Broad Sky Enterprise Customer Service Agreement
SECTION 1 – DEFINITIONS
- “Broad Sky Service” means the provision of a wireless service for the transport of Customer data and financial transactions for authorization and settlement. The Service is for Customer use only and Customer may not resell the Service to any other party.
- “Monthly Recurring Service Fee” means the monthly fee charged for the Broad Sky Spectrum Service.
- “Non-Recurring Service Charge” means any charge outside the base monthly recurring fee as indicated on the Schedule of Fees in the attached.Broad Sky Service Quote.
- “Acceptable Use Policy” (“AUP”) means Broad Sky’s policy with respect to the appropriate use of the Broad Sky Service. The AUP is available on Broad Sky’s web site: http://broadskywireless.com/support/acceptable-use-policy is a part of this Agreement and is subject to change without notice.
- “Monthly Throughput” is the amount of data allowed for specific service plans.
- “Overage Charges” is the amount charged per Gigabyte (GB) for all additional usage over Monthly Throughput limits associated with Customers Service Quote.
- “Pooled Plan Pricing” allows a company to share Monthly Throughput among all activated accounts before additional Overage Charges apply.
- “Stipulated Loss Value” (SLV) is the total amount of equipment not including term discounts as listed in Service Quote for damaged or lost equipment. SLV does not apply to Customers that have purchased equipment prior to the inception of service delivery.
SECTION 2 – DESCRIPTION OF SERVICE, FEES AND PAYMENT TERMS
- Broad Sky will provide the Broad Sky Service for the Fees indicated on the Schedule of Fees attached in service quote. Customer will be billed Monthly Recurring Service Fees one month in advance. Billing period begins on the 2nd and ends on the 1st.
- Non-Recurring Service Charges such as overage charges, equipment, site visits, etc. will be billed in addition to customers’ Monthly Recurring Service Fees and while Broad Sky makes every effort to alert customer when they have exceeded their data allowance, it is the customer’s responsibility to manage their data with the tools provided such as ECM, or other. Failure to receive our courtesy e-mail alert of overages due to technical difficulties or incorrect contact information or to utilize Cloud Management Services does not relieve the customer of the obligation to pay their overage charges.
- Customer hereby authorizes Broad Sky to obtain consumer credit report(s) for the purpose of evaluation of Customer creditworthiness.
- Payment for services is due 10 days from receipt of invoice unless a Credit Application has been approved to extend terms. Payments received after their due date may incur interest at a rate equal to one and one half percent (1½%) per month. A $50.00 fee for returned checks will be assessed. Accounts 30 days past due from the due date will be issued a 48-hour notice to suspend. Services suspended for non-payment will be assessed $50.00 reactivation charge per line for each reactivation.
- To provide you with technical support.
- Outstanding balances beyond 90 days where services have been suspended will be turned over to an outside collection service, and all charges will be paid by customer.
- Customer is responsible for all applicable sales or use taxes assessed on the basis of the Broad Sky Service, including those applicable to any Broad Sky provided equipment.
- Customer Information Form(s) will become part of this Agreement. Additional locations added by Customer after the Agreement date will become part of this Agreement. Broad Sky reserves the right to reject orders for service at its sole discretion.
- The Monthly Service Fee covers the applications listed on the Service Order Form. Fees are subject to increase for additional applications.
- Customer agrees to use the Service in Accordance with Broad Sky’s AUP. The AUP places limits on video and music streaming as well as the downloading of large files. We reserve the right to limit or suspend any heavy, continuous data usage that adversely impacts our network performance or hinders access to the network.
- Customer agrees to subscribe to Cloud Management Services (i.e. ECM, or other) where available and grants access to Broad Sky Networks. The rate for these Cloud Management Services is outlined in Service Quote. The subscription will renew automatically in one year increments unless written request to cancel auto renewal is received within 30 days of subscription end date. If no action taken to decline, charges will apply.
- Chronic Service issues preventing Broad Sky from meeting its Service Level Agreement (SLA) available only with our Spectrum Managed 3G/4G services may require Broad Sky to release customer from the remaining term of service once the customer has paid for one service call allowing Broad Sky to attempt to restore service(s) within stated SLA.
SECTION 3 – LIMITATION OF LIABILITY:
- IN NO EVENT SHALL BROAD SKY, ITS OFFICERS, DIRECTORS, EMPLOYEES NOR VENDORS (INCLUDING BUT NOT LIMITED TO THE UNDERLYING WIRELESS CARRIERS) BE LIABLE TO CUSTOMER, CUSTOMER’S CLIENTS OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA). BROAD SKY, ITS OFFICERS, DIRECTORS, EMPLOYEES NOR VENDORS (INCLUDING BUT NOT LIMITED TO THE UNDERLYING WIRELESS CARRIERS) SHALL NOT BE LIABLE FOR ANY DAMAGES ASSOCIATED WITH THE INTERRUPTION OR LOSS OF USE OF SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH INTERRUPTIONS. NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. BROAD SKY AND CUSTOMER AGREE THAT IF BROAD SKY SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE TO OR RESULTING FROM FAILURE OF BROAD SKY TO PERFORM ANY OF THE OBLIGATIONS HEREIN OR TO PROVIDE SERVICES, BROAD SKY’S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THREE (3) MONTHS OF CUSTOMER’S PAYMENTS TO BROAD SKY FOR SERVICES AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND THIS LIABILITY SHALL BE EXCLUSIVE. THE PROVISIONS OF THIS SECTION SHALL APPLY IF LOSSES OR DAMAGES, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULT DIRECTLY OR INDIRECTLY TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT, PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF BROAD SKY, ITS CUSTOMERS, ASSIGNS OR EMPLOYEES. Customer agrees to indemnify, defend and hold harmless Broad Sky, its officers, directors, employees and vendors including but not limited to the underlying wireless carriers from and against all liability, loss and damage, including reasonable attorney’s fees and costs, which may arise as a result, whether direct or indirect, from use by Customer or any of its customers of the Broad Sky Service, or any equipment provided by Broad Sky.
- CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN BROAD SKY AND UNDERLYING CARRIER.
SECTION 4 – CONTRACT TERM
- The initial term of this Agreement shall be as indicated on the Broad Sky Service but will be no less than Two (2) years unless indicated on the Quote sheet as One Year or Month to Month. Thereafter, term and fees shall commence as to each installation when equipment is shipped to Customer for each installation or upon the installation of such equipment, whichever occurs first. Thereafter, this Agreement shall be automatically renewed for successive 1-year periods unless sooner terminated by Customer or Broad Sky in writing by giving 60 days’ notice prior to the expiration of the initial term or any renewal period. In addition, either party may immediately terminate this Agreement upon notice to the other party in the event that the other party is in continuous breach of any material provision of this Agreement for a period of 30 days following notice of such breach by the terminating party.
SECTION 5 – SERVICE TERMINATION, EARLY TERMINATION:
- Except for Spectrum 3G/4G Temporary (Month to month) Service, Customer may terminate the Broad Sky Service during the first thirty (30) days of the Term of this Agreement without further obligation except for payment of the Provisioning Fee, shipping charges and any charges incurred for professional installation and unreturned equipment only in the case that Broad Sky Service does not meet its SLA stated in http://broadskywireless.com/support/acceptable-use-policy. Thereafter, Customer may terminate this Agreement upon sixty (60) days advance written notice, unless the term is month to month. If the term of the agreement is month to month, Broad Sky requires 30-day notice to terminate. In the event of termination before the original term commitment stated on the executed quote sheet Customer agrees to pay Broad Sky an early termination fee equal to the MRC as indicated in this Agreement times the lesser of twelve months or the months remaining in the initial term. Cancellation request must be emailed to firstname.lastname@example.org .
IMPORTANT: Returning equipment without an accompanying written request for cancellation does not constitute a cancellation of services.
- Customer agrees to return Broad Sky provided equipment (unless purchased by Customer) to Broad Sky’s offices located at 750 NW Charbonneau St., Suite 201., Bend, OR 97703 Attn: Operations, in good working condition, within 15 days after early termination of this Agreement. Customer will be charged and agrees to pay the Monthly Service Fee for any month or portion of a month in excess of 15 days in which equipment is not returned. If Customer does not return the equipment within 45 days, Customer hereby agrees to pay the Stipulated Loss Value for equipment not returned, $250 for 3-year term, $500 for a 2- year term and $1,000 for a 1-year term. If customer chooses to renew for a 3-year term at the originally contracted 3-year term rate, Broad Sky may replace the modems currently in the field. Replacement does not include technician visit, antenna or shipping costs. One and two year options are available without equipment replacement.
SECTION 6 – ASSIGNMENT:
6.1 Broad Sky and its successors and assigns may, at any time and from time to time, freely assign this Agreement or Customer’s monetary obligations hereunder, to any other party (an “Assignee”). Upon receipt of a notice of such Assignment, Customer covenants that it will pay and perform such of its obligations under this Agreement to the Assignee (or to any other party designated by Assignee) as instructed in such notice. Customer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Broad Sky or any Assignee. No assignment by Broad Sky shall increase Customer’s obligations nor decrease Customer’s rights hereunder.
6.2 Customer’s obligations under this Agreement are absolute and unconditional and are not subject to any abatement, reduction, recoupment, defense, offset, or counterclaim for any reason, alleged or proven, including, but not limited to: the condition, design, operation or fitness for use, or any loss or destruction or obsolescence of, the Broad Sky Service or any equipment provided by Broad Sky; the prohibition of or other restrictions against Customer’s use of the Broad Sky Service or the interference with such use by any person or entity; any failure by Customer to perform any of its obligations under this Agreement; any insolvency or bankruptcy of Customer or Broad Sky.
SECTION 7 – LOSS AND DAMAGE7.1 Upon Customer’s acceptance of devices and/or items of equipment, Customer assumes all risk of loss, damage, theft or destruction of all devices or items of Broad Sky equipment installed at Customer’s locations, and from any causes due to misuse, fault or negligence of Customer. Upon the occurrence of any loss, theft, destruction or damage beyond repair of such equipment, Customer shall pay to Broad Sky the Stipulated Loss Value for each unit of such equipment plus accrued and unpaid data plan charges on the device up to the date that such loss or damage was reported to Broad Sky in writing. In the event of partial loss or damage to any device or item of equipment due to misuse, fault or negligence of Customer, Customer shall be solely responsible for any loss or expense of any repairs or replacements necessary to promptly return such device or equipment to its former condition. Prior to acceptance of devices or items of equipment, Broad Sky assumes all risk of loss, damage or theft.
SECTION 8 – CHANGES TO AGREEMENT8.1 Broad Sky may change this agreement at any time. Any changes to the Agreement are effective when we publish them on our website. We will give you (30) days prior notice, either in your monthly bill or separately, of any material change to this Agreement.
All notices and other communication required or permitted under this Agreement shall be given by registered or certified mail, postage prepaid, private overnight courier or by email, effective upon receipt by the addressee, addressed to Broad Sky at the address set forth below.
- Broad Sky Networks, LLC
- 750 Charbonneau Dr. Suite 201
- Bend, OR 97703
SECTION 9 – Governing Law, Jurisdiction & Venue
- Any action or proceeding on this Agreement shall be initiated and maintained under the jurisdiction of the State of Oregon with venue in the courts of Deschutes County of Deschutes. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall remain effective.
- This Agreement, the Customer Information Form and the AUP set forth the entire agreement between the parties concerning the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
ACCEPTED BY CUSTOMER:
Satellite Customer Service AgreementCustomer Service Agreement (Extreme Business Satellite Service) This Customer Agreement, including any applicable addenda to this Customer Agreement (collectively, the “Agreement”) describes the terms and conditions between you and Broad Sky, Inc. (Broad Sky,” “Us” or “We”), applicable to Broad Sky’s Internet access services (the “Internet Service(s)”) Please read this Agreement carefully since it contains important contract rights and obligations between you and Broad Sky, as well as important limitations on those rights. If you would like to contact us, you may call 415-462-2950 or write to: NOTICES: All notices and other communication required or permitted under this Agreement shall be given by registered or certified mail, postage prepaid, private overnight courier or by email, effective upon receipt by the addressee, addressed to Broad Sky at the address set forth below. Broad Sky Networks, Inc. 750 NW Charbonneau Dr. Suite 201 Bend, OR 97703
- Term and Renewal. The term of this Agreement commences on the date your Internet Service is activated and continues for the duration of the Minimum Service Term unless terminated earlier by you or Broad Sky. After the Minimum Service Term expires, the term of this Agreement will automatically renew on a quarterly calendar year basis, unless you have agreed to a new Minimum Service Term under an Internet Service plan offered by Broad Sky (“Renewal Service Term”).
- Equipment. New Internet Service customers must lease the equipment provided by Broad Sky (“Equipment”) in order to receive the Internet Service, unless stated otherwise on service quote and for month to month service term. . Only a Broad Sky-authorized installer may install the Equipment at your premises.
- Data Allowance Policy. The Internet Service is subject to data usage limits which are described in the Data Allowance Policy for your Internet Service plan. If you exceed your data usage limits, Broad Sky may significantly slow and/or restrict your Internet Service, or certain uses of your Internet Service, for a period of time. The data usage limits for the Extreme Business plan are listed on the Service Quote.
- Termination Fee. If you cancel the Internet Service (resulting in termination of this Agreement) before completion of the Minimum Service Term or Renewal Service Term, the Termination Fee is equal to the number of months left in your Minimum Service Term or Renewal Service Term multiplied by 50% of Monthly Recurring Charges or $500 whichever is greater, unless a different termination fee is stated in this Agreement for your Internet Service plan.
- Return of Equipment. If you fail to return leased Equipment within 30 days after termination of this Agreement, additional charges will apply. Broad Sky is not obligated to de-install the Equipment.
- The Service
Terms and Conditions
- Limitations. The Internet Service is available at locations within the United States with an unobstructed view of the southern sky. The performance of some applications over the Internet is very poor and some games may not work at all. Virtual Private Networks (VPN) and remote computer access may be very slow with the Internet Service without specific engineering to insure fast and reliable service. Some Virtual Private Networks (VPN) may not work at all without modifications by our sales engineers, other latency sensitive applications may not work as ie.Citrix..
- System Requirements. It is your responsibility, at your expense, to obtain, maintain, and operate suitable and fully compatible computer equipment (including a wireless router if you intend to use the Internet Service on multiple devices) required to access the Internet Service.
- Service Speeds. Service speeds will be within 80% of allocated 15Mb X 4Mb primary service 85% of the time.
- Who May Use The Service? Responsibility and Supervision.
- Age and Account Set-Up. You represent that the Service will be installed and used solely in your premises, unless specifically agreed to in writing by Broad Sky. You represent that you are at least 18 years of age. You agree that you are responsible for obtaining installation services for the Equipment from a Broad Sky-authorized installer and for verifying and maintaining the account, options, settings and other parameters under which the Service is used, including (without limitation) all related passwords and user identification information.
- Multiple Use of Account. Only devices physically located in your premises may receive the Service under a single billing account. Your premises are limited to the single address where the Service is installed. It does not include adjacent apartments, residences, offices or any type of space not physically associated with your address. Any use of the Service other than as specified above is unlawful and unauthorized and a material breach of this Agreement, regardless of whether you receive any compensation for such use, and may result in the immediate termination of the Service and the imposition of the Termination Fee and/or any other applicable termination fee, without prejudice to any rights and remedies available to Broad Sky under this Agreement, at law and at equity.
- Installation of Equipment. You represent that there are no legal, contractual or similar restrictions on the installation of the Equipment in the location(s) you have authorized. It is your responsibility to ensure compliance with all applicable building codes, zoning ordinances, business district or association rules, covenants, conditions, and restrictions related to the Service, to pay any fees or other charges, and to obtain any permits or authorizations necessary for the Service (collectively “Legal Requirements”). You are solely responsible for any fines or similar charges for violation of any applicable Legal Requirements. You acknowledge and agree that Broad Sky or its designated service provider will be required to access your premises and computer to install and maintain the Equipment, including the antenna and its components. This will include attaching the Equipment to your computer, installing software on your computer and configuring your computer to optimize the performance of the Internet Service. You confirm that you have reviewed the installation plan and agreed to any associated charges. If you approved a roof mount, you acknowledge the potential risks associated with this type of installation. By signing this Agreement, scheduling a service or installation visit, and permitting us or our service provider to enter your premises, you are authorizing Broad Sky and its service provider to perform all of the above actions. You are responsible for backing up the data on your computer and we highly recommend that you do so prior to permitting access to us or one of our designated service providers. NEITHER BROAD SKY NOR ITS SERVICE PROVIDER SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES RESULTING FROM THE EQUIPMENT OR ANY INSTALLATION, REPAIR OR OTHER SERVICES ASSOCIATED WITH THE EQUIPMENT, INCLUDING WITHOUT LIMITATION, DAMAGE TO YOUR PREMISES OR LOSS OF SOFTWARE, DATA OR OTHER INFORMATION FROM YOUR COMPUTER. This limitation does not apply to any damages arising from the gross negligence or willful misconduct of us or one of our designated service providers. Time frames for installation, if any, are not guaranteed and may vary depending on the types of services requested and other factors. If we determine in our sole discretion that there are unacceptable hazards associated with the installation, we may discontinue the installation at any point and terminate this Agreement without liability. In such a case, you will not incur a Termination Fee.
- Subscriber Responsibility. You agree that you are responsible for all access to and use of the Service through your account or password(s) and for any fees incurred for the Service, or for software or other merchandise purchased through the Service, or any other expenses incurred in accordance with the terms of this Agreement. You agree that you are responsible for backing up (a) any data you submit, receive or transfer over the Service, including, but not limited to, your email, and (b) any data, files, programs, or applications on any device you connect to the Service. You acknowledge that you are aware that content accessible on or through the Service may contain material that is unsuitable for minors (persons under 18 years of age). You agree to supervise usage of your account by minors. You ratify and confirm any obligations incurred by a minor using your account.
- Fees and Payment.
- Fees, Taxes and Other Charges.
- Commencement and Duration of Fees. You acknowledge that (subject to any exceptions granted by us) you will pay for the Service each month in advance and such monthly fees will apply for each and every month (or portion of a month) that you are a subscriber, beginning with the date your Service is activated. In addition, we may bill you for some aspects of the Services individually after they have been provided to you; these include charges to buy more data for your Internet Service and for toll calls and directory assistance calls made using Extreme Voice. Your account will continue until you cancel your account in accordance with the method or methods specified by us (unless otherwise terminated in accordance with this Agreement). As stated above, you may cancel your account at any time, subject to payment of the Termination Fee, if applicable, and/or any other applicable termination fee. The monthly fees shall cease to apply for any months after the billing month in which you cancel or terminate your account in accordance with these terms and conditions.
- Billing and Charges. You agree to pay, in accordance with the provisions of the Service plan you selected, any registration, activation or monthly fees (including any applicable discounts), service charges, minimum charges and other amounts charged to or incurred by you, or by users of your account, at the rates in effect at the start of the billing period in which those amounts are charged or incurred. You agree to pay all applicable federal, state and local taxes, fees and surcharges related to your use of the Service, provision of services, software or hardware or the use of the Service by users of your account. Information on our charges and surcharges may be made available to you electronically. We will send your billing statements to the email address provided to us, and you agree that this is sufficient notice for all purposes as to charges incurred and paid or to be paid to us. You understand and agree that you will not receive a paper statement in the mail. Additional terms relating to pricing, billing, and payment which are an integral part of this Agreement are contained in your Service plan. Broad Sky reserves the right to correct and charge under-billed or unbilled amounts for a period of 90 days after (i) any incorrect statement was issued or (ii) a statement should have been issued. Payment of the outstanding balance is due in full each month.
- Administrative Fees. If your electronic payment is not received by us by its due date or your payment is returned, we may charge you administrative or late nonpayment fees equal to the lesser of (i) $15.00 per month, or (ii) the maximum amount permitted under applicable law. Such charge shall apply monthly until all delinquent amounts are paid in full. If your electronic funds transfer out of your bank account (“EFT Payment”) or credit card or debit card payment (“Card Payment”) fails to be honored by your bank or other financial institution, we may charge you a collection fee equal to the lesser of (i) $25.00, or (ii) the maximum amount permitted under applicable law. You acknowledge that these fees are not interest or finance charges and are reasonably related to the actual expenses we incur due to non-payment.
- Payment Authorization.
- Disputes and Partial Payments. If you think a charge is incorrect or you need more information on any charges applied to your account, you may contact Broad Sky at 877-291-9575, Option 2. You must contact us within 30 days of receiving the statement on which the error or problem appeared. We will make a statement available to you for each billing cycle showing payments, credits, purchases and other charges. We will not pay you interest on any overcharged amounts later refunded or credited to you. We may, but are not required to, accept partial payments from you. If partial payments are made, they will be applied to amounts owed by you starting with the oldest outstanding amount. If you send us checks or money orders marked “payment in full” or otherwise labeled with a similar restrictive endorsement, we may, but are not required to, accept them, without waiving any of our rights to collect all amounts owed by you under this Agreement. If we choose to use a collection agency or attorney to collect money that you owe us or to assert any other right that we may have against you, you agree to pay the reasonable costs of collection or other action including, but not limited to, collection agency fees, reasonable attorney’s fees, and court costs.
- Reactivation. To reactivate suspended Service, you must bring your account current through the month of reactivation by making payment in full of any outstanding balance, fees and other applicable charges. In addition, we may require a deposit before reactivating your Service. The amount of the deposit will not exceed one year of monthly fees. Any amounts deposited by you will appear on your statement as a credit, and service charges and other fees will be invoiced as described above. If you fail to pay any amount on a subsequent bill, the unpaid amount will be deducted each billing cycle from the credit amount. Credit amounts will not earn or accrue interest.
- Credit Inquiries and Reporting. You authorize us to make inquiries and to receive information about your credit experience from others, including credit reporting agencies, to enter this information in your file and to disclose this information concerning you to third parties for reasonable business purposes. In the case of late payment or non-payment for any Service ordered by you or any other charges, you understand and agree that we may report such late payment or non-payment to the appropriate credit reporting agencies.
- Modifications, Rights of Cancellation or Suspension.
- Modification of this Agreement. Upon notice published www.BroadSkyNetworks.net we may modify this Agreement, including, without limitation, our pricing and billing terms. We may, but are not required to, also notify you by e-mail or other electronic notice. If you do not agree to such changes or additions, then you must terminate this Agreement in accordance with Section 4.3 below and stop using the Service within five days after the effective date of such modifications. Your continued use of the Service after this five-day period constitutes your acceptance of such modifications. If a change results in an increase of the monthly fee by more than 25%, however, you may terminate your Service, without incurring the Termination Fee and/or any other applicable termination fee, by calling us within 30 days after the first statement reflecting such changes is issued.
- Modification of the Service. We may discontinue, add to or revise any or all aspects of the Service in our sole discretion and without notice, including access to support services, publications and any other products or services ancillary to the Service. In particular, we reserve the right in our sole discretion to modify, supplement, delete, discontinue or remove any software, file, publications, information, communication or other content that we or one of our vendors provide to you in connection with the Service. If we undertake any of these changes, we may, but are not required to, notify you by e-mail, posting a notice on one or more of the Broad Sky websites or other electronic notice. If you do not agree to the identified changes, then you must cancel your subscription and stop using the Service prior to the effective date of the changes. Your use of the Service after the effective date of the changes constitutes your acceptance of the changes. In addition, we may take any action consistent with our Acceptable Use and Data Allowance Policies, including actions to (a) prevent unsolicited bulk e-mailing from entering or leaving any e-mail account or the network e-mail system, (b) delete e-mail messages if your e-mail account has not been accessed by you within a time established by us from time to time, in our sole discretion, (c) instruct our system not to process e-mail or instant messages due to space limitations, (d) make available to third parties information relating to Broad Sky or its subscribers, (e) withdraw, change, suspend or discontinue any functionality or feature of the Service, (f) delete attachments to e-mail due to potentially harmful materials included within such attachment, and (g) limit access to the Service to prevent abusive consumption.
- Termination by Subscriber. Subject to your payment of the Termination Fee and/or any other applicable termination fee and the monthly fees for the full billing cycle in which termination occurred, you may terminate this Agreement at any time by giving us written or telephone notice to email@example.com or (877) 291-8575. You are responsible for the full monthly Service fee for any month (or portion of a month) in which you receive Service and Broad Sky will not provide a pro-rata refund for any pre-paid fees regardless of when your Service is terminated. In limited circumstances, Broad Sky may permit you to temporarily suspend service. You are responsible for the full monthly Service fee for any month (or portion of a month) in which you receive Service and Broad Sky will not provide a pro-rata refund for any pre-paid fees regardless of when your Service is suspended. Please allow five business days from the date of receipt for processing written requests to terminate or suspend your Service. Broad Sky does not accept notices of termination or suspension via text or chat. You will continue to be liable under this Agreement for all fees and charges until such time as the Agreement has been properly terminated or suspended or we have acknowledged such termination or suspension in writing or by e-mail. Once your account is terminated, you will no longer have access to any of the web or email services provided to you as part of the Service. In addition, upon termination you will be responsible for the return of the Equipment to Broad Sky at 750 NW Charbonneau, Suite 201, Bend, OR 97703 in accordance with your obligations under the Lease Addendum.
- Termination or Suspension by Broad Sky. We reserve the right in our sole discretion to terminate your Service and this Agreement or suspend your Service at any time (with or without notice), in whole or in part. If we terminate or suspend your Service because you have or a user of your account has breached this Agreement or violated a law, then notwithstanding the termination or suspension of your Service, you will remain responsible for all payment and other obligation under this Agreement, including the obligation to pay all charges that may be due as a result of or in connection with such termination or suspension. In these instances, you are responsible for the full monthly Service fee for any month (or portion of a month) in which you receive the Service and Broad Sky will not provide a pro- rata refund for any pre-paid fees regardless of when your Service is terminated or suspended.
- Permitted Use and Restrictions on Use.
- Software License. Subject to the terms of this Agreement, Broad Sky grants to you a personal, non-exclusive, non-assignable and non- transferable license to use and display the software provided by or on behalf of Broad Sky (including any updates) only for the purpose of accessing the Service (“Software”) on any computer(s) on which you are the primary user or which you are authorized to use. Our Privacy Policies provide important information about the Software applications we utilize. Please read the terms very carefully, as they contain important disclosures about the use and security of data transmitted to and from your computer. Unauthorized copying of the Software, including software that has been modified, merged or included with the Software, or the written materials associated therewith, is expressly forbidden. You may not sublicense, assign, or transfer this license or the Software except as permitted in writing by Broad Sky. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by Broad Sky of this Agreement and the license. You agree that you shall not copy or duplicate or permit anyone else to copy or duplicate any part of the Software, or create or attempt to create, or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs or any part thereof from the object programs or from other information made available under this Agreement.
- Restrictions on Use of the Service. You agree to comply with Broad Sky’s Acceptable Use and Data Allowance Policies for Extreme Business located at http://broadskywireless.com/support/acceptable-use-policy/ all of which are incorporated into and made a part of this Agreement. Broad Sky reserves the right to immediately terminate the Service and this Agreement if you knowingly or otherwise engage in any prohibited activity. Please note that if you use Broad Sky’s email and other web application services, these services are provided through Google and are subject to Google’s terms and conditions. Broad Sky does not store, backup or maintain your emails or other web application services provided through Google. You do not own or have any rights (other than those expressly granted to you) to a particular IP address, even if you are utilizing a persistent IP address.
- Data Allowance Policies. If your monthly data usage exceeds the limits set forth in the Data Allowance Policy applicable to the Internet Service plan you receive, we may significantly slow and/or restrict your Internet Service, or certain uses of your Internet Service, on a temporary basis, as described in our Data Allowance Policy incorporated in this Agreement. Broad Sky Internet Access is not guaranteed. Customer must authorize additional usage or plan increase if internet to be restored to full usage within that month. All Internet Service plans are subject to a Data Allowance Policy.
- Prohibition on Resale. Reselling the Service or otherwise making the Service available to anyone outside your premises (e.g., via wi-fi or any other method), in whole or in part, directly or indirectly, or on a bundled or unbundled basis, is prohibited. You agree not to use the Service for operation as an Internet service provider, or to run programs, equipment, or servers from your premises that provide network content or any other services to anyone outside of your premises. You may not connect the Equipment to any computer outside of your premises.
- No Unauthorized Use of Equipment or Software. You are strictly prohibited from servicing, altering, modifying, or tampering with the Equipment, Software or Service or permitting any other person to do the same who is not authorized by Broad Sky. You may not copy, distribute, sublicense, decompile or reverse engineer any of the Software.
- Compliance with Laws. You agree to comply with all applicable laws, rules and regulations in connection with the Service, your use of the Service and this Agreement.
- Security. You agree to take reasonable measures to protect the security of any devices you connect to the Internet through the Service, including maintaining at your cost an up-to-date version of anti-virus and/or firewall software to protect your devices from malicious code, programs or other internal components (such as a computer virus, computer worm, computer time bomb or similar component). You expressly agree that if your computer or an Internet connected device becomes infected and causes any of the prohibited activities listed in the Acceptable Use Policy, Broad Sky may immediately suspend your Service until such time as your computer is sufficiently protected to prevent further prohibited activities. Although Broad Sky has no obligation to monitor the Services or its network, Broad Sky and its authorized suppliers reserve the right to monitor bandwidth, usage, transmissions, and content from time to time in order to operate the Services, identify violations of this Agreement, or protect the Broad Sky network, the Services and other users of the Services. You will be fully liable for all monthly fees and other charges under this Agreement during any period of suspension. In all cases, you are solely responsible for the security of any device you choose to connect to the Service, including any data stored or shared on that device.
- Responsibility of Subscriber. You are responsible for any misuse of the Service, even if the misuse was committed by an employee, agent or guest with access to your Service account. Therefore, you must take steps to ensure that others do not use your account to gain unauthorized access to the Service by, for example, strictly maintaining the confidentiality of your login and password. You are considered the registered recipient of the Service(s), and you will be liable for any charges or fees incurred by the use of your Equipment by anyone else up to the time that we receive your notice of termination, unless otherwise provided by applicable law. You may not assign or transfer your Service without our written consent. If you do, we may terminate your Service. If your Equipment is stolen or otherwise removed from your premises without your authorization, you must notify Broad Sky Customer Care Center immediately, or else you will be liable for payment for unauthorized use of the Service or Equipment.
- Equipment. The Equipment contains software and/or other intellectual property which is subject to a license agreement(s). Any breach of such license agreement(s) constitutes a breach of this Agreement.
- Warranties and Limitations of Liability.
- DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. BROAD SKY AND BROAD SKY’S SUBSIDIARIES AND AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS SHAREHOLDERS, EMPLOYEES, AGENTS, WHOLESALERS, DEALERS, DISTRIBUTORS, SUPPLIERS, LICENSORS AND THIRD PARTY CONTENT PROVIDERS (COLLECTIVELY, “BROAD SKY’S PARTNERS”) DISCLAIM ANY AND ALL WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE AS WELL AS ANY AND ALL WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE, INCLUDING ANY MINIMUM UPLOAD OR DOWNLOAD SPEEDS. THE SERVICE IS DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF INFORMATIONAL CONTENT, NON-INFRINGEMENT OR OTHERWISE, EXCEPT THE FOREGOING SHALL NOT APPLY IN STATES WHERE IT IS PROHIBITED. BROAD SKY AND BROAD SKY’S PARTNERS EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE SERVICE WILL BE ERROR FREE, SECURE OR UNINTERRUPTED OR OPERATE AT ANY MINIMUM SPEED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY BROAD SKY OR ANY OF BROAD SKY’S PARTNERS SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. BECAUSE BROAD SKY PROVIDES SUBSCRIBERS WITH ELECTRONIC ACCESS TO THE CONTENT AVAILABLE ON THE INTERNET, BROAD SKY AND BROAD SKY’S PARTNERS CANNOT AND DO NOT WARRANT THE ACCURACY OF ANY OF THE INFORMATION YOU OBTAIN THROUGH THE SERVICE. BROAD SKY AND BROAD SKY’S PARTNERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM YOUR USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT SUCH EXCLUSION IS NOT ALLOWED BY APPLICABLE LAW. YOU ALSO MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BROAD SKY NOR ANY OF BROAD SKY’S PARTNERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY. WITHOUT IN ANY WAY LIMITING THE FOREGOING, IF FOR ANY REASON, BY OPERATION OF LAW OR OTHERWISE, ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT BROAD SKY’S MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY AND THE LIABILITY OF BROAD SKY’S PARTNERS SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO BROAD SKY BY YOU FOR SERVICE DURING AND FOR A PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF ANY ERROR, DEFECT OR FAILURE AND CEASING UPON THE DISCOVERY OF SUCH ERROR, DEFECT OR FAILURE, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHICH SUCH ERROR, DEFECT OR FAILURE IS FIRST DISCOVERED IN WHOLE OR IN PART.
- Applicability and Exceptions. The foregoing exclusions or limitations of liability apply regardless of any allegation or finding that a remedy failed of its essential purpose, regardless of the form of action or theory of liability (including, without limitation, negligence) and even if Broad Sky or others were advised or aware of the possibility or likelihood of such damages or liability. The foregoing shall not apply in states where such exclusions are prohibited.
- Service Interruptions. Service may be interrupted from time to time for a variety of reasons, including thundershowers at your premises or at your assigned gateway location. Weather conditions at your assigned gateway may be different than the weather at your premises. We are not responsible for any interruptions of the Service that occur due to acts of God (including weather), power failure or any other cause beyond our reasonable control. However, because we value our subscribers, for an interruption of a significant length of time that is within our reasonable control, upon your request we may provide what we reasonably determine to be a fair and equitable adjustment to your account to make up for the Service interruption. THIS WILL BE YOUR SOLE REMEDY AND OUR SOLE DUTY IN SUCH CASES.
- Indemnity. You agree to indemnify, defend and hold us harmless against all claims, liability, damages, costs and expenses, including but not limited to reasonable attorneys’ fees, arising out of or related to any and all uses of your account. This includes, without limitation, responsibility for all consequences of your violation of this Agreement (or a violation by any user of your account) or placement on or over, or retrieval from or through, the Service of any software, file, information, communication or other content and all costs incurred by us in enforcing this Agreement against you.
- Third Party Beneficiaries. The provisions of this Section 7 are for the benefit of us and our respective contractors, information or content providers, service providers, licensors, employees and agents, and each shall have the right to assert and enforce such provisions directly on its own behalf. Other than as expressly stated in this Agreement, this Agreement shall not be deemed to create any rights in third parties.
- Call Monitoring and Recording. For quality assurance, Broad Sky may record and/or monitors telephone calls between its customers and Broad Sky agents, employees and/or its affiliates regarding the Services. By using the Service, you (and anyone calling with regards to your account) consent to any and all call recording and monitoring performed by Broad Sky or its agents, employees and/or its affiliates.
- Applicable Law. This Agreement and all of the parties’ respective rights and duties, including, without limitation, claims for violation of state consumer protection laws, unfair competition laws, and any claims in tort shall be governed by and construed in accordance with the laws of the State of Oregon, in the United States, excluding conflicts of law provisions.
- Dispute Resolution. To expedite resolution of issues and control the cost of disputes, you and Broad Sky agree that any legal or equitable claim relating to this Agreement, any addendum, or your Service (referred to as a “Claim”) will be resolved as follows: We will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding until at least 60 days after one of us notifies the other of a Claim in writing (“Notice”). You will send your Notice to the address on the first page of this Agreement to the attention of the Broad Sky Legal Department and we will send our Notice to your billing address. If you and Broad Sky are unable to resolve the Claim within 60 days after Notice is received, then Broad Sky and you agree to arbitrate any and all Claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Any Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, statute, fraud, misrepresentation, tort, or any other legal theory;
- Any Claims that arose before this Agreement or any prior agreement between us;
- Any Claims that are currently the subject of a purported class action suit in which you are not a member of a certified class; and/or
- Any Claims that may arise after the termination of this Agreement.
Furthermore, the arbitrator may not consolidate more than one person’s Claim, and may not otherwise preside over any form of a representative or class proceeding, unless both you and Broad Sky otherwise agree in writing. Notwithstanding any provision in this Agreement to the contrary, we agree that if Broad Sky makes any future change to this Dispute Resolution provision during your Minimum Service Term, you may reject any such change by sending us written notice within 30 days of the change to the address on the first page of this Agreement. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Dispute Resolution provision. Any cause of action brought by you, or by users of your account, with respect to the Service or this Agreement must be instituted within one year after the claim or cause of action has arisen or it will be barred.
- Notices, Disclosures and Other Communications. Where notification by Broad Sky is contemplated by or related to this Agreement, notice may be made by any reasonable means, including, but not limited to, e-mail or publication over the Service. A printed version of this Agreement and of any notice given in electronic form by Broad Sky shall be admissible in judicial, arbitration, or administrative proceedings relating to or based upon this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You must promptly notify us of any change in your credit card information, e-mail or postal address by calling Broad Sky Customer Care.
- Construction and Delegation. If any term of this Agreement is found by a court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable, it shall be construed in such a way as to eliminate the offending aspects while still giving as much effect as possible to the intentions of such term. If this cannot be done and the entire term is invalid, illegal or unenforceable and cannot be so repaired, then the term shall be considered to be stricken from this Agreement as if it had not been included from the beginning. In any such case, the balance of this Agreement shall remain in effect in accordance with its remaining terms notwithstanding such invalid, illegal or unenforceable term. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. We may authorize or allow our contractors and other third parties to provide the services necessary or related to making the Service available and to perform obligations and exercise our rights under this Agreement, and we may collect payment on their behalf, if applicable.
- Miscellaneous. We may enforce or decline to enforce any or all of the terms of this Agreement in our sole discretion. In no event shall we be required to explain, comment on, suffer liability for or forfeit any right or discretion based on the enforcement, non-enforcement or consistency of enforcement of these terms. Captions used in this document are for convenience only and shall not be considered a part of this Agreement or be used to construe its terms or meaning. The provisions of any Sections of this Agreement which by their nature should continue shall survive any termination of this Agreement.
- Assignment of Account. We may sell, assign, pledge or transfer this Agreement (including any addendum to this Agreement), your account or an interest in your account to a third party without notice to you. In the absence of a notice of such sale or transfer, you must continue to make all required payments to us in accordance with your billing statement.