ACCEPTABLE USE POLICY
Effective May, 8, 2017
THIS ACCEPTABLE USE POLICY IS A MATERIAL PART OF
ANY AGREEMENT WITH Smartwify FOR
PROVISION OF ITS SERVICES TO BUSINESS AND CONSUMER CUSTOMERS.
PLEASE READ AND FOLLOW THIS ACCEPTABLE USE POLICY CAREFULLY. THIS
ACCEPTABLE USE POLICY MAY BE REVISED FROM TIME TO TIME BY
Smartwify AS SET FORTH BELOW.
Smartwify and its affiliates
(collectively "Smartwify") have designed
this Acceptable Use Policy ("AUP") governing
Smartwify 's services (the "Services") to ensure
the integrity of its wireless broadband network and enhance the use
of the Services for all of Smartwify 's
customers by designating standards for acceptable and
unacceptable use. This AUP forms part of the agreement
between Smartwify and you and is
incorporated by reference into Smartwify
's Terms of Service (the "Terms of Service") found at
www.smartwify.com; capitalized terms not defined
in this AUP are defined in the Terms of Service. BY USING THE
SERVICE, OR ANY EQUIPMENT PURCHASED OR RENTED BY YOU FROM
Smartwify (the "EQUIPMENT"), YOU AGREE TO BE
BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS
AUP.
Prohibited or Actionable
Activities.
To preserve the ability of all of its customers
to use Smartwify's network and the
Internet without interference or harassment from other users, and
as a condition of the Service, Smartwify
prohibits you from engaging in the following
activities:
Unlawful or Improper Use of the
Service.
You may not use the Service in a manner that is
unlawful, harmful to or interferes with use of
Smartwify's network or systems, or the network
of any other provider, damages, disables, or impairs any
Smartwify property, interferes with the use or
enjoyment of services received by others, infringes intellectual
property rights, results in the publication of threatening or
offensive material, or constitutes spam or e-mail abuse, a security
risk or a violation of privacy. The Service is intended for
reasonable periodic, ordinary active use.
You may not use the Service to store, post,
transmit, or disseminate material or information that is unlawful,
harmful, threatening, abusive, harassing, libelous or defamatory,
hateful, obscene, indecent, or otherwise objectionable or which
encourages or participates in conduct that would constitute a
criminal offense, gives rise to a civil liability, or otherwise
violates any local, state, federal, or international law, order,
rule, or regulation. The Smartwify shall determine in its
sole discretion whether you have violated the foregoing
restriction.
Junk E-mail.
You may not use the Service to transmit or
facilitate any unsolicited or unauthorized advertising,
telemarketing, promotional materials, "junk mail", unsolicited bulk
e-mail, unsolicited duplicative e-mail, unsolicited commercial
e-mail, fax broadcasting, or fax blasting (collectively, "Spam").
Violation of the CAN-SPAM Act of 2003, or any other applicable laws
regulating e-mail services, constitutes a violation of this AUP.
Smartwify considers any unsolicited commercial mail to be Spam,
regardless of the amount of mail sent, unless the recipient has
specifically requested the information. An e-mail may be
"unsolicited" for purposes of this AUP if (1) the recipients'
e-mail addresses were not obtained through a personal or customer
relationship between recipient and sender, (2) recipients did not
affirmatively consent to receive communications from the sender, or
(3) recipients have opted out of receiving communications from
sender when given the opportunity to do so.
Fraudulent Activity.
You may not use the Service to make fraudulent
offers to sell or buy products, items, or services or to advance
any type of financial scam such as "pyramid schemes", "Ponzi
schemes", or "chain letters." You may not use techniques to hide or
obscure the source of any e-mail or other communication.
Impersonation.
You may not use the Service to impersonate any
person or entity, or falsely state or otherwise misrepresent your
affiliation with any person or entity, or to create a false
identity for the purpose of misleading others. Without limiting the
foregoing, you may not use invalid or forged headers, invalid or
non-existent domain names or other means of deceptive
addressing.
Software Viruses
You may not use the Service to upload files or
transmit any material that contains viruses, worms, Trojan Horses
time bombs, cancelbots, corrupted files, or other code that
manifests contaminating or destructive properties. To protect our
customers, Smartwify monitors Internet
ports that are considered to be security risks as determined
by Smartwify in its sole
discretion.
Collecting Information.
You may not use the Service to store or collect,
or attempt to store or collect, non-public personal information
about third parties without their prior knowledge and
consent.
Excessive Utilization of Network
Resources.
Wireless networks have capacity limits and all
customers can suffer from degraded or denied service when one or a
small group of users consumes disproportionate amounts of a
wireless network's resources. Smartwify,
therefore, will monitor both overall network performance and
individual resource consumption to determine if any user is
consuming a disproportionate amount of available resources and
creating the potential to unreasonably disrupt or degrade
the Smartwify network or network usage by
others. Smartwify reserves the right to
engage in reasonable network management to protect the overall
network, including detecting malicious traffic patterns and
preventing the distribution of viruses or other malicious code, and
through techniques such as limiting the aggregate bandwidth
available to bandwidth intensive users during periods of
congestion.
While the determination of what constitutes
excessive use depends on the specific state of the network at any
given time, excessive use will be determined by resource
consumption and not by the use of any particular application. When
feasible, upon observation of an excessive use pattern,
Smartwify will attempt to contact you by e-mail
at the e-mail address on file or otherwise to alert you to your
excessive use of bandwidth and to help determine the cause.
Smartwify representatives also are available to explain the
parameters of this AUP and the Accelerated Performance Services™ 1
to help you avoid another excessive use incident or to upgrade you
to a different class of Service that comports with your usage. If
you are unavailable or do not respond to
Smartwify's attempt to contact you regarding
excessive use, or if excessive use is ongoing or recurring,
Smartwify reserves the right, set forth in the
"AUP Enforcement and Notice" provisions below, to act immediately
and without further notice to restrict, suspend or terminate your
Service.
Use of Your Account by Others.
You may not, through action or inaction, allow
others to use the Service for illegal or improper activities or for
any purpose or in any manner prohibited by this AUP, nor may you
reproduce, duplicate, copy, sell, provision, resell, rent, lend,
pledge, transfer, distribute or exploit any portion of the Service
or hardware without Smartwify's prior
written consent. You may not permit your network, through action or
inaction, to be configured in a way that gives a third party the
capability to use the Service in an illegal or improper manner or
for any purpose or in any manner prohibited by this AUP.
Security Precautions.
You are solely responsible for implementing
sufficient procedures and checkpoints to satisfy your particular
requirements for accuracy of data input and output, and for
maintaining a means external to the Service for the reconstruction
of any lost data.
AUP Enforcement and Notice.
Customer's failure to observe the guidelines
associated with this AUP may result in
Smartwify taking actions that may range from a
warning to a suspension or termination of Service. When feasible,
upon observation of a violation of this AUP,
Smartwify may attempt to contact you by e-mail
at the e-mail address on file or otherwise to notify you of the
violation. Smartwify representatives also
are available to work with you to explain the parameters of this
AUP and to help you avoid an AUP violation.
Smartwify reserves the right,
however, to act immediately and without notice to restrict, suspend
or terminate Service, if it reasonably determines that your conduct
may: (1) expose Smartwify to sanctions,
prosecution, civil action or other liability; (2) cause harm to or
interfere with the integrity or normal operations of
Smartwify's network or networks with
which Smartwify is interconnected; (3)
interfere with another Smartwify
customer's use of the Service; (4) violate any
applicable law, rule or regulation; or (5) otherwise present an
imminent risk of harm to Smartwify or its
customers. In the event of termination of your Service, all
applicable termination charges will apply.
Except as expressly provided herein, the rights
and remedies of Smartwify are cumulative
and not exclusive of any rights or remedies that
Smartwify may otherwise have at law or in
equity. Waiver of any violation of this AUP by
Smartwify shall not act as a waiver of any subsequent
violation, nor shall it be deemed to be a waiver of the underlying
obligation or term. No failure or delay by
Smartwify in exercising any right or remedy
hereunder will operate as a waiver thereof, nor will any single or
partial exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other right or
remedy. Smartwify has the right but not
the obligation to monitor or restrict any uses of the Service
that Smartwify reasonably believes in its
sole discretion violates this AUP, any part of the Terms of
Service, or applicable law. You are solely responsible for all
content that you transmit or receive utilizing the Service, and are
responsible for abuse of your account by others.
Reporting Violations.
Smartwify requests that any person
who becomes aware of a violation of this AUP report the information
to Smartwify at
customerservice@smartwify.com, and/or 1800-310-3515.
If available, please provide the IP address used to commit
the alleged violation and the date and time of the alleged
violation. Smartwify may take any
appropriate action as it reasonably deems fit in its sole
discretion, including, but not limited to, one or more of the
following actions in response to a report: issue a warning; suspend
the subscriber's account; terminate the subscriber's account; bill
the subscriber for administrative costs and/or reactivation
charges; bring appropriate legal action to enjoin violations and/or
to collect damages, if any, caused by violations; or take no
action.
Notices and Procedure for Making Claims of
Copyright Infringement.
Pursuant to Title 17, United States Code,
Section 512(c)(2) (as amended), notifications of claimed copyright
infringement should be sent to Smartwify
at customerservice@smartwify.com, and/or
800-310-3515, Attn: Copyright Infringements. Note that
inquiries relevant to the following procedure only will receive a
response.
Revisions; Reservation of Rights.
Smartwify reserves all rights
including the right to revise, amend, or modify this AUP or any
other Smartwify policy at any time, by
sending you an email notification to the email address associated
with your account, or by announcing any amendments or modifications
in the "Service Announcements" section of
Smartwify's website:
www.smartwify.com . Such amendments or
modifications will become effective on the date we send them to you
by email or announce them on our website, whichever is earlier;
afterwards, your continued use of the Service or Equipment will
constitute your acceptance of any such amendments or
modifications.2 However, if you do not wish to continue
Service after a change that is materially disadvantageous to you,
you may terminate this Agreement by providing written notice
to Smartwify within twenty
(20) days of the effective date of the
modification.
Smartwify Wireless Broadband Internet Service
Agreement
Copyright
ALL RIGHTS RESERVED. The entire content of the
synKro™ co-branded website, including but not limited to design,
graphics, interfaces, code, and the selection and arrangement
thereof, is protected as the copyrights, trade dress, trademarks
and other intellectual property rights owned by LocaLoop, Inc. and
its affiliates3 .
The Smartwify ™ name
and logo and other designated names, marks, and phrases are
trademarks of Smartwify4
PRIVACY POLICY
Smartwify is committed to
protecting your privacy. Please read this privacy policy statement
carefully so that you understand what kind of information we may
gather about you, how we may use that information, whether we may
disclose it to anyone, and the choices you have regarding our use
of the information and your ability to correct the information. We
will not trade, sell, or disclose to any third party any form of
personally identifiable information without your consent, including
information derived from registration, subscription, and use of
the Smartwify's service, except as stated
below. This policy applies only to Smartwify,
and not to other companies' or organizations' Web sites to
which we link.
The Information We Collect
The information Smartwify
gathers generally falls into four general categories: (1)
personal, business, and demographic information you supply that we
use primarily for evaluating applicants and conducting market
research; (2) information you supply when you register or initiate
transactions; (3) tracking information gathered as you navigate
online; (4) information required to enable your use of certain
applications. Some of this information identifies particular
person, but much of it does not. Third-party providers whose sites
are featured on and accessed via our site and third-party
manufacturers of devices that can be used by you on our network may
gather information as well.
When you interact with
Smartwify when applying for
Smartwify Service, for example, we may request
some or all of the following information:
1. Contact information (e.g., name, address,
telephone number, and e-mail address)
2. Credit card, debit card or check card
and Smartwify account number
3. Driver's license
4. Company name (for corporate
accounts)
5. Household characteristics (e.g., number of
children and number of Internet users)
6. Technology employed (e.g., type of Internet
access and specifications for your computer)
Why We Collect This Information
We need this information to process your
application or service order and to conduct market research. If we
have trouble processing your application or order, we use the
contact information you provide to get in touch with you. We also
use your contact information to provide you with
Smartwify updates or to assist you with your
wireless service and to inform you of new products or services that
may be of interest to you.
Use of Cookies
To help make our website more responsive to your
needs, we use a standard feature of browser software nicknamed
"cookies." We use cookies to help us tailor our website to your
needs, to deliver a better, more personalized service, and to
remember certain choices you've made so you don't have to re-enter
them. A cookie is a text file that is placed on your hard disk by a
web page server. We will not use cookies to run programs or deliver
viruses to your computer. Cookies are uniquely assigned to you, and
are intended only to be read by a web server in the domain that
issued the cookie to you.
One of the primary purposes of cookies is to
provide a convenience feature to save you time. For example, if you
personalize Smartwify pages, or register
with Smartwify sites or services, a
cookie helps Smartwify recall your
specific information on subsequent visits. This simplifies the
process of recording your personal information, such as billing
addresses, preferred email address, and so on. When you return to
Company, the information you previously provided can be retrieved,
so you can easily use the Smartwify
features that you customized.
We use two kinds of cookies: (i) temporary or
"session"-based cookies that contain certain information about a
user's or visitor's use of our website at a particular time and
(ii) "persistent" cookies that contain certain account-related
information about a registered user's use of our website.
Session-based cookies are automatically disabled or deleted when a
user of, or visitor to, our website closes his or her browser
software at the end of a session. Persistent cookies remain stored
on a registered user's computer system until he or she disables or
deletes them. Of course, if you set your browser not to accept
cookies or you delete them, you may not be able to take advantage
of the personalized features enjoyed by other visitors to and users
of our website and our services may not operate in the intended
manner if you have disabled cookies.
California "Do Not Track"
Disclosure
California law requires that operators of
website and online services disclose how they respond to a Do Not
Track signal and whether other third parties may collect personally
identifiable information about an individual's online activities
from their site or service.
Some browsers have incorporated "Do Not Track"
features. Most of these features, when turned on, send a signal or
preference to the website or online service that a user visits,
indicating that the user does not wish to be tracked. Because there
is not yet a common understanding of how to interpret Do Not Track
signals, Smartwifydoes not currently
respond to Do Not Track signals. For more information regarding Do
Not Track mechanisms, see http://allaboutdnt.com/.
Information Collected by Third
Parties
Of course, our site includes links to other web
sites and provides access to products and services offered by third
parties whose privacy policies we don't control. In addition, some
manufacturers of devices that can be used on our network (whether
co-branded with the Smartwify brand name
or not) may include in such devices software to monitor device
usage and performance, and an embedded web browser that can be
remotely activated by the manufacturer without your knowledge. Such
browsers are typically used by the manufacturer to remotely connect
to devices in order to send software updates or gather device
performance data such as, for example, session duration, or volume
of bytes downloaded and uploaded. In some instances, manufacturers
may share with Smartwify some or all of
the information they collect (in which case the shared information
will be subject to Smartwify's privacy
policy), however Smartwify does not
control how those manufacturers may use information they collect,
and you should check your device manufacturer's privacy
policy.
When you (a) access another web site, (b)
purchase products or services or conduct other transactions through
a web site linked to our web site, or (c) use a device in which the
manufacturer has embedded monitoring software and a web browser,
use of any information you provide or which is otherwise gathered
by such other web site or manufacturer may be governed by the
privacy policy of the operator of the site you're visiting, the
provider of such products or services, or the manufacturer of the
device, as applicable. The provider's or manufacturer's privacy
practices may differ from ours, and we are not responsible for
their actions. Please be aware that these third-party sites or
manufacturers may also use their own cookies, web beacons or
third-party software or "spyware", for which we are not
responsible.
Disclosure of Information
We consider the personal information contained
in our business records to be confidential.
Smartwify will not read, listen to or disclose
to any third parties private e-mail, conversations, or other
communications that are transmitted using our services, except as
described herein. However, we may sometimes disclose information
about you to our business partners or to others who work for us,
such as our vendors who assist us to provide our services to you.
We may access and/or disclose your personal information if required
to do so by law or in the good faith belief that such action is
necessary to (a) conform to the edicts of the law or comply with
legal process served on Smartwify; (b)
protect and defend the rights or property of
Smartwify including, without limitation the
security and integrity of our network; or (c) act under exigent
circumstances to protect the personal safety of users of our
services or members of the public.
As our business grows, we may buy or sell
various assets. In the unlikely event that
Smartwify, one of its business units, or
substantially all of its assets are acquired by another company,
information about our visitors would be among the transferred
assets.
Security
Smartwify is committed to
protecting the security of your personal information. We use a
variety of security technologies and procedures to help protect
your personal information from unauthorized access, use or
disclosure. For example, we store the personal information you
provide on computer systems with limited access and which are
located in controlled facilities. When we transmit highly
confidential information (such as a credit card number) over the
Internet, we protect it through the use of encryption, such as the
Secure Socket Layer (SSL) protocol. Additionally, our synKro™
systems use applications and storage that reside in the cloud
provided by Microsoft Azure, which uses the highest
industry-accepted security practices. More information is available
at
http://azure.microsoft.com/en-us/support/trust-center/compliance/
.
As effective as modern security practices are,
no physical or electronic security system is impenetrable. We
cannot guarantee the complete security of our database, nor can we
guarantee that information you supply won't be intercepted while
being transmitted to us or by us over the Internet. We have
implemented security practices that we believe to be reasonable in
light of industry standards to ensure that your privacy is
safeguarded at every level of our organization.
Smartwify will continue to revise its security
policies and implement additional security features as new
technologies become available.
Location Information
To make wireless communications possible,
Smartwify's network knows the general location
of your wireless device whenever it is turned on. Your wireless
device sends out a periodic signal to the nearest radio tower/cell
site so that our network will know where to route an incoming
communication and how to properly bill for the service. This is
necessary to make wireless communications possible.
Your location information will only be used to
provide the service(s) or carry out the transaction(s) you have
requested or authorized. Smartwify does
not and will not track your location, and any request you make to
determine your location will not be paired by us with any
information that identifies you personally.
Your service may also be personalized using your
zip code or other location identifiers that you provided, such as
an address. We use this information to serve you relevant content,
and we treat the information like any other personal information
under this privacy policy.
The law permits us to disclose the call location
of a device on our network without a user's consent (1) to a user's
legal guardian or members of a user's immediate family in an
emergency situation that involves the risk of death or serious
physical harm, (2) to database management services or information
providers solely to assist in delivering emergency services, (3) if
we reasonably believe that an emergency involving immediate danger
of death or serious physical injury to any person requires or
justifies disclosure of a device's location on the network without
delay, and (4) in "aggregate" form. Aggregate data is collective
data that relates to a group or category of services or customers,
from which individual customer identities and characteristics have
been removed.
Smartwify and Kids
Smartwify takes care to protect the
safety and privacy of young people using our services, and
encourages you to participate in your child's experience in
cyberspace. We do not sell products or services to kids. Also,
federal law requires website operators who collect personal
information from children under the age of thirteen to first get
parental consent. Out of an abundance of caution, we do not
knowingly collect personally identifiable information from children
and teenagers under the age of 18 and Smartwify
does not wish to collect any such information.
You agree not to permit your child to use our
services without your consent and you agree not to permit your
child to provide us with information about him or her.
Parents, please note that if you grant consent for your child
to use our services, your child will be able to communicate with
other users of all ages. Before providing consent, please be aware
that your child will be able to disclose personal information (e.g.
name, address, e-mail, and phone numbers) on his or her own. We
encourage you to talk with your children about communicating with
strangers and disclosing personal information online.
Smartwify Spam Policy
Smartwify will deal with Spam
complaints seriously and will close spammer's customer accounts. We
may use customer information to investigate and prevent potentially
unlawful activity that threatens the service or network integrity
or otherwise violates the service agreement.
Spam is email that is sent against the wishes of
the recipient. There are two kinds. The first kind of spam concerns
individuals who email people that they don't know personally. The
second type of spam is sent by organizations to individuals who
have not expressed a desire to receive such communications. Both
kinds of spam are inappropriate.
Enforcement of this Privacy
Statement
If you have questions regarding this statement,
you should contact Smartwify.
Privacy Policy Changes
If we decide to change our privacy policy, we
will post those changes here so that you will always know what
information we gather, how we might use that information and
whether we will disclose it to anyone. By continuing to use
Smartwify's service after we post any changes,
you accept and agree to this privacy statement, as modified. Of
course, our use of information gathered while the current privacy
statement is in effect will be consistent with the current
statement, even if we change that statement later.
TERMS OF SERVICE
Wireless Broadband Internet Service
Effectivemay, 8, 2017
THIS WIRELESS BROADBAND INTERNET SERVICE
AGREEMENT ("AGREEMENT") IS BETWEEN YOU AND
Smartwify
("Smartwify"). THIS AGREEMENT IS
SOMETIMES REFERRED TO AS THE "TERMS OF SERVICE". BY USING
Smartwify'S WIRELESS BROADBAND INTERNET SERVICE
(THE "INTERNET SERVICE"), ANY RELATED OPTIONAL SERVICES (THE
"OPTIONAL SERVICES"), OR ANY EQUIPMENT PURCHASED OR RENTED BY YOU
FROM Smartwify ("EQUIPMENT"), (THE INTERNET SERVICE AND THE
OPTIONAL SERVICES ARE COLLECTIVELY REFERRED TO AS THE "SERVICE"),
YOU AGREE TO BE BOUND BY AND COMPLY WITH THE FOLLOWING TERMS AND
CONDITIONS OF THIS AGREEMENT. THE ADDITIONAL TERMS STATED IN YOUR
ORDER CONFIRMATION (WHICH DETAILS THE SERVICE PLAN(S) YOU HAVE
AGREED TO PURCHASE) ARE INCORPORATED HEREIN BY REFERENCE AND ARE
PART OF THIS AGREEMENT.5 ALL PORTIONS OF THE TERMS OF SERVICE
SET FORTH IN THIS AGREEMENT APPLY TO EQUIPMENT AND SERVICES
PROVIDED TO YOU BY THE COMPANY, UNLESS OTHERWISE
SPECIFIED.
PLEASE READ THIS AGREEMENT CAREFULLY BECAUSE IT
INCLUDES MANY IMPORTANT TERMS, INCLUDING:
LIMITS AND DISCLAIMERS ON
Smartwify'S LIABILITY AND WARRANTIES;
THE REQUIREMENT THAT YOU COMMIT TO A MINIMUM
TERM OF SERVICE;
FEES FOR EARLY TERMINATION;
THE REQUIREMENT THAT DISPUTES BE SETTLED BY
ARBITRATION, AND NOT BY LAWSUIT; AND
A WAIVER OF ANY RIGHT TO TRIAL BY JURY OR
PARTICIPATION IN A CLASS ACTION.
1. Agreement Governing Use of
Service.
The current version of this Agreement (including
the Service Plans) can be found at
WWW.Smartwify.com.Smartwify
reserves all rights including the right to revise, amend, or
modify this Agreement or any other Smartwify
policy at any time, by sending you an email notification to
the email address associated with your account. Such amendments or
modifications will become effective on the date we send them to you
by email if after receiving such email notice you continue to use
the Service or Equipment. Such continued use will constitute
your acceptance of any such amendments or modifications.
2. Term of the Service
Month to Month Subscriber - When you purchased a
monthly subscription, you will be able to use the Service for any
consecutive monthly period which has been paid in advance as
described in your Order Confirmation. For example, if you purchased
a month-to-month subscription and your billing cycle commences on
the eighth day of a particular month, then you will be charged on
the eighth day of the following month and each month thereafter
until your Service is terminated.
3. Terms Applicable to Smartwify Service
Accounts
Subject to applicable law, you expressly agree
that all applicable monthly subscription and/or other fees and
charges will accrue until this Agreement has terminated, the
Services have been disconnected, and all rented Equipment has been
returned to Smartwify. Monthly Service
fees will not be pro-rated. Upon termination or expiration of this
Agreement for any reason, Smartwify and
its suppliers reserve the right, to the extent permitted by
applicable law, to delete any voicemails, data, files, electronic
messages or other information stored on
Smartwify's or its suppliers' servers or
systems. Smartwify, its affiliates and
their agents and suppliers will have no liability whatsoever as the
result of the loss of any such data, names or addresses or other
information.
From time to time, Smartwify
may reasonably require you to cooperate with and consent to
remote and/or on-site (i) service level verification and/or (ii)
troubleshooting by Smartwify. You agree
that failure to comply with our reasonable requests constitutes
grounds for termination of your Service.
4. Payments and Invoices/Metered
Billing.
You will make payments to
Smartwifuy for the Service and Equipment using
your credit, debit, or other acceptable bank card (the "Card") or
through an electronic funds transfer ("EFT") that debits funds
directly from a bank account that you designate. (Payment by EFT is
not an option for Smartwify Service
accounts at this time, and the terms set forth herein regarding
payment by EFT shall have no effect until such time as Company
begins to accept payment for Equipment and/or Services via EFT).
You will ensure that the Card and/or EFT-related information you
have provided to Smartwify is valid at
all times. Failure to provide valid Card information or Card status
may result in Service suspension or termination, late charges,
re-activation fees and other fees and charges attributable to you
as a result of your failure to timely pay your account balance(s).
Fees and charges for Service are contained in the Order
Confirmation and your invoice 6 on "My Account". (My Account
is Smartwify's web-based account tracking
system that allows you to view your account status, pay invoices,
and make other changes to your account profile at any time). As
part of the order process, or whenever you update your Card
information on file with us, Smartwify
will pre-authorize one or more charges on your account with
your Card. The charge will be related to the account activation and
for the estimated amount of the first month's service + tax plus
any fees for account setup, installation or other fees which are
fully disclosed at the time of purchase. Thereafter,
Smartwify may or may not send you a reminder to
purchase another term of service on a monthly basis for the
Service, the Equipment (as applicable), including any Optional
Services (as applicable). Monthly charges will be automatically
charged to your Card or debited via EFT from your e-check account
on record in advance and as specified in any applicable recurring
payment plan you enter with Smartwify.
You expressly agree that Smartwify
may charge your Card all amounts associated with your
Smartwify account. You will pay
Smartwify all outstanding balances when
due.
5. Billing Disputes.
You must notify Smartwify
in writing no later than thirty (30) days after receiving
your Card or bank account statement if you dispute any
Smartwify charges on that statement or such
dispute will be deemed waived. Smartwify
will resolve all billing disputes in its sole
discretion.
6. Delinquency/Late Fees.
a. Accounts not paid in full by the due date are
subject to suspension or termination by
Smartwify. In addition,
Smartwify may terminate your Service if your
Card expires or the bank account is closed or suspended and you
have not provided Smartwify with a valid
replacement Card or EFT-related information. In the event of such
suspension or termination by Smartwify,
you will pay Smartwify any
outstanding fees and all collection costs and fees, including
reasonable attorneys' fees and late fees, incurred or charged
by Smartwify.Smartwify may,
but is not required to, reactivate your Service after Service has
been suspended or terminated. Before Service may be reactivated,
you must pay Smartwify all past due
amounts and late payment fees plus a reasonable suspension charge
per account to cover Smartwify's
administrative costs associated with the termination and applicable
taxes.
b. All delinquent charges and charges not
honored by your Card issuer or bank will be subject to a late fee
equal to 1.5% (or the highest amount allowed by law, whichever is
lower) of the delinquent amount(s) or $5 per month (or portion of a
month), whichever is greater. Except to the extent prohibited by
law, this late fee may be charged pending the resolution of any
disputes you may have raised regarding your invoiced charges,
provided however that any disputed charges which are resolved in
your favor will not be assessed a late fee or have the late fee
removed from the charges.
7. Availability of Service/Variation of
Performance/Maintenance Outages.
You acknowledge that Service, may not be
available in all areas, and even within coverage areas service
availability, quality, signal strength and network speeds may vary,
be lower than advertised or be insufficient for use of the Service.
You agree to provide Smartwify with the
correct address of your primary place of use, which will be used to
determine whether adequate coverage is available. You further agree
to promptly notify Smartwify of any
changes in the primary Service address. In order to provide the
best possible service to its customers,
Smartwify must perform maintenance on its
network. In some cases this may require
Smartwifyto conduct either a
planned or unplanned interruption of the Service.
Smartwify will use commercially reasonable
efforts to schedule maintenance outages so as to minimize the
impact on its customers, but cannot guarantee that your Service
will not be interrupted, and cannot always give advance notice of
such outages. You acknowledge and agree that
Smartwify shall not be responsible for any
losses or damages suffered by you as a result of any Service
interruptions due to maintenance outages. Please see Section 11
(Credits) and Section 21 (Limitation of Liability) of this
Agreement for further restrictions on
Smartwify's liability for Service outages.
Except as otherwise provided in this Agreement, no refunds or
credits will be made for any Service outages.
8. Equipment Provided - Rent.
If you rent any Equipment from
Smartwify, you must return all rented Equipment
in good working order upon the termination or expiration of this
Agreement or upon Smartwify's request. If
you fail to return all rented Equipment in good working order,
reasonable wear and tear excepted, within thirty
(30) days after expiration of this
Agreement or by the date otherwise specified or requested by
Smartwify, you agree to pay
Smartwify a "non-return" fee for such Equipment,
which you acknowledge is a reasonable estimation of the repair or
retail value of the Equipment. In addition, if you do not return
the rented Equipment to Smartwify by the
required date, you agree to continue paying
Smartwify your monthly Service charges until you
return the Equipment.
You hereby irrevocably authorize
Smartwify to charge such amounts (the cost of
the Equipment and the monthly Broadband Internet Service charges)
to any Card or bank account you provide or previously have provided
to Smartwify for any purpose. You
understand that this authorization to charge your Card or bank
account for failing to return rented Equipment in good working
order may not be revoked even if you revoke authorization to charge
your Card or bank account for other purposes.
Smartwify may replace, upgrade, repair, or
otherwise modify any rented Equipment, and will repair or replace
(in Smartwify's sole discretion) any properly maintained rented
Equipment that fails to operate as required for the delivery of
Service. You also acknowledge and agree that the modem you are
purchasing/leasing may be refurbished equipment, and there shall be
no offset, discount, or other reduction in purchase or rent
price.
You may not modify rented Equipment in any way
or sell, encumber, or otherwise transfer the Equipment to others.
This section, including all authorizations herein, will survive
expiration or termination of this Agreement for any
reason.
9. Equipment and Installation
Warranty.
Smartwify warrants to you that the
Equipment and its installation by Smartwify
will be substantially free from material defects, under
normal use in compliance with Smartwify's
instructions, for a period of 90 days from the date you receive the
Equipment or installation ("Limited Warranty"). This Limited
Warranty excludes any defects resulting from abuse, misuse,
neglect, theft, vandalism, fire, unusual physical or electrical
stress, water, extremes of temperature, an act of God, your failure
to comply with Smartwify's policies or
other instructions provided by Smartwify,
actual or attempted alteration of or additions to the Equipment not
approved by Smartwify, or any other cause beyond the reasonable
control of Smartwify , all as determined
by Smartwify (collectively,
"Excluded Causes"). Repair or replacement, in
Smartwify's discretion, of the Equipment and
performance of the installation is
Smartwify's only responsibility, and your
exclusive remedy, for breach of any warranty regarding the
Equipment or the installation, as applicable. This Limited Warranty
is personal to you, and will terminate immediately upon the sale or
transfer of the Equipment or expiration or termination of this
Agreement.
10. Support.
You may elect to use the troubleshooting guides
and user information provided by Smartwify
or available at: WWW.Smartwify.com prior
to contacting Smartwify
Customer Service for assistance. In the event that you
request a service call to your Service location and
Smartwify determines that the problem is your
responsibility, you authorize Smartwify
to charge your Card or bank account or require you to
otherwise pay for the cost of the service call.
11. Credits.
No credit or adjustment will be made for
interruptions or degradations of the Service except as provided for
in this Section. In the event of an interruption of the Service
that continues for a period of twenty-four (24) hours or more, a
credit allowance will be made for an amount not to exceed the
prorated monthly charges for your Service during the affected
period provided that you request the credit in writing within
thirty (30) days of the commencement of
the interruption or degradation. The foregoing credit will be your
sole and exclusive remedy for any interruption or degradation of
the Service. No credit will be available if the interruption period
results from any Excluded Causes set forth in Section 9 (Equipment
and Installation Warranty) of this Agreement.
12. Network Management 7
You acknowledge that performance and bandwidth
available to each computer or device connected to the network may
vary for reasons including, but not limited to the number of users,
computers or devices connected to the network, the amount of data
being transferred over the network, and available bandwidth. You
also agree that Smartwify reserves the
right to engage in reasonable network management to protect the
overall network, including detecting malicious traffic patterns and
preventing the distribution of viruses or other malicious code, and
through techniques such as limiting the aggregate bandwidth
available to bandwidth intensive users during periods of
congestion. While the determination of what constitutes excessive
use depends on the specific state of the network at any given time,
excessive use will be determined by resource consumption and not by
the use of any particular application. 8 For further information,
please refer to Smartwify's Acceptable
Use Policy, which may be amended from time to time.
Smartwify IS NOT A PUBLISHER OF THIRD-PARTY
INFORMATION, APPLICATIONS, OR OTHER CONTENT THAT CAN BE ACCESSED
VIA THE SERVICE AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE,
STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY
THIRD PARTIES THROUGH OR IN CONNECTION WITH THE SERVICES.
Any information you involuntarily or
voluntarily provide to third parties is governed by their policies
or terms. The accuracy, appropriateness, content, completeness,
timeliness, usefulness, security, safety, merchantability, fitness
for a particular purpose, transmission or correct sequencing of any
application, information or downloaded data is not guaranteed or
warranted by Smartwify, its host network
provider or any content providers or other third party.
Neither Smartwify nor its content
providers, service providers or other third parties shall be liable
to you for any loss or injury arising out of or caused, in whole or
in part, by your use of any information, application or content, or
any information, application, or other content acquired through the
Service.
13. Acceptable Use Policy.
The Acceptable Use Policy is incorporated into
this Agreement and is a part of the Agreement.
Smartwify reserves the right to immediately
restrict, limit, suspend or terminate your Service or terminate
this Agreement for any violation of the Acceptable Use Policy, in
which case you will forfeit any unused Service and will not be
entitled to a refund.
14. Privacy.
Smartwify's Privacy Policy
describes how Smartwify may collect and
use your personally identifiable and other information.
15. Ownership; Software; No
Licenses.
The Service and rented Equipment, and any
firmware or software used to provide the Service that is embedded
in any Equipment or used in connection with the Service
(collectively "Software"); all Service information, documents and
materials delivered to you by Smartwify
or located on Smartwify's
website (collectively "Information"); and all names, service
marks, trademarks, trade names, logos and domain names
(collectively "Marks") of Smartwify are
and will remain the sole property of Smartwify
and nothing in this Agreement grants you the right or license
to use any of such Software, Information, or Marks except for your
nonexclusive use of the Software and Information in connection with
your personal use of the Service in accordance with the
Agreement.
The Software may be updated, downloaded, or
replaced by feature enhancements, software updates, system restore
software or data generated or provided subsequently by
Smartwify or its host network provider. Software
is licensed, not sold, to you by Smartwify
and/or its licensors/suppliers for use only on your
Equipment. Your use of the Software shall comply with its intended
purposes as determined by us.
You are not permitted to use the Software in any
manner not authorized by us or that is prohibited by any license
applicable to the Software. You may not (and you agree not to
enable others to) copy, decompile, reverse engineer, disassemble,
reproduce, attempt to derive the source code of, decrypt, modify,
defeat protective mechanisms, combine with other software, or
create derivative works of the Software or any portion thereof. You
may not rent, lease, lend, sell, redistribute, transfer or
sublicense the Software or any portion thereof.
16. Tampering with the Equipment.
You must not use with the Service any Equipment
that has an altered electronic serial number or equipment
identifier or any Equipment that has undergone a factory reset
without the express written permission from
Smartwify. In addition, you may not use with the
Service any serviced, altered, modified, stolen, or tampered
Equipment, or permit any other person (unless authorized in advance
by Smartwify in writing) to do so.
You agree not to make any modifications or alterations to
Equipment without Smartwify's prior written approval.
17. Theft of the Service or Rented
Equipment.
You must notify Company
immediately, in writing or by calling
Smartwify Customer Service, if any rented
Equipment is lost or stolen or if you become aware at any time that
the Service is being stolen or fraudulently used.
18. Termination/Discontinuance of
Service.
Smartwify may suspend or
discontinue providing the Service generally, or terminate your
Service, either in whole or in part, at any time in its sole
discretion. If Smartwify discontinues
providing the Service generally or terminates your Service for a
reason other than your breach of this Agreement, you will be
responsible only for charges accrued through the date of
termination, including a pro-rated portion of the final month's
charges.
19. Disclaimer of Representations and
Warranties.
THE ONLY WARRANTIES BEING MADE BY
Smartwify WITH REGARD TO THE SERVICE AND
EQUIPMENT ARE THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 9
OF THIS AGREEMENT. THE Smartwify
PARTIES (AS DEFINED BELOW) DISCLAIM ANY AND ALL OTHER
REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE,
AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE
OR EQUIPMENT, OR NON-INFRINGEMENT. ANY STATEMENTS MADE IN ANY
PACKAGING, MANUALS OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED
HEREIN, OR BY ANY Smartwify EMPLOYEES OR
REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND
NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ANY
Smartwify PARTIES. Smartwify
DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND
ON Smaertwify'S BEHALF AND YOU SHOULD NOT
RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK
FOR USE OF THE SERVICE AND THE EQUIPMENT. THIS SECTION WILL SURVIVE
THE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO
THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU IN WHOLE OR IN
PART.
20. Limitation of Liability.
(A) IN NO EVENT SHALL ANY OF THE
Smartwify PARTIES BE LIABLE OR OBLIGATED
IN CONNECTION THIS AGREEMENT, UNDER ANY THEORY, WHETHER IN
CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT
LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE
THEORY:
(I) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE
OF THE FEES PAID TO Smartwify FOR THE
APPLICABLE SERVICE OR EQUIPMENT HEREUNDER DURING THE THREE (3)
MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO
LIABILITY;
(II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS;
(III) FOR ANY LOSS OR CORRUPTION OF DATA,
DELAYED, DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO
THE INTERNET, INABILITY TO MAKE OR COMPLETE CALLS USING THE
INTERNET PHONE SERVICE9 , OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR
THE SERVICE LOCATION;
(IV) FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES AND/OR LOST PROFITS;
(V) FOR ANY LACK OR BREACHES OF SECURITY OF THE
SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY USER'S
DATA; OR
(VI) FOR ANY DAMAGES ARISING FROM ANY DELAY OR
FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE
Smartwify'S REASONABLE CONTROL.
(B) THE EXCLUSIONS AND LIMITATIONS IN THIS
SECTION SHALL APPLY WHETHER OR NOT Smartwify
WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF
DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF
YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT OR IF YOU HAVE
ANY OTHER DISPUTE WITH Smartwify, OR
CLAIM AGAINST Smartwify, THEN YOUR SOLE
AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND ANY
LIABILITY WILL BE LIMITED TO THE RECOVERY OF YOUR DIRECT DAMAGES,
LIMITED TO THE AMOUNT AND BY THE EXCLUSIONS SET FORTH IN THIS
SECTION. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO
CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT
APPLY TO YOU, IN WHOLE OR IN PART.
21. Complaint Resolution/Notices.
All complaints must be sent to
Smartwify Customer Service at the address set
forth at WWW.Smartwify.com or by calling (1800-310-3515)10 .
Smartwify may require you to describe the complaint in writing.
Written notices to you from Smartwify
will be deemed given: (i) when sent to the email address
specified on your Order Confirmation, or such other email address
you specify in writing, with at least thirty days prior notice,
(ii) three (3) days following the date deposited in the U.S. Mail
addressed to your last known address as kept in
Smartwify's files, or (iii) the date of delivery
or rejection when sent by a nationally recognized courier. You are
responsible for notifying Smartwify of
any changes in your email and/or mailing address. Written notice
to Smartwify will be effective when
directed to Smartwify's Customer Service
Department and received at the address set forth at
WWW.Smartwify.com. Except as provided in this
Agreement, notices must be in writing to be effective. You also
agree that all correspondence and notice sent to you by
Smartwify, including account statements, account
status, payment and billing information, and changes to terms of
service, will be sent by Smartwify
electronically to the last email address provided by
you.
22. Indemnification.
You will defend, indemnify, and hold
harmless Smartwify and its affiliates,
the agents and suppliers of each, and any of their directors,
officers, employees, agents, and shareholders and any other service
provider or supplier (collectively, the
"Smartwify Parties") against any and all
claims, losses, damages, and liabilities arising from or in
connection with the use or misuse of the Service or Equipment by
you or by any person you allow to use the Service or Equipment, or
any breach of this Agreement by you or associated with
Smartwify's installation of Equipment,
including, but not limited to, claims by any owner of the Service
location. You also agree to reimburse the Smartwify Parties
and pay each Smartwify Party's reasonable
attorneys' fees and costs related to defending such claims and
related to enforcing this Agreement, including any such fees
incurred in connection with any appeal. This section will survive
termination or expiration of this Agreement for any
reason.
23. Assignment and Successors in
Interest.
All of the provisions of this Agreement will be
binding upon, inure to the benefit of, and be enforceable against
your respective successors and permitted assigns. Except as
specifically stated herein, you may not assign this Agreement or
any of your rights, interests, or obligations without the prior
written consent of Smartwify. Any such assignment without consent
will be void. The Company may assign this Agreement, in whole
or in part, without your consent.
24. Entire
Agreement/Severability.
This Agreement consists of these terms and
conditions, the Order Confirmation, and your Service Plan (each as
they may be amended from time to time) and represents the entire
agreement and understanding of you and
Smartwify regarding the subject matter of this
Agreement and supersedes all other representations, whether
electronic written, or verbal, regarding the subject matter
herein.
In the event this Agreement is inconsistent with
any document incorporated herein by reference or any other
agreement between you and Smartwify, this
Agreement will control, unless Smartwify
has expressly stated or agreed otherwise. In the event that a
court of competent jurisdiction determines, in a final
non-appealable judgment, that any provision of this Agreement is
invalid, illegal, or otherwise unenforceable, such provision will
be deleted and the remainder of this Agreement will remain in full
force and effect and shall be enforced as nearly as possible in
accordance with the stated intention of the parties
25. Arbitration; Choice of Law; Statute of
Limitations; Jury and Class Action Waiver.
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
THE STATE IN WHICH YOU RESIDE WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES. ALL DISPUTES ARISING UNDER THIS AGREEMENT (OTHER THAN
YOUR FAILURE TO MAKE PAYMENTS IN ACCORDANCE WITH THIS AGREEMENT AND
ANY ACTION TO COLLECT AMOUNTS DUE TO Smartwify
UNDER THIS AGREEMENT, WHICH MAY BE BROUGHT IN ANY COURT OF
COMPETENT JURISDICTION) WILL BE SETTLED EXCLUSIVELY BY BINDING
ARBITRATION USING THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION
ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR ARBITRATION WILL
BE IN THE STATE WHERE THE SERVICE IS PROVIDED. ONE (1) ARBITRATOR
SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE IN THE
SUBJECT MATTER HEREOF WILL CONDUCT THE ARBITRATION. THE DECISIONS
OF THE ARBITRATOR WILL BE BINDING AND CONCLUSIVE UPON
ALL PARTIES INVOLVED AND JUDGMENT UPON ANY AWARD OF THE ARBITRATOR
MAY BE ENTERED BY ANY COURT HAVING COMPETENT JURISDICTION. UNLESS
YOU AND WE AGREE, THE ARBITRATOR MAY NOT CONSOLIDATE
MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER
ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS
PROVISION WILL BE SPECIFICALLY ENFORCEABLE IN ANY COURT OF
COMPETENT JURISDICTION. THIS DUTY TO ARBITRATE AND THE
PROVISIONS IN THIS SECTION WILL SURVIVE THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT FOR ANY REASON. THE ARBITRATOR WILL
NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR
ANY OTHER DAMAGES EXCEPT AS PERMITTED BY THIS AGREEMENT. YOU
AND Smartwify WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE
SERVICE OR EQUIPMENT. NEITHER PARTY SHALL, AND EACH PARTY WAIVES
ANY RIGHT TO, PARTICIPATE IN A CLASS ACTION (INCLUDING ANY CLASS
ARBITRATION), EITHER AS A CLASS REPRESENTATIVE OR A CLASS MEMBER,
ACT AS A PRIVATE ATTORNEY GENERAL, OR JOIN OR CONSOLIDATE CLAIMS
WITH CLAIMS OF ANY OTHER PERSON. YOU AND Smartwify AGREE THAT ANY
CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT
MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR
THE CLAIM WILL BE PERMANENTLY BARRED. NOTHING IN THIS AGREEMENT
WILL PREVENT Smartwify FROM SEEKING
CONSERVATORY, PROTECTIVE OR INJUNCTIVE RELIEF WITH RESPECT TO A
VIOLATION OF ITS INTELLECTUAL PROPERTY RIGHTS IN ANY COURT OF
COMPETENT JURISDICTION PENDING THE OUTCOME OF THE ARBITRATION, OR
ENFORCEMENT OR RECOGNITION OF ANY AWARD OR ORDER IN ANY COURT OF
COMPETENT JURISDICTION. IN THE EVENT THAT ANY OF THE TERMS IN THIS
SECTION IS HELD TO BE IN CONFLICT WITH A MANDATORY PROVISION OF
APPLICABLE LAW, THE CONFLICTING TERM OF THIS SECTION SHALL BE
MODIFIED AUTOMATICALLY TO COMPLY WITH SUCH PROVISION AND THE
REMAINDER OF THIS SECTION 24 SHALL NOT BE AFFECTED.
VISITOR AGREEMENT
Introduction
Welcome to the Smartwify
web site. This web site is a service of
Smartwify and its affiliates
("Smartwify"). By using this web site,
you agree to the terms of this visitor agreement ("Visitor
Agreement"). You should read this Visitor Agreement carefully. If
you don't accept the terms of this Visitor Agreement, please don't
use the Smartwify web site. Each time you
use this web site in the future, you agree to the terms of the
Visitor Agreement as it exists at the time of your use.
Use
You may view, copy or print pages from this site
solely for personal, non-commercial purposes, provided that you
maintain all copyright notices, trademark legends and other
proprietary rights notices. Any other use is prohibited. You may
not use, modify, copy, print, display, reproduce, aggregate,
distribute or publish any information from this site for any other
purpose without Smartwify's written
permission. Smartwify may make changes to
this site or to the services or products described in this site at
any time, without notice.
You shall not use this web site in any way that,
as determined by Smartwify in its sole
discretion, violates any applicable law or any third party's
property rights, or that restricts or inhibits any other user from
using this web site. You shall not post on or transmit through this
web site any unlawful, harmful, threatening, abusive, harassing,
defamatory, vulgar, obscene, sexually explicit, profane, hateful,
racially or ethnically objectionable, or otherwise objectionable
material of any kind, including any material that encourages
conduct that would constitute a criminal offense, give rise to
civil liability, or otherwise violate applicable laws.
The Smartwify shall determine in
its sole discretion whether you have violated the foregoing
restriction.
Any conduct, communication, or content that, in
the sole discretion of Smartwify,
(i) violates applicable law, or (ii) is harmful or
objectionable to individual users or to
Company, or (iii) infringes any rights of
Smartwify or any third party, is prohibited. We
cannot ensure prompt removal of questionable content after online
posting, however. Smartwify and its
representatives do not assume liability for any action or inaction
with respect to conduct, communication, or content on this web
site.
Purchase of Service
All purchases and use of services or products
through the Smartwify web site are
governed by our Smartwify Terms of
Service, our Acceptable Use Policy, and other policies set forth on
our web page. Please read them before making a purchase or any use.
To learn more about Smartwify services
and products, you can visit our web site.
No Guarantee of Reliability or
Security
We try to provide accurate information through
our web site, but we do not guarantee, and are not responsible for,
information you find on our web site. Smartwify
does not endorse any particular third parties, or their
sites, merely because we provide a link to their web
site.
Smartwify uses reasonable
precautions to protect the privacy of your personal information,
such as credit card and other ordering information, but
Smartwify does not guaranty the security of your
information. Smartwify utilizes a Secure
Socket Layer ("SSL") connection. Accordingly, your credit card and
other ordering information, such as your name and address, is
encrypted using the SSL connection and is not expected to be read
in an intelligible form as it travels to the
Smartwify order processing system. As effective
as modern security practices are, no physical or electronic
security system is impenetrable. We cannot guarantee that
information you supply won't be intercepted while being transmitted
to us or by us over the Internet. If your browser does not support
the use of an SSL connection or if you prefer not to send your
credit card number over the Internet, you can place your order by
calling Smartwify at
1800-310-3515. You must protect your username
and password. Please log off before closing the browser window if
you access your account from a public computer.
To obtain access to certain services through
the Smartwify web site, you may be given
an opportunity to register with
Smartwify. As part of any such registration
process, you will select a member name and password. You agree that
the information you supply during that registration process will be
accurate and complete and that you will not register using a
fictitious name or under the name of, nor attempt to enter our site
under the name of, another person. Smartwify
reserves the right to reject or terminate any member name
that it deems offensive. You will be responsible for preserving the
confidentiality of your password and will notify
Smartwify of any known or suspected unauthorized
use of your account.
Ownership of Information
"Smartwify" and our
logo are trademarks of Smartwify
and/or its affiliates. All other trademarks,
product names, and company names and logos appearing on this web
site are the property of their respective owners. You must obtain
permission from those owners before copying or using the owner's
trademarks, product names and company names and logos.
With the exception of website content provided
by Smartwify, the
information, data, software, photographs, graphs, videos, graphics,
music, sounds, page headers, custom graphics, button icons, and
other materials contained in this web site (collectively, the
"Content") are protected by copyrights, trademarks, trade secrets
and other proprietary rights. These rights are valid and protected
in all forms, media and technologies now existing or hereafter
developed. In addition, this web site is copyrighted as a
collective work under the U.S. copyright laws, and LocaLoop, Inc.
owns a copyright in the selection, coordination, arrangement, and
enhancement of all content. You may not modify, remove, delete,
augment, add to, publish, transmit, participate in the transfer or
sale of, create derivative works from, or in any way exploit any of
the Content, in whole or in part.
Content Submissions
Certain portions of this web site may allow you
to post or upload comments, messages, materials, information, or
other content (collectively, "User Generated Content").
Smartwify has no obligation to review User
Generated Content posted and/or submitted by any persons accessing
this web site. Smartwify is not in any
manner responsible for User Generated Content, it does not
guarantee the accuracy, integrity or quality of User Generated
Content, and it cannot assure that harmful, inaccurate, deceptive,
offensive, threatening, defamatory, unlawful or otherwise
objectionable User Generated Content will not appear on this web
site. You acknowledge that by providing you with the ability to
access and view User Generated Content on this web site,
Smartwify is merely acting as a passive conduit
for such distribution and is not undertaking any obligation or
liability relating to any User Generated Content or activities of
users on this web site. Without limiting the generality of the
foregoing, you acknowledge and agree that the information,
materials and opinions expressed or included in any User Generated
Content are not necessarily those of
Smartwify.
You acknowledge and agree that
Smartwify has the absolute right, but not the
obligation, to monitor User Generated Content posted to this web
site in its sole discretion. In addition,
Smartwify reserves the right to alter, edit,
refuse to post, or remove any such User Generated Content, in whole
or in part, for any reason or for no reason, and to disclose such
User Generated Content and the circumstances surrounding their
transmission to any third party. You agree that
Smartwify does not have any obligation to use or
respond to any User Generated Content.
You may not post or otherwise distribute User
Generated Content to this web site which
Smartwify in its sole discretion determines to
be abusive, harassing, threatening, defamatory, obscene, an
impersonation of others, fraudulent, deceptive, misleading, in
violation of a copyright, trademark or other intellectual property
right of another, invasive of privacy or publicity rights, in
violation of any of Smartwify's other
rights, illegal, or otherwise objectionable to
Smartwify. You may not upload
commercial content on this web site or use this web site to solicit
others to join or become members of any other commercial online
service or other organization. You may be required to register
and/or agree to additional terms of use prior to being permitted to
post or otherwise distribute User Generated Content to this web
site. You shall indemnify and hold Smartwify
harmless with respect to all claims resulting from User
Generated Content you supply.
Your User Generated Content is not confidential
or proprietary. When you post User Generated Content to this web
site, you authorize Smartwify to make
such copies thereof as it deems necessary in order to facilitate
the posting and storage of the User Generated Content on this web
site. You grant to Smartwify a
non-exclusive, irrevocable, worldwide, perpetual, royalty-free
right to use, reproduce, distribute, transmit, create derivative
works, publicly display any of your User Generated Content in any
manner or media now or later known, including but not limited to
the right to sublicense and assign and commercialize the User
Generated Content without any compensation due to you.
Smartwify does not assert any ownership over
your User Generated Content; rather, as between
Smartwify and you, subject to the rights
granted to Smartwify in this
Visitor Agreement, you retain full ownership of all of your User
Generated Content and any intellectual property rights or other
proprietary rights associated with your User Generated
Content.
You agree that you shall immediately
notify Smartwify in writing of any
objectionable content appearing on this web site.
Smartwify will make good faith efforts to
investigate allegations that any User Generated Content violates
this Visitor Agreement but (a) makes no warranty to you that it
will edit, remove, or continue to permit the display of any
specific User Generated Content, whether or not subject to such
allegations, and (b) will have no liability whatsoever for editing,
removing, or continuing to permit the display of any User Generated
Content. Any use of any content on the Website, including without
limitation User Generated Content, will be at your own
risk.
No Warranties
THE INFORMATION PROVIDED AT OR THROUGH THIS WEB
SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT,
NON-INTERFERENCE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NEITHER
Smartwify NOR ITS AFFILIATES OR LICENSORS
WARRANT THAT THIS WEB SITE SERVICE WILL BE UNINTERRUPTED OR ERROR
FREE OR FREE FROM SERVICE DEGRADATION, OR THAT ANY INFORMATION,
SOFTWARE, OR OTHER MATERIAL ACCESSIBLE AT OR THROUGH THIS WEBSITE
ARE FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT
MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEB SITE
IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
This web site may be temporarily unavailable for
scheduled or unscheduled maintenance, equipment modifications or
upgrades, and for other reasons within and outside of the direct
control of Smartwify. You
are responsible for implementing sufficient procedures to satisfy
your particular requirements for the accuracy of information
obtained through this web site. Although
Smartwify employs security measures,
Smartwify cannot guarantee the security of this
web site or information provided through this web site, or viruses,
worms, Trojan horses or other code that manifests contaminating or
destructive properties will be detected or remediated by
Smartwify.
Limitations on Smartwify Liability;
Indemnification
NOTWITHSTANDING ANYTHING ELSE IN THIS VISITOR
AGREEMENT, NEITHER Company NOR ITS AFFILIATES OR LICENSORS
WILL BE LIABLE OR OBLIGATED UNDER THIS VISITOR AGREEMENT OR UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY LOSS OR CORRUPTION OF DATA OR DELAYED OR
INTERRUPTED USE OF THIS WEB SITE OR ACCESS TO THE INTERNET, FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS, OR FOR ANY LACK OR BREACHES OF SECURITY OF
THIS WEB SITE OR STORAGE OF YOUR DATA.
These limitations apply whether the claim is
based on breach of contract, breach of warranty, negligence,
product liability, or any other basis, and apply whether or
not Smartwify was informed of the
likelihood of any particular type of damages. If you are
dissatisfied with this web site, or if you have any other dispute
with Smartwify relating to this web site,
then your sole and exclusive remedy is to discontinue using this
web site. Some of the disclaimers and exclusions in this Visitor
Agreement may not apply to you because some states do not allow the
disclaimer of certain warranties or the exclusion of liability for
consequential or incidental damages. In any such case, the
liability of Smartwify shall be limited
to the greatest extent permitted by law.
You will defend, indemnify, and hold
harmless Smartwify against any and all
claims, losses, damages, and liabilities arising from or in
connection with the use or misuse of this web site. This
section of the Visitor Agreement shall survive its termination for
any reason.
Miscellaneous
This Visitor Agreement has been made in and will
be construed in accordance with the laws of the State of Minnesota.
By using the Smartwify web site, you
consent to the exclusive jurisdiction of the state and federal
courts in Minnesota, in all disputes arising out of or relating to
this Visitor Agreement and your use of the web site. Any cause of
action or claim you believe you may have with respect to the web
site or any Smartwify service or product
obtained through the web site must be brought within one (1) year
after the alleged claim or cause of action arises. Any failure to
insist upon or enforce strict performance of any provision of this
Visitor Agreement will not be construed as a waiver of any
provision or right. Neither the course of conduct between the
parties nor trade practice will act to modify any provision of this
Visitor Agreement.
We reserve the right to suspend service or deny
access to our site for any reason. Neither such termination of
access, nor any action or inaction by you or any other user of this
web site, shall suspend or terminate your obligations under this
Visitor Agreement.
© 2015 Smartwify. All rights
reserved.