Last Updated and Effective August 1, 2022

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.  PLEASE READ IT CAREFULLY.THIS DOCUMENT CONTAINS AN ARBITRATION PROVISION FOR ANY DISPUTES, CLAIMS OR CONTROVERSARIES THAT MAY ARISE BETWEEN YOU AND SURF INTERNET. THE BINDING ARBITRATION PROVISION IS LOCATED IN THE SECTION BELOW TITLED “BINDING ARBITRATION.”  THIS MEANS YOU ARE GIVING UP THE RIGHT TO SUE SURF INTERNET IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THESE TERMS.  YOU MAY ELECT TO OPT OUT OF ARBITRATION IN ACCORDANCE WITH THE TERMS OF THE BINDING ARBITRATION PROVISION BELOW.

BY USING THIS NOTIFICATION SERVICE YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU (A) USE THIS NOTIFICATION SERVICE OR ON BEHALF OF AN ORGANIZATION OR COMPANY OR (B) YOU ENROLL A PHONE NUMBER OR EMAIL ADDRESS OWNED BY A THIRD-PARTY TO RECEIVE COMMERCIAL AND INFORMATIONAL TEXT OR EMAIL MESSAGES IN CONNECTION WITH THIS NOTIFICATION SERVICE, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY OR THE OWNER OF THE ENROLLED PHONE NUMBER OR EMAIL ADDRESS TO THESE TERMS AND CONDITIONS.

General

These terms and conditions ("Terms") apply to the short messaging service (“SMS”) text messages and email notification service (“SMS Service”), as described below and are by and between Surf Air Wireless dba Surf Internet (“Surf Internet”, "us", "we", or "our" as the context may require) and persons interested in subscribing to Surf Internet’s broadband highspeed access Internet service, voice over Internet Protocol (“VoIP”) service and/or other services (collectively, “Services,” or individually a “Service”), and existing customers (“Customers”) of Surf Internet’s Services, (collectively “you” or “your”). Surf Internet and you are collectively the “Parties” and individually, a “Party.”

These Terms are subject to change without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated” date referenced above. You should review these Terms prior to enrolling in the SMS Service.  Your continued use of the SMS Service after the “Last Updated” date will constitute your acceptance of and agreement to such changes unless further process is required by law.  You should also carefully review our Privacy Policy before using this SMS Service, as the Surf Internet Privacy Policy is hereby incorporated into these Terms by reference. You are also bound to our Privacy Policy.

1.             Description.  Surf Internet offers various informational and alert notifications sent via text message or email  such as outage notifications, and usage details . We will also offer marketing messages that will inform you of new or enhanced Surf Internet products and services.

a.       Enrollment.  Enrollment in this Service requires you to voluntarily provide your mobile phone number with an area code within the United States, including the District of Columbia.  You may be asked to verify your mobile phone number or email address before the SMS Service will start.  This may require responding to a text message sent to your mobile phone, or an email sent to confirm your enrollment in this SMS Service.

b.       Termination of SMS Service by You.  You understand, acknowledge and agree that you may opt out of this SMS Service at any time, but only via the following methods.  To stop receiving text messages under this SMS Service you must text “STOP” to the number from which you are receiving our text message notification.  To opt-out of receiving email messages, you must follow the unsubscribe instructions in our email notifications. If you are an existing Surf Internet customer and you unsubscribe from the SMS Service, you understand, acknowledge and agree that we may continue to contact you via text messages or emails regarding administrative or informational purposes related to the Services and accounts (including follow-up messages regarding your account, billing and service issues) using the contact information you voluntarily submitted at the time you signed up for any Surf internet Service(s).  By law, such messages are not considered to be commercial messages.

c.       Termination of SMS Service by Surf Internet. Surf Internet reserves the right, in its sole discretion, to suspend or terminate the SMS Service at any time, in whole or in part, for any reason, with or without notice to you.

d.       Help.  If you are experiencing issues with the SMS Service, you can reply via your mobile phone with the keyword HELP for more assistance, or you can get help directly at (888) 274-6381.

2.             Authorization.  By enrolling in the SMS Service, you authorize the delivery of text messages to each mobile phone number and email messages to each email address enrolled in this SMS Service, under your account.  Should one of those phone numbers or email addresses change or no longer be associated with your account, then you must immediately update your notification settings in the customer portal located at surfinternet.com to ensure notifications are no longer sent to that phone number or email address.

3.             Message Frequency.  Message frequency will vary.

4.             Costs.  Surf Internet does not impose a separate charge for this SMS Service; however, your mobile carrier’s message and data rates may apply to text messages or wireless email addresses depending on the terms and conditions of your mobile phone contract.  You are solely responsible for all message and data charges (including taxes and fees) that you incur.  Please contact your mobile service provider about such charges.

5.             Statute of Limitation & Disclaimers.

a.       EXCEPT FOR BILLING DISPUTES, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, CONTROVERSARY, OR DISPUTE (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) OR YOU FOREVER WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENTS, FACTS, CLAIMS, CONTROVERSARIES OR DISPUTES.

b.       This Service is offered on an “as-is” basis and: (i) may not be available in all areas at all times; and (ii) may not continue to work in the event of product, software, coverage or other service changes made by your mobile carrier. We may change or discontinue any of our text/email alert programs, including this SMS Service, without notice or liability to you. Surf Internet, its affiliates, representatives, agents, employees, third party service providers, joint venture partners, contractors, licensors or suppliers and each of their respective officers, directors, employees, and their successors and assigns (collectively, “Surf Internet-Related Entities”) are not responsible and shall not be liable for any losses or injuries of any kind resulting, directly or indirectly, from the Service or from technical failures or delays of any kind.  We reserve the right to cease delivery of text alerts to any person at any time in our sole discretion.

c.       We are not liable for any delays or failures in the receipt of any text messages sent to or from you in connection with the Service.  Delivery depends on effective transmission by your mobile carrier.

d.       You understand, acknowledge and agree the mobile carriers are not liable for delayed or undelivered messages.

6.             DISCLAIMER OF WARRANTIES.  WE DO NOT GUARANTEE THAT THE USE OF THE SMS SERVICE WILL MEET YOUR PERFORMANCE REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE.  WE MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE USE OR RESULTS OF USE IN TERMS OF PERFORMANCE, SECURITY, DATA PRIVACY, DATA LOSS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.  WE WILL NOT CORRECT ANY ERRORS RELATED TO YOUR USE OF THE SMS SERVICE.  YOU ASSUME ALL RISKS AS TO THE QUALITY AND PERFORMANCE OF THE SMS SERVICE.

THE SMS SERVICE IS PROVIDED TO YOU "AS IS" AND “AS AVAILABLE,” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.  NO STATEMENTS FROM SURF INTERNET, ITS EMPLOYEES, REPRESENTATIVES OR AGENTS MAY INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.  IF THIS DISCLAIMER IS INVALID UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) CALENDAR DAYS FROM THE DATE THAT YOU FIRST ENROLLED IN THE SMS SERVICE.

7.             LIMITATION OF LIABILITY.  IN NO EVENT SHALL SURF INTERNET OR SURF INTERNET-RELATED ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COMPENSATORY, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

8.             Indemnification.  You agree to defend, indemnify, and hold Surf Internet and Surf Internet-Related Entities harmless for all claims, actions, expenses (including reasonable attorney’s fees) and damages related to or caused in whole or in part by your failure to comply with these Terms, including, but not limited to, any failure to update your notification settings as required in Section 2, herein.

9.            BINDING ARBITRATION.  The Parties understand, acknowledge and agree that any and all Disputes (as defined below) arising out of or relating to these Terms that cannot be resolved through an informal dispute resolution with Surf Internet shall be submitted to final and binding arbitration in accordance with the terms of this Binding Arbitration Provision.  THIS MEANS YOU ARE GIVING UP THE RIGHT TO SUE SURF INTERNET IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THESE TERMS.  Any such arbitration shall be conducted in Elkhart County, Indiana.

NOTWITHSTANDING THE FOREGOING, DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS BINDING ARBITRATION PROVISION WILL NOT BE SUBJECT TO ARBITRATION.

 

a.       Definitions.  The term “Dispute” means any dispute, claim, or controversy between you and Surf Internet regarding any aspect of your relationship with Surf Internet, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Binding Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Binding Arbitration Provision, “Surf Internet” means Surf Internet and Surf Internet-Related Entities.

b.       Right to Sue in Small Claims Court. Notwithstanding anything in this Binding Arbitration Provision to the contrary, either you or Surf Internet may elect to bring an individual action in small claims court 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.

c.       Right to Opt Out of Binding Arbitration. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH SURF INTERNET ARBITRATED BY NOTIFYING US IN WRITING WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE OF YOUR ENROLLMENT IN THE SMS SERVICE, BY VISITING SUPPORT@SURFINTERNET.COM OR WRITING TO 228 WATERFALL DRIVE, ELKHART, IN, 465516. ATTN: LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO SURF INTERNET MUST INCLUDE YOUR NAME, EMAIL ADDRESS, MOBILE TELEPHONE NUMBER, AND ACCOUNT NUMBER (IF YOU ARE AN EXISTING SURF INTERNET CUSTOMER) OR TELEPHONE NUMBER AND EMAIL ADDRESS (IF YOU ARE NOT A SURF INTERNET CUSTOMER) AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH SURF INTERNET THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS BINDING ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH SURF INTERNET OR YOUR USE OF THE SMS SERVICE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ANY OPT-OUTS SUBMITTED AFTER THIS PERIOD ARE NOT EFFECTIVE. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH SURF INTERNET, YOU DO NOT NEED TO DO SO AGAIN.

d.       Initiation of Arbitration Proceeding/Selection of Arbitrator.  The Party initiating the arbitration proceeding may open a case with the American Arbitration Association - Case Filing Services, 800-778-7879, www.adr.org under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).

e.       Arbitration Procedures.  Because the SMS Service provided to you by Surf Internet may concern interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes.  No state statute pertaining to arbitration shall be applicable under this Binding Arbitration Provision.  If there is a conflict between this Binding Arbitration Provision and the rules of the arbitration organization, this Binding Arbitration Provision shall govern.  If the AAA will not enforce this Binding Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with Surf Internet.  If this situation arises, the Parties shall agree on a substitute arbitration organization.  If the Parties are unable to agree, the Parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Binding Arbitration Provision as written.  If there is a conflict between this Binding Arbitration Provision and the rest of this Agreement, this Binding Arbitration Provision shall govern.  A single arbitrator will resolve the 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 Federal Rules of Evidence shall apply to any arbitration.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a Party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the Parties for purposes of enforcement.  If an award granted by the arbitrator exceeds $75,000 (U.S.), either Party can appeal that award to a three- arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) business days from the date of entry of the written arbitration award.  The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization.  The arbitration organization will then notify the other Party that the award has been appealed.  The three-arbitrator panel will issue its decision within one hundred and twenty (120) calendar days of the date of the appealing Party’s notice of appeal.  The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.

f.        RESTRICTIONS:  ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED.  YOU UNDERSTAND, ACKOWLEDGE AND AGREE THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION 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.

g.       PAYMENT OF ARBITRATION FEES AND COSTS.  SURF INTERNET WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST TO SURF INTERNET PRIOR TO THE COMMENCEMENT OF THE ARBITRATION.  YOU ARE DIRECTLY RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, FEES FOR ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN SURF INTERNET’S FAVOR, YOU SHALL REIMBURSE SURF INTERNET FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE SURF INTERNET FOR ANY OF THE FEES AND COSTS ADVANCED BY SURF INTERNET.  IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS BINDING ARBITRATION PROVISION, SURF INTERNET WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.

h.       Severability.  If any clause within this Binding Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Binding Arbitration Provision, and the remainder of this Binding Arbitration Provision will be given full force and effect.  If the class action waiver clause is found to be illegal or unenforceable, the entire Binding Arbitration Provision will be unenforceable, and the dispute will be decided by a court with competent jurisdiction.  In the event this entire Binding Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Binding Arbitration Provision, you and Surf Internet have each agreed to waive, to the fullest extent allowed by law, any trial by jury.

i.         EXCLUSIONS FROM ARBITRATION.  YOU AND SURF INTERNET AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION:  (1) ANY CLAIM FILED BY YOU OR BY SURF INTERNET THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE; (4) ANY DISPUTE RELATED TO OR ARISING FROM THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS BINDING ARBITRATION PROVISION AND (5) ANY DISPUTE THAT ARISES BETWEEN SURF INTERNET AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY APPLICABLE FEDERAL, STATE, OR LOCAL LAW.

j.         Continuation.  This Binding Arbitration Provision shall survive the termination of this SMS Service and Terms with Surf Internet for any reason.

10.         GENERAL

a.       Entire Agreement.  These Terms and any other documents incorporated by reference constitute the entire agreement and understanding between you and Surf Internet with respect to the subject matter of this SMS Service and replace any and all prior written or verbal agreements.  If any portion of these Terms 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.  

 

b.       No Waiver.  Surf Internet does not waive any provision or right or excuse any breach if it fails to insist upon or enforce strict performance of any provision of these Terms.  Neither the course of conduct between you and Surf Internet nor trade practice shall act to modify any provision of these Terms.

 

c.       Governing Law, Jurisdiction and Venue. These terms shall be deemed to have been made in, and shall be construed and enforced pursuant to the laws of the State of Delaware, without regard to the conflict of laws principles thereof. The Parties agree that any claim, action, dispute or proceeding arising out of or related to these Terms shall be brought exclusively in a federal or state court located in Elkhart County, Indiana, and the Parties hereby consent to such venue and to the jurisdiction of such courts over any such proceedings and personal jurisdiction over themselves.

 

d.       Assignments. You understand, acknowledge and agree that Surf Internet has the right to freely assign or transfer these Terms and our rights and obligations thereunder with or without notice to you, and that the consents to receive texts and email messages provided under these Terms shall transfer to the new owner of Surf Internet.

 

e.       You understand, acknowledge, and agree that these Terms shall survive termination of the SMS Service for any reason. 

 

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