Installation and Access. NYSYS airAccess or its agents or contractors will schedule one or more installation visits with You. You must be present at the Site during an installation. You agree that NYSYS airAccess is not liable for files, data or other information that may be lost on your computer system during the installation process, and You agree to hold NYSYS airAccess harmless in the event that any file, data or other information is lost. You agree that You will take any measure necessary to secure the information on your computer system prior to installation. After installation and during the term of this Agreement, You shall provide NYSYS airAccess with reasonable access to the Site to inspect, repair and/or maintain the Equipment. You agree that NYSYS airAccess may visit the Site upon termination or expiration of this Agreement or disconnection of the NYSYS airAccess Service to recover the Equipment. You understand and agree that NYSYS airAccess will not restore or reconfigure your computer system after de-installation, and You agree NYSYS airAccess is not responsible for doing so.
Traffic Consumption Allowances. NYSYS airAccess has the right to monitor, measure and report bandwidth consumption by You. NYSYS airAccess reserves the right, in its sole discretion, to establish, modify and/or enforce consumption allowances at any time now or in the future, with or without notice to You, and to apply a surcharge for excess usage subsequent to notice of changes in bandwidth consumption allowances.
Support and Maintenance of the NYSYS airAccess Service. NYSYS airAccess will use commercially reasonable efforts to provide customer support for use of the NYSYS airAccess Service solely on the Equipment and with the Software described in Section 2 of this Agreement. NYSYS AIRACCESS DOES NOT GUARANTEE THAT CUSTOMER SUPPORT WILL BE AVAILABLE OR THAT NYSYS AIRACCESS WILL MAKE THE NYSYS AIRACCESS SERVICE WORK ON YOUR COMPUTER SYSTEM OR RESOLVE ALL PROBLEMS IN CONNECTION THEREWITH. Support will be available on a commercially reasonable basis via telephone, e-mail or the NYSYS airAccess Internet Site. Telephone numbers for such customer support are posted on the NYSYS airAccess Internet Site and are included in the “Contact NYSYS airAccess” section of the website. NYSYS airAccess does not undertake to correct or repair, and shall have no responsibility for, software, hardware or equipment that it does not supply, and makes no guarantee that it will be able to fix your software, hardware or equipment even if supplied by NYSYS airAccess. NYSYS airAccess will use commercially reasonable efforts, such as network management, traffic analysis, operational procedures and policies that endeavor to provide appropriate bandwidth for as many customers as possible. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS DOES NOT GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE NYSYS AIRACCESS NETWORK OR ANY SPEED OF THROUGHPUT OF YOUR CONNECTION TO THE NYSYS AIRACCESS NETWORK WILL BE AVAILABLE TO YOU. You understand and agree that the speed of the NYSYS airAccess Service provided to You at your Site will vary depending upon a number of factors, including your computer system and associated equipment, Internet traffic and associated equipment, and other factors. You understand and agree that the NYSYS airAccess Service may be temporarily limited, interrupted or curtailed due to system capacity limitations; governmental actions; force majeure; events beyond NYSYS airAccess’s control; or temporary equipment or systems failures or modifications, upgrades, maintenance, repairs or similar activities required or appropriate in connection with the delivery or improvement of the NYSYS airAccess Service.
VOIP SERVICE It is understood that NYSYS airAccess is not a voip service provider and that use of the NYSYS network for such service is at the sole risk and discretion of the customer. NYSYS is not responsible for any interruptions to customers’ phone service if the NYSYS network is being utilized for voip service and specifically interruptions to customers phone during emergencies which prohibit customer from completing emergency 911 calls during NYSYS network outages.
Integrity of the NYSYS airAccess Network. The NYSYS airAccess Network, and its various computers, wires, communications devices and other components are the property of NYSYS airAccess. You understand and acknowledge that the NYSYS airAccess Network is a shared network. In its sole discretion and with or without notice to You, NYSYS airAccess reserves the right to take any action regarding any improper or other use of the NYSYS airAccess Network needed to prevent or minimize harm to the NYSYS airAccess Network or prevent or minimize disruption of the performance of the NYSYS airAccess Service for other users. Such action may include, without limitation, suspension or termination of access by You to the NYSYS airAccess Service.
Standards. The quality of service provided hereunder shall be consistent with industry standards, government regulations and sound business practices. NYSYS airAccess will use commercially reasonable efforts to maintain its overall network quality.
Service Interruptions. Subject to the provisions of Section 6 below, interruptions in service will be credited to Customer as set forth below for the portion of the Service that the interruption affects.
Service Interruption Credits. An interruption period begins when You report a service to be interrupted and make it available for testing and repair. An interruption period ends when the service, is operative. If Customer reports a service to be inoperative but declines to make it available for testing and repair, it is considered to be impaired, but not interrupted.
(1 For purposes of calculating credit allowances, every month is considered to have 30 days. Credit allowances will be applied on a pro-rata basis against the monthly recurring charges for the affected service and will depend on the length of the interruption.
(2) A credit allowance will be given for interruptions of Two (2) hours or more, upon written request of the customer no later than ten (10) business days after the occurrence of the interruption to the NYSYS airAccess customer support center in Rochester, New York. Credit allowances will be calculated as follows:
(3) If the service interruption continues for less than 24 hours:
(i) 1/30th of the monthly recurring charge for the first interruption in a billing period.
(ii) 2/30ths of the monthly recurring charge if there was a previous interruption of at least 24 hours in the same billing period.
(4) If the service interruption continues for more than 24 hours, 2/30 of the monthly recurring charge for the first 24 hours and 4/30ths of such rate for each additional 24 hours (or fraction thereof); however, if service is interrupted for over 24 hours, more than once in the same billing period, the 4/30ths allowance applies to the first 24 hours for the second and subsequent service interruptions.
(i) Two or more interruptions of thirty minutes or more during any one 24-hour period shall be considered as one interruption.
Maximum Credit. In no event may the credits provided for hereunder (either individually or on a cumulative basis) in any billing period exceed the total monthly recurring charges for that period for the service furnished by NYSYS airAccess. NYSYS airAccess shall issue only one credit for the same incident in the same month, regardless of how many of the parameters in Section 2 above were affected. The credits set forth in this Agreement shall be NYSYS airAccess’ sole liability and Customer’s sole remedy in the event of any interruption and under no circumstances shall an interruption be deemed a breach of the Contract.
Definition of “Interruption”. For the purpose of applying this provision, the word “interruption” (whether capitalized or not) shall mean a complete loss of service resulting in the inability to access the Internet due to equipment malfunction or human errors for a continuous period of more than thirty (30) minutes. No allowance shall be made for interruptions due to electric power failure where Customer is responsible for providing electric power.
Limitations on Credit Allowances. No credit allowance will be made for:
(i) Interruptions arising from the acts or omissions of the Customer or their agents or employees, or arising from non-compliance with the provisions of the Agreement and incorporated agreements (and NYSYS airAccess’ Acceptable Use Policy (“AUP”) by, Customer or any authorized user, or any Interruptions due to any party other than NYSYS airAccess, or for events happening on any other party’s network, including but not limited to data service providers or other carriers connected to, or providing service connected to, the service of NYSYS airAccess or to NYSYS airAccess’ facilities;
(ii) Interruptions of service during any period in which NYSYS airAccess is not given full and free access to its facilities and equipment for the purpose of investigating and correction interruptions;
(iii) Interruptions of service due to the failure or malfunction of non-NYSYS airAccess equipment, including service connected to Customer- provided electric power;
(v) Interruptions of service caused by Force Majeure events;
(vi) Interruptions of service during any scheduled maintenance period or when Customer has released service to NYSYS airAccess for maintenance purposes or for implementation of a Customer order for a change in service.
(i) Charges and Fees for NYSYS airAccess Service. You agree to pay all charges and fees associated with the installation and use of the NYSYS airAccess Service and, if applicable, Premium Content, which charges may include, without limitation, monthly service charges, charges for the use of NYSYS airAccess Equipment, installation charges, charges for service calls and other charges, as may be determined from time to time by NYSYS airAccess in its sole discretion upon reasonable notice to You (including by posting on the NYSYS airAccess Internet Site changes to such charges at least thirty (30) days in advance of the effective date of the changes). If You do not want to retain the NYSYS airAccess Service because of a change in charges, You may terminate your NYSYS airAccess Service at any time as set forth in Section 13 below. You are required to pay and You agree to pay all monthly charges one month in advance. When You register for the NYSYS airAccess Service, You may decide, depending on the availability of such options in your local NYSYS airAccess service area, to pay the monthly charges with a credit card or to have the monthly charges debited directly from your checking account, in which case the monthly charges will be automatically charged to your credit card account, or debited directly from your checking account, as the case may be. You agree to pay all federal, state and local fees, taxes and/or surcharges associated with the NYSYS airAccess Service.
(ii) Failure to pay. If You fail to pay any fees or charges after notification of delinquency within thirty (30) days of the due date, NYSYS airAccess may impose a late fee, or disconnect the NYSYS airAccess Service, or both, at its sole discretion. NYSYS airAccess may also charge a service fee for all returned checks and bank card or charge card charge backs, and You agree to pay NYSYS airAccess for such service fees.
(iii) Charges for other services or goods. From time to time, You may decide to request additional services or purchase goods offered by NYSYS airAccess or by third parties. Such services and goods are not covered by the monthly fee and You will be charged separately for them, and You agree to pay for such services and goods.
(iv) In the event a service vehicle is dispatched and it is determined that either NYSYS airAccess or our equipment is cause for the issue(s), no service fee will be charged to the customer. In the event that a service vehicle is dispatched and it is determined that neither NYSYS airAccess nor our equipment is cause for the issue(s), the customer will be charged a service fee.
(b) Your Online Conduct and Use of the NYSYS airAccess Service. As a condition of this Agreement, You agree to use the NYSYS airAccess Service in accordance with the terms and conditions of this Agreement and the NYSYS airAccess Internet Acceptable Use Policy (the “Use Policy”), as follows: Generally Prohibited Conduct.
You agree not to use, or allow Users to use, the NYSYS airAccess Service, the NYSYS airAccess Network, the Equipment or the Software:
(i) any activity that violates any international, federal, state, agency, or local law or regulation or any person’s rights, including, without limitation, by posting or transmitting child pornography or (b) for any fraudulent activity, including, without limitation, making fraudulent offers to sell or buy products or services obscene material(c) to achieve or attempt to achieve, or assist others in achieving or attempting to achieve, any unauthorized access to any computer, cable or telecommunications system, network, software, data, information, or any other proprietary material(i) sending excessive data transfers that exceed consumption limits that are now in place or may be established in the future for the package or tier of service to which You subscribe; 6. Criminal or Civil Liability.
(ii) violations of this Use Policy may result in criminal or civil liability or both. NYSYS airAccess will investigate incidents involving violations of this Use Policy and will cooperate with law enforcement agencies if a criminal violation is suspected. Indirect or attempted violations of this Use Policy, and actual or attempted violations by a third party on behalf of a NYSYS airAccess subscriber or a subscriber’s end user, shall be considered violations of this Use Policy by such subscriber or end user. Other Service Providers’ Acceptable Use Policies . NYSYS airAccess obtains services from and relies upon many other entities to provide the NYSYS airAccess Internet Access Service to You. NYSYS airAccess must strictly comply with the rules of all other entities that You may access through the use of the NYSYS airAccess Internet Access Service. In such instances where those entities’ polices are more restrictive than the Agreement or NYSYS airAccess’s Use Policy, NYSYS airAccess will communicate those restrictions to You and revise the Agreement or Use Policy or both, accordingly. Therefore, You agree to and shall abide by the acceptable use policies of such other entities.
(a) Illegal/Adult Content.
NYSYS airAccess neither sanctions nor permits hosted Web site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity, including, but not limited to, child pornography, gambling, the offering for sale of illegal weapons or substances, and the promotion or publication of any material that may violate hate crime laws. NYSYS airAccess reserves the right to immediately suspend or terminate any Web site or transmission that violates this provision of the Agreement, without prior notice. In the event of such termination, You agree that the unused portion of any fees You may have paid for the NYSYS airAccess Service are forfeited to NYSYS airAccess as an appropriate recompense to NYSYS airAccess for the time required to respond to and address issues created by Customer’s illegal or obscene Web site or content, and Customer agrees not to and shall not seek recovery of those fees. NYSYS airAccess may actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer’s Web site, the illegal or obscene content, and those persons that inappropriately may have accessed, acquired or used the illegal or obscene content.
(b) Personal Files . You agree that NYSYS airAccess is not responsible for back-ups of your Web site content, personal files or other information and that NYSYS airAccess is not liable for the loss of any Web site content or information. The maintenance of an appropriate back-up of your personal Web site content is solely your responsibility. NYSYS airAccess reserves the right to delete your information and files upon suspension or termination of its provision of the NYSYS airAccess Service to You. (e) Other Activities.
Whether lawful or unlawful, NYSYS airAccess reserves the right to determine what is harmful to its customers, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the NYSYS airAccess Service or the Internet. NYSYS airAccess reserves the right, in its sole discretion, to disconnect service immediately upon detection of activities deemed harmful to the NYSYS airAccess Network or NYSYS airAccess’s customers, affiliates or agents.
(c) You understand that NYSYS airAccess has the right to enforce these terms and conditions and the Use Policy in its sole discretion, as the same may be amended by NYSYS airAccess from time to time. In the event of a violation by You, NYSYS airAccess may, singly or in any combination, issue a warning for the violation, suspend or terminate your NYSYS airAccess Service, remove posted content, cancel newsgroup posts, and filter Internet transmissions, and NYSYS airAccess has no obligation to notify You prior to taking any such actions. NYSYS airAccess reserves the right, but has no obligation, to monitor compliance with and investigate violations of this Agreement and the Use Policy, including but not limited to monitoring bandwidth, usage and publicly posted content, gathering information from You and other users, performing audits of the NYSYS airAccess Network, including scanning equipment connected to the NYSYS airAccess Network for common security issues, identifying and categorizing the type of traffic being sent and received by You, and examining material on NYSYS airAccess’s servers and the NYSYS airAccess Network. You agree that NYSYS airAccess shall not be liable to You for any of its actions taken to enforce this Agreement, including the Use Policy. If You are found to be in violation of the Agreement or the Use Policy, NYSYS airAccess may, in its sole discretion, permanently disconnect your service. You may appeal such action by writing to NYSYS airAccess at the following address: NYSYS AIRACCESS, LLC, 14 Franklin Street, Rochester, New York 14604.
(d) Use by minors . You represent and warrant to NYSYS airAccess that You are at least eighteen (18) years of age, and You agree that NYSYS airAccess may rely on that representation. However, NYSYS airAccess wishes to express additional cautions in connection with any use of this NYSYS airAccess Service that You allow to be made available to minors using your computer systems, your passwords, name or user names. You agree that You are responsible for such use, and NYSYS airAccess strongly recommends that any use of the NYSYS airAccess Service by a minor be conducted under the supervision of a responsible adult.
(e) Responsibility for security of your credit card and other information that You provide on the Internet. From time to time You may decide to access third-party Internet sites or order products or services from third parties when You access the Internet. NYSYS airAccess recommends that You use only secure Internet sites when making your credit card and any other information about yourself available to others on the Internet. You agree that You are solely responsible for the security of your credit card and similar information from unwanted charges or use. You agree to hold NYSYS airAccess, its agents and affiliates, harmless in the event that your credit cards, bank account numbers, social security number, your identity, or any of your personal information is compromised or utilized by a third party.
(f) Current address and information. You are required and You agree to notify NYSYS airAccess in a timely manner of any changes in the information You provide to NYSYS airAccess, including the information provided when You initially registered to use the NYSYS airAccess Service. Of particular importance is the need for your current postal mailing address and primary e-mail address. (g) Theft of Service. You may not use any service offered by NYSYS airAccess for which You do not have an active account or for which You have not paid the appropriate fee and all past fees due and owing to NYSYS airAccess. You understand and agree that NYSYS airAccess may monitor the NYSYS airAccess Network for any such theft of service, and if such activity is discovered, NYSYS airAccess may pursue, in its sole discretion, all available remedies, including, without limitation, charging for the entire period of such use, and/or termination of service to You.
(g) Assignment or sharing of NYSYS airAccess Service . You agree that You shall not use the NYSYS airAccess Service as an Internet service information provider (“ISP”). You agree that You shall not resell, share, give away, redistribute, sublicense or otherwise distribute the NYSYS airAccess Service or any portion thereof to any third party in any manner without the prior written consent of NYSYS airAccess. For example, but without limitation, You may not provide Internet access to others through your connection, host shell accounts, provide e-mail or news services to others, or send or store a news feed.
(h) Use of a static and/or multiple dynamic IP address. You understand and agree that the NYSYS airAccess Service is provided using one or more (1) dynamically-assigned public IP address for each customer. You may be assigned a static IP address and/or additional dynamically assigned, public IP addresses for an additional monthly fee and pursuant to an express written agreement with NYSYS airAccess. You understand and agree that NYSYS airAccess may monitor the NYSYS airAccess Network for the unauthorized use of static IP addresses and/or multiple dynamically assigned IP addresses, and if such activity is discovered, NYSYS airAccess may pursue, in its sole discretion, all available remedies, including, without limitation, charging for the entire period of such use, and/or termination of the NYSYS airAccess Service to You.
(i) Local networking. NYSYS airAccess will support the connection of the NYSYS airAccess Service to a computers through a recommended broadband outlet or NYSYS airAccess provided gateway router that may be part of a promotion or service contract. . You understand and agree that NYSYS airAccess has the right to monitor the NYSYS airAccess Network and, to the extent necessary, your computer system to ensure that You are not providing any services via your connection. You understand and agree that NYSYS airAccess has the right to take any measures it deems necessary in its sole discretion to prevent the use of the NYSYS airAccess Internet Service for uses other than those prescribed in this Agreement.
Your Warranties, Representations and Indemnifications .
(a) Indemnification. You agree to indemnify and hold harmless NYSYS airAccess (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents, Premium Content Providers and their representatives) (together “NYSYS airAccess Indemnified Entities”) against any cost, claim, liability or expense any of the NYSYS airAccess Indemnified Entities incurs as a result of or arising out of or related in any way to your use of the NYSYS airAccess Service. In the event of any claim, which, if true, would be subject to indemnification hereunder, NYSYS airAccess or the affected NYSYS airAccess Indemnified Parties shall notify You and You agree to cooperate in their defense at your sole cost. As part of your indemnification obligations, You agree to reimburse NYSYS airAccess for any costs it incurs that, directly or indirectly, arise or result from NYSYS airAccess’s provision of the NYSYS airAccess Service to You and your use of the NYSYS airAccess Service, including but not limited to, complaint fees or investigation expenses incurred by, or charged by any third party to, NYSYS airAccess.
(b) Equipment Ownership .
(i) You understand and agree that Equipment is the property of NYSYS airAccess. You agree that You shall return the Equipment to NYSYS airAccess in good and working condition upon the termination or expiration of this Agreement or the disconnection of your NYSYS airAccess Service. You agree that You will use reasonable care to avoid damaging the Equipment, and agree not to alter, modify, sell, license, lease, assign, encumber, relocate, move or tamper with it. You agree that NYSYS airAccess has the right to monitor, secure, upgrade or downgrade the Equipment and ensure that the configuration file downloaded by the modem is consistent with the tier of service to which You have subscribed. You agree that if You fail to return the Equipment to NYSYS airAccess in good and working condition within fifteen (15) days after termination or expiration of this Agreement or the disconnection of your NYSYS airAccess Service, then NYSYS airAccess has the right to charge, and You agree to pay, an amount equal to NYSYS airAccess’s then current replacement cost of the Equipment together with any
incidental costs incurred by NYSYS airAccess related to the replacement of the Equipment or any part thereof, and You agree that NYSYS airAccess has the right to charge any such charges on your credit card or to debit your bank account.
8. Disclaimers and Limitation of NYSYS airAccess’s Liability.
(a) YOU UNDERSTAND AND AGREE THAT THE NYSYS AIRACCESS SERVICE, PREMIUM CONTENT, SOFTWARE, DATA AND ANY OTHER SERVICES, SOFTWARE OR EQUIPMENT PROVIDED BY NYSYS AIRACCESS ARE NOT GUARANTEED TO BE ERROR FREE, UNINTERRUPTED, SECURE OR ALWAYS AVAILABLE OR AVAILABLE WITH SUFFICIENT CAPACITY. YOU UNDERSTAND AND AGREE THAT THE USE OF THE NYSYS AIRACCESS SERVICE, THE INTERNET, AND ANY SOFTWARE OR EQUIPMENT PROVIDED BY NYSYS AIRACCESS IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT ANY AND ALL NYSYS AIRACCESS SERVICES AND PRODUCTS ARE PROVIDED “AS IS, AS AVAILABLE, AND W ITH ALL FAULTS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN WARRANTIES THAT CANNOT LEGALLY BE EXCLUDED. NYSYS AIRACCESS MAKES NO WARRANTY THAT THE NYSYS AIRACCESS SERVICE WILL WORK ON YOUR COMPUTER SYSTEM. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS HAS NO RESPONSIBILITY FOR DAMAGE OR DESTRUCTION TO YOUR COMPUTER SYSTEM, OR THE DATA, FILES OR INFORMATION STORED ON YOUR COMPUTER SYSTEM. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS HAS NO RESPONSIBILITY FOR ANY THIRD- PARTY CONTENT, DATA, INFORMATION, PROGRAMS OR OTHER MATERIAL THAT YOU MAY USE OR ACCESS USING THE NYSYS AIRACCESS SERVICE. YOU UNDERSTAND AND AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE NYSYS AIRACCESS SERVICE OR ON THE INTERNET. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NYSYS AIRACCESS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE INSTALLATION, USE, MAINTENANCE, FAILURE, REMOVAL OR OPERATION OF THE NYSYS AIRACCESS SERVICE, THE SOFTWARE OR THE EQUIPMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF NYSYS AIRACCESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU AND IN SUCH STATES OR OTHER JURISDICTIONS NYSYS AIRACCESS’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
(b) SUBJECT TO THE FOREGOING, YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS’S MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT OR ARISING OUT OF OR RELATED TO THE NYSYS AIRACCESS SERVICE WILL BE THE LOWER OF THE AGGREGATE AMOUNT YOU HAVE ACTUALLY PAID TO NYSYS AIRACCESS FOR THE NYSYS AIRACCESS SERVICE OR $500.00. YOU ACKNOWLEDGE AND AGREE THAT NYSYS AIRACCESS HAS SET ITS PRICING FOR THE NYSYS AIRACCESS SERVICE AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU UNDERSTAND AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY ALSO APPLIES TO ANY DEVELOPER OF SOFTWARE OR SERVICES SUPPLIED TO NYSYS AIRACCESS AND ITS SUPPLIERS AND LICENSORS. THIS LIMITATION OF LIABILITY IS THE MAXIMUM FOR WHICH NYSYS AIRACCESS AND ITS SUPPLIERS AND LICENSORS MAY BE HELD COLLECTIVELY RESPONSIBLE.
(c) YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS IS NOT RESPONSIBLE FOR FORWARDING E-MAIL SENT TO ANY ACCOUNT THAT HAS BEEN SUSPENDED OR TERMINATED. IN ITS SOLE DISCRETION, NYSYS AIRACCESS MAY RETURN, IGNORE OR TEMPORARILY STORE SUCH E-MAIL.
10. Filtering Measures.
(a) NYSYS airAccess may elect to take measures to reduce the amount of unsolicited commercial e-mail or bulk e-mail transmitted to, from or over the NYSYS airAccess Network. In addition, NYSYS airAccess may elect to take measures to reduce the occurrence of viruses, worms, bugs, Trojan horses or other damaging software (collectively, “Viruses”) that may be transmitted in email messages to, from or over the NYSYS airAccess Network. These measures may include, among others, the use of software that detects and deletes unsolicited commercial e-mail, bulk e- mail or Viruses, attempted to be transmitted to or from You over the NYSYS airAccess Network. These measures may include the use of third- party software either on a stand-alone basis or in conjunction with other filtering methods. NYSYS airAccess reserves the right to use such filtering measures at any time, with or without notice to You, in its sole discretion. Any e-mail sent by You or sent to You over the NYSYS airAccess Network that is identified by these filtering measures to be, or likely to be, unsolicited commercial e-mail or bulk e-mail or as containing a Virus may be deleted from, and not transmitted over, the NYSYS airAccess Network, without notice to You, the message’s originator and/or its intended recipient.
(b) YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS AND ITS THIRD-PARTY CONTRACTORS, VENDORS, SUPPLIERS AND LICENSORS DO NOT GUARANTEE THE ACCURACY OR PERFORMANCE OF ANY FILTERING MEASURES EMPLOYED BY NYSYS AIRACCESS. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS AND ITS THIRD-PARTY CONTRACTORS, VENDORS, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR, AND SHALL NOT BE LIABLE FOR, DELETING FROM,
OR FAILING TO TRANSMIT OVER, THE NYSYS AIRACCESS NETWORK ANY EMAIL MESSAGE IN ACCORDANCE WITH ANY FILTERING MEASURES EMPLOYED BY NYSYS AIRACCESS.
11. Unauthorized Access, Viruses and Spyware, and Third-Party Services, Products and Content.
(a) Unauthorized Access. The NYSYS airAccess Network is a shared network and is used by many users to access a variety of services. Neither the NYSYS airAccess Network nor the Internet provides security against unauthorized access. Others may access or monitor your activity and conduct while You are using the NYSYS airAccess Service. NYSYS airAccess is not responsible for any unauthorized access to the data, files, transmissions, communications sent to or from You or for unauthorized access to your computer. NYSYS airAccess does not warrant any security system it may employ, either hardware or software, for the purpose of preventing unauthorized access to your computer. Any security systems employed by NYSYS airAccess maintain only a minimal level of protection. NYSYS airAccess is not responsible for damages resulting from the use of any such security system. You understand and agree that You are solely responsible for the security of any computer or other device(s) with which You connect to the NYSYS airAccess Service, and any data, programs or information stored on such devices. You are responsible for taking measures to ensure the security of your computer system(s) to prevent unauthorized access to it by others.
(b) Viruses and Spyware. You understand and agree that NYSYS airAccess is not responsible for any Virus or spyware that gains access to your computer over the NYSYS airAccess Network or any damage resulting there from. You are solely responsible for taking measures to prevent infection of your computer from Viruses and spyware, including installing and maintaining up-to-date anti-virus and anti-spyware software on your computer. In the event that your computer becomes infected with any Virus that, in NYSYS airAccess’s sole discretion, may harm the NYSYS airAccess Network or disrupt the performance of NYSYS airAccess Service for other users, NYSYS airAccess may immediately suspend or terminate access by You to the NYSYS airAccess Network with or without notice to You.
(c) Security Software. In its sole discretion , NYSYS airAccess may make available to You security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software or anti-spyware software for your use on your computer system in conjunction with the NYSYS airAccess Service. Any such security software provided by NYSYS airAccess to You is intended to provide only a minimal level of protection to your computer system. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS AND ITS THIRD -PARTY SUPPLIERS OF ANY SUCH SECURITY SOFTWARE DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS AND ITS THIRD-PARTY SUPPLIERS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR THE INFORMATION STORED ON IT THAT MAY RESULT FROM THE SECURITY SOFTWARE OR ITS NONPERFORMANCE.
(d) Third-party services, products and content provided by others. You understand and agree that while NYSYS airAccess supplies access to the Internet, it is not responsible for the services or products offered by others on the Internet, nor is NYSYS airAccess the publisher of any information on the Internet that is provided by others, including, without limitation, other users on bulletin boards, in chat rooms and similar venues. NYSYS airAccess makes no commitment to review, monitor or filter and does not endorse or otherwise vouch for any service, product, information, programs, data, or content sent, accessed, offered or advertised over the Internet or otherwise made available to You by any individual, information provider, or on-line service or content provider (other than NYSYS airAccess). Such content may include profane, obscene, indecent, disturbing, illegal, abusive, infringing, offensive or other material You may find problematic. YOU UNDERSTAND AND AGREE THAT NYSYS AIRACCESS IS NOT RESPONSIBLE FOR ANY SUCH CONTENT.
Contact NYSYS airAccess.
(a) Billing Questions Or General Information. If You have a question about billing or need general information about NYSYS airAccess or its services, please contact NYSYS airAccess at Customer Support and Service. For customer service and support, please contact NYSYS airAccess at or http:// www.NYSYS airAccess.com.
(a) Termination by NYSYS airAccess. In its sole discretion, NYSYS airAccess reserves to itself all rights it has under federal, state and local laws, to suspend or terminate this Agreement and to disconnect the NYSYS airAccess Service, in whole or in part, at any time, with or without cause and with no obligation of prior notice to You. NYSYS airAccess reserves to itself the right to pursue all legal remedies available to it, in its sole discretion.
Disputes. If You have a complaint regarding any aspect of your NYSYS airAccess Service, NYSYS airAccess encourages You to first contact NYSYS airAccess’s Customer Service Department at http://www.NYSYS airAccess.com. Billing complaints not made within sixty (60) days of the invoice in question may not be honored. If You are not satisfied with the manner in which your concern has been addressed after speaking with the Customer Service Department, please submit your complaint in writing to the General Manager of your local NYSYS airAccess office at the address listed on your monthly bill. Should You remain dissatisfied, You may contact NYSYS airAccess’s corporate office at the following address: NYSYS airAccess, 14 Franklin Street, Rochester, New York 14604.
Dispute Resolution, Binding Arbitration.
You agree that any dispute, controversy, or difference that You have with respect to this Agreement or the provision of the NYSYS airAccess Service to You shall be submitted by You to and settled by binding arbitration. You further agree to pursue any disputes, controversies, or differences individually and not in combination with other parties. Such arbitration shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”). Any arbitration proceeding shall take place in either: Denver, Colorado, Los Angeles, California, Andover, Massachusetts, Charlottesville, Virginia, or West Palm Beach, Florida, and shall apply the laws of the State of New York without regard to its conflict of laws rules. The Parties shall appoint a mutually acceptable arbitrator or, if the Parties cannot agree on a mutually acceptable arbitrator, then the AAA shall appoint a retired judge as arbitrator. No demand for arbitration or action of any kind or nature arising out of this Agreement or out of any use of the NYSYS airAccess Service by You can be brought by You more than one year after the date on which the cause of action first arises. The arbitrator shall not modify the terms of this Agreement and shall not award punitive damages. Judgment upon the award rendered by the arbitrator may be entered in, and enforced by, and each party to this Agreement submits to the exclusive jurisdiction of, the state and federal courts sitting in Denver, Colorado, Los Angeles, California, Boston, Massachusetts, Richmond, Virginia, or Miami, Florida, and each party waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any arbitration proceeding or action to enforce the arbitrator’s award, the prevailing party will be entitled recover its costs and attorneys’ fees.
(b) Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned by You in whole or in part without NYSYS airAccess’s prior written consent.
(c) Transfer of NYSYS airAccess Service. The NYSYS airAccess Service is provided to the Site initially selected by You. You may not transfer the NYSYS airAccess Service to another location without NYSYS airAccess’s prior written consent (even if You move).
(d) Limitation of Information. NYSYS airAccess shall have no obligation to make any specific information, data, service, programs, Newsgroups or other material available through the NYSYS airAccess Service and may block any such material in its sole discretion.
(f) NYSYS airAccess Policy Prohibiting Unsolicited Commercial E-Mail And Bulk E-Mail; Notice To Third Parties. The NYSYS airAccess Policy Prohibiting Unsolicited Commercial E-Mail And Bulk E-Mail; Notice To Third Parties, which is posted on the NYSYS airAccess Internet Site, is an integral part of this agreement and, to the extent applicable, is incorporated herein.
(g) NYSYS airAccess’s Remedies and Waiver. Wherever a remedy is expressly provided to NYSYS airAccess hereunder, such remedy is intended to add rather than to restrict all of NYSYS airAccess’s remedies in law and equity. In the event of a breach of this Agreement by You, NYSYS airAccess reserves to itself the right to pursue all legal remedies available to it against You, in its sole discretion. If NYSYS airAccess fails, at any time, to enforce any right or remedy available to it under this Agreement, such failure shall not be construed to be a waiver of NYSYS airAccess’s rights or remedies. Any waiver of NYSYS airAccess’s legal right shall be effective only if expressly agreed to in writing by NYSYS airAccess.
(h) Compliance with Export Laws. You agree to comply with and shall be responsible for compliance with all applicable export laws and regulations.
(i) Force Majeure. NYSYS airAccess shall be excused from performance hereunder, and shall not be liable for damages or otherwise, if and to the extent that NYSYS airAccess is unable to perform due to any act, event, cause or condition that is beyond its reasonable control, including but not limited to accidents, acts of God, acts of any government, failure of third-party communications networks, war, terrorist activity, industrial or labor disputes, fire, flood, explosion, civil disorder, power failure, equipment failure, acts of civil or military authorities, theft, vandalism, misuse, insurrection, inability to obtain the necessary supplies, and the like. NYSYS airAccess will notify You of the occurrence of any such event.