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TERMS OF
SERVICE
WIRELESS INTERNET ACCESS AND RELATED
SERVICES
Effective
January 30, 2011
TABLE OF
CONTENTS
1. Binding Agreement. This section (a) confirms your agreement to
comply with these Terms of Service ("Terms") in order to use Surelink
services and (b) describes the other documents that, together with these
Terms, comprise part of these Terms.
2. Surelink's Right to Change Terms and Your Related Rights. This
section describes how these Terms may be changed and what your rights
are with regard to these changes.
3. Service Limitations. This section describes service
availability limitations, variations on speed and bandwidth, service
coverage, maintenance outages, how Surelink manages its network, and
remedies for service outages.
4. Your Term of Service; Rate Plan Pricing Feature; Termination; Term
Extensions; Early Termination Fees; Return Policy; Restocking Fee;
Equipment Non-Return Fee. This section describes how long you can
use Surelink service, how you can cancel Surelink service, when Surelink
can terminate its service to you, and fees you may have to pay for early
termination of Surelink service.
5. Billing for Service. This section describes how Surelink
intends to bill you, overage charges applicable to Surelink accounts,
and Surelink's rights if you do not pay Surelink for service or if your
account is delinquent.
6. Equipment. This section describes the nature of your equipment
lease (if applicable) and your responsibilities with respect to leased
equipment, including the equipment non-return fee, and restrictions on
tampering with equipment. This section also sets forth the limited
warranty on equipment and describes what you should do if leased
equipment is lost or stolen.
7. Support. This section links to a support website that you can
use before calling Surelink's customer service department.
8. Privacy; Business Relationship Consent. This section describes
and links to Surelink's Privacy Policy, and additionally describes
certain aspects of your business relationship with Surelink.
9. Ownership; No Licenses; Third Party Software. This section
provides information on ownership of certain intellectual property,
including software and trademarks.
10. Credit Reporting Agencies. This section describes when
Surelink can get credit information about you and how Surelink may use
this information.
11. Disclaimers and Limitation of Liability. This section
includes important statements about the scope of the warranties Surelink
makes to you and a description of certain things for which Surelink will
not be liable in connection with its services.
12. Indemnification. This section describes when you must
indemnify Surelink from certain losses and liabilities.
13. Disputes. This section describes how you and Surelink will
deal with any disputes that may arise. Please note: In particular, this
section explains your right to opt out of arbitration procedures and to
pursue in Court any claims that you may have against Surelink.
14. Miscellaneous. This section sets forth miscellaneous legal
terms and conditions, including how you and Surelink must send legal
notices to each other.
15. Definitions. This section tells you what some of the
capitalized words in these Terms mean.
16. Contacting Surelink. This section tells you how to contact
Surelink if you have any questions or desire any information with regard
to Surelink's services.
1. Binding
Agreement.
Please read these Terms of Service
("Terms") carefully. These Terms are a contract between you and Surelink
Wireless LLC("Surelink"). The Terms cover important information about
all Surelink services and equipment, regardless of whether the services
and equipment are intended to provide wireless Internet access on the
Surelink-branded network, on another branded ("Future-branded") network
for which Surelink may elect at any time to offer services and/or
equipment , or on some combination of these different branded networks.
Unless otherwise stated, these Terms apply to all Surelink-branded,
wireless internet access services, including any voice and other
related services (collectively, the "Service" or "Services"), and any
Surelink-supplied equipment (regardless of how branded) you use,
purchase or lease in connection with the Services, including your modem
("Equipment"). These Terms include provisions governing fees for
early termination and late payments, limitations of liability,
privacy, and resolution of disputes by arbitration instead of in
court. You accept and agree to comply with, and be bound by, these
Terms when you (a) sign or otherwise acknowledge (e.g., by checking a
box , clicking a button or signing) that you accept on paper or
electronically; (b) use Surelink's Service or Equipment; or (c) start
any program that says you are accepting these Terms when doing so,
whichever occurs first. IF YOU DON'T WANT TO ACCEPT THESE TERMS,
PLEASE DO NOT DO ANY OF THESE THINGS.
These Terms incorporate and include the following documents
(collectively, the "Other Documents") as part of the contract between
you and Surelink:
-
The detailed Service plans that Surelink, or
one of its authorized dealers, provides or refers you to during the
sales transaction, and any order confirmation materials and receipt
that Surelink, or one of its authorized dealers, provides or sends
to you when (or after) you sign up for Service from Surelink.
-
The Acceptable Use Policy ("AUP") describing
how you can and cannot use the Service.
-
Surelink's Privacy Policy describing how
Surelink may collect and use your personally identifiable and other
information. This Privacy Policy can be found at: www.Surelink.net
-
Any other policies relating to the Service
that Surelink may choose to develop and implement. These policies
may be posted on the www.Surelink.net web site, or may be sent to
you via email, regular US Mail, or any other permissible means.
To the extent
that these Terms conflict with the provisions of any of these Other
Documents, then these Terms shall control, unless Surelink has expressly
stated or agreed otherwise in writing, and the conflicting provisions of
the Other Document(s) shall be deemed modified to the minimum extent
necessary to be read consistently with these Terms.
2. Surelink's
Right to Change Terms and Your Related Rights.
Surelink can change any of the Terms (including any documents
incorporated within the Terms) at any time. Surelink will provide you
notice of any material changes through your invoice or by e-mail to the
most recent email address associated with your Surelink account.
Surelink additionally will announce any changes on it's website.
www.Surelink.net
Changes will
become effective on the date Surelink sends notice. Except as otherwise
provided below, if you continue to use Service or Equipment after
Surelink sends notice, this will mean that you have agreed to be bound
by the changes announced in that notice.
If Surelink makes a change that has a materially disadvantageous effect
on your Service, then you may cancel the affected Service, and if your
Service plan included an "Early Termination Fee" (sometimes also
referred to in these Terms as an "ETF", as defined in Section 4(e)
below) and/or a "restocking fee" (as described in Section 4(f) below),
then your ability to avoid liability for the payment of such ETF and/or
restocking fee shall require that: (a) you call Surelink's customer
service department (at 866-514-8752 ) within thirty (30) days after
Surelink sends notice of the change; (b) you inform Surelink in that
notice or call that you want to cancel Service because of a materially
adverse change to these Terms; and (c) Surelink concurs (after good
faith consideration) that you have been adversely affected by the change
it has made in the Service that you want to cancel. If you fail to
cancel Service in this manner, then you will be deemed to have accepted
the change(s) Surelink has made in such Service.
3. Service
Limitations.
This Section
3 describes certain Service availability limitations, variations on
speed and bandwidth, service coverage, maintenance outages, how Surelink
manages the network, and credits for Service outages.
a. Availability of Service. The Service, including any internet
phone (sometimes known as mobile "Voice Over Internet Protocol" or
"VoIP") service or product, may not be available at any or all times in
all areas. Even within coverage areas, and for a variety of reasons that
may be beyond Surelink's reasonable control, service availability,
quality, signal strength, and network speeds may vary, be lower than
advertised, or be insufficient for your desired use of the Service. At
the time you purchase Service, you agree to provide Surelink with the
correct address of the primary place where you intend to use the
Service. That address will be used to determine whether adequate
coverage should be available based on Surelink's coverage maps. Coverage
maps only approximate Surelink's anticipated wireless coverage area
outdoors; actual Service area, coverage and quality may vary and change
without notice, depending on a variety of factors, some of which are
discussed below. You agree that Surelink is not liable for problems
relating to Service availability or quality, regardless of the cause(s)
of these problems. You further agree to promptly notify Surelink of any
changes in the primary Service address. In the event that (i) you
provide Surelink with valid documentation (e.g., a gas, electric or
water bill; a driver's license; a statement from a moving van company)
reasonably demonstrating that you have moved to a new primary Service
address that is located in an area where adequate coverage is not
available (based on Surelink's coverage maps), and (ii) you call
Surelink's customer service department (at 866-514-8752) within sixty
(60) days after your move to such new primary Service address, then
subject to the next sentence, you may elect to cancel your Service(s)
without being obligated to pay any Early Termination Fee that comprised
part of your cancelled Service plan. Notwithstanding anything to the
contrary contained in the immediately preceding sentence or elsewhere in
these Terms, the following provisions will apply: in the event that you
purchase a laptop or netbook from us for use in connection with Service
that either you cancel, or Surelink cancels for cause, then even if
subsequent to your activation of SURELINK service you have moved to a
new primary Service address where adequate coverage is not available
(based on Surelink's coverage maps), you will remain obligated to pay
any Early Termination Fee that comprised part of your cancelled Service
plan. For purposes of clarity, you specifically understand that your
obligation to pay any restocking fee that comprised part of your
cancelled Service plan shall remain unaffected by your move to a new
primary Service address, regardless of whether that new address is
located in an area where adequate coverage is not available.
b. Maintenance. To provide the best possible service to its
customers, Surelink periodically performs maintenance on its network. In
some cases, this may require Surelink to conduct either a planned or
unplanned interruption of the Service. Surelink will use commercially
reasonable efforts to schedule maintenance outages in a way that
minimizes the impact on customers, but Surelink cannot guarantee that
your Service will not be interrupted and cannot always give advance
notice of such outages. You acknowledge and agree that Surelink shall
not be responsible for any losses or damages (of any kind) that may be
suffered by you as a result of any Service interruptions due to
maintenance outages.
c. Network Management. Surelink reserves the right to engage in
reasonable network management to protect the overall integrity of its
network, including detecting malicious traffic patterns and attempting
to prevent the distribution of viruses or other malicious code, and
through techniques such as reducing the aggregate bandwidth available to
excessive bandwidth users during periods of congestion. While the
determination of what constitutes excessive use depends on the specific
state of the network at any given time, excessive use will be determined
primarily by resource consumption. For further information, please refer
to Surelink's Acceptable Use Policy, posted at
www.Surelink.com/legal/aup, which forms a part of these Terms.
d. VARIATIONS OF SPEED; SERVICE QUALITY DISCLAIMER. THE SPEED AND
BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE CONNECTED TO THE SURELINK
NETWORK, AND HENCE THE QUALITY OF THE SERVICE, MAY VARY FOR MANY
REASONS, WITHIN OR BEYOND SURELINK'S CONTROL, INCLUDING WITHOUT
LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED
SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE
ENGAGED; (ii) THE AMOUNT OF DATA BEING TRANSFERRED OVER THE NETWORK,
(iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR
EQUIPMENT AND THE EQUIPMENT OF THIRD PARTIES; (v) TERRAIN AND FOLIAGE;
(vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE
AND MATERIALS. NEITHER SURELINK, NOR ITS AFFILIATES, AGENTS OR
SUPPLIERS, WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICE (A) WILL
MEET YOUR REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, WITHOUT DELAY,
ERROR-FREE, OR FREE FROM SERVICE DEGRADATION.
e. Credits. Surelink's sole liability for interruptions or
degradations of the Service shall be as set forth in this Section 3(e).
In the event of an interruption of the Service that continues for a
consecutive period of twenty-four (24) hours or more, Surelink will
credit your account for an amount equal to the prorated monthly charges
(including any applicable taxes) for your Service during the affected
period, provided that you must request the credit within fifteen
(15) days of the commencement of the Service interruption or
degradation. Such request may be made by a telephone call to Surelink's
customer service department at 866-514-8752. Alternatively, Surelink may
elect in its sole discretion to issue credits to customers for Service
problems. No credit will be available if the interruption or degradation
period results from any "Excluded Causes", as described in Section 6(d)
below (Equipment Warranty). THIS SECTION 3(f) SETS FORTH YOUR SOLE
AND EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR DEGRADATION OF THE
SERVICE.
4. Term of
Service; Rate Plan Pricing Feature; Termination; Term Extensions; and
Early Termination Fees.
a. Term of Service. The following is a description of service
offerings:
.
(i) Month-to-Month Subscriber. If you purchase a month-to-month
subscription to the Service, you will be able to use the Service for any
consecutive monthly period that has been paid in advance, as described
in the acceptance materials that you receive as part of your sales
transaction, or on your order confirmation or receipt. For example, if
you purchase a month-to-month subscription and your billing cycle begins
on the first day of the month, then you will be charged on the first day
of the following month and each month thereafter, and your Service will
continue to be provided for consecutive monthly periods as long as you
continue paying in a timely way.
c. Cancellation by You. You can cancel any or all Services at any
time, by calling at any time by calling Surelink's customer service
department (at 866-514-8752 for customers of SURELINK) and telling
Surelink to deactivate the Service. After you cancel any or all Services
in this manner, Surelink no longer will charge any recurring monthly (or
other periodic) Service fees to your "Card" (as defined in Section 5(a)
below), bank account, or other Surelink-approved method of payment.
However, you are responsible for all charges for Services (if
applicable) and Equipment leasing incurred prior to the date of
deactivation of your cancelled Service(s) (including, without
limitation, any applicable Early Termination Fee or restocking fee if
you are a customer of Surelink-branded Service). If you deactivate
Service(s) before the end of a billing period, Surelink will not prorate
charges for that billing period or issue you a credit for any portion of
that billing period.
IF, AS A CUSTOMER OF SURELINK-BRANDED , YOU AGREED TO MAINTAIN SERVICE
WITH SURELINK FOR A MINIMUM TERM COMMITMENT AND YOU CANCEL YOUR SERVICE
BEFORE THE END OF THIS TERM COMMITMENT, YOU MAY BE SUBJECT TO AN
EARLY TERMINATION FEE OR A RESTOCKING FEE, AS DESCRIBED MORE FULLY
IN SECTIONS 4(e) and 4(f) BELOW.
Upon termination of Service for any reason, Surelink may, to the extent
permitted by applicable law, delete any voicemails, data, files,
electronic messages, or other information stored on Surelink's or its
suppliers' servers or systems. You agree that the "Surelink Parties" (as
defined in Section 15 below) will have no liability whatsoever for the
loss of any such data, names, addresses, or other information.
d. Termination by Surelink. SURELINK MAY LIMIT, SUSPEND OR TERMINATE
YOUR SERVICE OR ANY AGREEMENT BETWEEN SURELINK AND YOU WITHOUT NOTICE
FOR ANY GOOD CAUSE, INCLUDING, WITHOUT LIMITATION, upon receipt of
adverse credit information about you at any time, or if you or any user
on your account: (i) breaches these Terms; (ii) pays late more than once
in any twelve (12)-month period; (iii) provides credit information that
Surelink is unable to verify; (iv) provides Surelink with any inaccurate
or incomplete information; (v) damages or tampers with, or allows anyone
else to damage or tamper with, any Equipment; (vi) incurs charges
greater than any billing or credit limitation on your account (even if
Surelink has not yet billed for those charges); (vii) transfers Service
to another person without Surelink's advance written consent; (viii)
becomes insolvent, goes bankrupt, or threatens bankruptcy (except as
prohibited by law); (ix) uses the Service in a way that violates
Surelink's Acceptable Use Policy, any other agreement you may have with
Surelink, or any other policy affecting your Service that Surelink may
choose to develop and implement; or (x) otherwise acts in a malicious or
unsavory manner; provided, however, that potential suspension and/or
termination of your Service by reason of adverse credit information or
pursuant to subsection
IF AS A CUSTOMER OF SURELINK-BRANDED SERVICE YOU AGREED TO MAINTAIN
SERVICE WITH SURELINK FOR A TERM COMMITMENT, AND IF SURELINK TERMINATES
YOUR SERVICE FOR CAUSE BEFORE THE END OF THIS TERM COMMITMENT, YOU MAY
BE SUBJECT TO AN EARLY TERMINATION FEE AND/OR RESTOCKING FEE, AS
DESCRIBED MORE FULLY IN SECTIONS 4(e) AND 4(f) BELOW.
e. Early Termination Fees . If you purchase any Service under a
rate plan requiring you to maintain Service for a Term Commitment,
THEN UNLESS STATED OTHERWISE IN THESE TERMS OR ON YOUR ORDER
CONFIRMATION, AN EARLY TERMINATION FEE WILL APPLY IF YOU CHOOSE TO
CANCEL YOUR SERVICE BEFORE THE END OF YOUR TERM COMMITMENT, OR IF
SURELINK TERMINATES YOUR SERVICE FOR CAUSE BEFORE THE END OF YOUR TERM
COMMITMENT. The Early Termination Fee is part of Surelink's rates,
is not a penalty, and applies only to the extent permitted by law.
Surelink will disclose your initial Term Commitment and the amount of
the Early Termination Fee in the Service plan description that you
receive as part of the sales transaction or on your order confirmation
or receipt. All Early Termination Fees will decline over the life of the
then-existing Term Commitment, as potentially extended pursuant to
Section 4(a)(iii) above.
f. Service
Trial Period, Return Policy, Restocking Fee, and Equipment Non-Return
Fee.
You may cancel Surelink-branded
Service without paying an Early Termination Fee (or a restocking fee, as
applicable) if you cancel WITHIN SEVEN (7) DAYS of initially
signing up for such Service (the "Return Period". With regard to any
cancellation by you of Surelink-branded Service, then you remain
responsible to pay for the Service and all charges, fees and taxes
(including any Equipment lease fee, but excluding any Early Termination
Fee or restocking fee) incurred during the Return Period through the
date of cancellation. To cancel Surelink-branded Service during the
Return Period, you must within the Return Period, call Surelink's
customer service department (at 866-514-8752) and give Surelink notice
of your intention to cancel Service. In addition, once you have
cancelled Surelink-branded Service, you will be obligated immediately to
return, in undamaged condition and in good working order, any Equipment
you purchased or leased at the time of activation (i.e., with original
packaging and all contents intact). Unless an authorized representative
of Surelink's customer service department expressly instructs you
otherwise, you should use the electronic, prepaid mailing label that
Surelink emails to you in order to return the Equipment to Surelink at
the address set forth on that label. Upon your return to Surelink of any
of the Equipment that you leased and subsequently returned is received
by Surelink in damaged condition or in poor working order, then you may
be required to pay Surelink a restocking fee, as disclosed to you in the
Service plan description (that you receive as part of the sales
transaction) or on your order confirmation or receipt; provided,
however, that as long as you cancel Surelink-branded Service during the
Return Period and you return the leased Equipment to Surelink within
thirty (30) days of your Service cancellation date, then you will be
charged a restocking fee only if the leased Equipment is returned to
Surelink in damaged condition or in poor working order. If you fail (for
whatever reason) to return any and all leased Equipment within thirty
(30) days of your Service cancellation date and otherwise in accordance
with the provisions of this Section 4(f), then as further discussed in
Section 6(b) below, you additionally shall be responsible for the
payment to Surelink of an "Equipment Non-Return Fee" in an amount equal
to the lesser of (i) the then-fair market value of the Equipment or (ii)
the then-applicable "Retained Device Fee" amount for such particular
leased Equipment, as set forth in the Retained Devices chart located at
www.Surelink.com. Surelink shall be entitled to automatically charge the
amount of the Equipment Non-Return Fee to your "Card" (as defined in
Section 5(a) below), bank account, or other method of payment that you
have provided to Surelink for any purpose. For customers of Surelink: if
you purchased your Equipment and comply with each of the requirements
discussed above ("Return Policy"), and return the purchased Equipment to
Surelink (in undamaged condition and in good working order) within
thirty (30) days of your Service cancellation date, then you will
receive a refund of the Equipment purchase price (including any taxes
that you paid thereon), less (i) rebates received (or applied for) and
(ii) shipping costs. (A) rebates received (or applied for) and (B)
shipping costs.
5. Billing
for Services.
This Section
5 describes how Surelink bills you for Service and Equipment, overage
charges applicable to certain SURELINK accounts, and Surelink's rights
if you do not timely pay in full for Service or Equipment or if your
account is delinquent.
a. How You Will Be Billed. You will pay Surelink for the Service
and Equipment using your credit, debit, or other acceptable bank card
(the "Card") or through an electronic funds transfer ("EFT") that debits
funds directly from a bank account that you designate.The Card and/or
EFT-related information (if applicable) you have provided to Surelink
must be valid and up to date (i.e., not expired) at all times. If your
Card information or Card status is not valid and up to date, your
account balance(s) will not be timely paid, and Surelink may suspend or
terminate the Service for cause and/or charge you late charges,
re-activation fees, and/or any applicable Early Termination Fees or
restocking fees (as described in Sections 4(e) and 4(f), respectively,
above).
b. Data Plans/Overages (Applicable only to SURELINK Accounts.) If
you subscribe to the SURELINK service, you will be entitled to use the
SURELINK Service for the monthly bandwidth amounts (the "Plan Amount")
listed on your order confirmation or receipt. If you exceed your Plan
Amount during any monthly billing period, Surelink will automatically
charge you, and you agree to pay, an additional internet service usage
fee per gigabyte (or fraction thereof) of additional bandwidth (the
"Overage Charge"). The rate for this Overage Charge will be as set forth
in your Service plan description (that you receive as part of the sales
transaction) or on your order confirmation or receipt. Your Plan Amount
does not roll-over from month to month, but rather expires in its
entirety at the end of each monthly billing period. You should read and
familiarize yourself with Surelink's Acceptable Use Policy, which (as
stated above) forms a material part of these Terms and which sets forth
examples of permissible and non-permissible uses of the Service.
c. Suspension or Termination for Non-Payment. If you are a
customer of Surelink-branded Service and you do not pay your account in
full by the due date more than once in any twelve (12)-month period,
then Surelink may suspend or terminate the Service. Furthermore,
Surelink may terminate your Service if your Card expires or your bank
account is closed or suspended (as applicable) and you have not provided
Surelink with a valid replacement Card (or valid EFT-related information
, if and as applicable). In the event of such suspension or termination
by Surelink, you promptly will pay to Surelink any and all outstanding
fees and all collection costs and fees, including reasonable attorneys'
fees and late fees (and further including, in the event of termination
of SURELINK Service, any applicable Early Termination Fee and/or
restocking fee) incurred or charged by Surelink. Surelink may, but is
not required to, reactivate your Service if you bring your account
current after Service has been suspended or terminated; Before Service
may be reactivated, you must pay Surelink all past due amounts, late
payment fees, and applicable taxes, plus a reasonable
suspension/termination charge (as determined by Surelink) per account to
cover Surelink's administrative costs associated with the
suspension/termination. In addition, if you are a customer of SURELINK
Service, you may be required to provide Surelink with a deposit (in an
amount determined by Surelink, within then-prevailing industry
parameters) as a condition to reactivating your Service.
d. Delinquency/Late Fees. All delinquent charges and charges not
honored by your Card issuer or bank will be subject to a late fee equal
to 1.5% (or the highest percentage or dollar amount that is allowed by
applicable law, whichever is lower) of the delinquent amount or Five
Dollars ($5.00) per month (or portion of a month), whichever is greater.
Except to the extent prohibited by applicable law, Surelink may charge a
late fee pending the resolution of any disputes you may have raised
regarding your invoiced charges, provided that Surelink will reverse
late fees with respect to any charges that are removed from your account
as a result of the dispute process being resolved in your favor.
6. Equipment.
This Section 6 describes your
responsibilities with respect to leased Equipment, including the
Equipment Non-Return Fee and restrictions on tampering with Equipment.
This Section 6 also provides the sole warranty relating to Equipment and
describes what you should do if Equipment is lost or stolen.
a. Term of Equipment Lease. If you lease Equipment from Surelink,
then your lease of that Equipment shall be on a month-to-month basis,
even if your Service plan description includes a Term Commitment (as
defined in Section 4(a)(iii) above).
b. Return of Leased Equipment; Non-Return Fee. If you lease
Equipment from Surelink, you must return all leased Equipment, undamaged
and in good working order, within thirty (30) days after termination of
Services or within thirty (30) days after written notice from Surelink
to return the Equipment, whichever occurs sooner. If you do not return
all leased Equipment, undamaged and in good working order, reasonable
wear and tear excepted, within thirty (30) days after termination of
Services or after Surelink's written request (as applicable), then as
previously discussed in Section 4(f) above, you agree that Surelink may
charge you, and you agree to pay to Surelink, the Equipment Non-Return
Fee in an amount equal to the lesser of (i) the then-fair market
replacement value of the Equipment or (ii) the then-applicable "Retained
Device Fee" amount for such particular leased Equipment, as set forth in
the Retained Devices chart located at www.Surelink.com. You authorize
Surelink to charge such amounts to any Card, bank account, or other
method of payment you provide, or previously have provided, to Surelink
for any purpose (but not to any such previously provided Card or bank
account that you have notified us is closed or no longer valid). You may
not revoke this authorization to charge your Card or bank account for
any failure to timely return leased Equipment, undamaged and in good
working order, even if you notify us of your intent to cancel your
Service or otherwise revoke authorization to charge your Card, bank
account, or other method of payment for other purposes.
c. Repair or Replacement of Leased Equipment. Surelink may
replace, upgrade, repair, or otherwise modify any leased Equipment, and
Surelink will repair or replace any properly maintained leased Equipment
that fails to operate as required for the delivery of Service. Surelink
may supply a refurbished modem for purchase or lease, but there will be
no offset, discount, or other reduction in purchase or lease price for
that reason. You may not modify leased Equipment in any way or sell,
encumber, or otherwise transfer the leased Equipment to any other person
or entity.
d. Equipment Warranty. Your Equipment is covered by a limited
warranty from its manufacturer. This manufacturer's limited warranty
provides that your Equipment will be substantially free from material
defects, under normal use in compliance with the manufacturer's and
Surelink's instructions, for a period of one (1) year from the date you
receive the Equipment ("Limited Warranty"). This Limited Warranty
excludes any defects resulting from abuse, misuse, neglect, theft,
vandalism, fire, unusual physical or electrical stress, water, extremes
of temperature, an act of God, use of the Equipment by an unauthorized
person, your failure to comply with the Equipment manufacturer's or
Surelink's policies or with any other instructions provided by the
Equipment manufacturer or Surelink, actual or attempted alteration of or
additions to the Equipment not approved in advance (in writing) by the
Equipment manufacturer and Surelink, or any other cause beyond the
reasonable control of the Equipment manufacturer and Surelink, all as
reasonably determined by the Equipment manufacturer and Surelink
(collectively, "Excluded Causes"). Repair or replacement of the
Equipment, in Surelink's discretion, and reperformance of the
installation of the Equipment are Surelink's only responsibility, and
your exclusive remedy, for breach of any warranty regarding the
Equipment. This Limited Warranty is personal to you, and will terminate
immediately upon the sale or transfer of the Equipment or expiration or
termination of the Service (for any reason). Neither your Equipment
manufacturer, Surelink, nor any other party makes any other warranty,
express or implied, with regard to the Equipment.
e. Tampering with the Equipment. You must not use the Service
with any equipment that has an altered electronic serial number or
equipment identifier or any equipment that has undergone a factory
reset, without seeking and obtaining Surelink's express advance written
permission in each instance. In addition, you may not use any serviced,
altered, modified, stolen, or tampered equipment with the Service, and
you may not permit any other person to do so (unless specifically
authorized in advance by Surelink, in writing).
f. Theft of the Service or Leased Equipment. If your Equipment is
lost or stolen, or if you become aware at any time that the Service has
been stolen or is being fraudulently used, it is very important that you
notify Surelink immediately, so that Surelink can suspend your Service
If you are a customer of Surelink-branded Service, you can do this by
calling Surelink's customer service department at (866) 514-8752. Once
you notify Surelink, Surelink will suspend your Service (i.e., until you
possess replacement Equipment usable with the Service or such fraudulent
activity has ceased, as applicable), and you will not be responsible for
charges incurred with the lost or stolen Equipment during that period of
suspension. If you are a customer of Surelink-branded Service, then the
following provisions will apply: you will be obligated to fulfill the
remainder of your Term Commitment (unless you then are subscribed to
month-to-month Service), which will be deemed extended by the full
duration of the period that your Service is suspended; and, if you do
not fulfill the remainder of your Term Commitment, then the Early
Termination Fee (or the restocking fee, as applicable) will become due
and will be chargeable automatically by Surelink to your Card (or
through an EFT, if and as applicable).
7. Support.. If you request a service call to
your Service location and Surelink determines that the problem is your
responsibility, then Surelink reserves the right to charge you a
reasonable fee for the cost of the technician's service call, and you
hereby pre-authorize Surelink to charge that fee to your Card or bank
account. If you desire to file a warranty claim pursuant to Section 6(d)
above, please call Surelink's customer service department (at (866)
514-8752.
8. Privacy;
Business Relationship Consent.
a. Privacy Policy. Surelink's Privacy describes how Surelink may
collect and use your personally identifiable and other information,
including your customer proprietary network information (CPNI),
applicable to internet data and phone service subscribers. Surelink's
Privacy Policy constitutes part of these Terms.
b. Consent to Business Relationship. When you sign up for the
Service, and as part of your business relationship with Surelink, you
will be asked to provide a telephone number. Regardless of whether this
is a wired or wireless number or whether this number is listed on the
Do-Not-Call Registry, you consent to being contacted by Surelink (and/or
its designated agents) at this number, for any purpose (including sales,
marketing and promotional offers) and by any means (including autodialed
or prerecorded voice calls and text messages). In this regard, you
specifically acknowledge and understand that you may incur, and will
bear sole responsibility for, charges related to these incoming calls or
messages.
9. Ownership;
No Licenses; Third Party Software.
The Service and leased Equipment, and any firmware or software used to
provide the Service embedded in any Equipment or used in connection with
the Service; all Service information, documents and materials delivered
to you by Surelink or located on the www.Surelink.net website ; and all
names, service marks, trademarks, trade names, logos, domain names, and
patents of Surelink (collectively, the "Surelink Assets"), are and will
remain the sole property of Surelink (and/or its affiliate). Nothing in
these Terms grants you the right or license to use any of the Surelink
Assets, except on a non-exclusive basis in connection with your personal
use of the Service in strict compliance with each of these Terms. The
Service may require third-party software to be installed in order to
function. Surelink shall not be liable for any use or installation of
such software. Any third-party software installed shall be governed by
that third-party's end-user license agreement (see the listing of "Other
Documents" under Section 1 above). By accepting these Terms, you agree
to accept the terms of those third-party end-user license agreements and
to look solely to the provider(s) of such third-party software to handle
and resolve any problems or issues relating to the use or installation
of any such third-party software.
10.
Disclaimers and Limitation of Liability.
This Section 11 includes important statements about the scope of the
sole warranty made to you and a description of certain things for which
Surelink will not be liable in connection with the Service.
(a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE ONLY
WARRANTY BEING MADE ABOUT THE SERVICE AND EQUIPMENT IS THE
MANUFACTURER"S EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 6(d) ABOVE.
THE SURELINK PARTIES (SEE THE "DEFINITIONS" IN SECTION 15 BELOW)
DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE,
AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR
EQUIPMENT, OR NON-INFRINGEMENT.
ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS, OR OTHER DOCUMENTS NOT
EXPRESSLY INCORPORATED HEREIN (SEE "OTHER DOCUMENTS"), AND ANY
STATEMENTS MADE BY ANY SURELINK EMPLOYEES OR REPRESENTATIVES, ARE
PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR
WARRANTIES OF ANY KIND BY ANY SURELINK PARTIES. SURELINK DOES NOT
AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON SURELINK'S BEHALF,
AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL
RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE EQUIPMENT. SOME
STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE
EXCLUSIONS IN THIS SECTION 11 MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
(b) LIMITATION OF LIABILITY.
THE SURELINK PARTIES SHALL NOT BE LIABLE OR OBLIGATED IN CONNECTION WITH
THESE TERMS, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE,
PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, BREACH OF WARRANTY, OR
OTHER LEGAL OR EQUITABLE THEORY, FOR:
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ANY AMOUNTS IN EXCESS OF THE TOTAL FEES PAID
TO SURELINK FOR THE SERVICE OR EQUIPMENT DURING THE SIX (6)-MONTH
PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO
LIABILITY;
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ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS;
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ANY LOSS OR CORRUPTION OF DATA; DELAYED,
DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET
(SUBJECT SOLELY TO THE PROVISIONS OF SECTION 3(e) ABOVE); INABILITY
TO MAKE OR COMPLETE CALLS USING THE INTERNET PHONE SERVICE; OR
DAMAGE TO ANY HARDWARE, SOFTWARE, OR THE SERVICE LOCATION;
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ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES AND/OR LOST PROFITS OF ANY
KIND OR AMOUNT;
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ANY LACK OR BREACHES OF SECURITY OF THE
SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY OTHER
USER'S DATA; OR
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ANY DAMAGES ARISING FROM ANY DELAY OR
FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE OF SURELINK'S
REASONABLE CONTROL.
THE
EXCLUSIONS AND LIMITATIONS CONTAINED IN THIS SECTION 11 SHALL APPLY
WHETHER OR NOT SURELINK WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR
TYPE OF DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SUBJECT SOLELY TO YOUR RIGHTS AS EXPRESSLY SET FORTH IN SECTIONS 3(e)
AND 6(d) ABOVE, IF YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT,
OR IF YOU HAVE ANY OTHER DISPUTE WITH SURELINK OR CLAIM AGAINST
SURELINK, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING
THE SERVICE (SUBJECT TO YOUR OBLIGATION TO PAY ANY EARLY TERMINATION FEE
AND/OR RESTOCKING FEE APPLICABLE TO YOUR SERVICE PLAN AND ANY OTHER
CHARGES THERETOFORE INCURRED IN CONNECTION WITH YOUR USE OF THE
SERVICE), AND ANY LIABILITY WILL BE LIMITED TO THE RECOVERY OF YOUR
DIRECT DAMAGES, LIMITED TO THE AMOUNT AND BY THE EXCLUSIONS SET FORTH IN
THIS SECTION 11. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR
LIMITATIONS ON CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION
MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
11.
Indemnification.
You will defend, indemnify, and hold
harmless the Surelink Parties from and against any and all claims,
demands, actions, causes of action, judgments, liabilities, damages,
losses, injuries, costs and expenses arising from (a) the use or misuse
of the Service or Equipment by you or by any person you allow to use the
Service or Equipment, or (b) any breach of these Terms by you,
including, but not limited to, claims by any owner of the primary
location where you use the Service. You also agree to pay each Surelink
Party's reasonable attorneys' fees and costs related to defending such
claims and to enforcing these Terms, including any and all such fees
incurred in connection with any appeal.
12. Disputes.
This section describes what rights
you and Surelink possess if you and Surelink have a dispute.
a. Your Right to Dispute Charges or Services. If you have a
dispute about your invoice/statement/purchase receipt, including any
charge to your account or any Service for which you were billed, you
agree to notify Surelink of the dispute within thirty (30) days after
the initial Invoice. Such notice shall be in the form of a writing to
Surelink at its following customer service address:
www.Surelink.com/company/contact.php. IF YOU DO NOT PROVIDE WRITTEN
NOTICE OF YOUR DISPUTE TO SURELINK AT THIS ADDRESS WITHIN THIS TIME
PERIOD, THEN YOU AGREE THAT YOU HAVE FOREVER WAIVED YOUR RIGHT TO
DISPUTE THE INVOICE, CHARGE OR SERVICE, AND THAT YOU CANNOT PURSUE OR
PARTICIPATE IN ANY LEGAL OR EQUITABLE ACTION, IN COURT, ARBITRATION,
MEDIATION, OR OTHERWISE REGARDING THE DISPUTE OR RAISING THE DISPUTE AS
A DEFENSE. Unless otherwise provided by law, you must pay disputed
charges until the dispute is resolved. If you accept a credit, refund,
or other compensation or benefit that Surelink offers to resolve a
disputed invoice, charge or Service, then you agree that the issue has
been fully and finally resolved.
b. You Agree to Provide Surelink an Opportunity Informally to Resolve
Your Dispute. Before you may pursue or participate in any dispute
(or raise such dispute as a defense) in court or arbitration against
Surelink for any claims, including claims related in any way to Surelink
Service, Equipment, these Terms, billing, privacy, advertising, or
Surelink's communications with you, you must first send a written
description of your claim to Surelink Escalations at the following
address: PO BOC 5391 Maryville, TN 37802, and you must allow
Surelink a reasonable opportunity to resolve your dispute. Your written
notice must describe the problem in reasonable detail, and identify or
enclose all relevant documents and information. You and Surelink agree
to negotiate in good faith with each other to try to resolve your claim.
If you and Surelink do not reach a resolution of your dispute within
sixty (60) days after Surelink receives your written notice of claim,
you may pursue your claim in arbitration or, solely to the extent
specifically provided below, in court.
c. Arbitration. You and Surelink agree to arbitrate all disputes
between the parties, except as provided in this subsection (c). You
agree that if you fail to pay in full any and all amounts you owe when
they are due, Surelink may assign your account for collection, and
Surelink and/or the collection agency may pursue in court those claims
that are limited to the collection of past due amounts and any interest
or cost of collection permitted by law or these Terms. (However,
Surelink disclaims any and all liability, and you relieve Surelink from
any and all liability, with respect to the conduct of any such
collection agency.) In addition, Surelink may seek injunctive relief in
any court with respect to any violation of the patent, trademark,
service mark, copyright, trade secret, and/or other intellectual
property rights of Surelink or of any third party.
NOTWITHSTANDING THE PRIOR PARAGRAPH, YOU MAY CHOOSE TO PURSUE YOUR
CLAIM IN COURT AND NOT BY ARBITRATION if: (a) your claim qualifies
for small claims court in a location where jurisdiction and venue over
you and Surelink is proper, in which case you may initiate proceedings
in such small claims court; or (b) YOU OPT OUT OF THESE ARBITRATION
PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE YOU FIRST ACTIVATE ANY
SERVICE WITH SURELINK (THE "OPT-OUT DEADLINE"). You may opt out of
these arbitration procedures by calling Surelink's customer service
department, at (866) 514-8752 prior to the Opt-Out Deadline. Any opt-out
request received after the Opt-Out Deadline will not be valid, and you
then must pursue your claim in arbitration or, if applicable, small
claims court.
Any claim arising out of or related to these Terms must be brought
within two (2) years after the claim arises, or the claim will be
permanently barred.
d. Waiver of Right to Participate in a Class Actions and Waiver of
Jury Trial. YOU AND SURELINK HEREBY AGREE THAT ANY DISPUTE RESOLUTION
PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON
AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER
YOU NOR SURELINK SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR
REPRESENTATIVE ACTION OR PROCEEDING.
IF YOU TIMELY
OPT OUT OF THE ARBITRATION PROVISION IN THE MANNER DESCRIBED ABOVE, THEN
THE WAIVER OF THE RIGHT TO PARTICIPATE IN A CLASS ACTION WILL NOT APPLY
TO YOU. IF YOU DO NOT TIMELY OPT OUT OF THE ARBITRATION PROVISION IN THE
MANNER SET FORTH ABOVE, THEN TO THE FULL EXTENT NOT PRECLUDED BY
GOVERNING STATE LAW, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS
ACTION, AND YOU CANNOT BE A CLASS REPRESENTATIVE, BE A CLASS MEMBER, OR
OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE
PROCEEDING. SURELINK DOES NOT CONSENT TO CLASS ARBITRATION; ACCORDINGLY,
IF A COURT REFUSES TO ENFORCE THIS SUBSECTION 13(d), THEN THE AGREEMENT
TO ARBITRATE SHALL BE UNENFORCEABLE AS TO YOU. WHETHER A CLAIM PROCEEDS
IN COURT OR IN ARBITRATION, YOU AND SURELINK HEREBY WAIVE ANY RIGHT TO A
JURY TRIAL
e. Governing Law. These Terms, and any disputes arising between
you and Surelink related in any way to these Terms, Surelink's Service,
or Surelink's Equipment, including but not limited to disputes over
billing, service, privacy, advertising, or Surelink's communications
with you, whether based on contract, tort, statute, or common law, will
be governed by the laws of the State in which your most recent billing
address (as provided to Surelink) is located, without regard to choice
of law principles.
14.
Miscellaneous.
a. Assignment and Successors in Interest. These Terms will be
binding upon, inure to the benefit of, and be enforceable against your
respective successors and permitted assignees. You may not assign these
Terms, or any of your rights, interests, or obligations in connection
with your use of the Service, without seeking and obtaining the prior
written consent of Surelink in each instance. Any such assignment
without such consent will be void and of no force and effect.
b. Entire Agreement/Severability. For customers of Surelink-branded
Service, the Terms consist of (i) the terms and conditions set forth in
this document and (ii) the Other Documents posted at
www.Surelink.com/legal/index, each as they may be amended from time to
time by Surelink (or in the case of third-party end-user license
agreements, by the owner of such licensed software). each as they may be
amended from time to time by Surelink (or in the case of third-party
end-user license agreements, by the owner of such licensed software).
The Terms comprise the entire agreement and understanding of you and
Surelink regarding the Service and Equipment and supersede and supplant
all other representations, whether electronic, written or verbal,
regarding the subject matter of these Terms. To the extent that these
Terms conflict with the provisions of any other agreement between you
and Surelink, then these Terms shall control, unless Surelink has
expressly stated or agreed otherwise in writing, and the conflicting
provisions of the other agreement shall be deemed modified to the
minimum extent necessary to be read consistently with these Terms. If a
court determines, in a final non-appealable judgment, that any provision
of these Terms is invalid, illegal, or otherwise unenforceable, such
provision will be deleted and the remainder of the Terms shall be
enforced as nearly as possible in accordance with the stated intention
of the parties, except to the extent otherwise provided in the
arbitration provisions contained in Section 13(c) above.
c. Notices. Written notices to you from Surelink will be deemed
given
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when sent to the email address specified on
your order confirmation, or such other email address as you
subsequently provide in writing to Surelink (with any request by you
that Surelink disregard an email address that you previously
provided to Surelink to be made by calling Surelink's customer
service department at (866) 514-8752.
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three (3) days following the date deposited
in the U.S. Mail addressed to your last known street/mailing address
as maintained in Surelink's files; or,
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the date of delivery or rejection when sent
by a nationally recognized courier to your last known street/mailing
address as maintained in Surelink's files.
You are
responsible for promptly notifying Surelink of any changes in your email
and/or street/mailing address. Written notice to Surelink will be
effective when directed to Surelink's customer service department and
received at the address set forth at
www.Surelink.com/company/contact.php. Except as specifically provided in
these Terms, notices from you to Surelink must be in writing to be
effective. You also agree that all correspondence and communications
sent to you by Surelink, including account statements, account status,
payment and billing information, and changes to these Terms, may be sent
by Surelink electronically to the email address most recently provided
by you.
d. Survival. The rights, obligations, and commitments in the
Terms that, by their nature, would logically continue beyond the
termination of Services (including, but not limited to, those relating
to billing, payment, disclaimer and limitation of liability,
indemnification, repair or replacement of leased equipment, dispute
resolution, no class action, no jury trial), shall be deemed to survive
termination of Services.
15.
Definitions.
"Surelink" means Surelink Wireless LLC.
"Surelink Parties" means Surelink and its parent, subsidiaries and
affiliates, and the directors, officers, employees, shareholders,
agents, and suppliers of each such entity.
"ETF" means the Early Termination Fee, per device (leased or purchased
from Surelink), that your particular Service plan may require you to pay
to Surelink if: (a) you are signed up for Service under a rate plan
requiring a Term Commitment, and (b) (i) you elect to cancel your
Service (for any reason), or (ii) Surelink terminates your Service for
cause, before the end of the Term Commitment. The amount of the ETF that
you potentially may owe to Surelink shall be as set forth in your
Service plan description (that you receive as part of your sales
transaction) or on your order confirmation or receipt.
"Initial Term" means the first fixed period of time for which you sign
up for Service, as set forth in your Service plan description (that you
receive as part of your sales transaction) or on your order confirmation
or receipt.
"Renewal Term" means any fixed period of time, after the Initial Term,
for which you sign up for Service.
16.
Contacting Surelink.
Surelink
encourages questions and comments from its customers. If you are a
customer off Surelink and you desire to ask any questions or to seek and
obtain additional information concerning the Service, please contact us
at 866-514-8752
© 2011
Surelink Wireless LLC
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