Surf Internet Terms of Use Agreement for Residential Services
(Effective Date November 1, 2022 for New Customers;
Updated November 1 and Effective Date December 1, 2022 for Existing Customers)
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION, AS THIS IS A BINDING LEGAL CONTRACT BETWEEN SURF INTERNET AND YOU, AND SUPERSEDES ALL PRIOR COMMUNICATIONS AND AGREEMENTS WITH RESPECT TO THE SERVICES.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. 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 THE SERVICES IDENTIFIED BELOW YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND THAT YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
General
This Surf Internet Terms of Use Agreement for Residential Services ("TOU" and "Agreement") by and between Surf Air Wireless LLC dba Surf Internet ("Surf Internet," "we," our," or "us") and any residential customer ("Customer," "you," or "your") sets forth the terms and conditions of Customer's agreement to purchase high-speed internet access service ("HSI Service"), Wi-Fi, voice over Internet Protocol ("VoIP") telephony service, or any other service (collectively, "Services") as provided by Surf Internet under a plan according to prices, quantities, terms and conditions set forth herein. The Services do not include Surf Internet owned or controlled websites such as those listed in Appendix A. As used herein, "Customer" refers to the individual responsible for the account with Surf Internet by signing the Surf Internet Service Authorization Form ("Authorization Form") or otherwise indicate your affirmative acceptance of such terms. Surf Internet and Customer are collectively the "Parties" and each individually a "Party." "Affiliate" means an entity that controls, is controlled by or is under common control with Surf Internet.
By using any of the Services, Customers agree to be bound by the terms and conditions of this Agreement and all documents incorporated by reference herein, including without limitation, Surf Air Wireless dba Surf Internet and Company-Wide Acceptable Use Policy; the Authorization Form, Surf Internet Privacy Policy, DMCA Copyright Infringement Notification Policy and Additional Terms (terms and conditions that will govern a new service offering) as each may be amended from time to time (collectively, "Surf Internet Service Agreements"). If there is a conflict between this Agreement and any Additional Terms, the Additional Terms shall govern.
We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. Unless this Agreement or Applicable Law (as defined below) specifies otherwise, we will provide you thirty (30) days prior notice of any significant or material change to this Agreement as provided below. If you find the change(s) unacceptable, you have the right to cancel your Service(s). However, if you continue to receive or use Service(s) after the end of the notice period (the "Effective Date") of the change, you will be considered to have accepted the changes, unless additional measures are required by law. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose. Any purchase order or similar document, which may be issued by Customer in connection with this Agreement does not modify this Agreement. However, Surf Internet's Authorization Order will supplement this Agreement.
TERMS AND CONDITIONS
1. LENGTH OF SERVICE TERM. Surf Internet's HSI Service, Wi-Fi and VoIP Services are provided to residential Customers on a month-by-month basis, which is measured by a calendar month. The terms of this Agreement become effective upon execution of the Authorization Order, or otherwise indication of your affirmative acceptance of such terms. Your Service Term begins at the time Service(s) is activated. Activation occurs once the Service(s) is available for use by you, which is upon installation. You understand, acknowledge and agree that if installation is completed after the 15th of the month, the amount of your first Monthly Service Charge (as defined below), will be prorated based on the number of days remaining in the month. Upon termination of the Service(s) (subject to the notice requirements in Section 13(b), herein), we will also prorate a refund of your pre-paid Monthly Service Charge based on the same process.
2. SCOPE OF SERVICES. You agree that the Service(s) and the Surf Internet Equipment will be used primarily at your place of residence ("Premises") for personal, non-commercial purposes, unless otherwise specifically authorized by us in writing. We understand that Customers may work from home and may occasionally conduct commercial business using the Service(s). However, you understand, acknowledge and agree that any such commercial use is not allowed on a regular basis nor may you operate a commercial business on the Premise using these residential-based Service(s), and if any commercial use of the Service(s) is excessive, as determined solely by Surf Internet based on your usage patterns, you will be required to upgrade the Service(s). You understand, acknowledge and agree that if your Internet connection is suspended, terminated or disabled for any reason, the VoIP Services will not be available until you reestablish your Internet connection with Surf Internet or whichever Internet provider you utilize.
3. CHARGES AND BILLINGS
a. Charges, Fees, and Taxes You Must Pay. You agree to pay all charges associated with the Service(s), including, but not limited to, installation/service call charges, monthly service charges, "Surf Internet Equipment" (as defined below) rental charges, "Surf Internet Equipment Recovery Fees" (as defined herein), applicable federal, state, and local taxes and fees (however designated), regulatory recovery fees for municipal, state and federal government fees or assessments imposed on Surf Internet, permitted fees and cost recovery charges, or any programs in which Surf Internet may participate, including, but 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 WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE RETROACTIVELY. We will provide you with notice and an effective date of any change in our prices or fees, unless the change in price is related to a change in governmental or quasi-governmental taxes, fees, or assessments, in which case we may elect not to provide notice except where required by applicable local, state, federal or international statutes, regulations, rules, policies, guidelines, ordinances or enforcement decisions (collectively, "Applicable Law"). Not all fees apply to all Service(s).
• For HSI Service Customers . HSI Service price information is available at www.Surfinternet.com (or an alternative site if we notify you), and is incorporated herein.
• For VoIP Service Customers. VoIP Service price information is available at www.Surfinternet.com (or an alternative site if we notify you), and is incorporated herein.
• For Other Services. Other Services price information is available at www.Surfinternet.com (or an alternative site if we notify you) , and is incorporated herein.
b. How We Will Bill You. Customers are generally billed monthly, in advance, for recurring monthly Service charges, Surf Internet Equipment rental charges, taxes and fees (collectively, "Monthly Service Charge"). YOU MUST PAY, ON OR BEFORE THE DAY WE INSTALL ANY OR ALL OF THE SERVICE(S), THE FIRST MONTHLY SERVICE CHARGE AND ALL INSTALLATION CHARGES. Your first bill may include prorated charges from the date you first begin receiving the Service(s), as well as the monthly recurring charges for the next month and charges for non-recurring services you have received. You may be billed for some Service(s) individually after they have been provided to you. If you receive Service(s) under a promotion, after the promotional period ends, regular charges for the Service(s) will apply. If you are receiving Service(s) at a trial or introductory rate, you may cancel your Service(s) at the end of the trial or introductory period by calling your local Surf Internet customer service center. We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to the outstanding charges in the amounts and proportions that we determine.
c. Third-Party Charges That Are Your Responsibility. You acknowledge that you may incur charges with third-party service providers such as accessing on-line services, or purchasing or subscribing to other offerings via the Internet that are separate and apart from the amounts charged by Surf Internet. You may be subject to additional terms and conditions imposed by such third-party service providers. You are solely responsible for all such charges payable to third parties, including all applicable taxes and fees.
d. Payment by Credit Card or Check. If you use a credit card to pay for the Service(s), use of the card is governed by the card issuer agreement, and you must refer to that agreement for your rights and liabilities as a cardholder. If Surf Internet does not receive payment from your credit card issuer or its agents, you understand, acknowledge and agree that you are required to pay all amounts due upon demand, including a "Credit Card Fee" of up to $10.00 (U.S.). If you make payment by check, you authorize Surf Internet to collect your check electronically. If your check payment cannot be completed at the time of our processing due to insufficient funds in your account or any other reason not within our control, you understand, acknowledge and agree that you will be charged an "ACH/Insufficient Funds Fee" of up to $35.00 (U.S.), and that you are required to pay all amounts due upon demand. You understand, acknowledge and agree that you may not amend or modify this Agreement with any restrictive endorsements (such as "paid in full"), or an accord and satisfaction notice or agreement on or accompanying checks or other payments accepted by Surf Internet and that any such notations shall have no legal effect.
e. Billing Disputes. If you dispute any charge or fee, or request a billing credit, you must do so in writing within fifteen (15) calendar days from the invoice date. You understand, acknowledge and agree that you will waive any disputes or credits that you do not report within fifteen (15) days. Disputes must be sent in writing to the following: Via email: billing@surfinternet.com ;Via postal mail Surf Internet, P.O. Box 1401, La Porte IN, 46352. Disputes must be reasonable and made in good faith. You must still pay the portion of your bill that is not in dispute. If you pay the amount of the invoice that is not in dispute, you understand, acknowledge and agree that our processing of this partial payment will not be deemed to constitute acceptance of the portion of the invoice that is in dispute, even if you take measures to execute an accord and satisfaction notice or agreement.
f. Our Remedies if You Pay Late or Fail to Pay
(i) Late or Non-Payments: You may be billed fees, charges, and assessments related to late or non-payments if for any reason (a) Surf Internet does not receive payment for the Service(s) by the payment due date or (b) you pay less than the full amount due for the Service(s), unless you have submitted a formal billing dispute as detailed herein. YOU WILL BE ASSESSED A LATE FEE OF $5 (U.S.) OR 1.5%, OF THE BALANCE (WHICHEVER IS LESS) IF FULL PAYMENT IS NOT RECEIVED BY THE DUE DATE, OR THE HIGHEST RATE PERMITTED BY APPLICABLE LAW. YOU UNDERSTAND, ACKNOWLEGE AND AGREE THAT IF YOUR ACCOUNT IS SUSPENDED OR TERMINATED FOR NON-PAYMENT, YOU MAY ALSO BE SUBJECT TO EITHER A REINSTATEMENT FEE OR A RECONNECTION FEE (AS DETAILED BELOW).
(ii) Late and Non-Payment Fees are Not Considered Interest or Penalties: Surf Internet does not anticipate that you will fail to pay for the Service(s) on a timely basis, and we do not extend credit to Customers. Any fees, charges, and assessments due to late payment or nonpayment are not a penalty but are liquidated damages, intended to be a reasonable estimate of our various costs resulting from late payments and non-payments.
(iii) Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the costs of collection. These costs include, but are not limited to, any collection agency's fees, attorneys' fees, and arbitration or court costs.
(iv) Suspension/Disconnect: If you fail to pay the full amount due for any or all of the Service(s) and your account enters into delinquent status, Surf Internet may, at its sole discretion in accordance with and subject to Applicable Law, suspend or disconnect any or all the Service(s) you receive.
a. Suspension/Soft Disconnect – For all accounts with an account balance that reaches twenty-five (25) calendar days past due from date of the Invoice. The Service(s) will be unusable.
b. Hard Disconnect – For all accounts with an account balance that reaches fifty-five (55) calendar days past due from date of the Invoice. Surf Internet Equipment must be returned to or picked-up by Surf Internet.
g. Reinstatement, Reconnection Fees and Related Charges. If you resume Service(s) after any suspension, we may require you to pay a "Reinstatement Fee". If you reinstate any or all Service(s) after the Service has been disconnected, we may require you to pay a "Reconnection Fee," which includes an installation fee, a service activation fee, and/or an advance deposit. The amount of the Reinstatement Fee and Reconnection Fee will be set forth in your Authorization Order. These fees are in addition to all past due charges and other fees, which must be paid prior to any reinstatement or reconnection of the Service(s). Reinstatement or reconnection of the Service(s) are subject to our credit policies, this Agreement and Applicable Law.
h. Our Right to Make Credit Inquiries. BY ENTERING INTO THIS AGREEMENT, YOU HEREBYAUTHORIZE SURF INTERNET TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT HISTORY FROM THIRD PARTIES, TO ENTER THIS INFORMATION IN YOUR SURF INTERNET ACCOUNT FILE, AND TO DISCLOSE THIS INFORMATION CONCERNING YOU TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES. Surf Internet will not discriminate in the application of its 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 Surf Internet or its third party credit bureau will be done in conformance with the requirements of all Applicable Law.
4. CHANGES TO SERVICES. Subject to Applicable Law, we have the right to rearrange, delete, add to, or otherwise change features or offerings contained our Service(s), Surf Internet Equipment, and rates or charges, at any time, with or without notice. Such changes include, but are not limited to, content, functionality, hours of availability, Customer Equipment requirements, speed, and upstream and downstream rate limitations. If notice is provided, it may be provided on your monthly bill, as a bill insert, email, in a newspaper, or other communication permitted under Applicable Law. If you find a change in the Service(s) unacceptable, you have the right to cancel your Service(s). However, if you continue to receive or use Service(s) after any such change(s), this will constitute your acceptance of the change(s), unless additional measures are required by law.
5. CUSTOMER PREMISES AND CUSTOMER EQUIPMENT
a. Customer Premises. You agree to allow us, our agents and service providers the right to enter your Premises at a reasonable time for the purposes of installing, configuring, maintaining, inspecting, upgrading, updating, repairing, replacing, removing and/or disconnecting Surf Internet Equipment used to receive any of the Service(s). You represent and warrant that you are either the owner of the Premises or that you have the full authority to give us access to the Premises. If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us, our agents or service providers onto the Premises to perform the activities specified above. In addition, you agree to supply our employees, our agents or service providers, if we ask, the owner's name, address, and phone number and/or written evidence that the owner has authorized you to grant access to us, our agents or service providers to the Customer Premises.
b. Customer Equipment. "Customer Equipment" means software, hardware or services that you own or lease from other third parties and select to use in connection with the Service(s) or Surf Internet Equipment, including personal computers, tablets or other such devices. Customer Equipment also includes any equipment that you purchase from or through Surf Internet, such as the standby back-up battery and power source as detailed in Section 5(d)(iii), herein. It does not include equipment leased to you by Surf Internet. You agree to allow us, our agents and service providers the right to upgrade, modify or change Surf Internet owned or leased hardware connected to or used in association with Customer Equipment, and to send Surf Internet owned or leased software and/or "downloads" to Customer Equipment. You represent and warrant that you are either the owner of the Customer Equipment or that you have the full 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, our agents or service providers access to the Customer Equipment to perform the activities specified above. In addition, you agree to supply Surf Internet employees, our agents or service providers, if we ask, the owner's name, address and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Customer Equipment to perform the activities specified above.
c. No Responsibility for Customer Equipment.
(i) Repair or Access to Customer Equipment. Surf Internet has no responsibility for legal liability for the operation, support, maintenance, or repair of any Customer Equipment to which Surf Internet employees or its service providers or agents have connected hardware, sent software or "downloads." By accepting this Agreement, you waive all claims against Surf Internet for interference, disruption, or incompatibility between the Surf Internet Equipment or the Services and any other service, systems, or Customer Equipment. In the event of such interference, disruption, or incompatibility, you understand, acknowledge and agree that your sole remedy shall be to terminate the Services in accordance with Section 13, herein.
(ii) Software. When you use certain features of the Service(s), such as online features (where available), you may require special software, applications, and/or access to the Internet. 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 viruses, Trojan horses, worms, or other harmful code or malware (collectively, "Virus(es)"). We may, but are not required to, terminate all or any portion of the installation or operation of the Service(s) if a Virus or software is found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of Viruses. 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 made or required on account of any problem related to a Virus detected on your Customer Equipment. In addition, as part of the installation process for the software and other components of the Service(s), system files on your Customer Equipment may be modified. Surf Internet does not represent, warrant or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation any other devices connected to the Services or the Surf Internet Network, or cause the loss of files or data, or that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or data or disrupt the normal operations of any Customer Equipment or other devices. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES.
d. Customer Obligations.
(i) Facilities . Customers must supply certain facilities on their Premises for the VoIP Services, such as installed Inside Wiring, jacks and a powered electric outlet. You are responsible for supplying and ensuring that the facilities provided by you are compatible with the telephony Services and meet state, federal and other applicable standards. You represent that you either own your facilities or have the right to use the facilities in connection with the Services. Surf Internet shall have no obligation to provide, maintain, support, repair or service your facilities.
(ii) Inside Wiring. You may install Inside Wiring, such as additional wiring and outlets, provided it does not interfere with the normal operations of Surf Internet Equipment or the Surf Internet Network. If you wish for Surf Internet install Inside Wiring, we will charge you for that service. Regardless of who installed it, we consider the Inside Wiring your property or the property of whomever owns the Premises. Accordingly, you are responsible for the repair and maintenance of the Inside Wiring, unless you and Surf Internet have agreed otherwise in writing. (If you do not own the Premises, contact your landlord or building manager about the repair or maintenance of Inside Wiring.) If you have us repair or maintain the Inside Wiring, we will charge you for that service. Surf Internet's Inside Wiring fees are available on request.
(iii) Continued Electrical Power . You must provide electrical power and a continuous connection to the power grid at all times (including, without limitation, when you are not using the Services). Your failure to provide such power and continuous connection may result in damage to the Surf Internet Equipment or to any Customer Equipment for which damage you will be solely responsible.
(A) Surf Internet provides Customer with an option to purchase a minimum of eight hour standby backup power: The one-time cost for any standby backup battery will be established in the Customer Authorization Form.
(B) Surf Internet also offers Customer installation of a Universal Power Supply. The one-time cost for any Universal Power Supply will be established in the Customer Authorization Form.
(C) All standby backup power or Universal Power Supply equipment purchased by the Customer from or through Surf Internet is considered to be Customer Equipment.
(iv) FTP/HTTP Service Setup. You acknowledge that when using Surf Internet's HSI Service there are certain applications such as FTP ("File Transfer Protocol") or HTTP ("HyperText Protocol") that may be used by other persons or entities to gain access to your Customer Equipment. You are solely responsible for the security of your Customer Equipment or any other equipment you choose to use in connection with the Service(s), including without limitation any data stored on such equipment, and your User ID and passwords.
(v) Required Letter of Authorization. For Customers requesting that Surf Internet port an existing phone number from a prior carrier, a signed Letter of Authorization ("LOA") must be on file before service will be provided. The LOA gives legal authorization to Surf Internet to act as your agent, to make any and all inquiries necessary for the purpose of obtaining customer service record information and to act as your agent for the purpose of taking any and all actions required (including the removal of any account protection/freezes) to become your local telephony service provider and to implement other services described herein for all of your physical service and billing locations including changing your long distance carrier(s).
e. You understand, acknowledge and agree by using the Service(s), you are enabling and authorizing Surf Internet, its authorized service providers and agents and Surf Internet Equipment manufacturers to send code updates to the Surf Internet Equipment and Customer Equipment, including, but not limited to, modems, radios, and other devices at any time it is determined necessary to do so as part of the Service(s). Such code updates may change, add or remove features or functionality of any such equipment or the Service(s).
f. Your Customer Equipment may need to be opened, updated, accessed or used either by you or by Surf Internet employees, our service providers or agents, in connection with the installation, updating or repair of the Services. You understand, acknowledge and agree that the opening, accessing or use of your Customer Equipment used in connection with HSI Service or other Service(s) may void warranties provided by the Customer Equipment manufacturer or other parties relating to the computers or device's hardware or software. NEITHER SURF INTERNET NOR ANY OF ITS EMPLOYEES, SERVICE PROVIDERS, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES FOR ANY CUSTOMER EQUIPMENT.
g. Customers understand, acknowledge and agree that Surf Internet is not responsible for any maintenance or repairs of Customer Equipment. Customers may purchase separate maintenance and repair services from Surf Internet on a one-time basis or via a monthly subscription. Customers further understand, acknowledge and agree that Surf Internet will still have limited liability for Customer Equipment. Please see Surf Internet's website for more details.
h. For HSI Service Customers. You can find Surf Internet current minimum technical requirements and other standards ("Minimum Technical Requirements") for HSI Service Customers listed in Appendix B. An updated list of requirements may be posted on www.surfinternet.com . These requirements may be located at an alternative site if we so notify you. Whether a modem, gateway/ router, voice-capable modem or other device is owned by you or us, we have the unrestricted right, but not the obligation, to upgrade or change the firmware in these devices remotely or on the Premises at any time that we determine it necessary or desirable in order to provide Service(s) to you in accordance with our specifications and requirements.
i. Customer understands, acknowledges and agrees that prior to Surf Internet accessing Customer Equipment, accessing or servicing any Surf Internet Equipment or the Surf Internet Network for maintenance, upgrades or any other purpose, it is Customer's responsibility to (i) back-up the data, software, information or other files stored on Customer Equipment or Surf internet Equipment or connected to Customer Equipment and other devices including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (ii) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Customer Equipment. Under no circumstances shall Surf Internet or its employees, service providers or agents be liable for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media stored on or connected to Customer Equipment or Surf Internet Equipment.
6. NON-RECOMMENDED CONFIGURATIONS: Customer Equipment that does not meet Surf Internet Minimum Technical Requirements constitutes a "Non-Recommended Configuration." You understand, acknowledge and agree that Customers may use their own routers but may not use their own modems. Modems provided by a Customer shall be deemed a Non-Recommended Configuration. NEITHER SURF INTERNET NOR ANY OF ITS EMPLOYEES, SERVICE PROVIDERS, OR AGENTS REPRESENT AND WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICE(S). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE OF NON-RECOMMENDED CONFIGURATIONCOULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE AND/OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, CUSTOMER PREMISES , CUSTOMER,SURF INTERNET EQUIPMENT OR THE SURF INTERNET NETWORK. YOU UNDERSTAND, ACKOWLEDGE AND AGREE THATNEITHER SURF INTERNET NOR ANY OF ITS EMPLOYEES, SERVICE PROVIDERS, OR AGENTSSHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. Surf Internet reserves the right to deny Customer support for the Service(s), suspend and/or terminate your Service(s) if you use a Non-Recommended Configuration.
7. SURF INTERNET EQUIPMENT.
a. Surf Internet Equipment. You agree that except for the wiring installed inside the Premises ("Inside Wiring") and Customer Equipment, all other equipment is owned by or leased to Surf Internet and will not be deemed fixtures or in any way part of the Premises, unless specifically identified as such. "Surf Internet Equipment" means all software or "downloads" and all new or reconditioned equipment installed, provided or leased to you by us, our agents or service providers, including, but not limited to, cabling or wiring and related electronic devices, modems, voice-capable modems, wireless gateway/routers, radios and any other hardware, including equipment leased to you by Surf Internet.
b. Restrictions on Use of Surf Internet Equipment. You agree to use Surf Internet Equipment only for the Service(s) pursuant to this Agreement. You will not use the Surf Internet Equipment at any time at an address other than the Premises without our prior written authorization. We may remove or change the Surf Internet Equipment at our discretion at any time the Service(s) are active or following the termination of your Service(s). You understand, acknowledge and agree that our addition or removal of or change to Surf Internet Equipment may temporarily interrupt your Service(s). You may not sell, lease or sublease, assign, pledge, transfer, abandon, or give away Surf Internet Equipment, permit to exist any security interest, lien or encumbrance with respect to any of Surf Internet Equipment, or permit any other provider of high speed data or other services or a Premises owner or manager to use Surf Internet Equipment. Surf Internet Equipment may only be used in the Premises. At your request, we may relocate Surf Internet Equipment on the Premises for an additional charge, at a time mutually agreeable to you and us. YOU UNDERSTANDAND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE SURF INTERNET EQUIPMENT OR SERVICE(S) AT A LOCATION OTHER THAN THE PREMISES, THE SERVICE(S) MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than Surf Internet or its service providers or agents to service, maintain, make changes or modifications to Surf Internet Equipment.
8. COMPLIANCE WITH ACCEPTABLE USE POLICY. You represent and warrant that you (a) will not resell or permit, encourage or solicit another to resell the Service(s), in whole or in part; and (b) you will not use or permit, encourage or solicit another to use the Service(s), directly or indirectly, for any unlawful purpose, including, but not limited to, violation of the Surf Internet AUP and Privacy Policy. Use of the Service(s) for transmission, communication or storage of any information, data or material in violation of any Applicable Law is also prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Service(s) at the Premises 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 Surf Internet policies including, but not limited to, the AUP and Privacy Policy.
9. NO UNAUTHORIZED DEVICES OR TAMPERING: You agree not to attach or encourage, solicit or assist any person to attach any unauthorized device to Surf Internet Equipment or the Surf Internet Network. If you make, encourage, solicit or assist any person to make any unauthorized connection or modification to Surf Internet Equipment or the Surf Internet Network, we may terminate your Service(s) and recover such damages as may result from your actions. You also agree that you will not attach anything to the Inside Wiring, Surf Internet Equipment, or Customer Equipment, whether installed by you or us, which singularly or collectively impairs the integrity of the Surf Internet Network or degrades our network's signal quality or strength or creates signal disruption. We may disconnect and terminate your Service(s) and recover such damages as may result from your actions. You also agree that we may recover damages from you for tampering with any Surf Internet Equipment or any other part of our network or for receiving unauthorized Service(s). The unauthorized reception of the Service(s) may also result in criminal fines and/or imprisonment.
10. INSURANCE PROTECTION. 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 or interference with Surf Internet Equipment or the Surf Internet Network. Therefore, we encourage you to cover any Surf Internet Equipment in your possession by your homeowners, renters, or other insurance. You will be directly responsible for loss, repair, replacement and other costs, damages, fees, and charges if you do not return the Surf Internet Equipment to us in an undamaged condition, less any normal wear and tear.
11. E-911 SERVICE LIMITATIONS. Although an interconnected VoIP Service can be used from virtually an internet connection anywhere, it raises challenges for the emergency services community in determining the location from which a 911 call has originated. You understand, acknowledge and agree that:
§ VoIP Service 911 calls may not connect to the 911 call center serving your current location or may improperly ring to the administrative line of the 911 call center, which may not be staffed after hours or by trained 911 operators.
§ VoIP Service 911 calls may correctly connect to the 911 call center but not automatically transmit the caller's phone number and/or location information.
§ VoIP Service customers may need to provide location or other information to their VoIP providers, and update this information each time they change locations for their VoIP 911 service to function properly.
By acceptance and use of Surf Internet VoIP Services with this notice of E-911 Service limitations, Customer represents and warrants that Customer will display or install any such E-911 label warnings provided by Surf Internet as directed and that Customer will convey these limitations to all persons who may have occasion to place calls over the VoIP Service. If Customer has any questions about 911/E911, contact Surf Internet 888-274-6381 or customercare@surfinternet.com.
12. ASSIGNABILITY. This Agreement and the Service(s) furnished hereunder may not be assigned by you. You agree to notify us immediately of any changes of ownership or occupancy of the Premises. We may freely assign this Agreement, and our rights and obligations thereunder with or without notice to you. Customers understand, acknowledge and agree that Customers have no right to assign this Agreement without written consent of Surf Internet.
13. TERMINATION OF THIS AGREEMENT
a. Effective date of Termination. This Agreement will be in effect from the time that the Service(s) are activated until (i) it is terminated as provided for by this Agreement or (ii) it is replaced by a revised or new terms of use agreement.
b. Termination by You. You may terminate this Agreement for any reason at any time by notifying Surf Internet at least fifteen (15) days prior to the end of your monthly term in one of three ways: (i) send a written notice to the postal address of your local Surf Internet business office;(ii) send an electronic notice to the email address specified on www.Surfinternet.com; or (iii)call our customer service line during normal business hours. Subject to Applicable Law all applicable fees and charges for the Service(s) will accrue until this Agreement has terminated, the Service(s) have been disconnected, and all Surf Internet Equipment has been returned. We will refund all prepaid monthly service fees charged for Service(s) on a prorated basis after the date of termination (less any outstanding amounts due Surf Internet for the Service(s), Surf Internet Equipment Recovery Fees, or other applicable fees and charges).
c. Suspension and Termination by Surf Internet. Under the conditions listed below, Surf Internet reserves the right, subject to Applicable Law, to act immediately and without notice to Customers terminate or suspend this Agreement or the Service(s) and/or to remove from the Service(s) any information transmitted by or to any authorized users (e.g., email). Surf Internet may take these actions if it: (i) determines that your use of the Service(s) does not conform with the requirements set forth in this Agreement, (ii) determines that your use of the Service(s) interferes with Surf Internet's ability to provide the Service(s) to you or others, (iii) reasonably believes that your use of the Service(s) violates Applicable Law, this Agreement or the Surf Internet AUP, or written and electronic instructions for use, or (iv) reasonably believes that your use of the Service(s) interferes with or endangers the health and/or safety of our personnel or third parties. In addition, Surf Internet may terminate this Agreement at any time without notice if we cease to provide Service in the area where you receive the service from us.
d. Your Obligations Upon Termination. You agree that upon termination of this Agreement you will do the following: (i) You will immediately cease all use of the Service(s) and all Equipment; (ii) You will pay in full for your use of the Service(s) up to the date that this Agreement has been terminated and the Service(s) are disconnected; and (iii) Within ten (10) calendar days of the date on which Service(s) are disconnected, you will return all Surf Internet Equipment to our local business office or to our designee in working order, normal wear and tear excepted. You understand, acknowledge and agree that if Surf Internet Equipment is not returned as stated, that you will be charged the "Equipment Recovery Fee" amount set forth in the current pricing lists for Surf Internet Equipment, or the revised amount for which you may receive notice. If no amount has been specified for the particular model of Surf Internet Equipment, you further understand, acknowledge and agree that you will be charged the retail price for a new replacement and that you may also be charged for costs that we incur in removing and replacing any Surf Internet Equipment for the next Customer. Upon our request, you will permit us and/or our employees, agents, contractors, and representatives to access the Premises during regular business hours with or without notice, legal process, prior judicial hearing or liability for trespass or any other damage, which rights you hereby voluntarily, intelligently and knowingly waive, and for this purpose, to remove all Surf Internet Equipment and other material provided by Surf Internet.
14. DISCLAIMER OF WARRANTIES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THE SERVICES ARE 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, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS THE WARRANTY IS EXPRESSLY STATED IN THIS AGREEMENT. WE ALSOMAKE NO WARRANTIES OR REPRESENTATIONS (I)AS TO PERFORMANCE REQUIREMENTS FOR THE SERVICES, SURF INTERNET EQUIPMENT OR SURF INTERNET NETWORK; (II)THAT THE SERVICES WILLBE UNINTERRUPTED, ERROR-FREE, SECURE, OR DELIVERED WITHOUT DELAY; OR (III) RELATED TO DATASECURITY, PRIVACY OF PERSONAL INFORMATION, DATA LOSS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WE WILL NOT CORRECT ANY ERRORS RELATED TO YOUR USE OF THE SERVICES. YOU ASSUME ALL RISKS AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. NO STATEMENTS FROM SURF INTERNET, ITS EMPLOYEES, SERVICE PROVIDERS, OR AGENTS MAY INCREASE OR MODIFY THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. YOU FURTHER UNDERSTAND, ACKNOWLEDGE AD AGREE THAT 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 SERVICES.
15. LIMITATION OF LIABILITY. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of Surf Internet and 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 Parties"), which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine .
a. STATUTE OF LIMITATIONS. 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. IN ADDITION TO THE LIMITATION OF LIABILITIES FOR " NON-RECOMMENDED CONFIGURATIONS" IN SECTION 6 AND "CUSTOMER PREMISES AND CUSTOMER EQUIPMENT" IN SECTION 5 HEREIN, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL SURF INTERNET-RELATED ENTITIES BE LIABLE FOR ANY REASON WITH RESPECT TO (I) 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 YOUR RELIANCE ON OR USE OF THE SURF INTERNET EQUIPMENT OR THE SERVICE(S); (II) THE SERVICE(S) OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO E-911 LIMITATIONS; (III) UNDER ANY FORCE MAJEURE EVENT (AS DEFINED IN SUBSECTION 15(e)(iii) HEREIN) OR ANY MATTER BEYOND SURF INTERNET'S REASONABLE CONTROL; (IV) ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES; (V) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (VI) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER'S FAILURE TO BACK-UP ANY EQUIPMENT AS REQUIRED IN SECTION 5(h) HEREIN; (VII) FOR ANY DAMAGES OR LOSS RESULTING FROM VIRUSES OR FROM ANY ATTEMPT BY SURF INTERNETTO REMOVE THEM; (VIII) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PERSON MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE(S); (IX) FOR CUSTOMER'S ACCESS TO THIRD-PARTY CONTENT ON THE INTERNET WHILE USING THE SERVICE(S); OR (X) FOR CUSTOMER'S USE OF THE SERVICE(S) FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS AGREEMENT UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
c. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMER. CUSTOMER UNDERSTANDS, ACKNOWLEGES AND AGREES THAT IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL AGGREGATE LIABILITY OF SURF INTERNET UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN EXCLUDED OR LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 U.S.).
d. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE SURF INTERNET-RELATED PARTIES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT OR SERVICE OUTAGE, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, UPDATING, REPAIR, AND REMOVAL OF SURF INTERNET EQUIPMENT, CUSTOMER EQUIPMENT AND/OR THE SERVICE(S). IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY SURF INTERNET, ITS EMPLOYEES, SERVICE PROVIDERS, OR AGENTS, WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500 (U.S.). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
e. Disruption of Services and Force Majeure Events.
(i) High Risk Activities. 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 including, but not limited to, the direct control of nuclear facilities, mass transit systems, aircraft navigation or communication systems, Air traffic control, weapon systems and life support machines ("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 High Risk Activities.
(ii) Credit for Service Failures. Unless otherwise required by law or any applicable tariff, if there is a complete failure of a Service for twenty-four consecutive hours or more, excluding any interruption that is scheduled or due to a power outage, inclement weather or any other "Force Majeure" event contemplated by Section 15(e)(iii) below, you are entitled, upon request, as your sole and exclusive remedy, to a prorated credit of monthly recurring charges for affected services for the period that such failure continues beyond twenty-four hours.
(iii) Force Majeure Events. Surf Internet shall not be liable for any delay, interruption or failure to deliver the Service(s), directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your Premises; our inability to obtain access to the Premises; any court order, law, act or order of a governmental entity restricting or prohibiting the operation or delivery of the Service(s); or a Force Majeure Event. A Force Majeure Event includes without limitation: (1) act of God; (2) act of local, county, state, federal or other government in its sovereign or contractual capacity; (3) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (4) flood or adverse weather conditions, including solar flare or sun outage; (5) pandemic, epidemic or quarantine; (6) labor strike, lock-out or other labor disturbance; (7) fire, explosion, power failure or blackout; (8) damage, degradation or destruction of equipment, transmission lines of the Surf Internet Network; (9) unavailability of right-of-way, equipment or materials; or (10) any other cause beyond a Party's reasonable control. Changes in economic, business or competitive conditions shall not be considered a Force Majeure Event. The Party so affected by a Force Majeure Event shall, upon giving prompt notice to the other Party, be excused from such performance and any failure, interruption or delay of performance reasonably deemed to result therefrom shall not be considered a breach of this Agreement.
(iv) Credit for Service Interruptions. In all other cases of an interruption of the Service(s), you shall be entitled to a pro rata credit (in 24-hour increments) for any Service(s) interruption exceeding twenty-four consecutive hours after such interruption. You must make any such request for credit within fifteen (15) calendar days of any such interruption, or such other period of time as may be specifically provided by Applicable Law. Unless specifically provided by Applicable Law, such credit shall not exceed the fixed monthly charges for the month of such Service(s) interruption and excludes all non-recurring charges, one-time 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 credits provided by Surf Internet are at our sole discretion and in no event shall constitute or be construed as a course of conduct by Surf Internet.
f. Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge, understand and agree that we may use authorized third parties to provide components of the Service(s), including without limitation, their services, equipment (hardware and/or software), infrastructure, or content used as part of installation or the provision of services and that Surf Internet is not responsible for the performance (or non-performance) of such third-party services, equipment, infrastructure, or content. Surf Internet service providers and agents are responsible for the protection and safety of any Customer Personal Information which may be accessible to them during their engagement. Surf Internet shall not be bound by any undertaking, representation or warranty made by a service provider, agent, or employee of Surf Internet 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. In addition, you understand that you will have access to the services and content of other non-related or non-authorized third parties directly or indirectly through the Service(s). Surf Internet is not responsible nor liable for any other third party services, equipment, infrastructure, or content. You should address any questions or concerns to the providers of those services, equipment, infrastructure, or content.
g. 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 of residence 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, the liability of Surf Internet and Surf Internet Parties is limited to the maximum extent permitted by law. Notwithstanding State laws, you understand, acknowledge and agree that you may still be subject to the Statute of Limitation in Section 15(a), herein, and Surf Internet's $100.00 (U.S.) Limitation of Liability in Section 15(c), herein.
h. Survival of Limitations and Other Provisions. All representations, warranties, indemnifications, disclaimer of warranties, 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. Additionally, Sections 1-20herein shall survive termination of this Agreement for any reason.
16. INDEMNIFICATION AND LIABILITY OF CUSTOMER. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE SURF INTERNET-RELATED ENTITIES FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, ACTIONS,AND CAUSES OF ACTION (COLLECTIVELY, "CLAIMS")ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE SERVICE(S) OR THE SURF INTERNET EQUIPMENT; (B) VIOLATION OR INFRINGEMENT OF OUR OR ANY THIRD PARTY 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 HARDWARE, SOFTWARE,APPARATUS OR SYSTEM; (C) ANY CLAIMS ARISING OUT OF THE LACK OF 911/E911 OR DIALING ASSOCIATED WITH A HOME SECURITY, HOME DETENTION, OR MEDICAL MONITORING SYSTEM; OR(D) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
a. Customer shall promptly notify Surf Internet in writing of any such Claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such Claim.
b. You understand, acknowledge and agree that Surf Internet shall have the right to select counsel and to control the defense and settlement of such Claim; provided, however, that Customer shall be entitled to participate in the defense of such Claim and to employ counsel at its own expense to assist in handling the Claim.
c. Customer further understands, acknowledges and agrees that Customer shall not take any action in defense or settlement of the Claim that would negatively impact Surf Internet.
17. 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. You understand, acknowledge and agree that the American Arbitration Association ("AAA") rules will govern the election to resolve a Dispute in small claims court.
c. Right to Opt-Out of Binding Arbitration. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MUST DECLINE TO HAVE YOUR DISPUTES WITH SURF INTERNET ARBITRATED BY NOTIFYING US IN WRITING WITHIN THIRTY (30) CALENDAR DAYS FROM THE EFFECTIVE DATE OF YOUR SERVICE(S), BY VISITING SUPPORT@SURFINTERNET.COM OR WRITING TO 228 WATERFALL DRIVE, ELKHART, IN, 46516. 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 SERVICE(S). 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 Service(s) 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 INTERNETPRIOR 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 LAW.
j. Continuation. This Binding Arbitration Provision shall survive the termination of the Service(s) and Agreement with Surf Internet for any reason.
18. NOTICE METHOD FOR CHANGES TO THIS AGREEMENT. We will provide you notice of changes to this Agreement consistent with Applicable Law. The notice may be provided on your monthly bill, as a bill insert, in a newspaper, by email, or by other permitted communication. If you find the change(s) unacceptable, you have the right to cancel your Service(s) prior to the effective date of the modified Agreement. However, if you continue to use or receive the Service(s) after the change(s), we will consider this your acceptance of the change(s), unless other measures are required by law.
19. INTELLECTUAL PROPERTY RIGHTS.
a. End User Licenses. 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 HSI Service 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; you agree to destroy at that time all versions and copies of all software received by you in connection with HSI Service.
b. Ownership of Addresses. You acknowledge that use of HSI Service does not give you any ownership or other rights in any Internet/online addresses provided to you, including, but not limited to, Internet Protocol ("IP") addresses, email addresses, and Web addresses. We may modify or change these addresses at any time without notice and shall in no way be required to compensate you for these changes. Upon termination of an HSI Service account, we reserve the right permanently to delete or remove any or all addresses associated with the account.
c. Customer Authorization of Material Published Using the Services. Surf Internet does not claim any ownership of any material that you publish, transmit or distribute using HSI Service. By using HSI Service to publish, transmit, or distribute material or content, you (i) warrant that the material or content complies with the provisions of this Agreement; (ii) consent to and authorize Surf Internet, its employees, service providers, and agents to reproduce, publish, distribute, and display the content worldwide; and (iii) warrant that you have the right to provide this authorization. You understand, acknowledge and agree that material posted or transmitted using HSI Service may be copied, republished or distributed by third parties.
20. MISCELLANEOUS.
a. Entire Agreement. This Agreement 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 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.
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. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Indiana. The Parties agree that any claim, action 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 such proceeding and themselves.
d. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
e. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree that unless such provision materially affects the intent and purpose of the Agreement, such invalidity, voidability and unenforceability shall not affect validity of the Agreement nor the remaining provisions herein.
f. Additional Customer Representations and Warranties. In addition to representations and warranties Customers make elsewhere in this Agreement, you also represent and warrant the following:
(i) Age: You are at least 18 years of age.
(ii) Customer Personal Information: During the term of this Agreement, you have provided and will provide to Surf Internet Personal 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 promptly, in accordance with the terms of this Agreement, if there is any change in the information that you have provided to us. Failure to timely provide and maintain accurate information is a breach of this Agreement.
(iii) Surf Internet's Marks. All software (including any codes and firmware), websites, corporate names, service marks, trademarks, trade names, logos, domain names, content, information, documents, graphics, and materials owned or licensed to Surf Internet (collectively, "Marks") are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. The Marks are and shall remain the exclusive property of Surf Internet. Nothing in this Agreement shall grant you the right or license to use any of the Marks outside of the revocable limited license granted herein.
(iv) Revocable License. You are granted a non-exclusive, limited, personal, revocable license to use such Marks strictly in accordance with this Agreement. You acknowledge, understand and agree that you are not granted any other license to use Marks associated with the Surf Internet Equipment or used to provide the Service(s). You represent and warrant that you shall not take any action nor allow, solicit, or encourage anyone else to take any action that will reverse compile, disassemble, reverse engineer, or otherwise attempt to use the Marks or the Service(s).
(v) Retention of Rights. Nothing contained in this Agreement shall be construed to limit Surf Internet's rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, Surf Internet and its service providers or agents reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on Surf Internet's or its service providers' servers or systems. In addition, you may forfeit your account username and all email, IP and Web space addresses, and voicemail. You understand, acknowledge and agree that Surf Internet shall have no liability whatsoever as the result of the loss of any such data, names, addresses, or numbers.
© Copyright 2022, Surf Air Wireless LLC dba Surf Internet; All Rights Reserved
Appendix A
www.surfinternet.com
www.surfbroadband.com
www.surfboadband.net
www.airbaud.net
www.surfairwireless.tv
www.surfairwireless.biz
www.surfairwireless.us
www.surfairwireless.mobi
www.surfairwireless.org
www.surfairwireless.me
www.surfairwireless.info
www.surfairwireless.co
www.surfinternet.com
Appendix B
Minimum Technical Requirements
Customer PC, Laptop, or other equipment used in connection with the Service(s) must be no greater than three years old.
18 | SURF INTERNET RESIDENTIAL AGREEMENT