These Terms incorporate and include the following documents (collectively, the "Other Documents") as part of the contract between you and Ayera:
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.
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.
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.
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.
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.
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.
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.