Service & Premises Equipment Agreement
AirNorth Communications, Inc. (“AirNorth”) agrees to provide Internet services (“Service”) and/or Internet telecommunications Equipment (“Equipment”) to the person or entity making this agreement (“Customer,” or “Authorized User”) within the geographic area served by AirNorth. The Customer accepts responsibility for people using the Service and/or Equipment (“Authorized User”).
THIS AGREEMENT includes the terms set out in all other policies provided to Customers online at www.airnorth.com and in print. By accepting this Agreement, you agree to comply with AirNorth’s other policies. If there is a conflict between any of those policies and this Agreement, this Agreement controls.
Availability of the Service
1. Service may be temporarily suspended or limited for reasons including, but not limited to, system capacity limitations, service area limitations, transmission limitations caused by atmospheric and other natural or artificial conditions adversely affecting transmissions, and equipment modifications, upgrades, relocations, repairs and similar activities.
2. Limitations of Liability. Because of the inevitability of interruptions incident to the provision and use of such Service and/or Equipment, the Service and/or Equipment furnished by AirNorth is subject to the following terms, conditions and limitations:
a. AirNorth is only liable to Customers and Authorized Users for interruptions in the Service and/or malfunctioning of the Equipment as follows:
i. At the Customer’s request, a credit allowance may be made in the form of a pro rata adjustment of the fixed monthly charges billed by AirNorth for the period of time Service is inoperative. No such adjustment shall be made, however, if the period of interruption is for a period of less than 24 hours.
ii. Any such interruption will be measured from the time it is reported to or detected by AirNorth, whichever occurs first.
iii. When an interruption exceeds 24 hours, the length of the interruption will be measured in 24-hour days. A fraction of a day consisting of less than 12 hours will not be credited, and a period of 12 hours or more will be considered an additional day. The credit allowance will be computed by dividing the length of the Service interruption by a standard 30-day month, and then multiplying the result by AirNorth’s monthly access charges for each interruption. In no case will the credit exceed the monthly charges. No other liability will attach to AirNorth for such interruption to Service.
iv. A credit allowance will not be given for interruptions caused by the negligence or willful act of the Customer or Authorized User or interruptions caused by failure of equipment or service not provided by AirNorth, or by AirNorth provided equipment that has been modified, mishandled, or abused.
b. AirNorth is not liable or responsible for any act of omission in the operation of non-AirNorth facilities used in connection with the Service. Customer acknowledges that some or part of the Service may be offered by AirNorth through a contract or agreement with a third party (“non-AirNorth service”). If AirNorth’s authority to provide a non-AirNorth service is modified or terminated, AirNorth shall modify or terminate the non-AirNorth service to Customer without any liability whatsoever to Customer.
c. AirNorth shall in no event be liable for interruptions or delays in transmission or errors or defects in transmission, or failure to transmit when caused by acts of God, fire, war, riots, Government Authorities or other causes beyond its control, including type and condition of Customer’s Equipment.
d. AirNorth’s liability for loss or damage arising out of mistakes, omissions, interruptions, delays, errors or defects in the Service, its transmission, or failures or defects in equipment and facilitates over which the Service is furnished, occurring in the course of furnishing Service and not caused by the negligence of the Customer or Authorized User, shall in no event exceed an amount equivalent to the proportionate charge to the Customer for Service for the month in which the event occurred. In no event shall AirNorth be liable for any indirect incidental, consequential or special damages including without limitation any loss by the Customer or Authorized User of business revenue, goodwill or other claim arising in connection with the use of the Service and/or Equipment.
e. The Customer or Authorized User hereby agrees to indemnify and hold AirNorth harmless against claims for libel, slander, or infringement of copyright from the material transmitted through the use of the Service and/or Equipment against claims for infringement of patents arising from combining with, or using in connection with the Service and/or Equipment, any apparatus, or system of the Customer or Authorized User; and against all other claims arising out of any act or omission of the Customer or Authorized User in the connection with the Service and/or Equipment.
f. AirNorth is not liable for damages for any accident or injury occasioned by the presence of, or use of, the Service and/or Equipment or the Customer’s Equipment. AirNorth is not liable for any defacement or damage to any Customer’s or Authorized User’s motor vehicle or to any other personal or real property resulting from the existence of the Equipment.
3. Use of Service
a. The Service is furnished for the use by the Customer and Authorized Users for lawful purposes only.
b. The Service shall not be used to make foul or profane expressions, to impersonate another person with fraudulent or malicious intent, to contact another person so frequently or at such times of day or in any other manner so as to annoy, abuse, threaten, or harass such other person, or for any purpose in violation of the law, or in such manner as to interfere unreasonably with the use of the Service by any of AirNorth’s other Customers or Authorized Users.
4. Disconnection and Termination of Service by AirNorth for Cause
a. Upon nonpayment of any sum due AirNorth, whether that sum is due under this contract or another contract between the Customer and AirNorth or any other sum which the Customer may owe AirNorth for any reason, or upon a violation of any of the conditions governing the use of the Service as provided herein, AirNorth may without other formality and without incurring any liability to the Customer or Authorized Users, either temporarily discontinue or permanently terminate the furnishings of Service to the Customer, at AirNorth’s sole discretion, either in part or in whole. AirNorth shall not be liable to any Authorized User for any damages of any kind whatsoever resulting from interruption of Service as a result of disconnection or termination of Service to a Customer.
b. In the event Customer’s Equipment is used in violation of any of the provisions herein AirNorth may without notice take such actions as is necessary for the protection of the Service of its Customer’s including, but not limited to, disconnection of the Service to the Customer, without any credit allowance as provided in Paragraph 2 hereof, and thereafter Service may be refused, discontinued, or terminated in the sole discretion of AirNorth. AirNorth may, in its discretion advice the Customer of the violation in which event the Customer or Authorized User shall discontinue such use of the equipment or correct the violation immediately confirming in writing to AirNorth that such use has ceased or that the violation has been corrected. AirNorth may enter Customer’s property in order to retrieve the Equipment upon termination of Service.
5. Termination of Service.
A Customer may terminate Service only by directly notifying AirNorth in writing. AirNorth may terminate service, without notice, for any violation of Terms. The Customer is responsible for payment of outstanding charges for the period the Service was rendered. If AirNorth initiated disconnection or Customer initiated termination occurs within the Minimum Contract Period (as defined in Paragraph 9 below), the Customer who has agreed in and received the Special Price Offer on the reverse side shall also be responsible for payment of the full Minimum Contract Period amount, together with all costs, liquidated damages and reasonable attorney fees. Customer shall return the Equipment to AirNorth upon its termination of Service.
6. Warranties. AirNorth DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE OPERATION OF THE EQUIPMENT OF ITS SERVICES AND IS PROVIDED ON AN “AS IS” BASIS. NO WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SHALL APPLY TO THE EQUIPMENT OR THE COMPANY’S SERVICES.
7. Payment of Rates and Charges
a. The Customer is responsible for one month’s payment of rates and charges in advance, specified in AirNorth’s price plans currently in effect, for all Service furnished to the Customer or an Authorized User. In addition, Customer is responsible for the fees and charges described in the Terms of Service. Any fees not timely paid by the Customer shall result in termination of Service and return of equipment, without further notice to the Customer.
b. AirNorth reserves the right to revise, at its sole discretion and at any time, rates and charges and use policies and price plans for use of Service by the Customer.
c. AirNorth reserves the right to require Customer to make a security deposit for the establishment or continuation of Service. Such deposit and any calculated interest if applicable will be returned to the Customer, less any amounts due AirNorth, within 45 days after termination of Service. The Service Activation Fee shall not be deemed a deposit. If Customer does not receive a past due notice from AirNorth in a 12-month period, at Customer’s request, security deposit will be refunded in the form of a credit on Customer’s bill.
8. Certificate of Authority. If the Customer is a person, firm, or organization other than the signer hereof, the individual executing this Agreement on behalf of such Customer hereby certifies having authority to sign on behalf of Customer and authorizes any installation that is necessary to provide Service. In the event and to the extent that the signer shall not have been so empowered, the signer hereby personally guarantees performance of all Customer’s obligations hereunder, including all court and reasonable attorneys fees incurred. This shall be a continuing guarantee, and shall not be affected by any renewal, amendment or supplement to this Agreement.
9. Minimum Contract Period (Service). The minimum contract period for each Service is one month, unless otherwise stated on the reverse side. Customer acknowledges that early Customer termination or early AirNorth disconnection of the Service will result in financial damage to AirNorth which is difficult to calculate. Therefore, in the event of early termination or disconnection for any reason, Customer shall be liable to AirNorth for liquidated damages at the rate stated on the reverse side in addition to any other damages AirNorth may be entitled to by law including but not limited to all costs, expenses, and reasonable attorneys fees incurred. Early termination shall be any act or failure to act of Customer which effectively causes a termination, or right to terminate, this Agreement, including but not limited to, termination or disconnection of service or a violation of the use of the Service.
10. Terms of Agreement. This Agreement shall become effective on the date that AirNorth accepts this Agreement and the Customer’s initial service order and shall continue in affect for the Minimum Contract Period (Service) unless sooner terminated as herein provided. After Minimum Contract Period (Service) expires, this Agreement shall be automatically renewed from month to month. In the event that service is temporarily suspended for delinquency of payment, the contract terms shall be extended for the number of days service was suspended in order to fulfill the terms of the Agreement.
11. Assignment. The parties agree that this Agreement may not be assigned or transferred by the Customer, in whole or in part, without AirNorth’s prior written consent. AirNorth, may however, upon 5 days written notice to Customer, assign all of its rights, duties and obligations hereunder.
12. Waiver. No failure on the part of either party hereto to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any such party preclude any other right, power or remedy. No express waiver or assent by any party hereunto to any branch of or default in any term or condition of this Agreement shall constitute a waiver or assent to any succeeding breach of or default in same or any other term or condition hereof.
13. Entire Agreement. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and this Agreement contains the sole and entire agreement between the parties with respect to the matters covered hereby. In the event of any conflict between the provisions contained in any contract, service order or other document used by AirNorth, the provisions of this Agreement shall control. AirNorth does not provide marketing, billing, collection or other such services under this Agreement.
14. Governing Law. This Agreement is made and delivered in and shall be governed by, construed and enforced in accordance with the laws of the State of Michigan. Customer or authorized user acknowledges that it is a violation of law to intentionally defraud AirNorth by producing, using or having custody or control of an Internet device that has been altered to obtain Service from AirNorth.
a. Customer Agrees to care for and protect the Equipment during the time that it is in its possession and to return the Equipment to AirNorth at the end or termination of this Agreement in as good a condition as it was in at the inception of Service.
b. Title to the Equipment shall remain in AirNorth at all times.
c. Customer assumes the risk of loss, damage and destruction to the Equipment from the date of its delivery to the Customer. Risk of loss does not affect title to the Equipment nor does it affect payment due under this Agreement.
16. Regulation. AirNorth and Customer hereby agree that this Agreement shall at all times be subject to changes, modifications or nullification by any authorized regulatory authority of the State in which the service is provided, the Federal Communication Commissions or any other authorized governmental body, and further that this Agreement notwithstanding its provisions, shall at all times be specifically subject to all applicable tariffs and other regulatory statements and should AirNorth lose its license to operate, this Contract is thereby cancelled and becomes null and void.
17. Adjustment for Taxes, Fees, Etc. AirNorth’s price plans do not include any amounts resulting from taxes, fees or exactions imposed by or for any municipal operation or other political sub division or agency of government.