TERMS AND CONDITIONS OF SERVICE (“AGREEMENT”)
1.0 Services. Subject to the terms and conditions of the Agreement, Veraloft LLC (“Veraloft” or “We”) shall provide the wireless broadband internet services purchased by customer (“You” or “Customer”) (whether Customer purchases such services on-line, on an order form or through Veraloft's telesales department) (“Services”). Use of the Services shall constitute acceptance of this Agreement. Customer shall use the Services without the right of resale or distribution, and strictly in accordance with the applicable law and the Acceptable Use Policy, which is available at http://www.pacificanet.com/aup (collectively, “Policies” and which form a part of this Agreement). Veraloft reserves the right to change the Policies upon notice to Customer. If Customer does not agree to the changed Policies, Customer must terminate this Agreement by providing Veraloft with written notice within seven (7) days of the date of the notice of the changed Policies; otherwise any continued use of the Services shall be deemed to be acceptance of the changed Policies. If Customer adds additional services on-line or on an additional order form, such new services will be deemed Services and shall be governed by the terms of this Agreement. If Customer is an individual, Customer represents and warrants he or she is at least 18 years old. Customer shall be solely responsible for the safeguarding of its passwords and may be unable to access its files in the event any password is lost, forgotten or misappropriated. Veraloft and its suppliers may, from time to time and without liability, interrupt Services for maintenance and other operational reasons, and Customer shall not receive any compensation (and Veraloft shall have no liability) for such interruptions. Veraloft reserves the sole and exclusive right to determine or revise its service area, and the right to discontinue any Service or product without liability. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution and Customer is only granted a right to use such IP addresses in connection with the Services. The Service and the Products shall be used only by you and by members of your immediate household living with you at the same address. You acknowledge that you are entering this Agreement on behalf of all persons who use the Products and/or Service by means of the Customer Equipment. You shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and the Policies. You further acknowledge and agree that you are solely responsible for and liable for any and all breaches of the terms and conditions of this Agreement and the Policies, whether the breach is by you or by any other user. You agree to indemnify, defend and hold harmless Veraloft and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the use of the Service or the Products, or the breach of this Agreement or the Polices by you or any other user.
2.0 Products and Equipment. Veraloft may deliver to Customer certain software, hardware and documentation, including but not limited to CPE (defined below) (collectively, “Products”). Veraloft grants to Customer a personal, non-transferable, non-exclusive, license to use the Products during the Term solely for Customer's own internal use of the Services in accordance with this Agreement. Veraloft will use commercially reasonable efforts to configure any Veraloft supplied equipment (if any) external to Customer's personal computer (“CPE”) to allow Customer to use the Services. Veraloft is not responsible for the configuration of, or internal equipment for, Customer's personal computer that may be necessary to make such computer compatible with the Services. For any CPE that Veraloft supplies, Veraloft may supply new or recertified equipment. At Veraloft's discretion, any equipment Veraloft supplies as replacement equipment (e.g., for repair or replacement purposes) may be new, recertified or refurbished. If any Products malfunction as a result of Customer's abuse, misuse or reconfiguration of CPE or other equipment, Veraloft will charge Customer for any technician visit (if applicable) at its standard rates and the cost of any replacement equipment. If Veraloft provides any Product or CPE upgrades to Customer, Customer shall use all such upgrades as provided by Veraloft. Veraloft and its suppliers shall have no obligation or liability in connection with any equipment not provided and configured by Veraloft, or for any abuse, misuse or reconfiguration (including, but not limited to, the addition of software or other devices on the CPE) of any equipment by any party other than Veraloft.
3.0 Monitoring. Veraloft and its suppliers have no obligation to monitor the Services, but may do so and disclose information regarding use of the Services if Veraloft or its suppliers, in their sole discretion, believes that it is reasonable to do so, including to: (i) satisfy laws, regulations, or governmental or legal requests; (ii) operate the Services properly; or (iii) protect itself and its other users and customers. Veraloft may immediately remove Customer's material or information from Veraloft's servers, in whole or in part, if Veraloft, in its sole and absolute discretion, determines that such content infringes another party's property rights, is illegal or that such content violates Veraloft's Acceptable Use Policy. In addition, Veraloft may immediately disconnect Customer's service if Veraloft determines that Customer is in violation of the Acceptable Use Policy.
4.0 Fees and Payments
a. Fees and Charges: You agree to pay all charges and fees associated with the Products and use of the Service, which charges may include, without limitation, monthly service fees, charges for the use of Products, installation charges, charges for service calls and other charges. In addition, you agree to pay all applicable federal, state and local fees and taxes. Veraloft shall have the right to change the amount of fees and charges from time to time at its discretion and upon reasonable advance notice. Monthly service, equipment and other fees shall be payable monthly in advance. Installation and other charges will be billed according to our then current billing policies. Your Veraloft invoice may also contain charges for other services provided by us or our subsidiaries or affiliates.
b. Recurring Payments: If authorized by you, Veraloft shall charge/debit all amounts payable by you to Veraloft pursuant to this Agreement to your credit card, debit card or banking account that you have designated for recurring payments to Veraloft. By enrolling for recurring payments you authorize us to continue charging/debiting the designated credit card, debit card or bank account for all monthly fees (including without limitation monthly service fees and equipment charges, as well as applicable taxes and fees) payable to Veraloft, and any other charges incurred by you and payable to Veraloft pursuant to this Agreement, until the earlier of your withdrawal of your recurring payment authorization or this Agreement is terminated. Monthly service fees and equipment fees may be charged up to thirty (30) days in advance. You agree to inform us immediately of any change in the information provided in your recurring payment authorization. If Veraloft does not receive payment from your credit card issuer, your bank or their agents, you agree to pay all amounts due upon demand by us.
c. Late Payments; Failure to Pay: You agree to pay Veraloft for any fees or charges due to Veraloft, including any administrative late fee(s) and related fees, charges and assessments due to late payments or non-payments. If Veraloft does not receive any required payment from you by the date on which the payment is due, or you pay less than the full amount due Veraloft, you may be charged such fees, charges and assessments and the Service may be disconnected. If the Service is disconnected, in addition to the rights and remedies of Veraloft under this Agreement or otherwise, you may be required to pay a reconnect fee in addition to all past due charges before the Service is reconnected. Veraloft's late fee practices may be revised to comply with applicable state or local laws, rules or regulations. If we are required to use a collection agency or attorney to collect money owed by you or to assert any other right that we may have against you, you agree to pay the reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorneys' fees and arbitration or court costs.
d. Additional Charges: The Service will allow you to access the Internet, content providers, providers of services, on-line services and other information. You acknowledge that you may incur charges on account of such access or usage through the Service separate and apart from the amounts charged by us. In addition, you may incur charges as a result of accessing on-line services or purchasing or subscribing to other offerings via the Internet or otherwise. You agree that all charges payable to third parties, including all applicable taxes, are your sole responsibility. In addition, you are solely responsible for protecting the security of credit card, payment, and personally identifiable information provided in connection with such transactions.
e. Credit Inquiries: You authorize Veraloft to make inquiries and to receive information about your credit experience from others, enter this information in your file, and disclose this information concerning you to appropriate third parties for reasonable business purposes in compliance with applicable law.
f. Billing Errors: Subject to applicable law, you must notify us of any billing errors or other requests for refund within sixty (60) days of the date on which the error occurred.
g. Account Access: In order to protect the privacy of your account information, we may require that you use a security code or other method, designated in accordance with our policies, to confirm your identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service.
5.0 Termination and Expiration
a. Term: The term of this Agreement shall commence upon the installation of your Service, and shall continue on a month to month basis thereafter until terminated as provided for in this Agreement or until superseded by a revised version of this Agreement.
b. Termination by Customer: You may terminate this Agreement for any reason at any time by providing Veraloft with written notice of termination, in accordance with the terms of this Agreement. In the event of your termination, any applicable fees and charges will accrue through the date of termination but all prepaid monthly service fees for Service not received will be refunded on a pro-rata basis (less any outstanding amounts due Veraloft for equipment or other applicable fees and charges), subject in each case to the terms of any special offers or promotions that may be associated with your purchase of the Services (e.g., special discounted rates conditioned upon a minimum term commitment may be subject to retroactive adjustment to standard rates in the event of early termination).
c. Termination by Veraloft: We may terminate this Agreement (i) at any time without prior notice if you fail to comply in full with any term of this Agreement, or (ii) for any other reason upon thirty (30) days notice to you. In the event Veraloft terminates the Service for any reason other than your violation of this Agreement, any fees and charges will accrue through the date of termination but any prepaid monthly service fees for Service not received will be refunded on a pro-rata basis (less any outstanding amounts due Veraloft for equipment or other applicable fees and charges).
d. Customer Obligations Upon Termination: You agree that upon termination of this Agreement:
i. You will immediately cease use of the Service and the Products, and uninstall and destroy all copies of any software provided to you pursuant to this Agreement or otherwise used by you to access the Service.
ii. You will pay in full for your use of the Service and the Products up to the later of the effective date of termination of this Agreement or the date on which the Service is disconnected and the Products have been returned. You agree to pay on a pro-rated basis for any use by you of the Products or Service for a part of a month.
iii. You shall return the Products to Veraloft, by any method reasonably requested by us, within 10 days after termination of the Agreement. Upon our request, you will permit us, and our employees, agents, contractors, and representatives, to access your premises during normal business hours or by appointment to remove the Products and other material provided by Veraloft. If any Product is not returned, you agree that Veraloft may bill you for the applicable charges, including without limitation charging your specified means of recurring payments, if applicable.
e. Retention of Rights: Nothing contained in this Agreement shall be construed to limit Veraloft's rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, Veraloft and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on Veraloft's or its suppliers' servers or systems. In addition, you may forfeit your account user name and all e-mail, IP, and web space addresses. We shall have no liability whatsoever as a result of the loss of any such data, names or addresses.
f. Survival: All obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination shall survive termination of this Agreement.
6.0 Customer Responsibility for Content: You acknowledge that there is some content and material on the Internet or otherwise available through the Service which may be offensive to some individuals, may be unsuitable for children, may violate federal, state or local laws, rules or regulations or may violate your protected rights or those of others. We assume no responsibility for this content or material. All content and material accessed by you or others through the Service is accessed and used by you or such others at their own risk. NEITHER VERALOFT NOR ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO ACCESS TO SUCH CONTENT OR MATERIAL BY YOU OR OTHERS.
7.0 Disclaimers. THE SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER'S USE THEREOF IS AT ITS OWN RISK. VERALOFT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VERALOFT DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8.0 Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER VERALOFT OR ITS SUPPLIERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, OR FOR ANY LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS REGARDLESS OF THE CAUSE OF ACTION, AND WHETHER OR NOT FORESEEABLE. IN NO EVENT SHALL VERALOFT'S OR ITS SUPPLIERS' CUMULATIVE LIABILITY EXCEED THE FEES PAID BY CUSTOMER THROUGH THE MONTH IN WHICH THE CLAIM AROSE EVEN IF VERALOFT IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, VERALOFT AND ITS SUPPLIERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES, LOSSES, EXPENSES OR COSTS THAT CUSTOMER SUFFERS AS A RESULT OF: (I) ANY INTERRUPTION OR FAILURE OF THE SERVICES OR PRODUCTS; (II) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET; (III) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR USING THE SERVICES OR ANY LOSS OF DATA DUE TO DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS; (IV) ANYTHING BEYOND THE REASONABLE CONTROL OF VERALOFT, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION OR FAILURE OF A THIRD PARTY'S SERVICES, SOFTWARE, EQUIPMENT OR NETWORK; (V) ANY UNAUTHORIZED USE OR MODIFICATION OF SERVICES OR PRODUCTS OR COMBINATION OF SERVICES OR PRODUCTS WITH OTHER SERVICES, PRODUCTS OR EQUIPMENT; (VI) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (VII) THE ATTEMPT BY UNAUTHORIZED USERS (E.G., HACKERS) TO OBTAIN ACCESS TO CUSTOMER'S DATA, WEB-SITE, COMPUTERS, OR NETWORKS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9.0 Confidentiality. Customer acknowledges that the Products contain proprietary and confidential information of Veraloft and its suppliers. Customer agrees to not disclose the Products to third parties without the prior written consent of Veraloft and the suppliers identified to Customer in Veraloft's response to such notice. Customer shall not copy, modify, resell or distribute the Products, create or recreate the source code for the Products, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Products. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products.
10.0 Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party's reasonable control, including but not limited to acts of God, changes in governmental laws, rules, regulations or orders, war, terrorist acts, insurrection, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials. Customer acknowledges that certain of Veraloft's suppliers establish the prices charged to Veraloft based on governmental laws, rules, regulations, orders and decisions. If any of the prices charged to Veraloft by any of its suppliers increase as a result of changes to governmental rules, laws or regulations or pursuant to new decisions or orders issued by applicable regulatory bodies, Veraloft reserves the right to increase the price charged to Customer and/or change the terms of service hereunder, effective thirty days following notice to Customer. If Customer does not agree to accept the new pricing and/or revised terms, Customer may terminate the affected Services without penalty within thirty days of the date of such notice. Any continued use of the Services thirty days after the notice date shall be deemed acceptance of the new prices and/or terms.
11.0 General. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint-venturers or agents. Customer may not assign this Agreement without the prior written consent of Veraloft, which consent shall be at Veraloft's sole discretion. Veraloft may assign this Agreement. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. The prevailing party in any legal action taken in relation to this Agreement shall be entitled to recover its attorney's fees and costs. Except as expressly provided herein, no modification to this Agreement shall be effective unless in writing and signed by an authorized representative of Veraloft. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Notices to Customer may be sent to the facsimile number, email address or address listed on the applicable order form. Customer consents to receiving all notices hereunder through electronic means. Notices to Veraloft should be sent to Veraloft, LLC at 855 Oak Grove, Suite 203, Menlo Park, CA 94025. The relevant order form, the Policies and these Terms and Conditions contain the entire understanding of the parties with regard to this matter and supersede any prior written or oral communications between the parties with respect to the subject matter of this Agreement.
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