Fiber Customer Agreement and Policies
Agreement for Internet Services, Fiber to the Home/Premise
Viaero internet service(s) will be provided to you and all persons (“you,” or “your”) who use the Service and/or Viaero Provided Equipment on the terms and conditions set forth in this Agreement (the “Agreement”), together with any applicable tariffs, service guides, posted policies and procedures by NE Colorado Cellular, Inc., d/b/a Viaero Wireless (“Viaero,” “we,” “us” or “our”).
Service(s) may include, but are not limited to, Viaero Internet service (“Internet”), Viaero Voice service ( “Voice”) and other such services as Viaero may determine are ancillary to Internet or Voice Services (each a “Service” and collectively the “Services”). Any handwritten or other changes do not constitute a modification or change of this Agreement; however, Viaero may make modifications to this Agreement, as determined to be necessary and in accordance with updated policies and applicable laws.
Acceptance of This Agreement
Use of the Service(s) or as otherwise indicate by your acceptance of this Agreement constitute your acceptance of this Agreement and you agree to be bound by its terms.
General Terms and Conditions
Term of this Agreement
- Term. This Agreement shall commence upon the completion of the fiber construction to You and shall continue for a period of two (2) years. Continued use of the Service(s) after the expiration of the Term contained herein shall be on a month to month basis.
Termination of this Agreement
- Termination This Agreement may be terminated without any penalty, further liability, or obligation to make additional payments on thirty (30) days written notice as follows: (a) by either party on default of any covenant or term hereof by the other party, which default is not cured within thirty (30) days following written receipt of notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions herein); (b) by Viaero if it is unable to obtain or maintain any license, permit or other governmental approval necessary to the construction or operation of the Service(s).
- Suspension and Termination by Viaero. Subject to applicable law, we reserve the right to act immediately and without notice to terminate or suspend the Service(s) and/or to remove from the Service(s) any information transmitted by or to any users. We may take these actions if we: (1) determine that your use of the Service(s) does not conform with the requirements set forth in this Agreement or any and all of Viaero’s Policies, the, (2) determine that your use of the Service(s) interferes with our ability to provide the Service(s) to you or others, (3) reasonably believe that your use of the Service(s) may violate any laws, regulations, or written and electronic instructions for use, (4) reasonably believe that your use of the Service(s) interferes with or endangers the health and/or safety of our personnel or third parties or (5) you threaten, harass, or use vulgar and/or inappropriate language toward our personnel. Our action or inaction under this Section shall not constitute review or approval of your or any other users’ use of the Service(s) or information transmitted by or to you or other users.
Charges and Billings
- Charges, Fees, and Taxes You Must Pay. You shall pay all charges associated with the Service(s). Such charges may include but are not limited to charges for installation, service calls, monthly service, Viaero Equipment, purchases, or rental of other services offered through Viaero, applicable Federal, State, and local taxes and fees (however determined), State and Federal government fees or assessments on us, other permitted fees and cost recovery charges. You may also receive charges for any programs that we participate in which may include but is not limited to public, educational, and governmental access, universal service, telecom relay services for the visually/hearing impaired, rights-of-way access, and programs supporting the 911/E911 system and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Service(s). You agree and will be held responsible to paying for any government-imposed fees and taxes, whether imposed on you or us, that become applicable subsequently. Notice will be provided to you regarding information about standard pricing and all applicable charges and fees with your order and/or activation of Service(s). If there are any changes in our standard pricing and fees or new prices and fees we may provide you with notice. Except where required by law, we will not provide notice to a change in price other fees if it is related to a change in governmental or quasi-governmental tax, fee, or assessment.
For Internet. Internet price information and additional terms are available at https://info.viaero.com/viaero-fiber
For Voice. Voice price information and additional terms are available at https://www.viaero.com/shop/plans/ultra
- How Billing will be Handled. You will be billed monthly, in advance, for recurring Service charges, equipment charges, and fees. Before services are installed, you are responsible for payment of the first month’s service(s), Viaero equipment charges, deposits, activation fees and installation charges. You may pay for additional service(s) that Viaero is able to provide to you or through third parties that Viaero is partnered with. You are responsible for all individual payments.
- You are Responsible for Third-Party Charges. You may incur charges with third-party service providers such as for accessing on-line services, calling parties who charge for their telephone-based services, purchasing or subscribing to other offerings via the Internet or other interactive options that are separate and apart from the amounts charged by us. You are solely responsible for all such charges payable to third parties, including all applicable taxes.
- Using a Credit Card of Check for Payment. If you use any credit card to pay for the Service(s) then your use is governed by the applicable card issuer agreement. In the event of nonpayment by your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you pay by check, you authorize us to collect your check electronically. You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on or accompanying checks or other payments accepted by us and any such notations shall have no legal effect.
- Our Remedies if You Pay Late or Fail to Pay. If for any reason We do not receive payment of the amounts billed to you by the due date then You may be billed fees, charges, and assessments related to late or non-payment.
Fees Not Considered Interest or Penalties: Subscriber agrees that (a) time is of the essence; (b) it would be impractical to fix the exact amount of Company’s damages if Subscriber fails to pay promptly; and (c) in the event of such failure, Subscriber shall pay Company as liquidated damages one and one-half percent (1.5%) per month of any amount not paid when due, which fee shall be paid for every month the amount is unpaid and shall be prorated on a daily basis for each day that payment is overdue; provided such charge is permitted according to any applicable tariff or law and further provided such liquidated damages will not be compounded monthly. Acceptance by Company of checks or drafts shall not constitute a waiver of Company’s right to payment by legal tender and acceptance of late or partial payments or payments marked “Paid in Full” or similar notations shall not waive any rights of Company hereunder. Subscriber may, at the option of Company, and in accordance with tariffs (if any), be charged the maximum return check fee allowed by applicable law for any check returned for insufficient funds. Inquiries about or objections to invoices must be in writing and must be received by Company from Subscriber no later than the due date set forth in the invoice; provided, however, all amounts due to Company, including disputed amounts, must be paid to Company on or before the due date set forth in the invoice. Company will make good faith efforts to resolve disputes in accordance with Company procedures or applicable tariffs (if any). Notwithstanding anything herein, if payments, fees, costs or other charges are deemed hereunder as interest, and the aggregate of such charges are in excess of the highest rate allowed by applicable law, then the aggregate of such charges shall be reduced to the highest rate allowable pursuant to such applicable law.
Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. If you change your telephone number or other contact information without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us or our collection agent as a result of any attempt to collect any debt through the telephone number or contact information you provided, including any costs or liabilities associated with misdirected calls.
Suspension/Disconnect: Subject to applicable law, we reserve the right, at our sole discretion, to suspend or disconnect any or all of the Service(s) you receive without a reduction in the fee or charges for the Service(s) if you fail to pay the full amount due for any or all charges.
- Reconnection Fees and Related Charges. An additional fee for installation and or for reconnection if you resume Service(s) after any suspension or termination. These fees are additional to all past due charges and other fees on Your account. Reconnection of service(s) will be subject to applicable law, this Agreement, and any other Policies that we have.
- Our Right to Make Credit Inquiries. Through this Agreement, you authorize us to make inquiries and to receive information about Your past credit experiences from others, to put this information in Your file, and to disclose this information to third parties for reasonable business purposes. We will not discriminate in the application of our credit inquiries and deposit policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by either us or by third party credit bureaus will be done in conformance with all applicable laws. We reserve the right to make credit inquiries even after having received a deposit from you with respect to our Services(s).
- Your Responsibilities Concerning Billing Questions. Subject to applicable law, if you intend to dispute a charge or request a billing credit, you must contact us within 120 days of the date on the bill or you waive any such disputes or credits.
Changes to Services Subject to applicable law, we have the right to change our Service(s), Viaero Equipment, rates and charges, at any time with or without notice to you. We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Service(s), including, but not limited to, content, functionality, hours of availability, equipment requirements, speed, and upstream and downstream rate limitations. We may deliver any notice concerning changes to the Service(s) and our relationship with you, including notice of any change to this Agreement, in any one or more of the following ways, as determined in our sole discretion: (1) by posting it on https://www.viaero.com/ or any other website about which you have been notified; (2) by mail or hand delivery to your Premises; (3) by e-mail to the e-mail address for your account in our records; or (4) by including the information on or with your bill for Service(s). You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement. Because we may from time to time notify you about important information regarding the Service(s) and this Agreement by these methods, you agree it is your responsibility to regularly check your postal mail, e-mail, service texts, and all postings at https://www.viaero.com/ or any other website about which you have been notified. If any material change negatively affects your Service(s), you have the right to cancel your Service(s). Your continued receipt of the Service(s) for more than 30 days after the change, however, will constitute your acceptance of the change.
Access to Your Premises and Customer Equipment
- The Viaero supplied equipment (Viaero Equipment) is, and at all times shall remain, the sole and exclusive property of Viaero, regardless of payments made by you related to this Agreement. At no time will Viaero be deemed to have abandoned the Viaero Equipment in the event it is not retrieved upon termination of any Services. You are to use Viaero Equipment only for the purpose of using the Services as set forth in this Agreement. You agree not to sell, transfer, lease, assign, or encumber any of the Viaero Equipment, in whole or in part, to a third party, or allow a third-party use of your Services.
- You agree to allow us, or our agents or representatives on our behalf, access to the premise where the Services are provided to install, maintain, inspect, upgrade, disconnect, alter, remove, or replace the Viaero Equipment. Such access will be provided during regular business hours and with reasonable notice provided. You affirm that you are the legal age of majority in your state and have the authority to provide us with access to the premise, or that you have obtained the necessary approval(s) for us to access the premise. Neither Viaero personnel, nor Viaero agents or representatives, shall enter the premise where the Services are provided to perform any work unless a responsible adult is present. You agree to provide Viaero employees and representatives with a safe working environment while on the premises. If a Viaero employee or representative deems the working environment unsafe in his or her sole discretion, you agree that Viaero may elect not to provide any services on the premise, until such premise is deemed safe by Viaero. You agree to indemnify and hold harmless (including costs and reasonable attorney’s fees) Viaero personnel and/or our agents or representatives from any claim by the owner of the premise arising out of our performance of this Agreement.
- Neither Viaero, nor its agents or representatives, shall be liable for any effects of normal installation or repair workmanship, except for damages caused by gross negligence or willful misconduct by Viaero personnel, or its agents and representatives. Subject to other limitations on liability contained in this Agreement, Viaero’s liability for damages associated with the installation, maintenance, or repair of the Viaero Equipment shall not exceed an amount equal to the proportionate part of the monthly recurring charge for the Services for the period during which the Services were affected.
- We reserve the right to make changes to Viaero Equipment through downloads or otherwise. If we change our equipment requirements with respect to our offered Services, you acknowledge you may not be able to receive such Services with your current Viaero Equipment. Your continued use of the Services after such changes will constitute your consent to continue using the Services, as so changed.
- You agree not to relocate any of the Viaero Equipment to a premise other than the premise where the Services were initiated and continue to be billed. Viaero Equipment may be moved to a different premise only when we have approved your change of residence request. When changing your services or transferring your services to a new location, we require that your account be in good standing, and your credits or charges from your previous premise shall be transferred to your new premise where services will be rendered.
- You understand and agree that the fiber installed or provided by Viaero will remain connected on the premise through the duration of your Services with us, as well as after termination of the Services. Fiber service is installed either underground or aerial, and will usually follow the same route as existing telephone or television cabling. You acknowledge that Viaero will need access to either your front or back yard, depending on your neighborhood power and communications utility locations. For new and existing single unit installations, the fiber shall become a fixture to the realty upon installation. You shall be responsible for the payment of any damages resulting from your or a third party’s negligence or misuse of the fiber network. You acknowledge and agree that you or a third party may not remove, replace, rearrange, attach to, or repair the fiber network. You may otherwise be held responsible for the cost of rectifying the fiber network and we may terminate or suspend your Services.
- Customer Equipment. “Customer Equipment” means software, hardware or services that you choose to use in connection with the Service(s) and that is not provided or leased by us or our agent. Notwithstanding the last sentence, any equipment purchased by you from us (or our agent) and under an express sale agreement shall constitute "Customer Equipment". You agree to allow us and our agents the rights to insert necessary hardware in the Customer Equipment, send software and/or “downloads” to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You warrant you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment to perform the activities described in this paragraph. In addition, you agree to supply us or our agents, if we request, the owner’s name, address and phone number and/or evidence that the owner provided such authorization. For avoidance of doubt, "Customer Equipment" does not include Viaero Equipment for which you have paid an Unreturned Equipment Fee.
Maintenance and Ownership of Equipment and Software
- Viaero Equipment and Fiber. “Viaero Equipment” means all new or reconditioned equipment that we or our agent provides or leases to you, including, but not limited to, cabling or wiring (except for Inside Wiring, as defined in Section 6(c) below) and related electronic devices, modems, routers, CableCARDs, and any other hardware and includes all software and programs contained within Viaero Equipment or downloaded to Customer Equipment by us. You expressly agree that you will use the Viaero Equipment exclusively in connection with the Service(s). You agree that all Viaero Equipment belongs to us or other third parties and will not be deemed fixtures or in any way part of the Premises. We may remove or change the Viaero Equipment at our discretion at any time the Service(s) are active or following the termination of your Service(s). You acknowledge that any addition to, removal of or change to the Viaero Equipment may interrupt your Service(s). You may not sell, lease, abandon, or give away the Viaero Equipment, or permit any other service provider to use the Viaero Equipment, including Viaero Equipment for which an Unreturned Equipment Fee has been paid. The Viaero Equipment may only be used in the Premises unless expressly permitted by us. At your request, we may relocate the Viaero Equipment for an additional charge. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE VIAERO EQUIPMENT OR SERVICE(S) AT A LOCATION OTHER THAN THE PREMISES OR OTHERWISE EXPRESSLY AUTHORIZED BY US, THE SERVICE(S) MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than us or our agents to service the Viaero Equipment. You are responsible for loss, repair, replacement and other costs, damages, fees and charges if you do not return the Viaero Equipment to us in an undamaged condition.
- Customer Equipment.
Responsibility: We have no responsibility for the operation, support, maintenance or repair of any Inside Wiring or Customer Equipment including, but not limited to, Customer Equipment to which we or a third party has sent software or downloads. You agree that by using the Service(s), we, or our authorized agents and equipment manufacturers, are authorized to send code updates to the Customer Equipment, including, but not limited to, modems and digital interactive televisions with CableCARDs, at any time we determine it is necessary to do so. Such code updates may change, add or remove features or functionality of the Customer Equipment or the Service(s).
- Non-Recommended Configurations. Customer Equipment that does not meet our minimum technical or other specifications constitutes a “Non-Recommended Configuration”, including, but not limited to, modems not currently certified by us as compatible with Internet or Voice; Customer Equipment, including, but not limited to: certain makes or models of alarm and security systems or devices, certain medical monitoring devices, personal emergency alert, and home detention devices, certain fax machines, and certain “dial-up” modems, rotary-dial phone handsets, pulse-dial phone handsets, private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units. We reserve the right to deny support for the Service(s) and/or terminate Service(s) if you use a Non-Recommended Configuration. We do not guarantee that Non-Recommended Configurations will be able to be operate successfully by and through the Service(s). You understand that installation, access, operations, or use of a non-recommended configuration could cause customer equipment to fail to operate or cause damage to customer equipment, you or your premises, or Viaero equipment. You agree to not hold Viaero, their affiliates, or agent liable for any such failure or damage that may result from the use of non-recommended configurations.
- No Unauthorized Devices or Tampering. You agree not to attach or assist any person to attach any unauthorized device to, or otherwise tamper with, our cable network, Viaero Equipment or the Service(s) for any purpose, including, but not limited to the unauthorized reception of the Service(s). If you make or assist any person to make any unauthorized connection or modification to or otherwise tamper with Viaero Equipment or the Service(s) or any other part of our cable network, we may terminate the Service(s) and recover damages resulting from your actions. You also agree that you will not attach anything to the Inside Wiring, Viaero Equipment, or Customer Equipment, whether installed by you or us, which impairs the integrity of our cable network or degrades our cable network’s signal quality or strength or creates signal leakage. You agree that it would be difficult, if not impossible, to calculate precisely the lost revenue resulting from your receipt of unauthorized Service(s) or the tampering with Viaero Equipment or our network and therefore you agree to pay us as liquidated damages, the replacement cost of all Viaero equipment, without deducting for depreciation or regular wear and tear, including any incidental costs resulting from your or a third party’s negligence or misuse of Viaero’s network. The unauthorized reception of the Service(s) may result in criminal fines and/or imprisonment.
- Inside Wiring. You are permitted to install wiring inside the Premises (“Inside Wiring”) so long as the additional wiring does not interfere with the normal operations of our network.
- End User Software Licenses. Software or applications may be required to use certain features of the Service(s). You agree to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed or used in connection with the Service(s) including, without limitation, the Internet Terms and Conditions as well as the Viaero Service Terms& Conditions, https://www.viaero.com/support/legal , as these agreements may be amended from time to time. All such agreements are incorporated in this Agreement by reference. When this Agreement terminates, all end user licenses also terminate and you agree to destroy all versions and copies of all software received by you in connection with the Service(s).
- Limited, Revocable License. The Service(s) and Viaero Equipment, including, but not limited to, any firmware or software embedded in the Viaero Equipment or used to provide the Service(s), are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a limited, revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in the Viaero Equipment or used to provide the Service(s). You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.
Use of Services
- You agree that the Service(s) and the Viaero Equipment will be used only for personal, residential, non-commercial purposes, unless otherwise specifically authorized by us in writing. You are prohibited from reselling or permitting another to resell the Service(s) in whole or in part, or using or permitting another to use the Viaero Equipment or the Service(s), directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any policy we post applicable to the Service(s). Use of the Viaero Equipment or Service(s) for transmission, communications or storage of any information, data or material in violation of any U.S. Federal, State or local regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Viaero Equipment and/or Service(s) at the Premises or at other locations authorized by us and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable policies including, but not limited to, our acceptable use and privacy policies. You are liable for all authorized and unauthorized use of the Service(s) and you agree to notify us immediately in writing or by calling [Viaero Number]during normal business hours if the Viaero Equipment has been stolen or the Service(s) is used without your authorization. If you fail to notify us in a timely manner, the Service(s) may be terminated without notice and you may incur additional charges.
- The Internet Terms and Conditions as well as other Policies that me applicable to use of the Service(s) is available at https://www.viaero.com/support/legal You acknowledge that Viaero may modify the Internet Terms and Conditions or other Policies with or without notice, by posting a new version of the Open Internet/Fair Usage Policy or other Policy. You and the other users of the Service(s) should consult the Internet Terms and Conditions and all other posted Policies regularly to conform to the most recent version. We reserve the right to limit or block any service usage as we deem necessary to prevent harm to our network, fraud, or other abuse of the service(s).
You may not assign this Agreement. We reserve the right to freely assign our rights and obligations under this Agreement with or without notice to you.
Obligations Upon Termination.
- Your Obligations Upon Termination. You agree that upon termination of this Agreement you will do the following:
You will immediately cease all use of the Service(s) and all Viaero Equipment;
You will return all Viaero Equipment to us at our local service center or to our designee in working order, normal wear and tear excepted within ten (10) days of the date on which Service(s) are disconnected. Failure to return any Viaero Equipment will result in the charge of an Unreturned Equipment Fee. Upon our request during regular business hours at a time agreed upon by you and us, you will permit us and our agents, to access the Premises to remove all Viaero Equipment and other material provided by us.
- Unreturned Equipment Fee. "Unreturned Equipment Fee" refers to a fee charged by Viaero to a subscriber for any unreturned Viaero Equipment upon termination of the services provided under this Agreement. Even if an Unreturned Equipment Fee has been paid, Viaero Equipment shall not be resold, used or operated in any manner.
THE VIAERO EQUIPMENT AND THE SERVICE(S) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WARRANT THAT THE VIAERO EQUIPMENT OR THE SERVICE(S) WILL MEET YOUR REQUIREMENTS, THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
Limitation of Our Liability
- Application. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of us and our underlying third-party service providers, agents, suppliers, distributors, licensors and business partners (and their respective officers, employees, agents, contractors or representatives) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
- Customer Equipment. YOU UNDERSTAND THAT CUSTOMER EQUIPMENT MAY NEED TO BE OPENED, UPDATED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS, IN CONNECTION WITH THE INSTALLATION, UPDATING OR REPAIR OF THE SERVICE(S). THE OPENING, ACCESSING OR USE OF CUSTOMER EQUIPMENT USED IN CONNECTION WITH THE SERVICE(S) MAY VOID WARRANTIES PROVIDED BY THE MANUFACTURER OR OTHER PARTIES RELATING TO THE CUSTOMER EQUIPMENT HARDWARE OR SOFTWARE. NEITHER WE NOR ANY OF OUR AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES. NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT EXCEPT AS MAY BE CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY US, OUR SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
- Other Services or Equipment. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST US FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE VIAERO EQUIPMENT OR THE SERVICE(S) AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICE(S) IN ACCORDANCE WITH SECTION 9.
- Software. We make no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the Service(s) if a virus or other harmful feature or software is present on your Customer Equipment. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call related to a virus or other harmful feature detected on the Customer Equipment. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT. In addition, as part of the installation process for the software and other components of the Service(s), system files on the Customer Equipment may be modified. We do not represent, warrant or covenant that these modifications will not disrupt the normal operations of any of the Customer Equipment including the loss of files. We do not represent, warrant, or covenant that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or disrupt the normal operations of any of the Customer Equipment. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM AND YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
- Disruption of Service. The Service(s) are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Service(s) could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High-Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from Force Majeure Activities. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Service(s), directly or indirectly caused by, or proximately resulting from, any circumstances beyond our immediate control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any signal at the transmitter; failure of a communications satellite; loss of use of poles, or other utility facilities; labor disputes; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Service(s).
In all other cases of an interruption of the Service(s), you shall be entitled upon a request made within 120 days of such interruption, to a pro rata credit for any Service(s) interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service(s) and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE(S). Any additional credits, if any, provided by us are at our sole discretion and in no event shall constitute or be construed as a course of conduct by us.
Should an interruption of Internet services occur, then we shall repair the Internet interruption as soon as reasonably possible.
- Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Service(s), including without limitation, their services, equipment, infrastructure, or content. We shall not be bound by any undertaking, representation or warranty made by an agent, or employee of ours or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Service(s), if that undertaking, representation, or warranty is inconsistent with the terms of this Agreement. We are not responsible for any services, equipment, infrastructure, and content that are not provided by us, or the performance (or non-performance) of third-party services, equipment, infrastructure, or content, even if they are components of the Service(s), and we shall have no liability with respect to such services, equipment, infrastructure, and content. You should address questions or concerns relating to such services, equipment, infrastructure, and content to the providers of such services, equipment, infrastructure, and content. We do not endorse or warrant any third-party products, services, or content that are distributed or advertised over the Service(s).
- Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER WE, NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE VIAERO EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICE(S) OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE VIAERO EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICE(S) (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE(S), THE VIAERO EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
(2)ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE VIAERO EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICE(S) BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Customer's Sole Remedies. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above limitations may not apply if your state does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, our liability and of our employees, affiliates, suppliers, agents, contractors, distributors, licensors and business partners is limited to the maximum extent permitted by law.
- Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
This Agreement shall be governed by the laws of the State of Colorado, without regard to its conflict of laws principles. Venue for any action pursuant to or stemming from this Agreement and Customer’s use of the Service(s) provided herein shall be the District Court for Fort Morgan, State of Colorado.
Indemnification and Liability
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US AND OUR EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS AND BUSINESS PARTNERS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICE(S), THE VIAERO EQUIPMENT OR THE CUSTOMER EQUIPMENT; (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE(S) OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (c) ANY CLAIMS OR DAMAGES ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; AND (d) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT OR ANY OF VIAERO’S POLICIES.
Arbitration and Litigation
- Purpose. Any Dispute involving you and us shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
- Definitions. This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to us or our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement, and (4) claims that are the subject of purported class action litigation.
- Exclusions. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING DISPUTES WILL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION; (ii) DISPUTES THAT ARISE BETWEEN US AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9); (iii) DISPUTES THAT CAN ONLY BE BROUGHT BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE AND (IV) CLAIMS BROUGHT BY OR AGAINST A CUSTOMER THAT HAS OPTED OUT OF ARBITRATION SET FORTH HEREIN.
- Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org) or calling its toll free number (1-800-778-7879). You may deliver any required or desired notice to us by mail to Viaero Wireless, Attn: Legal, 1224 West Platte Ave., Fort Morgan, CO 80701.
- Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have an action heard in a small claims court in the area where you receive Service(s) from us if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
- Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the AAA Consumer Arbitration Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you receive Service(s) from us. If you no longer receive Service(s) from us when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute provided that we offer Service(s) in that county, or in the area where you received Service(s) from us at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
- Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. 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. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
- Arbitral Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be split between the parties; however, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules and you shall reimburse us for all fees and costs incurred under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay.
- Right to Opt Out. You may decline to have disputes with Viaero arbitrated by opting out. Doing so means neither you nor Viaero can require the other to participate in arbitration proceedings, and each of us may sue the other in a court of law. To opt out, you must notify Viaero within thirty (30) days of the date you first became subject to the Agreement by using our Services. To opt out of this arbitration Section, please send us a written opt out request to the address listed below, with your name, address, account number, and a statement that you do not wish to resolve any dispute(s) with Viaero through arbitration, and would like to therefore opt out of this Agreement’s arbitration obligation. Please note, your decision to opt out of this Section will not result in any adverse effect on your relationship with us or the delivery of your Services.
Attn. Legal Department
1224 West Platte Ave.
Fort Morgan, CO 80701
- Jury Trial. To the extent permitted by applicable law, for any Disputes relating to this Agreement not submitted to arbitration, and properly brought in a public court of law, Viaero and you hereby knowingly, voluntarily, intentionally, and irrevocably waive the right to a trial by jury in respect to any litigation based hereon or arising out of this Agreement, or any other dispute or controversy between Viaero and you. All Disputes, irrespective of whether or not submitted to arbitration, shall be subject to this Section hereof.
- Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and us with respect to the subject matter of this Agreement and replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. We do not waive any provision or right if we fail to insist upon or enforce strict performance of any provision of this Agreement. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Agreement.
- Additional Representations and Warranties. In addition to representations and warranties you make elsewhere in this Agreement, you also represent and warrant that:
- Age: You are at least 18 years of age.
- Customer Information: You represent and warrant that you have provided us with information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s), the number of devices on which or through the Service(s) is being used, and payment data (including without limitation information provided when authorizing recurring payments). YOU AGREE TO NOTIFY US IMMEDIATELY IF THERE IS ANY CHANGE IN THE INFORMATION THAT YOU HAVE PROVIDED TO US, INCLUDING WITHOUT LIMITATION ANY CHANGE IN YOUR TELEPHONE NUMBER OR MOBILE TELEPHONE NUMBER. FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT. IF YOU OWE ANY OUTSTANDING AMOUNTS FOR THE SERVICE(S) OR HAVE ANY UNRETURNED EQUIPMENT, THIS OBLIGATION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE UNTIL YOU PAY ALL OUTSTANDING AMOUNTS IN FULL AND RETURN ALL EQUIPMENT. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. SEC. 227), AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
- Protection of Our Information and Marks. All Service(s) information, documents, and materials on our websites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of ours and our affiliates are and shall remain our exclusive property. Nothing in this Agreement shall grant you the right or license to use any of the marks.
- Export Laws. You expressly agree to comply with all applicable export and re-export laws, including, but not limited to, the Export Administration Act, the Arms Export Control Act, and their implementing regulations. You further expressly agree not to use the Service(s) in any way that violates any provision of such laws or their implementing regulations.
- Retention of Rights. Nothing contained in this Agreement shall be construed to limit our rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, we and our agents reserve the right to delete all your data, files, electronic messages or other information that is stored on our or our suppliers’ servers or systems. In addition, you may forfeit your account user name and all e-mail, IP and Web space addresses, and voice mail. In the event you cancel Voice without porting your voice service and the telephone number to another service provider, you will forfeit the telephone number. We shall have no liability whatsoever as the result of the loss of any such data, names, addresses, or numbers.
- Monitoring and Recording. You agree that Viaero and its agents may monitor and record any telephone calls or other voice, data or image communications that are transmitted between: (1) Viaero and its agents and (2) you, your agents, any user of your Service(s) or Equipment, or any user of any phone numbers associated with your account.
Notice for Changes to Viaero’s Policies
We may deliver any notice concerning our relationship with you, including notice of any change to this Agreement, in any one or more of the following ways, as determined in our discretion: (1) by posting it on https://www.viaero.com/ or any other website about which you have been notified; (2) by mail or hand delivery to your Premises; (3) by e-mail to the address for your account in our records; or (4) by including it on or with your bill for Service(s). You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement. Because we may from time to time notify you about important information regarding the Service(s) and this Agreement by these methods, you agree it is your responsibility to regularly check your postal mail, e-mail and all postings at https://www.viaero.com/ or any other website about which you have been notified. If you find any change to this Agreement to be unacceptable, you have the right to cancel your Service(s). Your continued receipt of the Service(s) for more than 30 days after we deliver notice of the change, however, will constitute your acceptance of the change.