This Agreement is between you as our Subscriber and Skywire Networks, a Business Division of Xchange Telecom LLC (or its affiliates (“Skywire”)) and it sets forth the terms and conditions under which you agree to use and we agree to provide the Service.
THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY TO TERMINATE IT.
1. Term and Acceptance of Agreement; Agreement Terms Generally Included.
The term of this Agreement will be either month-to-month or for the term specified for the Service plan you select(ed), as set forth in your order form (the “Term”). The Term begins when the service is installed, as set forth below (“Service Activation Date”), and ends when you or we terminate this Agreement as permitted herein.
Acceptance by you of this Agreement occurs upon the earlier of: (a) your acceptance of this Agreement electronically during an online order, registration or when installing the Software or the Equipment, or by signature on an order form; (b) your use of the Service; or (c) your retention of the Software or Equipment we provide beyond thirty (30) days following delivery. If you change Service plans, your term and monthly rate may change (depending on the plan you select), but all other provisions of this Agreement will remain in effect unless otherwise noted.
This Agreement consists of the terms below, plus (a) the specific elements of your Service or Bundled Service plan (including the plan’s pricing, duration and applicable Early Termination Fee (“ETF”), all as described in the information made available to you when placing and confirming your order); (b) and any other terms that may be set forth in any Order Forms. A current version of this Agreement and related policies are posted online at http://www.skywirenetworks.com/termsofservice(“Website”). You can also receive a paper copy of this Agreement by writing to Xchange Telecom, P.O. Box 190433, Brooklyn, NY 11219-0433, Attention: Customer Service.
2.1. “Authentication” means the process of verifying with certainty the identity of a valid subscriber.
2.2. “Authentication and Authorization Standards” means the guidelines by which the Customer provides authorization to Provider that a call(s) may be accepted and completed on or through Provider’s Termination network.
2.3. “Authorization” means the process of authorizing or allowing a subscriber to place calls via a VoIP network.
2.4. “CPE” means Customer Premises Equipment. In the case of VOIP service, it may include a IP Telephone or conversion device supplied by Provider which provides voice line access upon connection to the Customer’s own high speed broadband internet service. The term “CPE” includes the hardware, software, and firmware associated with the supplied device, subject to a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of this Agreement.
2.5. “Broadband Services” means Skywire-provided Internet services (whichever applies)
2.6. “Bundled Service(s)” means a combination or “bundle” of a Broadband Service with one or more other eligible Skywire services, including but not limited to telephone service
2.7. “Content” means content provided by Skywire or its third party licensors or suppliers and accessible on the Service, including without limitation images, photographs, animations, video, audio, music, and text in any format.
2.8. “DID” or “Direct Inward Dial” means a number assigned to clients IP and routed to their switch. For the purposes of this Agreement, a DID number is a direct inward dial address which permits a caller to access the user of that address directly through addressing/dialing permitted under the North American Numbering Plan and acceptable to Provider.
2.9. “Digital Subscriber Line” or “DSL” refers to the group of technologies providing data transmissions over telephone lines, as described in American National Standards Institute (ANSI) standard T1.413 Issue 2 and ANSI T1.418-2000, and International Telecommunication Union (ITU) standards G.992.1-G.992.5, G.991.1, and G.993.1-G.993.2, and associated annexes.
2.10. “End User” shall refer to a customer of Customer that is either serviced by the ILEC via a contractual agreement between Provider and the ILEC, or serviced directly by Provider (in either case, Provider and/or ILEC referred to as Underlying Service Provider or USP), where the USP is to provide a line to such customer, and the USP is to deliver all such traffic as shall be communicated between customer and Customer.
2.11. “ILEC” means Incumbent Local Exchange Carrier, and for the purposes of this Agreement shall refer to Verizon New York, Verizon Maryland and Verizon New Jersey;
2.12. “LATA” means Local Access Transport Area. Provider may provide transport within LATA boundaries designated by the FCC. Tiers are used to identify charges for those specific LATAs.
2.13. “MRC” means Monthly Recurring Charge.
2.14. “Network Interface Device” or “NID” refers to the device that serves as the demarcation point between the Carrier’s local loop and the customer’s premises wiring.
2.15. “NRC” means Non-Recurring Charge.
2.16. “Order Form” means collectively the order documents representing the initial purchase of the Service (and any subsequent purchases agreed to between the parties in writing from time to time) and are made a part of this Agreement from time to time and that specify, among other things, the Services and Equipment ordered and the fees thereof.
2.17. “Provider Network/Facilities” means the network or facilities either owned by Provider or those of the third party underlying carriers that Provider utilizes to supply the Service to Customer.
2.18. “Public Switched Telephone Network” (PSTN) refers to the aggregate of the world’s circuit-switched telephone networks that are operated by national, regional, or local telephony operators, providing infrastructure and services for public telecommunication, consisting of the interconnected telephone and communications networks of the world’s carriers both via digital and analog systems.
2.19. “Service” means the services ordered on your order form, including but not limited to any ancillary services required to be delivered to support the services ordered. The Services are defined below.
2.20. “Session Initiation Protocol” (SIP) refers to both the Session Initiation Protocol developed and standardized in RFC 3261 under the auspices of the Internet Engineering Task Force (IETF), and also includes all underlying protocols and other associated protocols required for the initiation and communication of Voice over IP (VOIP) calls, including TCP, UDP, Transport Layer Security (TLS), Real-time Transport Protocol (RTP) and Session Description Protocol (SDP) and any other protocols.
2.21. Toll Intrastate, Interstate, Local and Regional calling areas are as defined by the ILEC serving the service address.
2.22. “Skywire Web Site(s)” mean the site located at http://www.skywirenetworsk.com, and any other Skywire affiliated sites, which are comprised of various web pages, tools, information, software, content, and features operated by Skywire.
Skywire shall provide the services on the Order Form or ordered by you, and on any service attachments, as defined below. The names that appear on your bill may not match the service name as it appears below, but will reasonably be similar to such services. Services may be bundled or offered separately. Additional Terms of Service for particular service lines appear below as Attachment B, and are incorporated into this Agreement. If the service doesn’t appear below, it will be provided in accordance with Skywire’s tariffs or industry standards:
3.1.1. Protected Ethernet Service: Protected Ethernet Service provides an Ethernet frame forwarding service between two (2) or more locations, i.e., ports, on a single Provider metropolitan network. The Customer manages an extended network as one (1) large Ethernet Metropolitan Area Network (“MAN”) using standard IEEE connections. No customer-owned CPE is required for transport. The demarcation is the Customer facing site LAN interface on Provider’s transport equipment. Support for IEEE 802.1Q VLANs and IEEE 802.1D (Spanning Tree Protocol) is provided. Protected Ethernet Services are only provided On-Net. Protected Ethernet Service is available in speeds of 10 Mbps (Ethernet), 100 Mbps (Fast Ethernet), and 1,000 Mbps (Gigabit Ethernet), or combinations of those speeds.
3.1.2. Unprotected Ethernet Service: Unprotected Ethernet Services are point-to-point services in both 10 Mbps, 100 Mbps and 1000 Mbps offerings, or combinations of those speeds.. This Service is provided as a standalone single metropolitan area point-to-point service or to terminate intercity Ethernet Services. For Unprotected Ethernet Services, the transport will not be protected and Customer may experience service interruptions.
3.2. Centraloffice The CentralOffice product provides two-way Voice over IP voice channels and unified communications, between Customer’s end-user and the PSTN, and extension to extension calling, as well as other features as laid out in the feature list. The point of interconnection (POI) for SIP shall be the Public Internet. The POI for any unified communications service shall be the Public Internet.
3.3. Co-location Services Co-location Services include the following services:
• Uninterruptible Power Supply (UPS) and Emergency Power Supply (EPS) (Power subject to availability);
• Protection of electricity to the Site by UPS and EPS. (Electricity charges are included in the Service Charges);
• Air-conditioning, suitable for telecommunication and computer equipment;
• Fire Suppression System;
• Site monitoring and access 24 hours per day by security personnel of Skywire or its agent
• Preventive and emergency maintenance and repair on Skywire ColoCenter HVAC, EPS generators, UPS, batteries and fire suppression – on a daily/weekly/monthly basis as required;
• Pull-plug testing for all non-stop systems as part of annual preventive maintenance program on a pre-scheduled basis, notice for which shall be supplied to the Customer.
3.4. DATA T1 The Data T1 service provides data connectivity utilizing a T1 from the peering point (the NID) to the point of interconnection (which may be the public Internet or the Point of Interconnection between Customer and Skywire’s Network, as agreed by the Parties).
3.5. DSL. The demarcation point for DSL is the established demarcation point at Customer’s site for the telecommunications access circuit. DSL Service shall be provided at the speeds set forth in the order form. The speeds are maximum speeds, and are not guaranteed.
3.6. Efax “Efax” refers to electronic faxing services provided via email or via a web portal. The services consist of the receipt and sending of facsimile communications (“faxes”), the storage of such faxes on an Skywire server, the provision of software to the Customer for access to the faxes, the communication via email or telephone regarding the receipt of the faxes, and any ancillary or subsidiary services provided in connection to these services. Collectively, these services will be referred to as “Fax Services.”
Skywire offers the following classes of Fax Services:
– FaxMail Pro
3.7. Email and Email Messaging Service.
3.7.1. Email Service. Use of Skywire email service is subject to Skywire’s email and anti-spam policies, which include important information about limitations on use of the email service such as the storage capacity and deletion of stored messages.
3.7.2. Email Security. Skywire reserves the right in our sole discretion to provide the level of security we deem appropriate to safeguard our network and customers, and other Internet users, against Internet threats or abuses, including viruses, spam and phishing threats. These security measures may include, but are not limited to, the use of firewalls and blocklists to block potentially harmful or abusive emails or attachments, anti-spam filters, anti-virus and anti-spyware software, and blocking selected ports. Such activities may result in the blocking, filtering or non-delivery of legitimate and non-legitimate email sent to or from your email account. By using any Skywire-provided email service, you agree that delivery and receipt of email is not guaranteed and to Skywire’s use of such Internet and email security measures we in our sole discretion deem appropriate.
3.7.3. Email Aliases. Skywire will issue email aliases (alternate email addresses) based upon availability. You will surrender your alias by changing it or if your account is terminated for any reason and we will not forward emails addressed to that alias. If your Service is reinstated we cannot guarantee your alias will still be available to you.
3.8. Internet Service Internet Service provides Customer with connectivity to the public internet. If software is provided, Skywire grants to Customer a personal, limited, non-transferable, revocable, non-exclusive license (without the right to sublicense or create derivative works) to use the Software during the Term solely for Customer’s own internal use of the Services in accordance with this Agreement. Unless agreed in writing by Skywire, Customer shall not resell or redistribute any Services purchased from Skywire (including via wi-fi hotspots). In addition, Customer shall not copy, modify, resell or redistribute the Software or the Products, create or recreate the source code for the Products or any Software, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Products or any Software. Some software necessary to fully utilize the full functionality of the Services may require Customer to accept additional terms and conditions required by the third-party providers of such software (including “Click-Thru” or “Shrink-Wrap” terms). Customer agrees to comply with any such additional terms and conditions required for the Service. Customer understands that Skywire’s obligations end at the peering point between Skywire and Skywire’s third-party connectivity providers. Skywire is not responsible for the configuration of, or internal equipment for, Customer’s personal computer that may be necessary to make Customer’s computer or systems compatible with the Services or Products. If Customer has opted to provide its own equipment, Customer will be solely responsible for procuring any firmware licenses and/or updates, and Skywire shall have no obligation to provide such firmware licenses or upgrades.
3.9. Jnet – The Jnet Services is an internet filtering service that is offered as an add-on to any Internet package.
3.10. Metroflex. The Metroflex product provides two-way IP voice channels and unified communications, if ordered, between Customer’s end-user and the PSTN. The point of interconnection (POI) for Metroflex shall be the Public Internet, unless Customer shall order Metroflex together with Access Service to the End User, where the POI shall be the Customer’s End User’s SIP-based PBX. The POI for any unified communications service shall be the Public Internet.
3.11. POTS Telephony Services. Skywire will provide business telephony services pursuant to its tariffs.
3.12. Skywire Pro Skywire Pro services provide Point to Point or Point to Multi-point wireless data and voice services, utilizing either licensed, semi-licensed or non-licensed spectrum, connecting Customer’s network from the NID to either the public Internet or the Point of Interconnection (POI) between the Customer and Skywire.
Skywire Pro consists of the following products: Ethernet Private Line Services, and an optional Internet Service.
3.13. Skywire Residential Skywire Residential is a residential service providing either Internet services, voice services, or a bundle of voice and internet services to residential customers. Voice is provided using fixed VOIP solutions. The Internet services will be delivered at speeds up to the amount listed on the order form. Services may be bundled with software services as well, including Commportal and voicemail services. Voice services may include Toll services bundled or available on a usage rated basis.
3.14. Static IP As part of the Services, Customer may be provided with IP Addresses. Skywire adheres to the American Registry of Internet Numbers (ARIN) recommended guidelines for allocation of Internet IP address space to its customers. Under ARIN recommendations, Skywire does not permit the portability of our IP address space. Skywire allocates address space to the Customer for the duration of this Agreement. Upon Service termination, Customer will be required to forfeit any allocated address space to Skywire. Skywire will allocate address space during the installation process. It is required that documented justification be submitted to Skywire prior to the allocation of address space. Customer may request up to a /20 CIDR allocation (equivalent to 16 Class C size networks) from Skywire. Customer agrees to accept Service regardless of the number of IP addresses justified according to ARIN guidelines. If Customer requires larger blocks of address space, Customer must petition ARIN directly. Skywire will assist you in preparing your petition to ARIN on a time and materials basis.
Skywire will route IP address networks attained directly from ARIN; however, Skywire will not route IP address networks that Customer was assigned from another Internet Service Provider (ISP), except when Customer is dually homed between that ISP and Skywire.
4. Revisions to This Agreement.
From time to time we may make revisions to this Agreement and the policies relating to the Service. We will provide notice of such revisions by posting revisions to the Website Announcements page, or sending an email to your primary email address, or both. You agree to visit the Announcements page periodically to review any such revisions. We will provide you with at least thirty (30) days notice of any price increase prior to the effective date of any increases to the monthly price of your Service or Bundled Service plan (excluding other charges as detailed in Sections 8.1(a)-(d)); revisions to any other terms and conditions shall be effective on the date noted in the posting and/or email we send you. By continuing to use the Service after revisions are effective, you accept and agree to abide by them.
5. Authorized User, Account Use, and Responsibilities.
5.1. You acknowledge that you are eighteen (18) years of age or older and that you have the legal authority to enter into this Agreement. You agree promptly to notify Skywire whenever your personal or billing information changes.
5.2. You are responsible for all use of your Service and account, whether by you or someone using your account with or without your permission, including all secondary or sub-accounts associated with your primary account, and to pay for all activity associated with your account. You agree to comply with all applicable laws, regulations and rules regarding your use of the Service and to only use the Service within the United States (unless otherwise permitted by this Agreement).
5.3. Restrictions on Use. The use of the Services are conditioned on your using them consistently with how other users of the services use such services. In addition, you agree to be bound by the Acceptable Use Policy, available at https://www.skywirenetworks.com/termsofservice/acceptable-use-policy/ .
7. Availability of And Changes to Service.
7.1. Service and Bandwidth Availability and Speed. The Service you select may not be available in all areas or at the rates, speeds, or bandwidth generally marketed, and some locations may not qualify for the Service even if initial testing showed that your line was qualified. Unless governed by a Service Level Agreement, quality of your service is not guaranteed. We will provision qualified Broadband lines at the maximum line rate available to your location based on our standard line qualification procedures, unless you have selected a level of service with a lower maximum line rate. Bandwidth is provided on a per-line (not a per-device) basis. The bandwidth available to each device connected to the network will vary depending upon the number, type and configuration of devices using the Service and the type of use (e.g., streaming media), among other factors. The speed of the Service will vary based on network or Internet congestion, your computer configuration, the condition of your telephone line and the wiring inside your location, among other factors. We and our suppliers reserve the right, at any time, with or without prior notice to you, to restrict or suspend the Service to perform maintenance activities and to maintain session control.
The appropriate Service Level Agreement is attached to your order form. If no Service Level Agreement was attached, for Skywire Business Services, your Service Level Agreement is available at https://skywirenetworks.com/sla/gold/.
7.2. Skywire Service Limitations. Skywire is a fixed wireless service that provides data if you subscribe to a data plan and voice service. Voice service is provided as Voice over Internet Protocol or “VoIP” service. VoIP Service may not be available at any or all times in all areas. Even within coverage areas, and for a variety of reasons that may be beyond Skywire’s reasonable control, service availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your desired use of the Service. At the time you purchase Service, you agree to provide Skywire with the address of the primary place where you intend to use this service. That address will be used to determine whether adequate coverage should be available based on Skywire’s coverage maps. Coverage maps only approximate Skywire’s anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice, depending on a variety of factors, some of which are discussed below. You agree that Skywire is not liable for any problems relating to Skywire service availability or quality, regardless of the cause(s) of these problems. You further agree to promptly notify Skywire of any changes in the primary Service address.
7.3. Changes to your local voice telephony service. If you change your local telephone company or discontinue your local telephone service, we may in our discretion either terminate your Service or continue to provide Broadband Service without local Skywire voice service at the then-current rates, terms and conditions applicable to your new Service plan and you agree to pay any new or higher monthly fee that may apply to your new Service plan. If we elect to terminate your Service under this Section, then we reserve the right to charge any early termination fees and to apply the Equipment return terms under this agreement..
7.4. Changes to Service or Features. Skywire reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you. This includes the portal services we may make available as part of the Service or for an additional charge.
7.5. Maintenance. To provide the best possible service to its customers, Skywire periodically performs maintenance on its network. In some cases, this may require Skywire to conduct either a planned or unplanned interruption of the Service. Skywire will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on customers, but Skywire cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that Skywire shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages.
7.6. Network Management. Skywire reserves the right to engage in reasonable network management to protect the overall integrity of its network, including detecting malicious traffic patterns and attempting to prevent the distribution of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at a particular location at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to Skywire’s Acceptable Use Policy (attachment A) which forms a material part of, and is incorporated by reference within, these Terms.
7.7. E911 Notification If you use a voice over IP product, in the event of a power outage, and provided that you do not have battery backup installed, you will not have E911 service. If your service is disconnected or interrupted, you will not have E911 service. If you relocate and of the equipment to a different address, you must notify Skywire in advance to update E911 service. During the initial 72 hours of service at your new address, you may be required to provide the E911 operator with your new service address.
7.8. Security and Medical Alert System Limitations If you use a voice over IP product, yYou acknowledge that Skywire does not support the use of any Voice service as a connection for (i) emergency medical alert systems, (ii) all high security monitoring systems (UL 681 or similar) or (iii) fire alarm systems (UL 864 or similar). You acknowledge that it is your sole responsibility to contact your central station monitoring provider to test and verify that your security system is in good working order and that you are responsible for any additional work required to ensure the proper operating of your security system.
8. Software Licenses and Third Party Services.
8.1. We may provide you, for a fee or at no charge, software for use in connection with the Service which is owned by Skywire or its third party licensors, providers and suppliers (“Software”). We reserve the right periodically to update, upgrade or change the Software remotely or otherwise and to make related changes to the settings and software on your computer or Equipment, and you agree to permit such changes and access to your computer and Equipment. You may use the Software only in connection with the Service and for no other purpose.
8.2. Certain Software may be accompanied by an end user license agreement (“EULA”) from Skywire or a third party. Your use of the Software is governed by the terms of that EULA and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes a EULA unless you first agree to the terms of the EULA.
8.3. For Software not accompanied by a EULA, you are hereby granted a revocable, non-exclusive, non-transferable license by Skywire or its applicable third party licensor(s) to use the Software (and any corrections, updates and upgrades thereto). You may not make any copies of the Software. You agree that the Software is confidential information of Skywire or its third party licensors and that you will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Skywire or its third party licensors. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Software. You acknowledge that this license is not a sale of intellectual property and that Skywire or its third party licensors continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
8.4. Your license to use the Software or any Additional Services will remain in effect until terminated by Skywire or its third party licensors, or until your Service is terminated. Upon termination of your Service, you must cease all use of and immediately delete the Software from your computer.
8.5. If you subscribe to or otherwise use any third party services offered by Skywire, your use of such services is subject to the EULA of that third party provider. Violation of those terms may, in our sole discretion, result in the termination of your Service.
8.6. All title and intellectual property rights (including without limitation, copyrights, patents, trademarks and trade secrets) in and to the Skywire Web Sites (including but not limited to, related software, images, photographs, animations, video, audio, music, text, and content), are owned by Skywire, its affiliates or licensors. All title and intellectual property rights in and to the information and content which may be accessed through use of the Skywire Web Sites are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant you any rights to use such content, nor does it grant any rights to the Skywire Web Sites, other than the right to use the Skywire Web Sites according to the terms of the Agreement.
9. Pricing; Billing: Changes to Service Plans and Payment.
9.1. Prices and Fees; Billing. You agree to pay the fees applicable to your Service or Bundled Service, either on a monthly or prepaid basis, as applicable, and to pay: a) applicable taxes, b) surcharges, c) recovery fees, d) telephone charges, e) activation fees, f) installation fees, g) set-up fees, h) equipment charges, i) ETFs, and j) other recurring and nonrecurring charges associated with the Service plan you have selected. The taxes, fees and other charges detailed in a)-d) above may vary on a monthly basis. Surcharges and recovery fees are not taxes and are not required by law, but are set by Skywire and may change. You also agree to pay any additional charges or fees applied to your account, including interest and charges due to insufficient credit or insufficient funds. Non-recurring charges such as set up, activation and installation fees, and equipment charges, will be included in your first bill. Monthly Service and Bundled Service recurring charges will be billed one month in advance; any usage charges will be billed in arrears. Pre-paid pricing plans for Additional Services will be billed in advance. Based on your election and subject to our approval, Skywire or its agent will bill you directly, or bill your charge card or local Skywire telephone bill (where available). IF YOU ELECT TO BE BILLED ON YOUR SKYWIRE PHONE BILL, BY USING THE SERVICES YOU AGREE TO HAVE ALL SERVICE CHARGES INCLUDED ON YOUR PHONE BILL. IF YOU SUBSCRIBE TO A BUNDLED SERVICE PLAN, THEN ALL OF THE SERVICES INCLUDED IN THE BUNDLED SERVICE PLAN MUST BE BILLED ON YOUR SKYWIRE PHONE BILL. Billing for Dial-up Service will automatically begin upon registration of your account. Billing for Broadband Services will automatically begin on the date provisioning of your Broadband Service is complete (“Service Ready Date”). Billing for Additional Services will begin on your Service Ready Date if you are also ordering a new Broadband Service or other service. Otherwise, billing for Additional Services will begin upon submission of your order, unless otherwise noted. We may, at our election, waive any fees or charges. If you cancel any component of a Bundled Services plan, the monthly charges for the remaining services on your account will automatically convert to the applicable existing, non-discounted month-to-month service rate.
9.2. Plans with Minimum Terms. If you choose a Service or Bundled Services plan with a minimum term commitment, you agree to maintain your Service for the term of that plan (a “Term Plan”). For Broadband Services, your Term Plan begins on the later of: (a) the date you change your existing Broadband Service plan to a Term Plan; or (b) your Service Ready Date; for Bundled Services, your Term Plan begins once all Bundled Services have been provisioned. You will begin receiving any discount associated with a Bundled Services plan once all Bundled Services have been provisioned. At the end of any Term Plan you may be given the option to select a new Term Plan. If you do not select a new Term Plan, your Service may be converted to a month-to-month Service plan at a monthly fee that may be higher than your current rate. If you select a new Term Plan, the terms of that plan will apply.
9.3. Money Back Guarantee. If we provide a money back guarantee (“MBG”) for your Service, it will begin on your Service Ready Date. During this MBG period you may cancel your Service and receive a full refund of all monthly, one-time and equipment charges paid to Skywire (provided you return all Equipment and packaging in good working condition). If you fail to return the Equipment, an unreturned Equipment fee will apply. ETFs will not apply to Service terminated within the MBG period. The MBG does not apply to customers who change between or renew bundle, monthly, term or other pricing plans. The MBG is limited to one per Subscriber per Service type per Service address.
9.4. Discontinuation of Service for Nonpayment. We may discontinue your Service without notice if Service charges on your telephone bill or charge card are refused for any reason, or if you fail to make payment when due or to provide us with a new charge card expiration date before the existing date expires.
9.5. Late Fees. If any portion of your bill is not paid by the due date, Skywire may charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. The late fee will be the lesser of 1.5 % per month, or the highest rate permitted by law. If Skywire uses a collection agency or legal action to recover monies due, you agree to reimburse us for all expenses we incur to recover such monies, including attorneys’ fees, as allowable by law.
9.6. Local Telephone, Toll and Long Distance Charges. SKYWIRE IS NOT RESPONSIBLE FOR ANY CHARGES, INCLUDING BUT NOT LIMITED TO, LONG DISTANCE AND METERED LOCAL OR TOLL CHARGES INCURRED WHEN YOU ACCESS THE SERVICE. YOU SHOULD CHECK WITH THE LOCAL PHONE COMPANY TO DETERMINE WHETHER A DIAL-UP NUMBER YOU HAVE SELECTED IS A LOCAL CALL FROM YOUR LOCATION AND WHETHER ANY CHARGES APPLY. SKYWIRE DOES NOT GUARANTEE THAT ANY DIAL-UP ACCESS NUMBERS WE PROVIDE WILL BE A LOCAL CALL FROM YOUR LOCATION. ADDITIONAL CHARGES, WHICH MAY BE SUBSTANTIAL, APPLY TO REMOTE DIAL UP ACCESS, WHICH IS AVAILABLE FROM CERTAIN LOCATIONS ONLY.
9.7. Bill Disputes Customer acknowledges that it is responsible for all charges, taxes and fees on its billing statements and as assessed under the Terms of Service and this Service Agreement, and agrees that Skywire and its affiliates are not liable in any way for erroneous billing statements, or incorrect charges or debits to any credit card or bank account supplied by Customer, other than to refund such charges. All bill disputes not submitted within 6 months of the charge disputed are waived by Customer.
9.8. Limitation on Special Pricing Promotions. You may only take advantage of one special pricing promotion during any consecutive twelve (12)-month period. Skywire may, in its discretion, allow additional promotion pricing. Skywire will not process any credit or pricing promotion if you are past due on any of your accounts with Skywire.
9.9. Refundable Deposit. We may require that you provide us with a refundable deposit, which will be specified at the time of your order (“Subscriber Deposit”). We may also require an additional deposit after activation of the Service if you fail to pay any amounts when due. Within ninety (90) days after termination of your Service, we -will return your Subscriber Deposit, less any unpaid amounts due on your account, including any amounts owed for unreturned or damaged Equipment. Amounts held on deposit will not accrue interest except as required by law.
9.10. Credit Related Matters. We may evaluate your credit history before modifying or providing you Service. In order to establish an account with us and/or obtain or modify Service, we may obtain a report from a consumer credit agency or exchange information with our affiliates in connection with determining your creditworthiness. If you fail to pay your bill, we may submit a negative credit report to a credit reporting agency, which will negatively affect your credit report.
9.11 Credit Card Payments. When you subscribe to our service, you authorize us to collect from your payment method (Credit Card), including disconnection fees, porting fees, late fees, check return fees, rebate or device recovery fees and any other outstanding charges. This authorization will remain valid until 30 days after you terminate our authority to charge your payment method. If you provide us with a form of payment, unless canceled in writing, you authorize us to charge that form of payment for any outstanding charges by the due date on that invoice. If you use a credit card to pay for the Service(s), use of the card is governed by the card issuer agreement, and you must refer to that agreement for your rights and liabilities as a cardholder. You also agree not to dispute such charges as unauthorized.
10. Termination or Suspension of Service.
10.1. Termination of Service.
10.1.1. Subscribers with Month-to-Month Accounts. If you are a month-to-month Service customer, either you or Skywire may terminate this Agreement any time by giving notice to the other as set forth in this Agreement. Termination by you will be effective upon your notice to us. Activation or set-up fees paid at the initiation of your Service, if any, are not refundable, except during any applicable 30-day MBG period.
10.1.2. Subscribers with Term Plans; Early Termination Fee. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IF YOUR SERVICE IS TERMINATED BY YOU OR BY US BEFORE COMPLETING YOUR TERM PLAN, THEN YOU AGREE TO PAY SKYWIRE THE ETF SET FORTH IN THE PRICING PLAN YOU HAVE CHOSEN. If you terminate Service at your location, your existing Term Plan cannot be carried over to a new Service location.
10.1.3. Termination and/or Suspension by Skywire. Skywire reserves the right to change, limit, terminate, modify or temporarily or permanently cease providing the Service or any part of it with or without prior notice if we elect to change the Service or a part thereof or if you violate the terms of this Agreement. If Skywire terminates your Service under this Section 9.1.3, you must immediately stop using the Service and you will be responsible for the applicable fees and/or Equipment charges set forth in Sections 8.5, 9.1.1, or 9.1.2. If the termination is a result of violation by you of the terms of this Agreement, you also shall be liable to pay the ETF. If Skywire terminates or ceases to offer service to your location, you shall not be liable to pay the ETF. If your Service is reconnected, a reconnection fee may apply.
10.2. Deletion of Data upon Termination.
YOU AGREE THAT IF YOUR SERVICE IS TERMINATED FOR ANY REASON, SKYWIRE HAS THE RIGHT TO IMMEDIATELY DELETE ALL DATA, FILES AND OTHER INFORMATION (INCLUDING EMAILS, VOICEMAILS, DATA, ADDRESS BOOK AND WEB STORAGE CONTENT) STORED IN OR FOR YOUR ACCOUNT WITHOUT FURTHER NOTICE TO YOU. ALSO UPON TERMINATION OF SERVICE FOR ANY REASON, IF YOU HAVE BEEN AN SKYWIRE PHONE SERVICE CUSTOMER WHOSE TELEPHONE NUMBER (ASSOCIATED WITH THAT SERVICE) PREVIOUSLY HAD BEEN TRANSFERRED TO SKYWIRE FROM ANOTHER VOICE SERVICE PROVIDER, THEN (IN ACCORDANCE WITH APPLICABLE FEDERAL REGULATIONS) SUCH TELEPHONE NUMBER MAY BE AUTOMATICALLY AND PERMANENTLY RETURNED FOR REASSIGNMENT TO THE NUMBERING POOL OF THE ORIGINAL VOICE SERVICE PROVIDER OR SKYWIRE; IT SPECIFICALLY BEING UNDERSTOOD THAT SKYWIRE MAY NOT BE ABLE TO RECOVER SUCH TELEPHONE NUMBER EVEN IF YOU (I) DECIDE TO REINSTATE YOUR SERVICE WITH SKYWIRE (OR WITH AN ACQUIRER, TRANSFEREE OR ASSIGNEE OF, OR SUCCESSOR TO, SKYWIRE’S PHONE SERVICE) OR (II) EXPRESS YOUR INTENT TO ESTABLISH INTERNET PHONE SERVICE WITH ANOTHER VOICE SERVICE PROVIDER. YOU AGREE THAT SKYWIRE WILL HAVE NO LIABILITY WHATSOEVER FOR (A) THE LOSS OF ANY SUCH DATA, NAMES, ADDRESSES, OR OTHER INFORMATION AND/OR (B) IF YOU HAVE BEEN A SKYWIRE PHONE SERVICE CUSTOMER, THE INABILITY (FOR WHATEVER REASON) TO MAINTAIN YOUR EXISTING TELEPHONE NUMBER OR TO TRANSFER SUCH TELEPHONE NUMBER TO A NEW VOICE SERVICE PROVIDER.
10.3. Return of Equipment upon Termination. If your Service is terminated for any reason prior to the end of the first year of service and you received Equipment at no charge from Skywire, you must return the Equipment to Skywire or you will be charged for the Equipment.
11. Management of Your Data and Computer.
11.1. Your Responsibilities Regarding Management of Your Computer and Data. You are solely responsible for obtaining, maintaining and updating all equipment and software necessary to use the Service, and for management of your information, including but not limited to back-up and restoration of your data. YOU AGREE THAT SKYWIRE 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 DEVICE(S). YOU SHOULD ALWAYS BACK-UP ANY IMPORTANT INFORMATION SEPARATELY FROM DATA STORED ON SKYWIRE’S OR ANY THIRD PARTY’S SERVERS.
11.2. Content and Data Management by Skywire. We reserve the right to: (a) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple Skywire servers for back-up and maintenance purposes; and (b) block or remove any unlawful content you store on or transmit to or from any Skywire server. We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access.
11.3. Your Responsibilities Regarding Security. You agree that you are solely responsible for maintaining the security of your computer(s) and data, including without limitation, encryption of data and protection of your User ID, password and personal and other data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE.
11.4. Monitoring of Network Performance by Skywire. Skywire automatically measures and monitors network performance and the performance of your Internet connection and our network. We also will access and record information about your computer and Equipment’s profile and settings and the installation of software we provide. You agree to permit us to access your computer and Equipment and to monitor, adjust and record such data, profiles and settings for the purpose of providing the Service. You also consent to Skywire’s monitoring of your Internet connection and network performance, and to our accessing and adjusting your computer settings, as they relate to the Service, Software, or other services, which we may offer from time to time. We do not share information collected for the purpose of network or computer performance monitoring or for providing customized technical support outside of Skywire or its authorized vendors, contractors and agents.
12. Warranties and Limitation of Liability.
12.1. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY SKYWIRE (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT), SKYWIRE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES) (COLLECTIVELY THE “SKYWIRE PARTIES”), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY SKYWIRE OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED.
12.2. SKYWIRE DOES NOT WARRANT OR GUARANTEE THAT SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF SKYWIRE HAS ACCEPTED YOUR ORDER FOR SERVICE. THE PROVISIONING OF SERVICE IS SUBJECT TO NETWORK AVAILABILITY, CIRCUIT AVAILABILITY, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, THE CONDITIONS OF THE WIRELESS NETWORK RELATING TO COVERAGE, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR SKYWIRE SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY SKYWIRE-PROVIDED EQUIPMENT). ADDITIONALLY, SKYWIRE DOES NOT WARRANT OR GUARANTEE THAT SERVICE THAT IS ONCE AVAILABLE TO A PARTICULAR LOCATION WILL ALWAYS BE AVAILABLE TO THAT LOCATION. COVERAGE MAY CHANGE WITHOUT NOTICE.
12.3. THE SPEED AND BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE CONNECTED TO THE SKYWIRE NETWORK, AND HENCE THE QUALITY OF THE SERVICE, MAY VARY FOR MANY REASONS, WITHIN OR BEYOND SKYWIRE’S CONTROL, INCLUDING WITHOUT LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE ENGAGED; (ii) THE AMOUNT OF DATA BEING TRANSFERRED OVER THE NETWORK, (iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR EQUIPMENT AND THE EQUIPMENT OF THIRD PARTIES; (v) TERRAIN AND FOLIAGE; (vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE AND MATERIALS. NEITHER SKYWIRE, NOR ITS AFFILIATES, AGENTS OR SUPPLIERS, WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICE (A) WILL MEET YOUR REQUIREMENTS, (B) WILL BE UNINTERRUPTED, WITHOUT DELAY, ERROR-FREE, OR FREE FROM SERVICE DEGRADATION OR (C), WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE. SKYWIRE SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.
12.4. IN NO EVENT SHALL THE SKYWIRE PARTIES OR SKYWIRE THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, OR RELIANCE ON OR PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF SKYWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
12.5. THE LIABILITY OF THE SKYWIRE PARTIES, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD PARTY END USER LICENSE OR OTHER AGREEMENTS) OUR THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO SKYWIRE FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.
12.6. ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 13 ALSO APPLY TO SKYWIRE’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, AS THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
12.7. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Skywire and its affiliates from and against all liabilities, costs and expenses, including reasonable attorneys’ and experts’ fees, related to or arising from your use of the Service (or the use of your Service by anyone else), (a) in violation of applicable laws, regulations or this Agreement; (b) to access the Internet or to transmit or post any message, information, software, images or other materials via the Internet; (c) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property; or (d) claims for infringement of any intellectual property rights arising from or in connection with use of the Service.
14. Installation of Service
14.1. Installation Customer and Provider shall agree on a mutually agreeable installation date. If the date of the actual installation is 30 or more days from the Effective date, then the Effective Date of this Agreement, for the purpose of any Term, shall be changed to be the date of the actual installation s. Customer agrees to cooperate fully with Provider in arranging installation.
Where Customer intends on using the Services in conjunction with a third-party broadband provider that is not supplied by Skywire, Customer is required to provide any interface devices, including telephone equipment, to utilize Provider’s Service, CPE, and Features. Customer warrants that it possesses all required rights, including software or firmware licenses, or both, to use any such interface device that Provider has not provided to Customer. Provider makes no warranty or representation of the compatibility of any interface device with Provider’s Service, Device, or Features. Provider reserves the right to prohibit the use of any interface device that it has not provided to the Customer.
14.2. Service Availability Services are subject to Service Availability. Skywire reserves the right to terminate services with no penalty where services are no longer available, or become technically unfeasible. Additional non-recurring expenses may apply related to any necessary equipment required to deliver proper service. All facilities, pricing and services are not guaranteed until the placing of an order and the confirmation of facility availability, by way of a FOC (Firm Order Commitment), from Skywire. Order will be FOC’ed within 14 days of placing an order.
14.3. Skywire Installation Customer agrees that Customer will be fully responsible for the Equipment to be installed to provide the wireless service, which includes a receiving antenna known as a CPE and other ancillary equipment (but does not include the equipment separately charged for and paid in advance above unless such equipment is also financed); that Customer is contracting with Wiremax, which is a separate and independent entity from Xchange Telecom LLC, to install and maintain the equipment; and that Customer conveys to Xchange Telecom LLC an irrevocable rent-free license to construct, replace, remove, maintain and use the Equipment, to be located within their property, in order to provide services to themselves, their tenants and neighbors. Customer acknowledges that Skywire has no responsibility for the maintenance or repair of any equipment or software provided in connection with the Service, including the Antenna, Network Interface Device or Router, or any other equipment or services that Customer chooses to use in connection with the Service other than as specifically provided for in this Agreement. Customer agrees to not move the Antenna to a different location or position at their address once installed, or move the system or Service to another address. If Customer moves to a new location at which service is available and Customer wishes to continue using the Service, Customer will request Skywire to install the system at their new location. Once the Service is activated at the new location, the term will be extended for a new contract period and Skywire will waive any early termination fee associated with their original service.
14.4. VOIP Installation (where no Skywire Internet is used) CUSTOMER TO SUPPLY INTERNET SERVICE AND INSURE PROPRIETY OF USE. The Service requires the Customer to have high speed broadband internet service, which Provider is not providing unless separately ordered on the Order Form or on another Order Form. Provider also does not represent that the Customer’s use of Provider’s Service will not constitute a violation of any broadband or internet service provider’s agreement (other than Skywire’s) to provide such services to Customer. It is Customer’s duty to determine and insure that the Customer’s purchase of Provider’s Service, including use of its CPE and Features, does not violate any applicable law, regulation, contract or agreement to which the Customer is subject or a party. In addition, if Customer’s high speed internet connection is not within a Provider service area or the Customer’s chosen ISP or broadband provider places restrictions on using VoIP services, Customer is solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of the Customer’s use of the Provider’s Service. Customer’s shipment of a CPE outside the United States for use in another country renders Customer solely responsible for determining and adhering to compliance with all applicable custom, regulatory and other laws regarding the transport, distribution and use of such CPE and the Service.
15.1. Notices required under this Agreement by you must be provided to us at P.O. Box 190433, Brooklyn, NY 11219-0433, Attention: Customer Service and to firstname.lastname@example.org in the manner set forth in the Contact Us section of the Website. Notice by Skywire to you (including notice of changes to this Agreement under Section 3) shall be deemed given when: (a) transmitted to your primary email address; or (b) mailed via the US mail or hand-delivered to your address on file with us; or (c) when posted to the Announcements page of the Website.
15.2. If you send us an email, you agree that the User ID and/or alias contained in the email is legally sufficient to verify you as the sender and the authenticity of the communication.
16. General Provisions.
16.1. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination.
16.2. Skywire will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
16.3. You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed.
16.4. Except as otherwise required by law, you and Skywire agree that the substantive laws of the State of New York, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND SKYWIRE CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN KINGS COUNTY, NEW YORK FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including New York laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
16.5. Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable, in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, FAR 12.212, DFARS 227.7202, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Skywire or its licensors and suppliers. The use of Software and documentation is further restricted in accordance with the terms of this Agreement.
16.6. Skywire’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
16.7. This Agreement, including all Policies referred to herein and posted on the Website, constitutes the entire agreement between you and Skywire with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized person at Skywire.
16.8. Severability. If any term of this Agreement is held to be invalid, illegal or unenforceable, the other agreement terms shall not be impaired or affected.
16.9. Force Majeure. If the performance of any obligation hereunder is interfered with by reason of any circumstance beyond our reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, power surges or failures, or the act or omission of any third party, we shall be excused from such performance to the extent necessary, provided that we shall use reasonable efforts to remove such causes of nonperformance.
16.11. You shall not use any trademark, trade name, trade dress or any name, picture or logo which is commonly identified with Skywire or its affiliates, or from which any association with Skywire, or its affiliates may be inferred or implied, in any manner without the prior written permission of Skywire.
16.12. Third Party Consents/Property Rights
16.12.1. Customer warrants that it has obtained any third party consents necessary for the provision of the Services.
16.12.2. If Customer does not own the property where the services are to be installed, or if their use of such property is subject to a home owner association or other restrictions, Customer acknowledges that Customer has obtained all third party consents to install Services on the property.
17. Resolution of Disputes.
17.1. The parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, except for action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, which the parties agree may be filed only in a court located in Brooklyn, New York, the parties agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. The parties further agree that this Agreement does not permit a class arbitration, even if the procedures or rules of the American Arbitration Association (or other dispute resolution organization or body) would otherwise permit it.
17.2. At the written request of a party, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The parties intend that these negotiations be conducted by non-lawyer, business representatives. The location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement, the representatives may mutually agree to utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications that are not prepared for purposes of the negotiations are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
17.3. If the negotiations do not resolve the dispute within sixty (60) calendar days of the initial written request, and the amount in controversy exceeds five thousand ($5,000.00) dollars or the jurisdictional limit for small claims court in the jurisdiction in which service is provided (whichever is less), the dispute shall be submitted to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association, unless it is mutually agreed by the parties to seek a different arbitrator and set of rules. A party may demand such arbitration in accordance with the procedures set out in those rules. Discovery shall be controlled by the arbitrator and shall be permitted to the extent set out in this section. Each party may submit in writing to a party, and that party shall so respond, to a maximum of any combination of twenty-five (25) (none of which may have subparts) of the following: interrogatories, demands to produce documents and requests for admission. Each party is also entitled to take the oral deposition of one (1) individual representing another party. Additional discovery may be permitted upon mutual agreement of the parties. The arbitration hearing shall be commenced within sixty (60) calendar days of the demand for arbitration. The arbitration shall be held in Kings County of the State of New York. The arbitrator shall control the scheduling so as to process the matter expeditiously. The parties may submit written briefs. The arbitrator shall rule on the dispute by issuing a written opinion within thirty (30) calendar days after the close of hearings. The times specified in this section may be changed upon mutual agreement of the parties or by the arbitrator upon a showing of good cause. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
17.4. If the negotiations do not resolve the dispute within sixty (60) calendar days of the initial written request, and the amount in controversy does not exceed five thousand ($5,000.00) dollars or the jurisdictional limit for small claims court in the jurisdiction in which service is provided (whichever is less), the dispute may be submitted to small claims court in the jurisdiction in which service is provided for resolution in accordance with its rules and procedures.
17.5. Each party shall bear its own costs of these procedures. A party seeking discovery shall reimburse the responding party the costs of production of documents (to include reasonable search time and reproduction costs). The parties shall equally split the fees of the arbitration and the arbitrator.