unWired Broadband, LLC Master Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT CUSTOMER UNDERSTANDS EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE.
(Updated and Effective May 20, 2021)
This Master Services Agreement (“MSA” or “Agreement”) is by and between unWired Broadband, LLC (“unWired,” “us,” or “we”) and any residential (“Residential”), or business,, institutional or governmental (collectively, “Commercial”) customer (“Customer,” “you,” or “your”) who subscribes to our high speed broadband Internet services (“Services”). This Agreement takes effect on the date when the Customer signs a “Service Contract.”
PURPOSE: The Customer wishes to enter into an Agreement with unWired for the provision of Services located at the service address listed in the Service Contract (the “Property”).
In combination with the specific Service Contract, this Agreement governs the general terms and conditions for the following Services (unless designated otherwise):
- • “Standard Internet Service” – A recurring mass market retail broadband Internet access service for Residential Customers and Commercial Customers. Standard Internet Services are delivered over a shared network. A Customer may select from various Service plans which will vary in speed and price. (“Tier 1-4 Service Contract”)
- • “Tier 5 Premium Internet Service” – A recurring customized broadband Internet access service for large and/or high volume Commercial Customers, delivered over a dedicated network. (“Tier 5 Service Contract”)
- • “Enterprise Internet Service” – A recurring customized broadband Internet access service for large and/or high volume Commercial Customers that request a 100% speed guarantee, delivered over a dedicated network. (“Enterprise Service Contract”)
- • “Specialized Internet Service” – A customized broadband Internet access service for Commercial Customers that have short-term needs or special events (such as a fair, film/TV production, concert or other events). (“Specialized Service Contract”).
Combined, each Service Contract is collectively defined herein as “Service Contracts.”
In mutual consideration of the terms, conditions, benefits and covenants listed in this Agreement, the Customer and unWired hereby agree as follows:
TERMS:The Customer agrees that the term of this Agreement starts on the date unWired successfully completes the installation of the Services (“Service Activation Date”) and continues for the “Initial Term” as listed in the Service Contract, and any Renewal Term, collectively a “Service Term.” Specifics regarding early termination are in Section 7 herein.
(a) Standard Internet Service.
- (a) Standard Internet Service.
- The Customer agrees that the Initial Term is 12 to 24-months for recurring services, depending on your service contract, and shall automatically renew and continue for successive terms of one month (“Renewal Term”), unless Customer or unWired provides thirty (30) calendar day notice to the other Party prior to the expiration of the Initial Term or any Renewal Term via the notice requirements under Section 15 herein.
- Moving or Transferring Service. If Customer moves to a location outside of the unWired coverage area, Customer shall pay the ETF as stated in their Service Contract. Customers understand, acknowledge and agree that in addition to any ETF, Enterprise Internet Services that utilize licensed Enterprise level connections may be subject to FCC relicensing fees. These fees will be disclosed at the time of the transfer or move request.
- Unavailability of Service. If unWired no longer offers the particular service or tier package utilized by the Customer following the expiration of the Initial Term or any Renewal Term, with the required written notice prior to the expiration of the Initial Term or any Renewal Term, unWired shall place the Customer in a new service package which most closely approximates the package or tier which the Customer previously utilized, unless the Customer terminates the Services in accord with this Agreement.
- (b) Tier 5 Premium Internet Service. The Customer agrees that the Initial Term may range from 12-months to 24-months for recurring services and shall automatically renew and continue for a successive Renewal Term of up to 24-months. Specifics for the Terms and requirements for early termination of the Services, if any, will be provided in the Tier 5 Premium Internet Service Contract.
- (c) Enterprise Internet Service. The Customer agrees that the Initial Term may range from 12-months to 24-months and shall automatically renew for recurring services and continue for a successive Renewal Term of up to 24-months. Specifics for the Terms and requirements for early termination of the Services, if any, will be provided in the Enterprise Service Contract.
- (d) Specialized Internet Service. The Customer agrees that the Initial Term will vary from one day to a pre-determined number of months and that there is no Renewal Term. However, the Special Internet Service Contract may be extended for a mutually agreeable period of time by written agreement between the Parties. Notice requirements for early termination of the Services, if any, will be provided in the Specialized Internet Service Contract.
SERVICE PLANS: There are various Residential and Commercial plans for the Standard Internet Services with different speeds and features, and each has a specific service fee that will be charged to the Customer each month of an Initial Term and Renewal Term, along with any recurring fees and taxes (“Monthly Recurring Fees”). In Contract to provide Services to the Property, unWired will install certain equipment and wiring at the Property for each Service Plan, as detailed in the Service Contract.
1. unWired Network, Access and Interconnection:
- Responsibilities. unWired will own and control the telecommunications equipment, computers, routers, switches, servers, radios, towers, modems, cable, and wiring (“unWired Equipment”) and facilities installed and operated by unWired for provision of the Services to Customer (collectively, “unWired Network”). unWired has the right to upgrade, replace or remove the unWired Network in whole or in part, regardless of where located, so long as the Services continue to perform. unWired has the right to limit the manner in which any portion of the unWired Network is used to protect its technical integrity. Customer may not alter, move or disconnect any parts of the unWired Network and is responsible for any damage to, or loss of, the unWired Network caused by Customer’s (or its end users, guests, visitors, household members) breach of this provision, negligence or willful misconduct. unWired had no obligation to install, maintain, or repair any equipment owned or provided by Customer (“Customer Equipment”), unless otherwise agreed to in a writing executed by the Parties. If Customer Equipment is incompatible with the Service, Customer is responsible for any special interface equipment or facilities necessary to achieve compatibility.
- unWired Equipment. Customer acknowledges by signing the digital work order after installation, that the unWired Equipment listed was installed at a location and in the manner authorized by Customer at the Customer’s Property other structure. Customer further acknowledges that the unWired Equipment may, at unWired’s sole discretion, be refurbished or otherwise used equipment. unWired Equipment shall remain at all times, the exclusive property of unWired and will be provided to the Customer under the terms set forth in this Agreement and the Service Contract. Customer shall acquire no interest in unWired Equipment by virtue of the payments provided for herein or the attachment of any portion of unWired Equipment to the Customer’s Property or otherwise deemed part of the Customer’s realty. The unWired Equipment is not and shall never be considered a fixture to Customer’s Property.
- Upon termination of the Services, Customer will return the unWired Equipment within ten (10) calendar days, and in accordance with unWired’s then-current return procedures. If the unWired Equipment is not returned or is damaged, lost, stolen or is otherwise inoperable, Customer will pay each applicable “Unreturned Equipment Fee” listed in the Service Contract.
- Customer may move the Services to a new home or premises assuming the Services are available at the new home or premises. Customer understands, acknowledges and agrees that any unWired Equipment used for the current Services may be incompatible with the new Services and therefore, Customer may be subject to new unWired Equipment and installation fees for any move.
- Customer may also upgrade the Services at any time to a higher Tier or plan. There is no additional fee to upgrade the Services; however, Customer will be subject to a higher Monthly Recurring Fee. unWired will provide all necessary unWired Equipment as part of the Monthly Recurring Fee.
- Customer may also downgrade the Services to a lower Tier or plan but only under certain conditions. Restrictions will be set forth in the Service Contract.
- Access. Customer must provide unWired’s employees, agents and independent contractors (“Authorized Parties”) with access to its Property to install and maintain the Services and the unWired Network. Upon written request, the Customer will be provided with a certificate of insurance evidencing insurance coverage. Customer must provide, at its expense, the following: (i) appropriate space, power and environmental conditioning; and (ii) reasonable access rights and/or rights or way from third parties, as may be required for installation and maintenance of the unWired Network at and into Customer’s Property.
- Demarcation Point, Inside Wiring and Activation Support. unWired shall be responsible for provisioning Service up to the Demarcation Point on Customer’s Property and Customer is responsible for providing and maintaining any necessary wiring and facilities on Customer’s side of the Demarcation Point. “Demarcation Point” means the unWired designated physical interface between the unWired Network and Customer Equipment, which point shall be either (i) in the case of a Service terminating at unWired’s side of the Demarcation Point or (ii) in the case of a Service terminating at Customer’s Property, the distribution panel or network interface device located at the common telecommunications (“telco”) demarcation at the Customer’s side of the Demarcation Point (e.g., entry point for telco facilities, telco closet or common telco room). If requested by Customer, unWired’s Authorized Parties may install, co-ordinate or otherwise arrange for installing or obtaining from third parties, facilities on Customer’s side of the Demarcation Point (‘Inside Wiring”) and/or assist Customer with activation and/or configuring equipment on Customer’s side of the Demarcation Point (“Activation Support”). Customer agrees to pay the hourly labor rates posted at www.getunwired.com for any Inside Wiring and Activation Support performed by unWired personnel and agrees that unWired may bill Customer for any third party charges it incurs to provide Inside Wiring.
- Letter of Authorization / Carrier Facility Agreement. If Customer intends to connect Services to facilities that neither Customer nor unWired owns, it must provide unWired with and maintain (for the Service Term) a current letter of authorization and carrier facility assignment as applicable.
- Customer Equipment. As set forth below and in the Open Internet Transparency Policy, Customer is not permitted to connect any harmful Customer Equipment to the unWired Equipment or the unWired Network. Customer understands that failure to comply with this restriction may cause damage to the unWired Network and may subject Customer to monetary damages and/or other liability as permitted by applicable local, state or federal statues, regulations, guidelines, ordinances, or policies (collectively, “Applicable Law”).
- Customer Back-Up Requirements. Customer understands, acknowledges and agrees that prior to unWired servicing any Customer Equipment or unWired Equipment, it is Customer’s responsibility to: (i) back-up the data, software, information or other files stored on Customer’s computer or other device including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (ii) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Customer’s equipment. Under no circumstances shall unWired and/or its Operational Service Provider(s), be liable under any circumstances for any loss, disclosure, alteration or corruption of any Customer data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media.
2. Installation and Maintenance:
- Installation. unWired will notify Customer when the Service has been successfully installed and is available for Customer’s use (“Service Activation Date”). Unless Customer notifies unWired by the close of business on the Service Activation Date that the Service is not operational, the Service Term will commence. If Customer so notifies unWired as required for performance guarantees in Section 4 herein, the Service Activation Date will not occur and the Service Term will not commence until the Service is operating properly. The Service Date will not be delayed or postponed due to problems with Customer Equipment or Customer’s lack of readiness to accept or use Service. Additional charges, such as a “Technician Roll-Out Charge” of one-hundred and seventy dollars ($170.00 US), may be assessed if the Customer cancels the agreed upon installation appointment with less than 24-hour notice or requires additional service trips due to being unprepared for the installation.
- Scheduled Maintenance. unWired will monitor the unWired Network 24 hours per day, 7 days per week. Scheduled Maintenance will be performed between the hours of midnight and 6:00 a.m. (local time where the maintenance is being performed) unless another time is agreed to by the Parties for the particular circumstance. unWired will endeavor to provide Customer with at least five business days notice before performing Scheduled Maintenance unless a shorter notice period is required under the circumstances.
- Emergency Maintenance. If unWired has to perform maintenance outside of the Scheduled Maintenance window set forth in Section 2(b)(i) above, then unWired will provide as much prior notice to Customer as is practicable under the circumstances.
3. Charges, Billing, and Payment:
- Monthly Bills. Services are billed on a monthly basis commencing with the Service Activation Date. Services are invoiced in advance, but additional charges are invoiced in arrears. Any installation or other non-recurring charges, which are non-refundable, will appear on the first monthly invoice. Any additional non-recurring charges created beyond the first month will be billed at time of service.
- Security Deposit. unWired may require a deposit prior to the provision of any new service as a condition to its obligation to continue to provide Service(s) if Customer has a poor credit rating and/or failed to timely pay for Service(s) on two occasions during any six month period (“Security Deposit”). The Security Deposit will be refunded to Customer at the end of the Initial Term, unless Customer has terminated the Service prior to the end of the Initial Term. unWired will then deduct any early termination fee (“Early Termination Fee” or “ETF”) from the Security Deposit as set forth in Section 7 herein or in the applicable Service Contract.
- Taxes. unWired will invoice Customer for applicable Taxes (defined below) and, whenever possible, will identify such charges as a separate line item on the invoice. Customer will be liable for Taxes which are assessed by or paid to an appropriate taxing authority within the applicable statute of limitations period. If Customer fails to pay any Taxes properly billed, then as between unWired and Customer, Customer will be solely responsible for payment of the Taxes, and penalty and interest.
- “Tax” or “Taxes” mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated, imposed, or sought to be imposed, on or with respect to purchases by Customer from unWired for consideration under this Agreement or for unWired’s use of public streets or rights of way, which unWired is required or permitted by law or a tariff to collect from Customer. The term “Tax” will not include any tax on unWired ’s corporate existence, status, income, corporate property or payroll taxes.
- If either Party is audited by a taxing or other governmental authority, the other Party agrees to cooperate reasonably by responding to the audit inquires in a proper, complete and timely manner. unWired will cooperate, at Customer’s expense, with reasonable requests of Customer in connection with any Tax contest or refund claim. The Customer will ensure that no lien is attached to or allowed to remain on any asset of unWired as a result of any Tax contest. Customer will indemnify and hold unWired harmless against any liabilities, damages, losses, costs or expenses arising out of such Tax proceedings, including without limitation any additional Taxes, interest, penalties and attorney or CPA fees.
- If Customer claims an exemption for any Taxes, Customer must provide unWired with a proper tax exemption certificate as authorized by the appropriate tax authority. Customer must pay the applicable Taxes to unWired until it provides unWired with a valid tax exemption certificate. If any Applicable Law exempts a Service under this Agreement from a Tax, but does not also provide an exemption procedure, then unWired will not collect such Tax if Customer provides unWired with a letter signed by one of its officers: (A) claiming a right to the exemption; (B) identifying the Applicable Law that allows such exemption and does not require an exemption certificate; and (C) agreeing to indemnify and hold unWired harmless from any Tax, interest, penalties, loss, costs or expenses (including without limitation reasonable attorneys and/or CPA fees) asserted against unWired and as a result of its not collecting the Taxes from Customer./li>
- Due Dates. Monthly Recurring Fees and payment for all undisputed amounts due under this Agreement must be received by unWired on or before the due date specified on the bill (“Due Date”).
- For Standard Internet Services, Tiers 1-4, any payment or portion not received by the Due Date is subject to a ten-dollar $10.00 “Late Fee” each month overdue.
- For Tier 5 Premium Internet Services and Enterprise Services, the Late Fee will be set forth in the Tier 5 Service Contact or Enterprise Service Contract, as applicable.
- For all Customer accounts that are past due fifteen (15) calendar days or more may be suspended without notice.
- All accounts suspended or terminated for nonpayment are subject to a “Service Reinstatement Fee” of twenty-five dollars ($25.00 US).
- Credit Card Authorization; Billing: Customer authorizes unWired to charge Customer’s credit card for the Services, and any and all recurring charges due to unWired under the Agreement, including any applicable Early Termination Fee. unWired will provide Customer with an itemized monthly statement by email describing all chargesn the event Customer’s credit card, or other method of payment, fails to provide payment to unWired for any reason, Customer shall remain liable for amounts due under this Agreement, and shall provide another card or method of payment to unWired.
- Additionally, Customer will automatically be charged a twenty-fivedollar ($25.00 US) “Non-Payment/ACH Fee” for any check or Automated Clearing House (“ACH”) payment returned for non-payment or insufficient funds, or for any credit card chargeback.
4. Service Level Agreement, Performance Guarantee and Service Outage Credits
Notwithstanding anything to the contrary in this Agreement or any SLA, Customer understands, acknowledges and agrees that any SLA or performance guarantee, and associated rights and remedies do not apply to “Off-Net” connections, whether or not specified in any other agreement between Customer and unWired. Off-Net connections, which are provided by a local exchange carrier, do not include any service or performance guarantee.
- Service Level Agreement (“SLA”). Only the Enterprise Internet Service is subject to an SLA, and it is set forth at www.getunwired.com/SLAs.
- Performance Guarantee. Tiers 1-4 Standard Internet Services and Tier 5 Premium Internet Service are subject to the following “Performance Guarantees”:
- Quality of Service Upon Installation. Services may be cancelled by Customer without penalty for quality of service issues after the initial installation, subject to Unwired’s opportunity to cure any service problem with-in three (3) business days after Customer’s notification. Customer must first notify unWired of Service performance issue via email within three (3) calendar days of installation. If the Service is not operating properly after unWired’s cure period, Customer may request cancellation of the Service Contract and this Agreement in full with-in seven (7) business days of Customer’s installation date. If the first monthly bill has been processed and submitted to Customer prior to the cancellation request, UnWired will credit a prorated portion of the Monthly Recurring Fee. Customer understands, acknowledges and agrees that the Installation Fee will not be refunded.
- Guarantee of Speed. unWired will guarantee 75% of the maximum information rates (“MRIs”) for upload and download speeds listed for each Service plan description. The MRIs may be found here.
- Service Outage. unWired will also credit a Customer in the event there is a Service Outage during the Service Term. “Service Outage” is defined as either: (A) material non-compliance with a specific performance metric caused by the unWired Network; or (B) a complete loss of transmission or reception capability for a Service caused by the unWired Network. Service Outages do not include outages and failures caused by the acts or omissions of Customer or Customer Equipment, third parties, a Force Majeure Event (as defined in Section 24 herein), or outages occurring during scheduled or emergency maintenance.
- Service Outage Credits. unWired will provide a credit of the Monthly Recurring Fee for a Service Outage exceeding thirty (30) minutes. The credit will be calculated on a pro rata basis by multiplying the duration of the Service Outage by the applicable Monthly Recurring Fees, divided by the days in the monthly period.
- Reporting and Tracking of Service Outage. If there is a Service Outage, Customer must contact unWired Technical Support within 24 hours at 559-261-4444 option 2 and unWired will open a trouble ticket and provide Customer with a trouble ticket number for tracking purposes.
- Duration of Service Outage and Application of Credits. For the purpose of calculating applicable credits, a Service Outage begins when Customer reports the Service Outage to unWired’s Technical Support, and ends when the Service is restored. The duration of a Service Outage does not include any time during which unWired is not allowed access to the premises necessary to restore the Service. Credits for Service Outages are only issued if requested by Customer, and such requests must be submitted to unWired within ten (10) business days from the date Service is restored.
- Chronic Trouble Services. If two Service Outages have occurred on a particular Service during a thirty (30) calendar day period, and a third Service Outage occurs within thirty (30) calendar days following the second Service Outage, Customer may terminate the applicable Service without any early termination liability, provided that Customer supplies unWired with a written termination notice no later than ten (10) calendar days following the third Service Outage. The Service will be terminated no later than two business days upon receipt of Customer’s request.
- Remedies. Notwithstanding anything to be the contrary in this Agreement, the remedies set forth in the SLA for Enterprise Services and in Sections 4(b) and 4(e) herein for Standard Internet Services and Tier 5 Premium Internet Services constitute Customer’s sole and exclusive remedy for below standard performance.
- Service Disruptions Not Caused by the unWired Network. If unWired responds to a service call initiated by Customer, and unWired reasonably determines that the cause of the problem is: (i) not due to the unWired Network; or (ii) is on Customer’s side of the Demarcation Point, Customer must compensate unWired for the service call at unWired’s then prevailing hourly rates for labor posted at www.getunwired.com and the cost of any materials.
5. Government Regulation – Changes:
- Each Party must comply with all Applicable Laws in performing its obligations hereunder. To the extent any provision in this Agreement conflicts with any Applicable Law, the Applicable Law will supersede the conflicting provision.
- unWired may discontinue or impose additional requirements to the provision of Service, upon ten (10) business days written notice, if necessary to meet regulatory requirements or if such requirements have a material, adverse impact on the economic feasibility of unWired providing the Services. Customer is not responsible for notice requirements or Early Termination Fees set forth in Sec. 7 below if unWired discontinues the Services under this subsection.
6. Termination by unWired :
- Termination With Advance Notice. unWired may disconnect all Service(s) associated with a delinquent account upon ten (10) business days written notice for Customer’s failure to pay amounts due under this Agreement which remain uncured at the end of the notice period; (i) Customer’s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver; and/or (ii) any governmental prohibition or required alteration of the Services.
- Termination Without Advance Notice. unWired may terminate or suspend Services without advance notice if: (i) necessary to protect the unWired Network; (ii) unWired has reasonable evidence or belief of Customer’s illegal, improper or unauthorized use of Services or any violation of this Agreement or AUP, including non-payment; or (iii) required by duly authorized legal or regulatory authority.
- Post Termination. Any termination or disconnection shall not relieve Customer of any liability incurred prior to such termination or disconnection, or for payment of unaffected Services. unWired retains the right to pursue all available legal remedies if it terminates this Agreement or disconnects Service(s) in accordance with this Agreement. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of any other Services.
- Restoration of Terminated Services. If unWired terminates a Service in accordance with this Agreement, and Customer wants to restore such Service, Customer must first pay all past due charges, all Late Fees, a “Service Reinstatement Fee” as detailed in the Service Contract and a deposit equal to two (2) months’ Monthly Recurring Fees. All requests for disconnection will be processed by unWired in thirty (30) calendar days or less. Customer must pay for Services until such disconnection actually occurs.
7. Termination by Customer:
- Termination for Cause. In addition to the Service Level Standards in Section 4 herein, any Customer may terminate this Agreement and/or any Service Contract hereunder upon thirty (30) calendar days prior written notice, without incurring termination liability, for unWired’s (i) material breach of any material provision of this Agreement, or violation any Applicable Law that affects Customer’s use of Service, which remains uncured at the end of the termination notice period and/or (ii) unWired’s insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver of similar event.
- Termination without Cause. Customer understands, acknowledges and agrees that the Early Termination Fee will first be deducted from a Security Deposit.
- Standard Internet Service. A Customer that terminates the Service Contract prior to the end of an Initial Term must do so with advance written notice as set forth in the Terms Section herein and shall pay an Early Termination Fee of twenty dollars ($20.00 US) for each of the remaining months on the Service Contract. Written notice of termination during a month-to-month Renewal Term is also thirty (30) calendar days but no ETF will be assessed.
- Tier 5 Premium Internet Service. Requirements to terminate the Services and the ETF are set forth in the Tier 5 Premium Internet Service Contract.
- Enterprise Internet Service. Requirements to terminate the Services and the ETF are set forth in the Enterprise Service Contract.
- Specialized Internet Services. Requirements to terminate the Services and the ETF are set forth in the Specialized Service Contract.
- Early Termination Fee. Customer understands, acknowledges and agrees that the Customer received benefits, including without limitation, reduced installation charges, and that any ETF represents a reasonable approximation of unWired’s damages for early termination and is not a penalty or forfeiture.
8. Termination Liability: If unWired or Customer terminates this Agreement or any Service Contract(s) pursuant to Sections 6 or 7 above, as applicable, all Monthly Recurring Fees associated with Services rendered shall become immediately due and payable.
9. Assignment: Neither Party may assign this Agreement without the prior written consent of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (a) unWired may assign its rights and/or obligations hereunder (i) to its parent, affiliates or subsidiaries; (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; or (iii) for purposes of financing. (b) Customer may assign its rights and/or obligations hereunder (i) to its parent, affiliates or subsidiaries, (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (A) the proposed assignee satisfies unWired’s credit and deposit standards; (B) Customer has fully paid for all Services through the date of assignment; and (C) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
10. Collections: In the event any legal action, court proceeding or arbitration to construe or enforce any provision of this Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, shall be commenced and maintained in an appropriate court or other forum in Fresno County, California. If any legal action, including arbitration is brought to enforce or interpret the provisions of the Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs, from the other Party. These fees and costs are in addition to any other relief to which the prevailing Party may be entitled.
11. BINDING ARBITRATION AND DISPUTE RESOLUTION AGREEMENTTHIS BINDING ARBITRATION PROVISION SAYS THAT CUSTOMER AND UNWIRED AGREE TO RESOLVE SPECIFIC CLAIMS AND DISPUTES THROUGH ARBITRATION THAT CANNOT BE RESOLVED BETWEEN UNWIRED AND CUSTOMER. PLEASE READ THIS SECTION CAREFULLY TO UNDERSTAND THIS BINDING ARBITRATION AGREEMENT AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. This agreement between Customer and unWired to arbitrate all disputes and claims between them is intended to be broadly interpreted. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, except those involving non-payment of Monthly Recurring Fees or amounts due for the Services which may be adjudicated in court, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or by written request to unWired. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction in Fresno County, California. The Parties understand that the arbitration process is final and binding and waives the right have a dispute adjudicated in court; provided, however, that nothing herein shall prevent a Party from seeking injunctive or provisional relief in court, or from filing an action to seek payment for the Services.
- A Party who intends to seek arbitration must first send to the other Party, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to unWired must be addressed to unWired at the address set forth in this Agreement for notices. An Arbitration Notice to Customer must be addressed to Customer at Customer’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and unWired do not reach an agreement to resolve the claim within sixty (60) calendar days after the Arbitration Notice is received, Customer or unWired may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by unWired or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or unWired is entitled.
- The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The Party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both Parties including, without limitation, legal fees and expenses.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. CUSTOMER AND UNWIRED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and unWired agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Notwithstanding any provision in this Agreement to the contrary, Customer and unWired agree that if unWired makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending unWired written notice within thirty (30) calendar days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and unWired in accordance with the language of this provision.
12. Entire Agreement, Amendments and Waivers: This Agreement, together with the Service Contract and other documents referenced herein, and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties. Either Party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
13. Governing Law and Venue: This Agreement and any interpretation of the rights and duties of the Parties and any claim, controversy or dispute arising under or related to this Agreement not subject to the arbitration agreement between the Parties shall be governed by the laws of the State of California excluding its principles of conflicts of law. The Parties understand, acknowledge and agree that the state and federal courts of Fresno County, California alone shall have jurisdiction over all disputes arising under this Agreement not subject to arbitration. Customer consents to the personal jurisdiction of such courts and mediation venue.
14. Headings: Headings herein are for the convenience only and are not intended to have substantive significance in interpreting this Agreement.
15. Notices: Any notice required under this Agreement must be delivered to the receiving Party at the address listed below (a) in person, (b) by certified mail with return receipt requested, or (c) by overnight courier. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the Party or its representative executes the delivery receipt, if delivered via courier. unWired must provide such notice to Customer’s billing address, and Customer must provide such notice to unWired at 215 W Fallbrook Ste. 203, Fresno CA 93711, except that if Customer wishes to terminate the Services for any reason, it must deliver notice to unWired either by facsimile to 559-432-2315; via email to email@example.com; or verbally via phone to (559) 261-4444. Notice by facsimile, email, or telephone is deemed given when received by unWired.
16. Public Releases, Use of Name: Neither Party may issue a news release, public announcement, advertisement, tweet or any other social media announcement or other form of publicity regarding this Agreement or the Services provided hereunder without the prior written consent of the other Party. Customer may not use unWired’s name, logo or trademark or service mark without unWired’s prior written consent. Customer understands, acknowledges and agrees that unWired may use Customer’s name, logo and other trademarks in materials presented to analysts and investors.
17. Representations and Warranties:
- Mutual. Each Party represents and warrants that it, and the person signing on its behalf, is of the age of majority and fully authorized to enter into this Agreement.
- Customer represents and warrants that: (A) Customer will not assign, transfer, resell or sublicense Customer’s rights under this Agreement unless specifically permitted by the terms of this Agreement; (B) Customer will not redistribute or share the Services with any other person or transmit the Service over a wireless or other network that is not secured; (C) Customer is solely responsible and liable for breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Agreement, whether such breach results from Customer’s use of the Services or by another person using the Services via Customer Equipment or unWired Equipment; and (D) when Customer transmits, uploads, posts, or submits any “Customer Material” (as defined herein) using the Service, Customer has the legal right to do so, and that Customer’s use of such Customer Material does not violate any copyright or trademark laws or any other third-party rights. Customer Material collectively includes without limitation any lawful or unlawful software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content – anything installed by Customer on unWired’s servers not provided by unWired.
- Residential Customers. Customer represents and warrants that the Services and the unwired Equipment shall be used only by Customer, by members of Customer’s immediate household living with Customer at the same address, and Customer’s visitors, or guests.
- Commercial Customers. Customer represents and warrants that the Service and the unWired Equipment shall be used only by Customer and by Customer’s authorized employees, patrons, visitors, or contractors and service providers located at the Customer’s service address.
- UnWired. unWired represents and warrants that installation, maintenance and delivery of the Services will be performed by qualified and trained personnel.
18. DISCLAIMER OF WARRANTIES: CUSTOMER EXPRESSLY AGREES THAT CUSTOMER USES THE SERVICES AND THE UNWIRED EQUIPMENT AT CUSTOMER’S SOLE RISK. THE SERVICES AND UNWIRED EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN SECTIONS 4 “SERVICE LEVEL AGREEMENT, PERFORMANCE GUARANTEE AND SERVICE OUTAGE CREDIT” AND 18(c) “UNWIRED REPRESENTATIONS AND WARRANTIES” HEREIN, THE SERVICES AND THE UNWIRED EQUIPMENT ARE 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. NEITHER UNWIRED OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD-PARTY SUPPLIERS OR LICENSORS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, “UNWIRED-RELATED ENTITIES”) WARRANT: (A) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICES; (B) THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS; AND (C) THAT THE SERVICES WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS OR OTHER MALWARE. 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 CUSTOMER.
19. Limitation of Liability:
- STATUTE OF LIMITATIONS. CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL UNWIRED OR UNWIRED-RELATED ENTITIES BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY FORCE MAJEURE EVENT, OR 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 CUSTOMER. CUSTOMER UNDERSTANDS, ACKNOWLEGES AND AGREES THAT IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL AGGREGATE LIABILITY OF HIT UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US).
- ADDITIONALLY, UNWIRED WILL HAVE NO LIABILITY FOR THE FOLLOWING: (i) 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; (ii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iii) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iv) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER’S FAILURE TO BACK-UP ANY EQUIPMENT AS REQUIRED IN SECTION 1(g) HEREIN; (v) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE; (vi) FOR ANY MATTER BEYOND UNWIRED’S REASONABLE CONTROL; OR (vii) CUSTOMER’S USE OF THE SERVICES FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS AGREEMENT.
20. Indemnification: Customer agrees to indemnify, defend and hold harmless unWired and UnWired-Related Entities (collectively, the “unWired Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims brought against any unWired Indemnitee(s) related to Customer’s use of the Service or any violation of this Agreements and all other documents incorporated herein by reference) including, but not limited to, claims that Customer’s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party, Customer’s violation of any law or the rights of another and claims resulting from Customer’s negligence. Customer agrees to pay any attorneys’ fees incurred by unWired and/or any other unWired Indemnitee in connection with the defense, investigation and response to any government investigation or inquiry related to such third-party claims. unWired reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with unWired in asserting any available defenses. If litigation is commenced to enforce this Agreement, the prevailing Party is entitled to reimbursement of its costs and attorneys’ fees from the other Party.
21. Severability: If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portion of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties’ original intent.
22. Survival: The terms and conditions of this Agreement will survive the expiration or termination of this Agreement to the extent necessary for their enforcement and for the realization of the benefit thereof by the Party to whose favor they operate.
Force Majeure Event. unWired shall not be liable for any failure to perform its obligations hereunder where such failure results from mechanical, electronic or communications failure or degradation (including “line-noise” interference), or any “Force Majeure” event.
- A Force Majeure Event includes without limitation: (i) act of God; (ii) act of local, county, state, federal or other government in its sovereign or contractual capacity; (iii) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (iv) flood or adverse weather conditions, including solar flare or sun outage; (v) pandemic, epidemic or quarantine; (vi) labor strike, lock-out or other labor disturbance; (vii) fire, explosion, power failure or blackout; (viii) damage, degradation or destruction of equipment, transmission lines or the unWired Network; (ix) unavailability of right-of-way, equipment or materials; or (x) any other cause beyond a Party’s reasonable control.
- When unWired is not able to provide the Service under a Force Majeure Event, the Customer shall be excused from payment for future Services directly affected by the Force Majeure Event.
24. Relationship of Parties; No Third-Party Beneficiaries: The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of unWired, Customer, and permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
25. Confidentiality: Each Party may disclose confidential information to the other Party in connection with the Agreement. Confidential information includes this Agreement, Service Contracts, SLAs, all pricing information and any other information that is marked confidential or bears a marking of like import, or that the Party disclosing such information states is confidential and then confirms such confidentiality in writing within ten (10) business days (“Confidential Information”). Confidential Information may only be used in connection with performance under this Agreement. Confidential Information may not be disclosed except to those employees or affiliates of the receiving Party who have a need to know, or to consultants or subcontractors of the receiving Party who agree to be bound by this Section. Confidential Information does not include information that is generally available to the public through no wrongful act of the receiving Party or is independently developed by the receiving Party. Upon termination or expiration of this Agreement, the receiving Party will return the Confidential Information or destroy it. The obligations of this provision will survive for five (5) years after the termination or expiration of this Agreement.