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Valley Home, CA
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Ayera's Wireless Internet Service: Terms of Service
TOS version 1.1.23, updated April 4, 2021
- Binding Agreement. Please read these Terms of Service ("Terms") carefully. These Terms are a contract between you and Ayera Technologies, Inc. ("Ayera"). The Terms cover important information about all Ayera services and equipment, regardless of whether the services and equipment are intended to provide wireless Internet access on the Ayera network. Unless otherwise stated, these Terms apply to all Ayera-branded wireless internet access services, including any voice and other related services (collectively, the "Service" or "Services"), and any Ayera-supplied equipment and software (regardless of how branded) you use, purchase or lease in connection with the Services, including your router ("Equipment"). These Terms include provisions governing fees for late payments, limitations of liability, privacy, and resolution of disputes by arbitration instead of in court. You accept and agree to comply with, and be bound by, these Terms when you (a) sign or otherwise acknowledge (e.g., by checking a box or clicking a button) that you accept on paper or electronically; (b) use Ayera's Service or Equipment. IF YOU DON'T WANT TO ACCEPT THESE TERMS, PLEASE DO NOT DO EITHER OF THESE ITEMS.
These Terms incorporate and include the following documents (collectively, the "Other Documents") as part of the contract between you and Ayera:
- The detailed Service plans that Ayera, or one of its authorized resellers, provides or refers you to during the sales transaction, and any order confirmation materials and purchase receipt that Ayera, or one of its authorized resellers, provides or sends to you when (or after) you sign up for Service from Ayera.
- Third-party end-user license agreements that govern any third-party software incorporated in any Service for which you sign up with Ayera. These agreements can be found at: http://www.ayera.com/legal/eula.
- The Acceptable Use Policy ("AUP") describing how you can and cannot use the Service. The AUP can be found at: https://www.ayera.com/legal/aup.
- Any other policies relating to the Service that Ayera may choose to develop and implement. These policies may be posted on the www.ayera.com web site, or may be sent to you via email, regular U.S. Mail, or any other permissible means.
- To the extent that these Terms conflict with the provisions of any of these Other Documents, then these Terms shall control, unless Ayera has expressly stated or agreed otherwise in writing, and the conflicting provisions of the Other Document(s) shall be deemed modified to the minimum extent necessary to be read consistently with these Terms.
- Ayera's Right to Change Terms and Your Related Rights.
Ayera can change any of the Terms (including any documents incorporated within the Terms) at any time. Ayera will provide you notice of any material changes through your invoice or by e-mail to the most recent email address associated with your Ayera account. Ayera additionally will announce any changes on the Ayera website at http://www.ayera.com
Changes will become effective on the date Ayera sends notice. Except as otherwise provided below, if you continue to use Service or Equipment after Ayera sends notice, this will mean that you have agreed to be bound by the changes announced in that notice.
If Ayera makes a change that has a materially adverse effect on your Service, then you may cancel the affected Service.
- Service Limitations. This Section 3 describes certain Service availability limitations, variations on speed and bandwidth, service coverage, maintenance outages, how Ayera manages the network, and credits for Service outages.
- Availability of Service. The Service, including any internet phone (sometimes known as mobile "Voice Over Internet Protocol" or "VoIP") service or product, may not be available at any or all times in all areas. Even within coverage areas, and for a variety of reasons that may be beyond Ayera's reasonable control, service availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your desired use of the Service. At the time you purchase Service, you agree to provide Ayera with the correct address of the primary place where you intend to use the Service. That address will be used to determine whether adequate coverage should be available based on Ayera's coverage maps. Coverage maps only approximate Ayera's anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice, depending on a variety of factors, some of which are discussed below. You agree that Ayera is not liable for problems relating to Service availability or quality, regardless of the cause(s) of these problems. You further agree to promptly notify Ayera of any changes in the primary Service address.
- Maintenance. To provide the best possible service to its customers, Ayera periodically performs maintenance on its network. In some cases, this may require Ayera to conduct either a planned or unplanned interruption of the Service. Ayera will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on customers, but Ayera cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that Ayera shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages.
- Network Management. Ayera reserves the right to engage in reasonable network management to protect the overall integrity of its network, including detecting malicious traffic patterns and attempting to prevent the distribution of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the specific state of the network at a particular location at any given time, excessive use will be determined primarily by resource consumption. For further information, please refer to Ayera's Acceptable Use Policy, posted at http://www.ayera.com/legal/aup, which forms a material part of, and is incorporated by reference within, these Terms.
- VARIATIONS OF SPEED; SERVICE QUALITY DISCLAIMER. THE SPEED AND BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE CONNECTED TO THE AYERA NETWORK, AND HENCE THE QUALITY OF THE SERVICE, MAY VARY FOR MANY REASONS, WITHIN OR BEYOND AYERA'S CONTROL, INCLUDING WITHOUT LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE ENGAGED; (ii) THE AMOUNT OR PRIORITIZATION OF DATA BEING TRANSFERRED OVER THE NETWORK, (iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR EQUIPMENT AND THE EQUIPMENT OF THIRD PARTIES; (v) TERRAIN AND FOLIAGE; (vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE AND MATERIALS. NEITHER AYERA, NOR ITS AFFILIATES, AGENTS OR SUPPLIERS, WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICE (A) WILL MEET YOUR REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, WITHOUT DELAY, ERROR-FREE, OR FREE FROM SERVICE DEGRADATION.
- Credits. Ayera's sole liability for interruptions or degradations of the Service shall be as set forth in this Section 3(e). In the event of an interruption of the Service that continues for a consecutive period of twenty-four (24) hours or more, Ayera will credit your account for an amount equal to the prorated charges (including any applicable taxes) for your Service during the affected period, provided that you must request the credit within fifteen (15) days of the commencement of the Service interruption or degradation. Such request may be made by a telephone call to Ayera's customer service department (at 888-AYERA-55). Alternatively, Ayera may elect in its sole discretion to issue credits to customers for Service problems. No credit will be available if the interruption or degradation period results from any "Excluded Causes", as described in Section 6(d) below (Equipment Warranty). Any credit that Ayera issues to you pursuant to this Section 3(e) may be used by you for/toward future Service that you order or purchase from Ayera; provided, however, that you specifically acknowledge and understand that such credit shall not be refundable to you, in whole or in part, under any circumstances. THIS SECTION 3(e) SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR DEGRADATION OF THE SERVICE.
- Term of Service; Data Caps; Rate Plan Pricing Feature; Termination; Term Extensions; and Early Termination Fees.
- Term of Service. Ayera offers this Service on either a month-to-month subscription or a fixed-term of 12, 24, 36, or 60 months depending on initial sign up method and/or reseller used. Services are billed in advance for Service. Your first invoice will include the prorated montlhly amount based on installation date of the Services through the end of the same month PLUS the regular monthly amount for the following month PLUS any installation or other one-time charges LESS any payments you have made during the sign-up process and/or payments you have made subsequent to the first invoice generation. Your service will revert to a month-to-month subscription after your fixed-term contract period, if any, is completed.
- Plan Speeds and Data Caps. The wireless internet Service provides a peak, burstable internet upload and download speed cap ("Peak Bandwidth Rate") and a maximum aggregate total amount of data transfer per month ("Plan Data Limit"). The Plan Data Limit is based on 10% of the total data that can be downloaded using the Peak Bandwidth Rate over 30 days, rounded up to the nearest 5 GB. For current plans, Peak Bandwidth Rate and Plan Data Limit are as follows:
Ayera, at its sole discretion, reserves the right to throttle speeds of Service to 10% of Plan Peak Rate for remainder of calendar month in cases where Plan Data Limit is reached within the calendar month.
- 3 Mbps plan: Peak Rate of 3 Mbps, Plan Data Limit per month of 100 GB.
- 5 Mbps plan: Peak Rate of 5 Mbps, Plan Data Limit per month of 165 GB.
- 10 Mbps plan: Peak Rate of 10 Mbps, Plan Data Limit per month of 325 GB.
- 15 Mbps plan: Peak Rate of 15 Mbps, Plan Data Limit per month of 490 GB.
- 20 Mbps plan: Peak Rate of 20 Mbps, Plan Data Limit per month of 650 GB.
- 30 Mbps plan: Peak Rate of 20 Mbps, Plan Data Limit per month of 975 GB.
- 40 Mbps plan: Peak Rate of 40 Mbps, Plan Data Limit per month of 1,300 GB.
- 50 Mbps plan: Peak Rate of 50 Mbps, Plan Data Limit per month of 1,620 GB.
- 60 Mbps plan: Peak Rate of 60 Mbps, Plan Data Limit per month of 1,945 GB.
- 75 Mbps plan: Peak Rate of 75 Mbps, Plan Data Limit per month of 2,430 GB.
- 80 Mbps plan: Peak Rate of 80 Mbps, Plan Data Limit per month of 2,595 GB.
- 100 Mbps plan: Peak Rate of 100 Mbps, Plan Data Limit per month of 3,240 GB.
- 150 Mbps plan: Peak Rate of 150 Mbps, Plan Data Limit per month of 4,860 GB.
- 200 Mbps plan: Peak Rate of 200 Mbps, Plan Data Limit per month of 6,480 GB.
- 250 Mbps plan: Peak Rate of 250 Mbps, Plan Data Limit per month of 8,100 GB.
- 300 Mbps plan: Peak Rate of 300 Mbps, Plan Data Limit per month of 9,720 GB.
- 500 Mbps plan: Peak Rate of 500 Mbps, Plan Data Limit per month of 16,200 GB.
- 1 Gbps plan: Peak Rate of 1 Gbps, Plan Data Limit per month of 32,400 GB.
The Service is designed to be symmetrical, with equivalent Peak Rate for both download and upload speeds, however factors such as the type of antenna used, the distance between the two endpoint antennas, obstructions between the two endpoints, or interference by other wireless devices may adversely affect the speeds delivered. As such, (i) the upload speeds may be consistently lower than the delivered download speeds, and/or (ii) both upload and download speeds may be lower than the plan's Peak Rate from time to time.
- Cancellation by You. You can cancel any or all Services, with 30 days notice by calling Ayera's customer service department, at 888-AYERA-55 and telling Ayera to deactivate the Service. You will be responsible for the prorated amount of monthly Service fees for Services rendered up to and including the date of deactivation of Service, as well as any Early Termination Fees. If deactivation date requested is less than the 30 days required notice, customer must pay the difference between the desired deactivation date and 30 days from the date of notice.
Upon termination of Service for any reason, Ayera may, to the extent permitted by applicable law, delete any voicemails, data, files, electronic messages, or other information stored on Ayera's or its suppliers' servers or systems. Also upon termination of Service for any reason, if you have been an Ayera internet phone service customer whose telephone number (associated with that service) previously had been transferred to Ayera from another voice service provider, then (in accordance with applicable federal regulations) such telephone number will be automatically and permanently returned for reassignment to the numbering pool of the original voice service provider; it specifically being understood that Ayera may not be able to recover such telephone number even if you (i) decide to reinstate your Service with Ayera (or with an acquirer, transferee or assignee of, or successor to, Ayera's internet phone service) or (ii) express your intent to establish internet phone service with another voice service provider. You agree that the "Ayera Parties" (as defined in Section 15 below) will have no liability whatsoever for (A) the loss of any such data, names, addresses, or other information and/or (B) if you have been a Ayera internet phone service customer, the inability (for whatever reason) to maintain your existing telephone number or to transfer such telephone number to a new voice service provider.
- Termination by Ayera. AYERA MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR ANY AGREEMENT BETWEEN AYERA AND YOU WITHOUT NOTICE FOR ANY GOOD CAUSE, INCLUDING, WITHOUT LIMITATION, if you or any user on your account:
- breaches these Terms;
- pays late;
- provides Ayera with any inaccurate or incomplete information;
- damages or tampers with, or allows anyone else to damage or tamper with, any Equipment;
- incurs charges greater than any billing or credit limitation on your account (even if Ayera has not yet billed for those charges);
- transfers Service to another person or business without Ayera's advance written consent;
- supplies Service to another person or business without Ayera's advance written consent;
- becomes insolvent, goes bankrupt, or threatens bankruptcy (except as prohibited by law);
- uses the Service in a way that violates Ayera's Acceptable Use Policy, any other agreement you may have with Ayera, or any other policy affecting your Service that Ayera may choose to develop and implement; or
- otherwise acts in an abusive, harassing or malicious manner vis--vis Ayera personnel, other Ayera customers.
In addition, Ayera may terminate your account if the Service provided to you causes undue problems to or impacts the proper operation of Ayera Equipment or negatively impacts other Ayera customers including, but not limited to, degredation of signal or quality to Equipment, saturation of bandwidth, or excessive packet loss and/or retransmits.
- Early Termination Fees. If your service is terminated or cancelled for any reason and your are within a fixed contract term, you agree that 50% of the remaining value of the contract is immediately due and payable to Ayera. Remaining value of the contract is calculated as the remaining months of the contract term multiplied by the greater of (1) the monthly service fee of the plan at time of termination or (2) the average monthly service fee of billed months of the contract prior to termination.
- Return Policy for purchased Equipment. If you purchase your Equipment directly through Ayera (or through Ayera authorized resellers), and you are dissatisfied with your Service or Equipment for any reason, you may return the Equipment within thirty (30) days after installation or purchase of Equipment, whichever is sooner, provided that you return your purchased Equipment (in undamaged condition and in good working order, complete, and together with your original Equipment purchase receipt or other Equipment proof of purchase). Returned equipment may mailed or brought into Ayera's office during normal business hours, and an RMA authorization must be obtained first by calling Ayera ar 209-579-3000.
- Billing for Services. This Section 5 describes how Ayera bills you for Service and Equipment, overage charges applicable, and Ayera's rights if you do not timely pay in full for Service or Equipment or if your account is delinquent.
- How You Will Be Billed. All invoices sent by Ayera are paperless and sent via email, and as such you agree to keep a valid email on file with us that we may send invoices, notices, and other correspondence. Ayera has web-based customer portal system called the "Ayera Control Panel" for customers of Ayera Services. This system allows you to view your account status, past credits and payments, view and pay invoices, and make other changes to your account profile at any time. Ayera Control Panel is located at: https://www.ayera.com/secure.
You will pay Ayera for the Service and Equipment using your credit, debit, or other acceptable bank card (the "Card"), via a check issued on behalf of a valid US-based banking institution, or through an electronic wire transfer from a bank account that you designate; and, provided further, that from time-to-time Ayera may permit (in its sole discretion) the purchase of all or certain types of Service sessions by means of cash and/or another method of payment that Ayera subsequently may elect to authorize. The Card information you have provided to Ayera must be valid and up to date (i.e., not expired) at all times. If your Card information or Card status is not valid and up to date, and if you otherwise have not either (i) made advance arrangements to pay your account balance(s) on a one-time basis with a different credit card or alternate acceptable payment method or (ii) placed (or had placed) on your account a credit in an amount at least sufficient to cover your account balance(s), then your account balance(s) will not be timely paid, and Ayera may suspend or terminate the Service for cause and/or charge you late charges, re-activation fees.
Fees and charges for Service are set forth in your order confirmation (or your purchase receipt, as applicable) and your invoices on "Ayera Control Panel". Ayera disclaims any and all liability, and you relieve Ayera from any and all liability, in the event of (i) errors or omissions in information displayed on the Ayera Control Panel or (ii) your inability to access the Ayera Control Panel (for any reason) during any particular period(s). You specifically acknowledge and understand that Ayera does not produce, mail or otherwise send paper invoices to its customers. Rather, your invoices/statements that are viewable on the Ayera Control Panel and that Ayera may send to you via email are the sole forms of Ayera Service and Equipment invoices/statements that currently are available to you. You are entitled and encouraged to access and print out copies of your most recent invoices. In certain states, you additionally may be entitled to request paper invoices from Ayera, and Ayera will honor any such written requests that Ayera receives in conformance with the "Notice" provisions contained in Section 14(c) below.
Notwithstanding anything contained in this Section 5 or elsewhere in these Terms, charges for any particular Service session that a Customer purchases will be satisfied first by means of an automatic reduction of any credit balance that may be available in your account. If such credit balance is less than the outstanding charges, then the difference between those two amounts will be charged to your Card on file automatically on or after the due date of the invoice, or you must make payment by another acceptable means on or before the due date of the invoice.
- Data Plans/Overages. If you subscribe to an Ayera Service for one or more monthly periods or monthly Service sessions, you will be entitled to use each such Service for the respective Plan Data Limit listed in your Service plan description or on your order confirmation or purchase receipt. Upon reaching your Plan Data Limit during any monthly billing period or monthly Service session, then in accordance with the terms of your particular rate plan, as set forth in your Service plan description, one of the following provisions will apply: either
- you will be precluded from continuing to access and use the Service (i.e., through the end of your then-current monthly billing period or monthly Service session) unless and until you elect to purchase and pay in full (including any and all applicable taxes), in advance, for a higher Plan; or
- Ayera automatically will charge you, and you agree to pay, an additional internet service usage fee per gigabyte (or fraction thereof) of additional bandwidth consumed through the end of your then-current monthly billing period or monthly Service session (the "Overage Charge"). The rate for this Overage Charge will be as set forth in your Service plan description (that you receive as part of the sales transaction) or on your order confirmation or purchase receipt. Regardless of whether provision (i) above or provision (ii) above applies, your Plan Amount does not roll-over from month to month, but rather expires in its entirety at the end of each monthly billing period. You should read and familiarize yourself with Ayera's Acceptable Use Policy, which (as stated above) forms a material part of these Terms and which sets forth examples of permissible and non-permissible uses of the Service.
- Suspension or Termination for Non-Payment. If you do not pay your account in full by any payment due date, whether under your billing cycle or otherwise, then at any time thereafter, unless your past due account balance (including any late payment fees and other amounts that Ayera contractually or legally is entitled to charge) has been brought to zero, then Ayera may suspend or terminate the Service and Ayera additionally may suspend the ability to use the Equipment that you have purchased, leased or otherwise been provided for use in association with your suspended or terminated Service. Furthermore, Ayera may terminate your Service if your Card expires (or your bank account is closed or suspended, as applicable), and you have not provided Ayera with a valid replacement Card, or other alternate forms of acceptable payment. In the event of such suspension or termination by Ayera, you promptly will pay to Ayera any and all outstanding fees and all collection costs and fees, including a reasonable suspension fee (as determined in Ayera's sole discretion), reasonable attorneys' fees and late fees incurred or charged by Ayera. Ayera may, but is not required to, reactivate your Service if you bring your account current after Service has been suspended or terminated. Before Service may be reactivated, you must pay Ayera all past due amounts, late payment fees, and applicable taxes, plus a reasonable reactivation charge (as determined by Ayera) per account to cover Ayera's administrative costs associated with the suspension/termination. Notwithstanding any reactivation of your Service, and as set forth in Section 4(d) above, if you were an Ayera internet phone service customer whose telephone number (associated with that service) previously had been transferred to Ayera from another voice service provider, then upon the termination of your Service by reason of your non-payment of any amount(s) due to Ayera (and in accordance with applicable federal regulations), such telephone number will be automatically and permanently returned for reassignment to the numbering pool of the original voice service provider, and Ayera may not be able to recover such telephone number. You agree that the "Ayera Parties" (as defined in Section 15 below) will have no liability whatsoever for the inability (for whatever reason) to maintain such telephone number or to transfer such telephone number to a new voice service provider.
- Delinquency/Late Fees. All delinquent charges and charges not honored by your Card issuer or bank will be subject to a late fee equal to the greater of (i) 1.5% of the delinquent amount per month (or portion of a month) or (ii) Five Dollars ($5.00) per month (or portion of a month); provided, however, that in no event will such late fee be greater than the highest percentage or dollar amount that is allowed by applicable law. Except to the extent prohibited by applicable law, Ayera may charge a late fee pending the resolution of any disputes you may have raised regarding your invoiced charges, provided that Ayera will reverse late fees with respect to any charges that subsequently are removed from your account as a result of the dispute process being resolved in your favor.
- Equipment. This Section 6 describes your responsibilities with respect to Ayera-owned and/or customer-owned Equipment, including the Device Non-Return Fee and restrictions on tampering with Equipment. This Section 6 also provides the sole warranty relating to purchased equipment and describes what you should do if Ayera-owned equipment is lost or stolen.
- Warranty on Purchased Equipment. If you purchased your Equipment from Ayera, your Equipment is covered by a limited warranty from its manufacturer. This manufacturer's limited warranty provides that your Equipment will be substantially free from material defects, under normal use in compliance with the manufacturer's and Ayera's instructions, for one of the following applicable periods: (i) with respect to new Equipment, for a period of one (1) year from the date you receive the Equipment; and (ii) with respect to refurbished Equipment, for a period of ninety (90) days from the date you receive the Equipment ("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, use of the Equipment by an unauthorized person, your failure to comply with the Equipment manufacturer's or Ayera's policies or with any other instructions provided by the Equipment manufacturer or Ayera, actual or attempted alteration of or additions to the Equipment not explicitly approved in advance (in writing) by the Equipment manufacturer and Ayera, or any other cause beyond the reasonable control of the Equipment manufacturer and Ayera, all as reasonably determined by the Equipment manufacturer and Ayera (collectively, "Excluded Causes"). Repair or replacement of the Equipment, in Ayera's discretion, and reperformance of the installation of the Equipment are Ayera's only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment. This Limited Warranty is personal to you, and will terminate immediately upon the sale or transfer of the Equipment or expiration or termination of the Service (for any reason). Neither your Equipment manufacturer, Ayera, nor any other party makes any other warranty, express or implied, with regard to the Equipment. It is the customer's responsibility to maintain current firmware and/or security patches on equipment they have purchased, either directly from Ayera or from a 3rd party, and uses with Ayera's service.
- Tampering with the Equipment. You must not use the Service with any equipment that has an altered electronic serial number or equipment identifier or any equipment that has undergone a factory reset, without seeking and obtaining Ayera's express advance written permission in each instance. In addition, you may not use any serviced, altered, modified, stolen, or tampered equipment with the Service, and you may not (without Ayera's express advance written authorization in each instance) permit any other person to use the Service.
- Theft or Fraudulent Use of the Service; Loss or Theft of Equipment. If the Ayera-owned Equipment is lost or stolen, or if you become aware at any time that the Service has been stolen or is being fraudulently used, it is very important that you notify Ayera immediately, so that Ayera can suspend your Service (and the ability to use any Equipment that you have purchased or leased for use in association with that Service) in order to prevent further usage and limit your liability. You can do this by (i) logging into the Ayera Control Panel (at https://www.ayera.com/secure) to request a suspension of your Service or (ii) calling Ayera's customer service department at 888-AYERA-55. Once you notify Ayera, Ayera will suspend your Service (i.e., until you possess replacement Equipment usable with the Service or such fraudulent activity has ceased, as applicable), and you will not be responsible for charges incurred with the lost or stolen Equipment during that period of suspension.
- Reclamation of Equipment. If your service is terminated per Section 4 of this agreement, Ayera will attempt to reclaim the Ayera-owned equipment installed during the initial installation including, but not limited to: antenna(s)/radio(s), mounting hardware, masts, surge suppression and grounding devices, routers, PoE injectors, and cabling. Ayera will attempt contact with an on-site person during the reclamation process, however you implicitly give permission for Ayera personnel to access and remove any equipment mounted externally on your structure even if no on-site contact is reachable. Equipment located inside the premises can be returned during the reclamation by Ayera personnel or may be dropped off at Ayera's corporate office within 7 days of the reclamation attempt. You agree that a failure to allow Ayera to reclaim equipment will result in billing of $600 for the cost of the equipment plus standard travel time and labor charges involved in the reclamation attempt.
- Support. Prior to contacting Ayera's customer service for assistance, you may elect to use the troubleshooting guides and user information provided by Ayera, or available at at www.ayera.com/support. If you request a service call to your Service location and Ayera determines that the problem is your responsibility, then Ayera reserves the right to charge you a reasonable fee for the cost of the technician's service call, and you hereby pre-authorize Ayera to charge that fee to your Card or bank account. If you desire to file a warranty claim pursuant to Section 6(d) above, please call Ayera's customer service department (at 888-AYERA-55) or follow the warranty claim submission instructions which are set forth at www.ayera.com/legal/warranty.
- Privacy; Business Relationship Consent.
- Consent to Business Relationship. When you sign up for the Service, and as part of your business relationship with Ayera, you will be asked to provide a telephone number. Regardless of whether this is a wired or wireless number or whether this number is listed on the Do-Not-Call Registry, you consent to being contacted by Ayera (and/or its designated agents) at this number, for any purpose (including sales, marketing and promotional offers) and by any means (including autodialed or prerecorded voice calls and text messages). In this regard, you specifically acknowledge and understand that you may incur, and will bear sole responsibility for, charges related to these incoming calls or messages. If you desire not to receive any sales, marketing or promotional offers from Ayera by means of telephone calls or text messages to this telephone number, then you may elect to have the telephone number placed on Ayera's Do Not Contact list by either (i) logging onto the Ayera Control Panel and completing and submitting the information requested on that webpage or (ii) calling Ayera's customer service department at 888-AYERA-55 in order to express this preference.
- Ownership; No Licenses; Third Party Software. The Service and leased Equipment, and any firmware or software used to provide the Service embedded in any Equipment or used in connection with the Service; all Service information, documents and materials delivered to you by Ayera or located on the www.ayera.com website; and all names, service marks, trademarks, trade names, logos, domain names, and patents of Ayera (collectively, the "Ayera Assets"), are and will remain the sole property of Ayera (and/or its affiliate). Nothing in these Terms grants you the right or license to use any of the Ayera Assets, except on a non-exclusive basis in connection with your personal use of the Service in strict compliance with each of these Terms. The Service may require third-party software to be installed in order to function. Ayera shall not be liable for any use or installation of such software. Any third-party software installed shall be governed by that third-party's end-user license agreement (see the listing of "Other Documents" under Section 1 above). By accepting these Terms, you agree to accept the terms of those third-party end-user license agreements and to look solely to the provider(s) of such third-party software to handle and resolve any problems or issues relating to the use or installation of any such third-party software.
- Disclaimers and Limitation of Liability. This Section 10 includes important statements about the scope of the sole warranty made to you and a description of certain things for which Ayera will not be liable in connection with the Service.
- DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE ONLY WARRANTY BEING MADE ABOUT THE SERVICE AND EQUIPMENT IS THE MANUFACTURER'S EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 6(d) ABOVE. THE AYERA PARTIES (SEE THE "DEFINITIONS" IN SECTION 15 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 (SEE "OTHER DOCUMENTS"), AND ANY STATEMENTS MADE BY ANY AYERA EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ANY AYERA PARTIES. AYERA DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON AYERA'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. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE EXCLUSIONS IN THIS SECTION 11 MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
- LIMITATION OF LIABILITY.
THE AYERA PARTIES SHALL NOT BE LIABLE OR OBLIGATED IN CONNECTION WITH THESE TERMS, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: ANY AMOUNTS IN EXCESS OF THE TOTAL FEES PAID TO AYERA FOR THE SERVICE OR EQUIPMENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS; ANY LOSS OR CORRUPTION OF DATA; DELAYED, DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET (SUBJECT SOLELY TO THE PROVISIONS OF SECTION 3(e) ABOVE); INABILITY TO MAKE, COMPLETE OR RECEIVE CALLS USING THE INTERNET PHONE SERVICE; OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR THE SERVICE LOCATION; ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES AND/OR LOST PROFITS OF ANY KIND OR AMOUNT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES OR LOST PROFITS THAT MAY ARISE FROM OR RELATE TO THE INABILITY OF AYERA (FOR WHATEVER REASON) TO TRANSFER AND MAINTAIN YOUR EXISTING TELEPHONE NUMBER (i) FROM ANOTHER VOICE SERVICE PROVIDER WHEN YOU DESIRE TO TRANSFER SUCH TELEPHONE NUMBER FOR USE IN CONNECTION WITH YOUR ESTABLISHMENT OF INTERNET PHONE SERVICE WITH AYERA OR (ii) FOR ANOTHER VOICE SERVICE PROVIDER WHEN YOUR INTERNET PHONE SERVICE WITH AYERA IS TERMINATED (BY YOU OR BY AYERA, FOR ANY REASON, INCLUDING YOUR NON-PAYMENT OF ANY AMOUNT(S) DUE TO AYERA) AND YOU ARE SWITCHING TO SUCH OTHER VOICE SERVICE PROVIDER; ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY OTHER USER'S DATA; OR ANY DAMAGES ARISING FROM ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE OF AYERA'S REASONABLE CONTROL.
THE EXCLUSIONS AND LIMITATIONS CONTAINED IN THIS SECTION 11 SHALL APPLY WHETHER OR NOT AYERA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SUBJECT SOLELY TO YOUR RIGHTS AS EXPRESSLY SET FORTH IN SECTIONS 3(e) AND 6 ABOVE, IF YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT, OR IF YOU HAVE ANY OTHER DISPUTE WITH AYERA OR CLAIM AGAINST AYERA, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE (SUBJECT TO YOUR OBLIGATION TO PAY ANY EARLY TERMINATION FEE AND/OR RESTOCKING FEE APPLICABLE TO YOUR SERVICE PLAN AND ANY OTHER CHARGES THERETOFORE INCURRED IN CONNECTION WITH YOUR USE OF 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 10. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS ON CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
- Indemnification. You will defend, indemnify, and hold harmless the Ayera Parties from and against any and all claims, demands, actions, causes of action, judgments, liabilities, damages, losses, injuries, costs and expenses arising from (a) the use or misuse of the Service or Equipment by you or by any person you allow to use the Service or Equipment, or (b) any breach of these Terms by you, including, but not limited to, claims by any owner of the primary location where you use the Service. You also agree to pay each Ayera Party's reasonable attorneys' fees and costs related to prosecuting or defending such claims and to enforcing these Terms, including any and all such fees incurred in connection with any appeal.
- Disputes. This section describes what rights you and Ayera possess if you and Ayera have a dispute.
- Your Right to Dispute Charges or Services. If you have a dispute about your invoice/statement/purchase receipt, including any charge to your account or any Service for which you were billed, you agree to notify Ayera of the dispute within thirty (30) days after the initial posting on the Ayera Control Panel of the invoice/statement/purchase receipt on which the disputed charge or Service first appears. Such notice shall be in the form of a writing to Ayera at its current customer service address found at http://www.ayera.com/contact. IF YOU DO NOT PROVIDE WRITTEN NOTICE OF YOUR DISPUTE TO AYERA AT THIS ADDRESS WITHIN THIS TIME PERIOD, THEN YOU AGREE THAT YOU HAVE FOREVER WAIVED YOUR RIGHT TO DISPUTE THE INVOICE, CHARGE OR SERVICE, AND THAT YOU CANNOT PURSUE OR PARTICIPATE IN ANY LEGAL OR EQUITABLE ACTION, IN COURT, ARBITRATION, MEDIATION, OR OTHERWISE REGARDING THE DISPUTE OR RAISING THE DISPUTE AS A DEFENSE. Unless otherwise provided by law, you must pay disputed charges until the dispute is resolved. If you accept a credit, refund, or other compensation or benefit that Ayera offers to resolve a disputed invoice, charge or Service, then you agree that the issue has been fully and finally resolved.
- You Agree to Provide Ayera an Opportunity Informally to Resolve Your Dispute. Before you may pursue or participate in any dispute (or raise such dispute as a defense) in court or arbitration against Ayera for any claims, including claims related in any way to Ayera Service, Equipment, these Terms, billing, privacy, advertising, or Ayera's communications with you, you must first send a written description of your claim to Ayera Escalations at the following address: P.O. Box 576846, Modesto, CA, 95357, and you must allow Ayera a reasonable opportunity to resolve your dispute. Your written notice must describe the problem in reasonable detail, and identify or enclose all relevant documents and information. You and Ayera agree to negotiate in good faith with each other to try to resolve your claim. If you and Ayera do not reach a resolution of your dispute within sixty (60) days after Ayera receives your written notice of claim, you may pursue your claim in arbitration or, solely to the extent specifically provided below, in court.
- Arbitration. You and Ayera agree to arbitrate all disputes between the parties, except as provided in this subsection Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This arbitration agreement covers any dispute arising out of or relating to any aspect of the relationship between you and Ayera, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, even if the claim arises or may arise before or after the period(s) during which you are receiving Service from Ayera. For purposes of this arbitration provision, references to "Ayera," "we," and "us" include Ayera, the Ayera Parties, and each such entity's respective subsidiaries, affiliates, agents, employees, predecessors-in-interest, successors, and assignees. The Terms evidence a transaction in interstate commerce, and the Federal Arbitration Act governs the interpretation and enforcement of this subsection (c).
Notwithstanding the arbitration agreement set forth in the immediately preceding paragraph, if you fail to pay in full any amounts you owe when they are due, Ayera may assign your account for collection, and Ayera and/or the collection agency may pursue in court claims limited to the collection of past due amounts and any interest or cost of collection permitted by law or these Terms. (However, Ayera disclaims any and all liability, and you relieve Ayera from any and all liability, with respect to the conduct of any such collection agency.) In addition, Ayera may seek injunctive relief in any court with respect to any violation of the patent, trademark, service mark, copyright, trade secret, and/or other intellectual property rights of Ayera or of any third party.
YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION if: (i) your claim qualifies for small claims court in a location where jurisdiction and venue over you and Ayera is proper, in which case you may initiate proceedings in small claims court; or (ii) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE YOU FIRST ACTIVATE ANY SERVICE WITH AYERA (THE "OPT-OUT DEADLINE"). You may opt out by calling Ayera's customer service department, at 888-AYERA-55, before the Opt-Out Deadline.
Either you or Ayera may start an arbitration proceeding by sending to the other, by certified mail, a letter requesting arbitration ("Demand"). If you start the arbitration, you must send the Demand to Ayera's main address at P.O. Box 576846, Modesto, CA 95357. The Demand must (A) describe the nature and basis of the claim or dispute and (B) set forth the relief sought. The American Arbitration Association's ("AAA") Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by these Terms, will govern the arbitration. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Upon you or Ayera filing an arbitration demand, Ayera will pay all filing, administration, and arbitrator fees, unless your claim exceeds $75,000. If you initiate an arbitration in which you seek more than $75,000 in damages, the AAA rules will govern the payment of these fees. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless Ayera and you agree otherwise in writing, any arbitration hearings will take place in Stanislaus County, California.
One arbitrator, who is selected under the AAA Rules and who has expertise in consumer disputes in the wireless industry, will conduct the arbitration. If no arbitrator possessing such expertise is available, then the arbitration will be conducted by a single arbitrator who is selected by the mutual written approval of you and Ayera. The decisions of the arbitrator will be binding and conclusive on all parties. Judgment upon any award of the arbitrator may be entered by any court of competent jurisdiction. This provision will be specifically enforceable in any court. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS' FEES).
You or Ayera must bring any claim arising out of or related to these Terms, or the relationship between you and Ayera, within two (2) years after the claim arises, or the claim will be permanently barred. To the extent the law applicable under Section 13(d) below makes this limitations period unenforceable with respect to any claim(s), then the statutes of limitations of the State whose laws govern these Terms under Section 13(d) shall apply.
YOU AND AYERA AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER YOU NOR AYERA SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM.
IF YOU TIMELY OPT OUT OF THE ARBITRATION PROVISION IN THE MANNER DESCRIBED ABOVE, THEN THE WAIVER OF THE RIGHT TO PARTICIPATE IN A CLASS ACTION WILL NOT APPLY TO YOU. AYERA DOES NOT CONSENT TO CLASS ARBITRATION; ACCORDINGLY, IF A COURT REFUSES TO ENFORCE THIS SUBSECTION 13(c), THEN THE AGREEMENT TO ARBITRATE SHALL BE UNENFORCEABLE AS TO YOU. WHETHER A CLAIM PROCEEDS IN COURT OR IN ARBITRATION, YOU AND AYERA HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
- Governing Law. These Terms, and any disputes arising between you and Ayera related in any way to these Terms, Ayera's Service, or Ayera's Equipment, including but not limited to disputes over billing, service, privacy, advertising, or Ayera's communications with you, whether based on contract, tort, statute, or common law, will be governed by the laws of the State of California, without regard to choice of law principles.
- Assignment and Successors in Interest. These Terms will be binding upon, inure to the benefit of, and be enforceable against your respective successors and permitted assignees. You may not assign these Terms, or any of your rights, interests, or obligations in connection with your use of the Service, without seeking and obtaining the prior written consent of Ayera in each instance. Any such assignment without such consent will be void and of no force and effect.
- Entire Agreement/Severability. For customers of Ayera Services, the Terms consist of (i) the terms and conditions set forth in this document and (ii) the Other Documents posted at www.ayera.com/legal/, each as they may be amended from time to time by Ayera (or in the case of third-party end-user license agreements, by the owner of such licensed software). The Terms comprise the entire agreement and understanding of you and Ayera regarding the Service and Equipment and supersede and supplant all other representations, whether electronic, written or verbal, regarding the subject matter of these Terms. To the extent that these Terms conflict with the provisions of any other agreement between you and Ayera, then these Terms shall control, unless Ayera has expressly stated or agreed otherwise in writing, and the conflicting provisions of the other agreement shall be deemed modified to the minimum extent necessary to be read consistently with these Terms. If a court determines, in a final non-appealable judgment, that any provision of these Terms is invalid, illegal, or otherwise unenforceable, such provision will be deleted and the remainder of the Terms shall be enforced as nearly as possible in accordance with the stated intention of the parties, except to the extent otherwise provided in the arbitration provisions contained in Section 13(c) above.
- Notices. Written notices to you from Ayera will be deemed given when sent to the email address specified in your customer record, or such other email address as you subsequently provide in writing to Ayera (with any request by you that Ayera disregard an email address that you previously provided to Ayera to be made by calling Ayera's customer service department at 888-AYERA-55 and with Ayera to be afforded a minimum of thirty (30) days to abide by such request); three (3) days following the date deposited in the U.S. Mail addressed to your last known street/mailing address as maintained in Ayera's files; or,the date of delivery or rejection when sent by a nationally recognized courier to your last known street/mailing address as maintained in Ayera's files.
You are responsible for promptly notifying Ayera of any changes in your email and/or street/mailing address. Written notice to Ayera will be effective when directed to Ayera's customer service department and received at the address set forth at http://www.ayera.com/contact. Except as specifically provided in these Terms, notices from you to Ayera must be in writing to be effective. You also agree that all correspondence and communications sent to you by Ayera, including account statements, account status, payment and billing information, and changes to these Terms, may be sent by Ayera electronically to the email address most recently provided by you.
- Survival. The rights, obligations, and commitments in the Terms that, by their nature, would logically continue beyond the termination of Services (including, but not limited to, those relating to billing, payment, disclaimer and limitation of liability, indemnification, return of leased equipment, dispute resolution, no class action, no jury trial), shall be deemed to survive termination of Services.
"Ayera" means Ayera Technologies, Inc.
"Ayera Parties" means Ayera and its parent, subsidiaries and affiliates, and the directors, officers, employees, shareholders, agents, and suppliers of each such entity.