Internet
Terms and Conditions of Service
SpectrAir RESIDENTIAL INTERNET SERVICE TERMS AND CONDITIONS
Thank you for choosing SpectrAir
for your Internet needs. This document is important–please read it
carefully. THIS SpectrAir RESIDENTIAL INTERNET
SERVICE TERMS AND CONDITIONS AND ALL DOCUMENTS REFERRED TO HEREIN (collectively
the “Agreement”), IS A LEGAL CONTRACT BETWEEN THE CUSTOMER (“USER”) AND SpectrAir, LLC D/B/A SpectrAir
AND SETS FORTH THE TERMS AND CONDITIONS BY WHICH SpectrAir
WILL MAKE AVAILABLE THE SERVICES USER HAS ELECTED TO RECEIVE (“the
Service(s)”).
SpectrAir RESERVES THE RIGHT TO CHANGE OR MODIFY THIS AGREEMENT AT
ANY TIME BY POSTING THE REVISED AND UPDATED AGREEMENT ON SpectrAir’S
WEBSITE AT LEAST 30 DAYS IN ADVANCE OF THE EFFECTIVE DATE OF ANY CHANGES. SpectrAir MAY NOTIFY USER OF ANY CHANGE BY: POSTING NOTICE
OF CHANGES ON SpectrAir’S WEBSITE; NOTIFYING USER BY
EMAIL OR US MAIL; AND/OR NOTIFYING USER ON USER’S MONTHLY BILLING STATEMENT.
USER SHOULD REGULARLY REVIEW INFORMATION POSTED ONLINE TO OBTAIN TIMELY NOTICE
OF SUCH CHANGES. USER’S NON-TERMINATION OR CONTINUED USE OF SERVICES AFTER
CHANGES ARE POSTED CONSTITUTES USER’S ACCEPTANCE OF THIS AGREEMENT AS MODIFIED
BY THE POSTED CHANGES.
This Agreement takes effect once USER’S order for Services
has been accepted by SpectrAir and USER accepts
Services from SpectrAir. This Agreement shall
continue until USER’s Services are terminated in accordance with this
Agreement. This Agreement governs both the Services and any equipment provided
by SpectrAir and used in conjunction with the
Service, such as Consumer Premises Equipment; (collectively,
a “Device” or the “Equipment”).
1.
SERVICES
Internet Access – SpectrAir
shall provide best-effort Internet connections between the SpectrAir
provided wireless Equipment and SpectrAir’S Internet
backbone. SpectrAir is not responsible for download
speeds from points anywhere further on the World Wide Web, as these are
affected by several factors beyond SpectrAir’S
control. “Best-effort” as used herein is defined as remaining at the speeds
advertised within the Service plan purchased by USER throughout most of USER’s
daily use. SpectrAir reserves the right to interrupt
those speeds if necessary for Equipment upgrades and
network maintenance, and will do its best to inform USER of any such
interruptions ahead of time. SpectrAir shall have the
unrestricted right to engage subcontractors in rendering Services under this
Agreement.
Telephone Service – If USER subscribes to telephone
services, SpectrAir shall provide telephone service,
and USER warrants to SpectrAir that USER will use the
telephone service in accordance Terms and Conditions of Service as they may be
updated from time to time and which is available at http://spectrair.com/legal
ACCEPTABLE USE
As a condition of use of the Service, USER warrants to SpectrAir that USER will use the Service in accordance with
the Internet Acceptable Use Policy of SpectrAir as it
may be updated from time to time and which is available at http://spectrair.com/legal
The transfer of technology across national boundaries,
including electronic transmission thereof, is regulated by the U.S. Government.
USER agrees not to export, import or re-export, (including, without limitation
by way of electronic transmission) any technology transmitted through SpectrAir Services without first obtaining any required
export license or governmental approval. USER agrees it will not directly or
indirectly export or re-export such technology to any of those countries listed
from time-to-time in supplements to Part 770 to Title 15 of the Code of Federal
Regulations in Country Groups Q, S, W, Y or Z. The parties acknowledge that the
foregoing lists are subject to regulatory change from time to time.
SpectrAir will cooperate fully with legal authorities in the
investigation of suspected crimes or service abuses. USER agrees to indemnify
and hold harmless SpectrAir, its agents and
representatives, from any and all claims, costs, losses, damages, liabilities
and expenses, including reasonable attorneys’ fees for any reason whatsoever,
including without limitation, any harm, injury, loss or damage incurred by SpectrAir, or any other party, arising out of USER’s breach
of either this lawful use provision or SpectrAir’s
Internet Acceptable Use Policy.
3.
COPYRIGHT,
TRADEMARK, UNAUTHORIZED USAGE OF DEVICE, FIRMWARE OR SOFTWARE
The Service, any Devices or Equipment, and any firmware or
software used to provide the Service or provided to the USER in conjunction
with providing the Service, or embedded in the Devices or Equipment, and all
Services, information, documents and materials on SpectrAir
Websites are protected by trademark, copyright or other intellectual property
laws and international treaty provisions. All of SpectrAir’s
websites, corporate names, service marks, trademarks, trade names, logos and
domain names (collectively “marks”) are and will at all times remain the
exclusive property of SpectrAir. Nothing in this
Agreement grants USER the right or license to use any SpectrAir
marks.
USER has not been granted any license to use the firmware
or software used to provide the Service or provided to the USER in conjunction
with providing the Service, or embedded in any Devices or Equipment, other than
a nontransferable, revocable license to use such firmware or software in object
code form (without making any modification thereto) strictly in accordance with
the terms and conditions of this Agreement. USER expressly agrees that any Device
or Equipment is exclusively for use in connection with the Service and that SpectrAir will not provide any passwords, codes or other
information or assistance that would enable USER to use such Device or
Equipment for any other purpose. SpectrAir reserves
the right to prohibit the use of any interface equipment that SpectrAir has not provided to the USER. USER hereby
represents and warrants that USER possess all required rights, including
software and/or firmware licenses, to use any interface equipment that SpectrAir has not provided to USER. In addition, USER shall
indemnify and hold SpectrAir harmless against any and
all liability arising out of USER’s use of such interface equipment with the
Service. USER shall not reverse compile, disassemble or reverse engineer or
otherwise attempt to derive the source code from the binary code of the
firmware or software.
USER shall not change the electronic serial number or
equipment identifier of any Device or perform a factory reset of any Device
without prior written consent from SpectrAir. SpectrAir reserves the right to terminate USER’s Service if
SpectrAir believes, in SpectrAir’s
sole and absolute discretion, that USER has tampered with any Device. In the
event of such termination, USER will remain responsible for any termination
fees as provided for in this Agreement. USER shall not attempt to hack or
otherwise disrupt the Service or make any use of the Service that is
inconsistent with its intended purpose.
4.
SECURITY
USER can best control the risks associated with security, and are therefore solely responsible for
maintaining and upholding the account security of their Service. SpectrAir will not be responsible for any disruption of
Service, corrupted files or viruses which affect the USER of the Service. It is
USER’s responsibility to safeguard USER’s network and equipment through
appropriate means (e.g. using commercially available software), from theft,
unauthorized use or system corruption. Any detriment caused to the network as a
result of USER’s failure to properly secure USER’s network and devices may
result in the immediate termination of USER’s Service. USER is entirely
responsible for any actions, damages, or costs incurred via their account,
regardless of who is using that account.
5.
SERVICE
CHARACTERISTICS
Service Availability – Due to the nature of the Service
technology, SpectrAir reserves the right to deem the
Service unavailable to the USER up to, including, and after the installation. SpectrAir assumes no liability whatsoever for any claims,
damages, losses or expenses arising out of or otherwise relating to the
unavailability of the Service in USER’s geographical area, for any reason, even
where such unavailability occurs after installation of the Service.
Performance Levels – Speed is a function of the traffic
experienced upon the wider network architecture of the Internet itself. SpectrAir does not guarantee the maximum Service
performance (throughput speeds) levels but will make every reasonable effort to
ensure the highest possible quality of service is always delivered. USER
understands that any content that USER may access through the Service may be
subject to “caching” at intermediate locations on the Internet.
Network Management – USER understands, acknowledges and
agrees that SpectrAir may use various tools and
techniques in order to efficiently and reasonably manage its networks as
provided in SpectrAir’s Open Internet Statement which
may be updated from time to time and is available at http://spectrair.com/legal. Consistent with its Open Internet Statement, SpectrAir may employ traffic-management technology to
allocate bandwidth across all of its customers and has the right at all times
and without notice to remove, restrict access to or make unavailable any
information or content residing on SpectrAir’s
servers.
IP Addresses – Internet Protocol (“IP”) addresses are not
portable and are not assigned for independent administration or distribution.
Customer understands that IP assignments are not guaranteed,
and may be modified as required by SpectrAir
and/or the American Registry for Internet Numbers (ARIN).
6.
EQUIPMENT
SpectrAir Equipment – SpectrAir will
provide USER the authorized wireless Equipment for use with the SpectrAir Service. Only SpectrAir
Consumer Premises Equipment (“CPEs”) are permitted and authorized to be
connected to the Service. SpectrAir will own the CPE
installed at the USER location, and will monitor and
upgrade said CPE as SpectrAir determines to be
necessary and appropriate.
USER Equipment – It is USER’s responsibility to ensure
that USER’s computer system or network device meets the current minimum system
requirements stated by SpectrAir as being necessary
to use the Service. From time to time, the computer equipment required to
access and use the Service may change. Accordingly, USER’s computer equipment
may cease to be adequate to access the Service. In such event, USER’S sole
remedy will be to upgrade computer equipment or terminate this Agreement. It is
possible for hardware and software below SpectrAir’s
stated minimum requirements to work on SpectrAir’s
network. However, SpectrAir does not guarantee
service with hardware lower than the following requirements and the use of
older software can expose USER and USER’s data to viruses and other security
risks.
●
Windows System Desktop or Laptop
Microsoft Windows 7 or newer; Pentium Processor 1 GHz, or equivalent, 1 GB of
memory (RAM), 16 GB of free hard drive space, 16bit colors at 1024×768
resolution, and Ethernet card (NIC) or WAN Card (WiFi).
●
Macintosh System MAC OS 10.6 or newer;
Intel Core 2 Duo processor or newer, 2 GB of memory (RAM), 8 GB of free hard
drive space, Ethernet or WiFi Card (NIC).
7.
CANCELLATION / TERMINATION /
CHANGE IN SERVICE
If USER chooses to cancel the Service at any point after
the order is placed, but before the Service has been installed or activated,
USER will not be invoiced and will not be charged a processing fee. If USER
wishes to cancel the Service before Service has been activated, the USER is
required to notify SpectrAir of USER’s intent to
cancel prior to activation by calling SpectrAir
customer service at 402-858-5883
USER may terminate the Service for any reason effective at
the end of a calendar month by providing notice to SpectrAir
at least thirty (30) days prior to the requested termination date. If USER
agreed to a Service that requires a minimum term commitment (“Service Term”),
and Service is terminated prior to the end of the Service Term, USER will be
subject to an Early Termination Fee as set forth in the Additional Fees and
Payment Terms Disclosure Statement as it may be updated from time to time and
which is available at http://spectrair.com/legal.
Termination of the Service does not affect USER’s
obligations under this Agreement, including USER’s obligation to pay all fees
for Services rendered prior to termination and any termination, processing and
administration fees incurred as a result of such termination. SpectrAir accounts must be paid in full before a
cancellation will be considered complete.
If all Equipment provided by SpectrAir
is not returned within 30 days of cancellation or termination of Service, USER
agrees to pay SpectrAir the fees as set forth in the
Additional Fees and Payment Terms Disclosure Statement as it may be updated
from time to time and which is available at http://spectrair.com/legal. USER authorizes SpectrAir and
its agents to charge the Equipment replacement charge to the credit card or
bank account on file with SpectrAir. If SpectrAir is unable to obtain a charge authorization for
the full amount due, USER agrees to provide alternative payment in the form of
a money order, cashier’s check, or other certified bank check within 10 days of
notification of the amount due. USER bears
Upon the termination of USER’s Service, SpectrAir may, in its sole and absolute discretion, release
to the USER’s new service provider the telephone number that USER ported
(transferred or moved over) to SpectrAir from USER’s
previous service provider and used in connection with USER’s service if: such
new service provider is able to accept such number; USER’s account has been
properly terminated; USER’s account is completely current, including payment
for all charges and applicable termination fees; and USER requests the transfer
upon termination of the account.
8.
TERMINATION AND
SUSPENSION BY SpectrAir
Inappropriate use or abuse of the Services by USER, as
determined in the sole discretion of SpectrAir, may
result in account suspension, termination, and/or legal action. Inappropriate
use or abuse of SpectrAir Services by others can be
traced, documented, reported to appropriate authorities and may be prosecuted
to the fullest extent of the law.
SpectrAir may terminate your account immediately if it determines,
in its sole discretion, that USER has violated any of the provisions of this
Agreement, including but not limited to SpectrAir’s
Internet Acceptable Use Policy. SpectrAir reserves
the right to unilaterally terminate or suspend an account at any time, without
providing a reason. In the event of termination, account holders are still
responsible to pay any fees that are still owed to SpectrAir.
The balance of any prepaid fees, after deducting all applicable charges and
fees, will be refunded to the account holder on a prorated basis. Any penalties
for criminal action will be deducted from amounts owed before refunds are
provided.
Further, SpectrAir may terminate
USER’s for any reason effective at the end of a calendar month by providing
written notice to USER at least thirty (30) days prior to the termination date.
If USER’s Service is terminated, USER will remain fully
liable to SpectrAir for all charges pursuant to this
Agreement and any and all costs SpectrAir incurs to
collect such amounts, including, without limitation, collection costs and
attorney’s fees.
9.
FEES, PAYMENT
AND BILLING
Fees – Fees include, without limitation, setup or
installation fees, monthly Service fees, monthly Equipment fees and other fees
as forth below. SpectrAir will invoice fees for Services and any Equipment in advance. USER agrees to pay all federal, state or local taxes
required by law and arising under this Agreement. If, during the first thirty
(30) days of service, the USER is having service or quality issues with the
Telephone Service and/or Internet Service which SpectrAir
is not able to fix, the USER may cancel the Service and SpectrAir
will refund all monies paid (including installation cost).
Other Fees – All SpectrAir
Services are subject to additional fees, including, but not limited to overage
charges, an unreturned Equipment fee, an early termination fee, Directory
Assistance (411) calls, insufficient funds fees, late fees, and reconnect fees
as set forth in the Additional Fees and Payment Terms Disclosure Statement as
it may be updated from time to time and which is available at http://spectrair.com/legal.
Payment Method and Timing – Accounts will be paid by
electronic bank draft. A credit card will be kept on file as a backup payment
method in case an electronic bank draft does not go through .
USER’s SpectrAir account will be considered
delinquent if payment is rejected for any reason. Payment terms including due
date and late payment policy is as set forth in the fee schedule located at the
end of this Agreement. Payment is in advance of Service delivery for that
month.
Late Fees and Service Interruption/Disconnect – SpectrAir shall charge USER Late and other applicable fees
to recover the costs of dealing with late payment situations. These fees are in
addition to all other fees. Additionally, SpectrAir
may interrupt or disconnect USER’s Services for non-payment and USER shall be
subject to a Reconnect Fee to resume Service. The late terms and associated
charges are determined by the date payment is received by SpectrAir.
Late terms and associated fees for each stage of the delinquency process are as
set forth in the Additional Fees and Payment Terms Disclosure Statement, as it
may be updated from time to time and which is available at http://spectrair.com/legal. The Additional Fees and Payment Terms Disclosure
Statement also sets forth the appropriate intervals when USER’s account will be
interrupted or disconnected and when any outstanding balance will be sent to
collections. At such time that SpectrAir determines
that Equipment is to be retrieved from USER, SpectrAir
will call USER to inform them that Equipment will be removed and retrieved. In
all cases, if USER wants to resume or reconnect Services, USER’s account must
be brought current and USER shall be subject to a reconnect fee.
Fee Changes – USER acknowledges and agrees that SpectrAir has the right to change its Service fees and to
add new fees at any time, upon notice to the USER. Notwithstanding the
foregoing, if USER agrees to a Service Term of one (1) year or more, then
USER’s base monthly Service fees shall not be subject to change during the
Service term, but Equipment fees and other fees are still subject to change.
USER Charges – USER acknowledges that USER may incur
USER-initiated charges while using the Services. For example, charges may be incurred
as a result of USER accessing certain information, or purchasing or subscribing
to certain offerings, via the Internet. USER agrees that all such charges,
including all applicable fees and taxes, shall be paid by USER and are not the
responsibility of SpectrAir.
10. INSTALLATION AND ACCESS TO USER’S PREMISES
SpectrAir will provide installation Services at the USER premises
at an agreed-upon price. As part of the installation process, modifications to
the inside wiring in USER’s house may be required, and USER hereby consents to
and authorizes any such modifications. USER authorizes SpectrAir,
and its employees, agents, contractors, and authorized representatives to enter
USER’s premises in order to install, maintain, inspect, repair and remove the
Equipment and/or Services. If USER is not the owner of the premises, upon
request, USER will supply SpectrAir with the owner’s
name and address, evidence that USER is authorized to grant access to the
premises on the owner’s behalf, and (if requested by SpectrAir)
written consent from the owner of the premises. This Agreement is contingent
upon SpectrAir’s obtaining a right of entry onto the
premises. USER will not remove Equipment from the premises, modify the
Equipment in any way, or connect the Equipment to any outlet other than the
outlet to which the Equipment was initially connected to by the SpectrAir installer. For such charges as SpectrAir may determine, SpectrAir
may relocate the Equipment for USER within the premises at USER’s request.
11. MOVING AND RECONNECTION
If USER moves during the term of this agreement and would
like to relocate the Service, USER must place a relocation request with SpectrAir. This request must contain the requested date of
Service termination, plus the address and phone number of the new location,
and, the prospective move-in date, and the requested transfer of Service date.
Upon receipt of a request from USER, SpectrAir will
suspend all monthly fees from the requested termination date until Service
relocation is completed. The maximum suspension is set forth in the fee
schedule located at the bottom of this Agreement. Upon transfer of USER’s
account, USER agrees to continue to comply with all terms and conditions of
this Agreement and the Service originally agreed to. Billing cycle and Service
Term will recommence upon activation of SpectrAir
Service at the new location.
If SpectrAir is unable to
provide Service to the USER’s new location, this Agreement shall terminate and
USER shall not be subject to any Early Termination Fees, provided that (i) a SpectrAir technician
confirms and verifies that SpectrAir is not able to
provide service to the new address or (ii) USER provides proof and SpectrAir confirms that the new location is outside of SpectrAir’s service area (i.e. copy of utility bill at new
address).
If SpectrAir has not received
sufficient information from USER to process the relocation order thirty (30)
days after Service termination date, this Agreement shall be considered
terminated by USER, and any applicable Early Termination Fees will apply.
12. PRIVACY
SpectrAir takes USER’s personally identifiable information and
privacy seriously and has established a Privacy Policy which governs its
collection, use, disclosure, management and security related to USER’s personal
information. The SpectrAir Privacy Policy may be
updated from time to time and is available at http://spectrair.com/legal. By using the Service USER acknowledges that USER
accepts the practices and policies outlined in SpectrAir’s
Privacy Policy. USER’s continued use of the Service after notice of any changes
to the Privacy Policy have been provided will indicate USER’s acceptance of
such changes.
13. USER OBLIGATIONS
USER shall be solely responsible for independent backup of
any data files residing on SpectrAir computers or
networks. SpectrAir reserves the right to
remove/delete any personal files after an account is terminated or associated
with prohibited activities.
USER shall notify SpectrAir
immediately, in writing or by calling SpectrAir
customer support line, if any Device is stolen or if USER becomes aware at any
time that USER’s Service is being stolen, fraudulently used or otherwise being
used in an unauthorized manner. When USER calls or writes, USER must provide an
account number and a detailed description of the circumstances of the Device
theft, fraudulent use or unauthorized use of Service. Failure to do so in a
timely manner may result in the termination of USER’s Service and additional
charges. Until such time as SpectrAir receives notice
of the theft, fraudulent use or unauthorized use, USER will be liable for all
use of the Service using a Device stolen from USER and any and all stolen,
fraudulent or unauthorized use of the Service.
USER will be liable for any and all liability that may
arise out of the content transmitted by USER or to any person, whether
authorized or unauthorized, using USER’s Service or Device. USER shall assure
that all use of the Service and content comply at all times with all applicable
laws, regulations and written and electronic instructions for use. SpectrAir reserves the right to terminate or suspend USER’s
Services and remove any content from the Service, if SpectrAir
determines, in its sole and absolute discretion, that such use or content does
not conform to the requirements set forth in this Agreement or interferes with SpectrAir’s ability to provide Services to USER or others. SpectrAir action or inaction under this Section will not
constitute any review or approval of USER’s use or content.
USER has been advised and acknowledges that the Internet
may contain information, materials, and language that may be deemed adult in
nature and inappropriate or offensive. The USER is responsible for all
information received, transmitted, and/or stored by the USER and the USER
releases SpectrAir from and agrees to indemnify SpectrAir its officers, directors, agents and employees
against any and all claims, losses or expenses relating to such information,
materials and language. This indemnification shall survive any termination of
this Agreement.
14. USER COMPLAINT RESOLUTION
SpectrAir is working to provide the best service possible and
welcomes USER’s ideas on how SpectrAir can improve
the quality of our service. USER can communicate USER’s views to SpectrAir by calling 402-858-5883.
15. WARRANTY
USER EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY
EQUIPMENT IS AT USER’S SOLE RISK. THE SERVICES AND ANY EQUIPMENT PROVIDED
TO THE USER BY SpectrAir ARE PROVIDED ON AN “AS IS”
AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE,
NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. SpectrAir DOES NOT WARRANT (i)
THE UNINTERRUPTED, TIMELY OR SECURE USE OF THE SERVICE; (ii) THAT THE FUNCTIONS
CONTAINED IN THE SERVICES OR ANY EQUIPMENT WILL MEET USER’s REQUIREMENTS; (iii)
THAT THE SERVICES WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM,
POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS; OR (iv) THAT
ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES USER SENDS OR
RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A
REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS
WILL BE UNABLE TO GAIN ACCESS TO USER’S COMPUTER OR DEVICE. STATEMENTS AND
DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY SpectrAir
OR SpectrAir AGENTS OR INSTALLERS, WHETHER ORAL OR
WRITTEN, ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY
OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY
TO USER.
LIMITED WARRANTY – SpectrAir
WARRANTS THAT IT WILL USE REASONABLE EFFORTS TO RENDER SERVICES PURSUANT TO
THIS AGREEMENT IN A TIMELY, PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE
WITH TIMELINES ESTABLISHED HEREIN. ANY CLAIM FOR BREACH OF THE FOREGOING
WARRANTY MUST BE BROUGHT WITHIN SIXTY (60) DAYS AFTER USER’s ACTUAL DISCOVERY
OF ANY DEFECT AND PRIOR TO THE EXPIRATION OF SIX (6) MONTHS FROM THE DATE THE
APPLICABLE SERVICES WERE RENDERED. SpectrAir WILL
HAVE NO LIABILITY FOR ANY CLAIM MADE AFTER SUCH TIME. SpectrAir
DOES NOT WARRANT, HOWEVER, THAT YOUR USE OF ANY SERVICES WILL BE UNINTERRUPTED
OR THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR SECURE. SpectrAir’s ENTIRE LIABILITY AND USER’s EXCLUSIVE REMEDY IN
CASE OF BREACH OF THIS WARRANTY SHALL BE, AT SpectrAir’s
SOLE OPTION, EITHER RETURN OF ALL OR A PORTION OF THE SERVICE FEES PAID FOR THE
CURRENT MONTH OF SERVICE, OR REPLACEMENT OR REPAIR OF CONNECTION SERVICES OR
PRODUCTS. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY SpectrAir. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG
AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO THE USER. IF ANY
UNAUTHORIZED MODIFICATIONS ARE MADE TO THE EQUIPMENT OR SERVICES BY USER DURING
THE WARRANTY PERIOD, IF THE SERVICES OR PRODUCTS ARE SUBJECT TO ABUSE,
ACCIDENT, IMPROPER USE, OR IF USER BREACHES THE TERMS OF THIS AGREEMENT, THEN
THIS WARRANTY SHALL IMMEDIATELY BE TERMINATED.
OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH
IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED
WARRANTY EXPRESSLY SET FORTH HEREIN, SpectrAir MAKES
NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED IN REGARDS TO THE DEVICE OR
EQUIPMENT, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS
OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY
WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE
OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR
WILL MEET USER’s REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY
DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED
WITH THE DEVICE.
16. LIMITATION
OF LIABILITY / DISCLAIMER OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SpectrAir OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE
MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES,
CONTRACTORS OR AGENTS OR ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE TO THE
USER OR ANY THIRD PARTY WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF
THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS
HEREIN MAY NOT APPLY TO USER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND
TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF SpectrAir UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT
OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE SERVICE CHARGES WITH
RESPECT TO THE AFFECTED TIME PERIOD.
ADDITIONALLY, SpectrAir WILL
HAVE NO LIABILITY (i) FOR ANY AMOUNT IN EXCESS OF THE
SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD; (ii) FOR ANY
THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES,
OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR
OTHER SIMILAR CHARGES; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iv) FOR DATA LOSS
OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (v) FOR ANY DAMAGES OR
LOSS DUE TO USER’S FAILURE TO BACK UP ANY EQUIPMENT OR ANY LACK OF OR BREACH OF
SECURITY USER, OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING
THE SERVICE; (vi) FOR CUSTOMER”S USE OF THE SERVICE FOR OR IN CONNECTION WITH
ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS AGREEMENT; OR
(vii) FOR ANY MATTER BEYOND SpectrAir’S REASONABLE
CONTROL.
SpectrAir WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE
THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR ANY
INTERRUPTION OR DEGRADATION OF VOICE QUALITY THAT IS CAUSED BY ANY OF THE
FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER,
VENDOR OR OTHER THIRD PARTY; EQUIPMENT, NETWORK OR FACILITY FAILURE; EQUIPMENT,
NETWORK OR FACILITY UPGRADE OR MODIFICATION; FORCE MAJEURE EVENTS SUCH AS (BUT
NOT LIMITED TO) ACTS OF GOD, ACTS OF NATURE, STRIKES, FIRE, WAR, RIOT, ACTS OF
TERRORISM AND GOVERNMENT ACTIONS; EQUIPMENT, NETWORK OR FACILITY SHORTAGE;
EQUIPMENT OR FACILITY RELOCATION; SERVICE, EQUIPMENT, NETWORK OR FACILITY
FAILURE CAUSED BY THE LOSS OF POWER TO THE USER; OUTAGE OF, OR BLOCKING OF
PORTS BY, USER’s ISP OR INTERNET SERVICE PROVIDER OR OTHER IMPEDIMENT TO USAGE
OF THE SERVICE CAUSED BY ANY THIRD PARTY; ANY ACT OR OMISSION BY USER OR ANY
PERSON USING THE SERVICE OR DEVICE PROVIDED TO THE USER; OR ANY OTHER CAUSE
THAT IS BEYOND SpectrAir’s CONTROL, INCLUDING,
WITHOUT LIMITATION, A FAILURE OF OR DEFECT IN ANY DEVICE, THE FAILURE OF AN
INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS (INCLUDING,
WITHOUT LIMITATION, 911 DIALING) TO BE CONNECTED OR COMPLETED, OR FORWARDED. SpectrAir’s AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL
IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME
PERIOD.
IN NO EVENT SHALL SpectrAir’s
AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS
PAID BY USER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT
GIVING SpectrAir TO A CLAIM. NOTWITHSTANDING THE
FOREGOING, SOME JURISDICTIONS MAY NOT ALLOW A LIMITATION ON LIABILITY FOR
NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY, AND SpectrAir
LIMITS ITS LIABILITY IN SUCH JURISDICTIONS ONLY TO THE DEGREE ALLOWED BY
APPLICABLE LAWS. EXCEPT FOR THE PAYMENT OF FEES DUE BY USER HEREUNDER, NEITHER
PARTY WILL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE UNDER THE
AGREEMENT WHICH MIGHT BE DUE, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, TO
ANY CONTINGENCY, DELAY, FAILURE, OR CAUSE OF ANY NATURE BEYOND THE REASONABLE
CONTROL OF SUCH PARTY, INCLUDING WITHOUT LIMITATION ACTS OF NATURE, COURT OR
GOVERNMENT.
17. INDEMNIFICATION
USER agrees to defend, indemnify and hold SpectrAir its officers, directors, agents and employees
harmless from any claims, losses and damages, including attorney’s fees,
resulting from USER’s violation of any of the provisions of this Agreement or
USER’s placement or transmission of any materials or content onto SpectrAir servers or through its network, or from any and
all use of USER’s account, with or without USER’s knowledge or consent, or from
all claims, damages, fines, penalties, costs and expenses (including, without
limitation, attorney fees) related to any action taken by SpectrAir
as part of SpectrAir investigation of a suspected
violation of this Agreement or as a result of its conclusion that a violation
of this Agreement has occurred, or to USER’s use of or inability to use SpectrAir Services, Equipment, bundled software, Internet
or VoIP, including, without limitation, 911 dialing.
18. MISCELLANEOUS
Relationship – USER’s relationship with SpectrAir is that of an independent contractor. USER is not
an agent of SpectrAir, and USER has no authority to
obligate SpectrAir by contract or otherwise.
Third Party Beneficiaries – No provision of this Agreement
provides any person or entity not a party to this Agreement with any remedy,
claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
Survival – The provisions of this Agreement that by their
sense and context are intended to survive the termination or expiration of this
Agreement shall survive
Transferability and Assignment – USER shall not sell,
transfer or assign this Agreement. USER’s account and right to use SpectrAir Services and system are not transferable without SpectrAir’s prior written consent. USER agrees to protect
its password and account and to keep them secure from unauthorized USERs and
use, and to be solely responsible for the protection and security of USER’s
password and account information.
Notices – Notifications of either party to this Agreement
shall be effective upon receipt, or refusal of delivery, when deposited in the
United States Mail, first class mail, certified or return receipt requested,
postage prepaid, or when sent by a telefax, email, or a nationally recognized
overnight delivery service, to SpectrAir at P.O Box,
Walton, NE 68520 or to the address of Customer set forth on SpectrAir’s
records or such other address provided for such purposes.
Proprietary Rights – SpectrAir
grants USER a non-exclusive, non-transferable license to use the products and
Services provided hereunder. Title and property rights, including all
intellectual property rights to such products and Services, is and shall remain
with SpectrAir, whether or not they are embedded in
any product. USER recognizes that the products and Services used hereunder
constitute valuable trade secrets of SpectrAir and
USER shall use their best efforts to protect and keep confidential any and all
products and Services used by USER and shall not attempt to copy, examine, in
any way alter, or reengineer, reverse engineer, tamper with, or otherwise
misuse such products and Services.
Jurisdiction/Venue/Choice of Law – USER agrees that
exclusive jurisdiction for any claim or dispute with SpectrAir
or relating in any way to USER’s account or USER’s use of the Services resides
in the courts of Nebraska and that this Agreement shall be governed by Nebraska
law. USER expressly consents to the exercise of personal jurisdiction in the
courts of Nebraska in connection with any such dispute. If an action at law or
in equity is necessary to enforce or interpret the terms of this Agreement or
compel performance thereof, the substantially prevailing party shall be
entitled to reasonable attorney’s fees and costs in addition to any other
relief to which such party may be entitled.
Amendments – SpectrAir may
modify this Service Agreement from time to time, and USER’s continued use of
the Service following notice of such modification shall be deemed to be USER’s
acceptance of such modification. If USER does not agree to any modification of
this Agreement, USER must immediately stop using the Service and notify SpectrAir of USER’s desire to cancel the Service.
Information – USER hereby acknowledges that SpectrAir and its affiliates may retain and use any
information, comments or ideas conveyed by USER relating to the Service
(including any products and services made available on the Service). This
information may be used to provide USER with better service. SpectrAir may open and maintain a Customer file.
Entire Agreement – This Agreement, including the Service
Quote and any and all other documents and SpectrAir
policies referenced herein, constitutes the entire agreement between SpectrAir and USER pertaining to the subject matter hereof.
SpectrAir’s failure to insist upon or enforce strict
performance of any provision of this Agreement shall not be construed as a
waiver of any provision or right.
Severability – In the event that it is determined by a
court of competent jurisdiction as a part of a final non-appealed judgment that
any provision of this Agreement (or part thereof) is void, invalid, illegal, or
otherwise unenforceable, such provision will be enforced as nearly as possible
in accordance with the stated intention of the parties, while the remainder of
the Agreement will remain in full force and effect.
19. ACCEPTANCE
USER represents and warrants to SpectrAir
that USER is of lawful age to enter into this Agreement and that (i) USER has the full right, power and authority to enter
into this Agreement and to perform the acts required of USER hereunder; and
(ii) the acceptance of this Agreement by USER, and the performance by USER of
its obligations and duties hereunder, do not and will not violate any agreement
to which USER is a party or by which it is otherwise bound.
By using and accepting Service from SpectrAir,
USER acknowledges that they have read and understand the terms and conditions
of this Agreement and agrees to be legally bound by all of the terms and
conditions of this Agreement and any associated documents, the same as if USER
had physically signed this Agreement. This Agreement supersede all other
written and oral communications or agreements with regard to the subject
matter. Any waiver, modification or variation of any term or condition of this
Agreement shall only be effective if in writing and/or in the form of a
business contract signed by an authorized officer of SpectrAir
By providing SpectrAir with
USER’s telephone number, cell phone number(s), email address, or home address,
USER gives consent for SpectrAir, or any of SpectrAir’s agents (including collection agents), to
contact USER at these numbers, email address, or home address, or any other
phone number, email address, or home address that is later acquired for USER,
and, to leave live or pre-recorded messages, text messages, emails, or letter
to the extent that such are necessary to enforce any part of this Agreement.
For greater efficiency, calls may be delivered by an auto-dialer.
BY USER’s USE AND ACCEPTANCE OF THE SERVICE, USER IS
INDICATING THAT USER HAS READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT.