Terms of Service
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 24, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION, WHICH AFFECTS SUBSCRIBER'S RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES.
1. Payment of Charges: Subscriber will be billed monthly in advance for Services to be received, plus pro-rata charges, if any, for periods not previously billed. Subscriber shall pay all monthly charges and all applicable fees and taxes as listed on the AirNorth monthly bill.
Subscriber shall notify AirNorth of disputed items within thirty (30) days of receipt, or longer as required by applicable law. Failure to pay charges billed (including checks returned for insufficient funds) may result in discontinuance of Service, the removal of all AirNorth Equipment (as defined below) and/or imposition of a late payment or service charge. If the Subscriber has more than one account (business and/or residential) served by AirNorth, all AirNorth-provided Services at all locations may be subject to suspension or discontinuance of Service in the event any one account remains unpaid, and AirNorth may apply any funds received from Subscriber first to such delinquent account(s). Should Subscriber wish to resume a Service after any suspension, Subscriber may be subject to a reconnection fee. Should Subscriber wish to resume a Service after termination of Service, AirNorth may charge an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. In the event collection activities are required, an additional collection charge may be imposed.
Subscriber's first bill may include prorated charges for Service received. If partial payment is made of any bill and without waiving its right to collect the full balance owed, AirNorth will apply that payment to any outstanding charges in the amounts and proportions that it determines.
2. Payment by Check; Non-Sufficient Funds/Returned Items; Third Party Processing. If Subscriber makes payment by check, Subscriber authorizes AirNorth to collect such payment electronically. Subscriber may not amend or modify this Agreement with any restrictive endorsements (such as "paid in full"), releases, or other statements on or accompanying checks or other payments accepted by AirNorth; any of which notations shall have no legal effect. If Subscriber's card issuer or financial institution refuses payment for insufficient funds, closed or unauthorized accounts, or any other reason, Subscriber will be charged an insufficient fund charge of $35.00 for each instance in which such payment is refused. Subscriber hereby authorizes AirNorth to collect any declined amount and the insufficient funds charge(s) electronically from the subject account. In addition, Subscriber's Service may be suspended and/or terminated. This fee is in addition to any charges Subscriber's financial institution may assess. If initially rejected, AirNorth may make additional multiple attempts to execute the payment for up to thirty (30) days following the initial refusal.
Customer shall be responsible for any payment processing fees incurred when using a third party to process Customer's payments to AirNorth.
3. AirNorth Refund Policy - 30 Day Guarantee. If you are not 100% satisfied with your service, you will have 30 days from your product signup date to request a refund. To receive this refund, you must submit an email request of cancellation of this product to our billing department. Once you have received an email confirmation for the cancellation request, the billing department will process the refund within 72 hours. Refunds are limited to broadband internet services. Professional services, additional equipment purchases and installation charges are nonrefundable services.
4. AirNorth Property: All AirNorth-provided equipment distributed to and/or installed for use in the Subscriber's service location(s) by or on behalf of AirNorth ("Equipment") remains the property of AirNorth. None of the Equipment shall become a fixture. AirNorth Equipment is intended to service and reside at the specific Service location and is not to be used or relocated off premises without AirNorth authorization. Subscriber must return all Equipment upon substitution of use or termination of Service. Failure to do so will result in a charge to be determined in accordance with AirNorth's then current schedule of charges for non-returned Equipment, which amount shall be due immediately. Subscriber agrees to pay such charge whether the Equipment is lost (through theft or otherwise), damaged or destroyed.
5. Disruption of Service: All AirNorth Services are provided on an "AS IS" and "AS AVAILABLE" basis. In no event shall AirNorth be liable for any failure or interruption of Service, including without limitation those failures and interruptions resulting in part or entirely from circumstances beyond AirNorth's reasonable control. Subject to applicable law, AirNorth may give credit with respect to Subscriber's recurring monthly subscription fee for qualifying outages of AirNorth Services.
6. AirNorth Equipment: AirNorth will repair and/or replace defective Equipment, if any, as long as such damage was not caused by misuse or other improper operations or handling by Subscriber. AirNorth shall have the right to presume misuse or other improper operations or handling by Subscriber in the event Subscriber requests repair or replacement more than twice in any twelve (12) month period, or more than three times in any twenty-four (24) month period, and shall have no obligation to fulfill any such repair or replacement. AirNorth is not responsible for the maintenance or repair of Subscriber-provided equipment, including but not limited to telephones, computers, modems, televisions, or any other related Subscriber-provided equipment. A service charge may be imposed upon the dispatch of a technician if there is damage to AirNorth Equipment due to negligent use or abuse or if no fault is discovered in AirNorth's system or Equipment. AirNorth makes no warranties, with respect to Equipment or Service provided by AirNorth or with respect to the compatibility of the Service or the Equipment with any Subscriber-provided equipment.
ALL EQUIPMENT IS PROVIDED "AS IS", AND AIRNORTH HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A SPECIFIC PURPOSE.
AIRNORTH SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING FROM THE USE, DEPLOYMENT, AND/OR FUNCTIONALITY OF ITS EQUIPMENT.
AirNorth's sole obligation and Subscriber's sole remedy with respect to any liability or damage caused by Subscriber's use or deployment of AirNorth Equipment, shall be a refund of fees paid by Subscriber for such Equipment for the previous billing month/cycle.
7. Subscriber Property: AirNorth assumes no responsibility and shall have no responsibility for the condition or repair of any Subscriber-provided equipment and/or software. Subscriber is responsible for the repair and maintenance of Subscriber-provided equipment and/or software. AirNorth is not responsible or liable for any loss or impairment of AirNorth's Service due in whole or in part to a malfunction, defect or otherwise caused by Subscriber-provided equipment and/or software.
Notwithstanding anything to the contrary, Subscriber agrees to allow AirNorth and our agents the right (A) to install hardware in, (B) send software downloads to, and (C) install, configure, maintain, inspect or upgrade Subscriber-provided equipment to the extent necessary to provide Service. Subscriber warrants that Subscriber is either the owner of such equipment or that Subscriber has the authority to give AirNorth access to it.
8. Taxes/Fees: Subscriber agrees to pay any local, state or federal taxes and fees imposed or levied on or with respect to the Services, the Equipment or installation or service charges incurred with respect to the same (including franchise fees).
9. Care of AirNorth Property and Service: Subscriber agrees that neither Subscriber nor any other person (except AirNorth's authorized personnel) will: (A) open, tamper with, service, or make any alterations to the Equipment; nor (B) remove or relocate any Equipment from the service address of initial installation. Any alteration, tampering, removal, or the use of Equipment which permits the receipt of Services without authorization or the receipt of Services to an unauthorized number of outlets, or to unauthorized locations, constitutes theft of service and is prohibited. Notwithstanding the foregoing, upon receipt of a request by Subscriber, AirNorth shall relocate the AirNorth Equipment for Subscriber within Subscriber's home at a time mutually agreed to by AirNorth and Subscriber. Subscriber may incur a charge for such relocation and should consult a current AirNorth schedule of rates and charges prior to requesting such relocation. If the Subscriber moves residences outside of AirNorth's service area, Subscriber shall notify AirNorth that this Agreement shall be terminated and the provisions of Section 13 shall apply to such termination.
10. Access to Subscriber Premises: Subscriber authorizes AirNorth and its employees, agents, contractors and representatives to access and otherwise enter the Subscriber's premises to install, inspect, maintain and/or repair the Equipment and, upon the termination of Service, to remove the same from the premises. AirNorth's failure to remove its Equipment shall not be deemed an abandonment thereof. If the installation and maintenance of Service are requested at Premises that, in AirNorth's sole discretion, are or may become hazardous or dangerous to our employees, the public or property, AirNorth may refuse to install and maintain such Service.
11. Recording of Communications: Customer acknowledges and agrees that all communications between Customer and AirNorth may be recorded or monitored by AirNorth for quality assurance or other purposes.
12. Assignment or Transfer: This Agreement and the Services and/or Equipment supplied by AirNorth are not assignable or otherwise transferable by Subscriber, without specific written authorization from AirNorth.
13. Termination and Expiration:
a. Termination by Subscriber: Unless otherwise terminated, this Agreement shall automatically renew on a month-to-month basis. Subscriber acknowledges that upon such renewal all pricing is subject to change. To terminate any recurring service, please submit in writing your request for cancellation confirming the date and service address that is being cancelled.
b. Termination for Bankruptcy: AirNorth shall have the right to terminate this Agreement immediately in the event that Subscriber makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against Subscriber under any law having for its purpose the adjudication of Subscriber as a bankrupt or the reorganization of Subscriber.
c. Termination for Breach: In the event of any breach of this Agreement by Subscriber, the failure of Subscriber to abide by the rates, rules and regulations of AirNorth, the failure of Subscriber to provide and maintain accurate registration information, or any illegal activity by the Subscriber using any AirNorth Service, this Agreement may, at AirNorth's option, be terminated and AirNorth's Equipment removed. Failure of AirNorth to remove such Equipment shall not be deemed abandonment thereof. Subscriber shall pay reasonable collection and/or attorney's fees to AirNorth in the event that AirNorth shall, in its discretion, find it necessary to enforce collection or to preserve and protect its rights under this Agreement. AirNorth may terminate this Agreement or AirNorth may reject an application or block access to or use of any component of any AirNorth Service for any reason including, but not limited to, if:
i. Subscriber violated this Agreement as to this or another AirNorth account;
ii. the information required in the application process is or becomes incorrect, absent or incomplete;
iii. Subscriber threatened or harassed any AirNorth employee, agent, contractor or representative;
iv. Subscriber's credit card issuer refuses a charge or any other payment method fails to compensate AirNorth;
v. there is a violation of the Terms of Service or other agreements (such as Term Agreements) with respect to any AirNorth Service, as determined in the sole discretion of AirNorth; or
vi. the amount of technical support required to be provided to Subscriber is excessive as determined in the sole discretion of AirNorth.
Subscriber further agrees that in the event of termination pursuant to subsections (b) or (c), AirNorth shall have no liability to Subscriber.
d. Obligations Upon Termination: The Subscriber agrees that upon termination of this Agreement:
i. Subject to 13.a, Subscriber will pay AirNorth in full for Subscriber's use of the Equipment and the Services, as applicable, up to the later of the effective date of termination of this Agreement, the date on which the AirNorth Service has been disconnected, or the date on which the Equipment is returned to AirNorth. The Subscriber agrees to pay AirNorth on a pro-rated basis for any use by the Subscriber of any AirNorth Service for a part of a month;
ii. Subscriber will promptly return all Equipment to AirNorth. In the event that Subscriber fails to return any Equipment within ten (10) days of the termination of this Agreement in addition to Equipment charges contemplated in Section 13.d, Subscriber shall be liable to AirNorth in accordance with AirNorth's then current schedule of charges for non-returned Equipment.
e. Renewal after Cancellation or Termination: Subscriber acknowledges and agrees that in the event of renewal after cancellation or termination of a AirNorth Service, Subscriber shall be subject to the pricing, warranties, and Terms of Service as are effective at the time of such renewal.
14. Security Deposit: Any security deposit required of Subscriber for the Equipment or AirNorth's Service will be due and payable upon the first monthly billing. Such security deposits will be returned to Subscriber within sixty (60) days of termination of AirNorth's Service so long as payment has been made for all amounts due on Subscriber's account and Subscriber has returned the AirNorth Equipment undamaged.
15. Advance Payment: Subscribers who are unable or unwilling to provide information to establish credit worthiness or who have an unsatisfactory credit rating may be required to make an advance payment. The advance payment will be equal to the applicable installation charge and one month of recurring charges, excluding taxes, fees and surcharges. The advance payment will appear as a credit and be applied to the first monthly bill. AirNorth reserves the right to refuse service if the Subscriber fails to fulfill standard credit requirements. After service has been established, the Subscriber will be responsible for the payment of all applicable charges, including taxes, fees and surcharges to avoid discontinuance of service.
16. Content and Services: All services are subject to change in accordance with applicable law.
17. Rates: All rates are subject to change in accordance with applicable law.
18. Late Fee: If Subscriber's account is 30 days past due, a reminder message will be included on Subscriber's monthly bill. If Subscriber's past due balance remains unpaid, Subscriber may be charged an applicable late fee in addition to Subscriber's past due balance at AirNorth's then current rate. If Subscriber's account remains unpaid Subscriber's Services may be disconnected. Subscriber can avoid incurring late fees by paying Subscriber's monthly bill promptly. Any late fees assessed are not considered interest credit service charges, finance charges or penalties. AirNorth expects that Subscriber will pay for Services on a timely basis, and AirNorth does not extend credit to customers.
19. Disclaimer: AirNorth assumes no liability for any program, services, content or information distributed on or through the Services and AirNorth expressly disclaims any responsibility or liability for Subscriber's use thereof. Further, AirNorth shall not be responsible for any products, merchandise or prizes promoted or purchased through the use of the Services.
20. Right to Make Credit Inquiries: Subscriber authorizes AirNorth to make inquiries and to receive information about Subscriber's credit experiences, including Subscriber's credit report, from others, to enter this information in Subscriber's file, and to disclose this information concerning Subscriber to appropriate third parties for reasonable business purposes.
21. AirNorth's Reservation of Rights: AirNorth reserves the right to refuse, suspend or terminate Service to any person at any time for any reason not prohibited by law. When practical, AirNorth will provide notice that is reasonable under the circumstances before suspending or terminating Service to an existing Subscriber, and AirNorth will provide any prior notice of suspension or termination that is required by law.
22. LIMITATION OF LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION APPLY TO ANY ACTS, OMISSIONS AND NEGLIGENCE OF AIRNORTH AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND EACH OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES).
UNDER NO CIRCUMSTANCES SHALL AIRNORTH BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH, INCLUDING ANY ACTS OR OMISSIONS BY THIRD-PARTY SERVICE PROVIDERS, AGENTS OR SUBCONTRACTORS OF AIRNORTH, OR RELATING TO ANY SERVICES FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS. AIRNORTH'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY AIRNORTH OF ANY OBLIGATION AIRNORTH MAY HAVE UNDER THESE TERMS OF SERVICE OR APPLICABLE LAW, SHALL BE CUSTOMER'S ABILITY TO TERMINATE THE SERVICE OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE EQUIPMENT PROVIDED BY AIRNORTH. IN NO EVENT SHALL AIRNORTH'S LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE PRECEDING THIRTY (30) DAY PERIOD.
24. ARBITRATION. The following provisions are important with respect to the Agreement between Subscriber and AirNorth regarding AirNorth's Services.
PLEASE READ THEM CAREFULLY TO ENSURE THAT SUBSCRIBER UNDERSTANDS EACH PROVISION. This Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies available to Subscriber in the event of a dispute.
Subject to the "Exclusions" paragraph below, AirNorth and Subscriber agrees to arbitrate disputes and claims arising out of or relating to this Agreement, the Services or marketing of the Services Subscriber has received from AirNorth. Notwithstanding the foregoing, either party may bring an individual action on any matter or subject in small claims court.
THIS AGREEMENT MEMORIALIZES A TRANSACTION IN INTERSTATE COMMERCE.THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS.
A party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate, entitled "Notice of Intent to Arbitrate" ("Notice"). The Notice to AirNorth should be addressed to: VP and General Counsel, Litigation, AirNorth Communications, 218 N. Main St., Cheboygan, MI 49721 ("Arbitration Notice Address"). The Notice must: (1) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, Subscriber or AirNorth may commence an arbitration proceeding, in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator shall be bound by the terms of this Agreement.
The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and the arbitration shall be administered by the AAA. The AAA Rules and fee information are available at "www.adr.org," by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address.
AIRNORTH SHALL BEAR THE COST OF ANY ARBITRATION FILING FEES AND ARBITRATOR'S FEES FOR CLAIMS OF UP TO $75,000. SUBSCRIBER IS RESPONSIBLE FOR ALL OTHER ADDITIONAL COSTS THAT SUBSCRIBER INCURS IN THE ARBITRATION INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS UNLESS OTHERWISE REQUIRED OF AIRNORTH UNDER APPLICABLE LAW.
If the arbitrator's award exceeds $75,000, either party may appeal such award to a three-arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within 30 days after the date of entry of the arbitration award. The appealing party must provide the other party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within 120 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 may exist under the Federal Arbitration Act.
The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, via a telephonic hearing, or by an in-person hearing as established by AAA rules.
SUBSCRIBER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER AND AIRNORTH ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY
Unless AirNorth and Subscriber agree otherwise in writing, all hearings conducted as part of the arbitration shall take place in the county (or parish) of Subscriber's billing address.
The arbitrator may award injunctive relief only in favor of the party seeking relief, only to the extent sought, and only to the extent necessary to provide the specific relief warranted by such individual's claim.
The parties agree that the arbitrator must give effect to the terms of this Agreement.
SUBSCRIBER AND AIRNORTH AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN SUBSCRIBER'S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Furthermore, unless both Subscriber and AirNorth agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person's claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions shall be null and void and rendered of no further effect with respect to the specific claim at issue.
Right to Opt Out. If Subscriber does not wish to be bound by these arbitration provisions, Subscriber must notify AirNorth in writing within 30 days of (a) the date that this arbitration provision becomes effective, if Subscriber is an existing customer, or (b) the date that Subscriber first subscribes to the Service(s). Subscriber may opt out by mail to the Arbitration Notice Address. Subscriber's written notification to AirNorth must include Subscriber's name, address, and AirNorth account number as well as a clear statement that Subscriber does not wish to resolve disputes with AirNorth through arbitration. Subscriber's decision to opt out of this arbitration provision will have no adverse effect on Subscriber's relationship with AirNorth or the delivery of Services to Subscriber by AirNorth.
Severability. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.
For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from this Agreement, rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein.
EXCLUSIONS. SUBSCRIBER AND AIRNORTH AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION:
(1) ANY INDIVIDUAL ACTION BROUGHT BY SUBSCRIBER OR BY AIRNORTH ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS.
(2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY'S INTELLECTUAL PROPERTY RIGHTS.
(3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
The foregoing arbitration provisions shall survive the termination of this Agreement.
25. Entire Agreement: These Terms and Conditions (including the Terms of Service) constitutes the entire agreement between the Subscriber and AirNorth. No undertaking, representation or warranty made by an agent or representative of AirNorth in connection with the sale, installation, maintenance or removal of AirNorth's Services or Equipment shall be binding on AirNorth except as expressly included herein. Subscriber agrees that, if any portion of this Agreement is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and if severed or rendered null and void thereby, the remaining portions will remain in full force and effect. If AirNorth fails to insist upon or enforce strict performance of any provision of this Agreement, it does not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.