyze, use and commercialize, in any media known or hereinafter developed, to such User Content. Aerwave may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or, (d) protect the rights, property, or personal safety of Aerwave, other end users, and the public.
Your use of the Service and registration data and certain other information about you are described in the Privacy Policies of Aerwave . This policy is available on our website. To manage privacy choices available to you, if any, you may do so by visiting your account portal from your desktop or from your mobile Web browser.
TERMINATION OR CANCELLATION OF SERVICE
Your Decision to Terminate or Continue Service
You may cancel your subscription at any time by accessing your Aerwave Account page or by contacting Customer Support. If you cancel your subscription prior to the end of the Subscription Term, your cancellation will be effective 30 days from the date of cancellation. If the monthly charge for the Service is included within a multi-item bill or otherwise itemized or included on a monthly rental statement issued by the Owner of the Property where you reside and receive the Service, upon cancellation we will inform the Owner. Upon cancellation, we will inform Owner that you have elected to discontinue the Service. Owner is responsible for removing the monthly charge from the billing method it uses to request payment from you for the Service.
Service Suspension/Termination by Aerwave
Aerwave may immediately terminate or suspend your Member Account and Sub Accounts, and all or a portion of your Service without notice for any of the reasons set forth in Aerwave’s Acceptable Use Policy, or if: (i) you provide false or inaccurate information to Aerwave; (ii) you (or anyone you permit to utilize the Service, including a Sub Account associated with your Member ID) violate this Agreement or Aerwave’s Acceptable Use Policy; (iii) you (or anyone you permit to utilize the Service, including a Sub Account associated with your Member ID) engage in conduct that is a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws); or (iv) if you engage in conduct that is threatening, abusive or harassing to Aerwave, employees or any of their vendor’s employees or representatives, including, for example, making threats to physically harm or damage employee or company property, frequent use of profane or vulgar language, or repeatedly contacting our customer service representatives for reasons that do not pertain to our provisioning, maintenance, repair, or general servicing of your Service after you have been asked to stop such conduct.
If we terminate or suspend your Service, your license to use any software provided in connection with the Service is also terminated or suspended (as applicable). If your Service is terminated, Aerwave has the right to immediately delete all data, files, and other information stored in or for your account without further notice to you. You must pay all charges for the Service through the end of the billing cycle when the Service is terminated.
Suspension and Termination for Non-Payment
Aerwave may suspend or terminate Service if your payment is past due. While your Service is suspended, billing will continue for your monthly charges.
Suspension and/or Termination Upon Loss of Access
Upon any interruption or loss of either your or Aerwave’s rights to access any part of the network facilities required to provide your Service, including the interruption or loss of any rights to access the land or buildings in which the facilities are located, Aerwave may, in its sole discretion, suspend or terminate all or any portion of your Service. In general, and where applicable, Aerwave will utilize available public rights of way to access network facilities utilized for providing Services. Receipt of Services is expressly conditioned on the Owner providing all customary, reasonable and necessary rights and permissions to allow Aerwave access to the network facilities necessary to provide your Service. Aerwave makes no representation and can’t guarantee that the Owner has or will provide the applicable rights and permissions necessary for you to receive Service or any particular grade of Service, and explicitly disclaims any such representation or guarantee. In the event of any interruption or loss of access, Aerwave will endeavor to provide you with reasonable advanced notice of any suspension or termination of Service, however the timing of any suspension or termination, as well as the timing of any resumption of Services, are entirely at Aerwave’s reasonable discretion. In general, and unless otherwise specified, billing will continue for your monthly charges while your Service is suspended.
Payment of Past Due Amounts
If either you or Aerwave suspends a Service for any reason set forth herein (other than due to Aerwave’s loss of access), you must make satisfactory arrangements to pay all past due amounts in order to have that Service restored.
DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling Customer Service. In the unlikely event that Customer Service is unable to resolve a complaint you may have to your satisfaction (or if Aerwave has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $50,000, Aerwave will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from Aerwave to at least the same extent as you would be in court. In addition, under certain circumstances (as explained below), Aerwave will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) twice his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what Aerwave has offered you to settle the dispute.
- Aerwave and you agree to arbitrate all disputes and claims between you and Aerwave. This Agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.
- Claims that arose before this Agreement or any prior agreement (including, but not limited to, claims relating to advertising).
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
- Claims that may arise after the termination of this Agreement.
References to “Aerwave,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AERWAVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Aerwave should be addressed to: Office for Dispute Resolution, Aerwave, Inc., 2919 Commerce St., Suite 626, Dallas, TX 75226 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute, and (ii) set forth the specific relief sought (“Demand”). If Aerwave and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Aerwave may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Aerwave or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Aerwave is entitled. You may download or copy a form Notice and a form to initiate arbitration from here: getaerwave.com/legal-notices.
- After Aerwave receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $50,000. (The filing fee currently is $200, but is subject to change by the arbitration provider. If you are unable to pay this fee, Aerwave will pay it directly upon receiving a written request at the Notice Address). The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at ⦁ www.adr.org, by calling the AAA at 800.778.7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Aerwave and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Aerwave will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Aerwave for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $50,000 in damages, the payment of these fees will be governed by the AAA Rules.
- If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of the last written settlement offer made by Aerwave before an arbitrator was selected, then Aerwave will:
- Pay you the greater of the award or $10,000 (“the alternative payment”), whichever is greater; and
- Pay your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”).
If Aerwave did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- The right to the attorney premium supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, the attorney premium provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Although under some laws Aerwave may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, Aerwave agrees that it will not seek such an award.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND AERWAVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Aerwave agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
- Notwithstanding any provision in this Agreement to the contrary, we agree that if Aerwave makes any future change to this arbitration provision (other than a change to the Notice Address) during the period of time that you are receiving Services, you may reject any such change by sending us written notice within 30 days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE IS AT YOUR SOLE RISK. THEY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR GUARANTIES OF ANY KIND. AERWAVE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE AND ARE RESPONSIBLE FOR THE ENTIRE COST OF ANY NECESSARY REPAIR.
- AERWAVE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, CURRENT, COMPLETE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL MEET YOUR EXPECTATION, (v) ANY ERRORS IN THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL BE CORRECTED AND (vi) THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE IS FREE OF VIRUSES OR OTHER DISABLING DEVISES OF HARMFUL COMPONENTS.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AERWAVE OR THROUGH OR FROM THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER AERWAVE NOR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, OR LICENSORS WILL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSES (EVEN IF AERWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE; (e) FAILURE TO INSURE THE COMPATIBILITY OF YOUR SYSTEM (INCLUDING THE EQUIPMENT, DEVICES, AND SOFTWARE THAT YOU PROVIDE TO RECEIVE THE SERVICE) WITH THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE; (f) ANY OTHER MATTER RELATING TO THE SERVICE, THE AERWAVE EQUIPMENT, AND/OR SOFTWARE; AND/OR (g) THE FAILURE OF ANY BATTERY BACKUP.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AERWAVE’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT YOU HAVE PAID TO AERWAVE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold Aerwave, and its subsidiaries, affiliates, officers, agents, co-branders, licensors, or other partners and employees harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of User Content you submit, post, transmit, or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, your violation of the AUP, or your violation of any rights of another. You acknowledge that you are responsible for all use of the Service using your account, including use by Sub Accounts, and that this Agreement, the Acceptable Use Policy, and Privacy Policies, as amended from time to time, apply to any and all usage of your account, including use by Sub Accounts. You agree to abide by these terms and you agree to defend, hold harmless, and indemnify Aerwave from and against any and all claims stemming from usage of this account and any Sub Account – whether or not such usage is expressly authorized by you.
This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its conflict of laws provisions.
Operational Limits/Force Majeure
Provisioning of the Service is subject to the availability and the operational limitations of the requisite equipment and associated facilities. You understand and agree that temporary interruptions of the Service may occur as normal events in the provision of the Service and that Aerwave is not liable for such interruptions. You further understand and agree that Aerwave has no control over third-party networks you may access in the course of your use of the Service, and therefore, delays and disruptions of other network transmissions are beyond the control of Aerwave. In addition, Aerwave is not liable for any failure of performance due to any cause beyond their reasonable control including acts of God, fire, explosion, vandalism, terrorism, cable cut, major weather disturbance, national emergencies, riots, wars, labor difficulties, supplier failures, shortages, breaches, any law, order, regulation, direction, action, or request by any government, civil, or military authority, or suspension of existing service in compliance with state and/or federal law, rules, and regulations, or delays caused by you or your equipment.
Trademark Information/Proprietary Rights
Aerwave and the Aerwave logos and all other Aerwave brands, logos and product and service names (“Aerwave Marks”) are registered trademarks or trademarks of Aerwave. Any use of Aerwave Marks is prohibited without permission of Aerwave. Nothing contained in this Agreement may be construed to convey to you any interest, title, or license in the Member ID, email address, Universal Resource Locator, IP address, or domain name used by you in connection with the Service.
This Agreement, any other policies or agreements referenced herein and the terms set forth in any promotional offer for the Service constitute the entire agreement between Aerwave and you. This Agreement governs your use of the Service, superseding any prior agreement between you and Aerwave with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Aerwave or affiliate services, third- party content, or third-party software. The failure of Aerwave to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this agreement. You agree that regardless of any statute of laws to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filled within one (1) year after such claim or cause of action arose or be forever barred. We can assign all or part of Aerwave rights or duties under this Agreement without notifying you. You may not assign this Agreement or the Services without prior written consent. If any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable. The section titles and paragraph headings in this Agreement are for convenience only and have no legal or contractual effect.
Obligations and rights in connection with this Agreement, which by their nature would continue beyond the termination, cancelation, or expiration of this Agreement, will survive the termination, cancelation, or expiration of this Agreement, including, but not limited to, those in the following sections: Equipment & Software, Dispute Resolution by Binding Arbitration, Disclaimer of Warranties, Limitation of Liability, Indemnity, and General.
Changes to this Agreement and/or Services
We reserve the right to change any terms, conditions, rates, fees, expenses, or charges regarding your Service at any time. We also reserve the right to modify or discontinue the Service, temporarily or permanently.
CUSTOMER SERVICE SUPPORT
Aerwave provides free basic customer care for Service purchased from Aerwave and covered under this Agreement. Although Aerwave reserves certain rights related to equipment necessary to receive the Service and will repair or replace damaged equipment as Aerwave deems necessary, Aerwave does not provide support for devices that access the Service under this Agreement.
CONSENT TO CONTACT
You expressly authorize, and specifically consent to allowing, Aerwave and/or its affiliates, outside collection agencies, outside counsel, or any other agents acting by or on behalf of Aerwave (collectively, the “Aerwave Parties”) to contact you with informational messages regarding your account, including but not limited to contact in connection with any and all matters relating to unpaid past due charges billed by Aerwave to you. You agree that such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address including a number for a cellular phone or other wireless device or service (collectively, your “Contact Information”) that you have provided, or may in the future provide, to Aerwave or any Aerwave Party, or which any Aerwave Party otherwise identifies as your Contact Information, and to any and all telephone numbers, wireless devices or electronic addresses billed on your Aerwave account. You expressly consent and agree that such contact may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, text messages delivered by an automated system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system, regardless of whether you incur charges as a result. You agree to provide true, accurate, current and complete contact information to Aerwave and its authorized agents and to promptly update your contact information to keep it true, accurate and complete.
HOW TO CONTACT US
If you have questions regarding these Terms of Service, please reach us as follows:
Attn: Legal Department
2919 Commerce St.
Dallas, TX 75226
Email: [email protected]