Terms of Service
Cyberdyne Networks, Inc. dba Skynet Broadband ("Skynet") will provide Internet access ("Service") to you ("Customer") by the terms and conditions set forth in this Subscriber Agreement ("Agreement").
(a) After the initial term, the Agreement will remain in effect until terminated by either party as set forth in this Agreement or until superceded by a revised Subscriber Agreement.
(b) Termination by Customer. Customer may terminate this Agreement for any reason at any time by providing Skynet with thirty days notice of such termination, in accordance with the terms of this Agreement. In the event of such a termination, any applicable fees and charges will accrue through the later of the date of termination or date of Customer's last use but all prepaid monthly service fees for Service not received will be refunded. If termination by the Customer comes before the minimum initial term has expired, an amount corresponding to service fees for the time remaining in the initial term will be immediately due to Skynet from Customer.
(c) Termination by Skynet. Skynet may terminate this Agreement immediately at any time, whether or not Customer has violated this Agreement. In the event Skynet terminates the Service for any reason other than Customer's violation of this Agreement, any fees and charges will accrue through the date of termination but any prepaid monthly service fees for Service not received will be refunded.
(d) Customer Obligations Upon Termination. Customer agrees that upon termination of this Agreement:
(1) Customer immediately will cease use of the Service and the Skynet Equipment, and destroy all copies of any software provided to Customer pursuant to this Agreement.
(2) If so requested, Customer shall return the Skynet Equipment to Skynet, by any method reasonably requested by Skynet, within 10 days after the termination date of the Agreement. Upon Skynet's request, Customer will permit Skynet, and its employees, agents, contractors, and representatives, to access Customer's premises during regular business hours to remove the Skynet Equipment and other material provided by Skynet. Such removal will be conducted at an agreed upon time. If any Skynet Equipment is not returned, Customer agrees that Skynet may bill Customer for the charges referred to in Section 3(c) below, including without limitation charging Customer's credit card or checking account if applicable.
(e) Retention of Rights. Nothing contained in this Agreement shall be construed to limit Skynet's rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, Skynet and its suppliers reserve the right to delete all Customer's data, files, electronic messages or other Customer information that is stored on Skynet's or its suppliers' servers or systems. In addition, Customer will forfeit his/her account user name and all e-mail, IP, and web space addresses. Skynet shall have no liability whatsoever as the result of the loss of any such data, names, or addresses.
(f) Survival. All representations, warranties, indemnifications and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination.
2. Service Level Commitment
Skynet is committed to high-quality performance and customer care. We are pleased to offer you the following Service Level Commitments, at no additional charge to you:
(a) Customer Satisfaction Commitment. If, during the first thirty calendar days after installation, you notify Skynet you are not satisfied with the Service, you may request that your service be discontinued and we will relieve you from the remaining term of your service commitment.
(b) Latency. Skynet commits to provide an average monthly roundtrip delay of 80 milliseconds or less within Skynet's network in North America. Any Customer who experiences average latency in excess of 80 milliseconds for any calendar month may request a two-day Service Credit. Any Customer who experiences average latency in excess of 80 milliseconds in each of two consecutive calendar months may request a seven-day Service Credit.
(c) Service Availability. Skynet commits to provide 99% availability each month for your connection within Skynet's network. Any Customer who experiences availability of the network connection of below 99% in any calendar month may request a Service Credit equal to the unavailability in such month in excess of the above minimum commitment.
(d) Skynet Equipment. All Skynet Equipment will be guaranteed by Skynet to be free from defects as per the terms and restrictions of the guarantee provided to Skynet by the manufacturer. Skynet will repair or replace Skynet Equipment that is determined by Skynet to be defective within the applicable warranty period.
(e) Service Credit Specifications. Skynet will credit your account in accordance with the applicable remedy set forth above in connection with such Service Level Commitment and subject to the following:
(1) To be eligible for a Service Credit, you must report the commitment failure to Skynet in writing within five (5) days of its occurrence and you must have notified Skynet of any service-affecting conditions at the time of such failure and have provided Skynet with all other information reasonably requested in furtherance of troubleshooting the reported issue.
(2) All requests for Service Credits for validly reported commitment failures must be delivered in writing to Skynet at the address noted on our web site at http://www.SkynetBB.com marked ATTENTION: Customer Service Dept./Service Credits. Requests must identify the Service Level Commitment at issue, include the "trouble ticket" number assigned to Customer's report, and include such other information as Skynet may have reasonably requested to assist it in verifying the request. Skynet may reject any Service Credit request which does not provide sufficient supporting information to allow Skynet to verify the claim. All requests for Service Credits will be subject to confirmation by Skynet, and will be applied by Skynet as soon as possible to a subsequent recurring invoice following approval. Skynet shall promptly notify Customer of its resolution of the reported event. Customer must claim any applicable Service Credits by the 15th day of the month following the month in which the reported incident was resolved. Skynet will inform Customer of credit requests rejected for insufficient information, and Customer will be allowed to resubmit such requests with additional supporting information within fifteen (15) days of Skynet's notification of its rejection of the credit request. After Customer resubmits the credit request with the additional supporting information, the standard verification and crediting timelines outlined herein shall apply.
(3) Service Credits are calculated based on the contracted monthly rate for the Service, prorated by the number of days of credit provided as the remedy for the applicable Service Level Commitment, based on a 30-day month and a 24-hour day (e.g., a one-day Service Credit means the Customer will receive as a credit an amount equal to 1/30 of the applicable recurring monthly charge for the affected service). The maximum Service Credit to be granted for all failures within a given month shall not exceed the monthly recurring fees charged by Skynet for the given service for the month in which the given Service Credit is claimed. Any excess credits will not carry over into later invoices. Remedies available hereunder shall only be payable in the form of a Service Credit to Customer's account. Skynet shall have no obligation to pay cash to Customer to fulfill any earned Service Credit, even if Skynet's records verify that all services have been terminated and authorized Service Credits remain outstanding which are in excess of any remaining amounts due and owing from Customer to Skynet.
(4) If any event triggers a breach of two or more Service Level Commitments, Customer shall only receive a Service Credit equal to the highest applicable Service Credit being requested in connection with the breached Service Level Commitments.
(5) Customer shall be ineligible for a Service Credit hereunder if Customer is not in financial good standing with Skynet (i.e., current on all billings) at the time of the request.
(6) The remedies set forth herein for each Service Level Commitment shall be the exclusive remedy available to Customer for Skynet's failure to achieve such Service Level Commitment. This section does not represent a warranty or guarantee by Skynet that services will be uninterrupted or fit for any particular purpose or intended use of any kind, and Skynet shall not be liable for any damages of any nature or amount as a result of any failure to achieve any Service Level Commitment, other than the permitted Service Credits authorized and described hereunder.
(f) Exclusions. Skynet will not be responsible for, and Service Credits will not be issued in connection with, any failure by Skynet to meet a Service Level Commitment by reason of any of the following:
(1) Any Customer act or omission, including without limitation any negligence, willful misconduct or misuse of any service or equipment, which impairs Skynet's ability to provide service.
(2) Scheduled maintenance on the Skynet network.
(3) Failure on the part of Customer to timely report the incident and open a trouble ticket in accordance with this section.
(4) Other exclusions as listed elsewhere in this Agreement.
(g) Modifications of the Service Level Commitment. Skynet may modify the Service Level Commitments and your remedy for the failure by Skynet to meet any Service Level Commitment at any time via the procedures outlined in section 10 of this Agreement.
3. Equipment; Access.
(a) Required Equipment. Customer understands and agrees that the Service requires certain equipment provided by Customer such as a personal computer, an Ethernet device, if required, an appropriate operating system (the "Customer Equipment"), and the Skynet Equipment, defined as certain items provided by Skynet or its designee such as software, antenna(e), amplifiers, mountings, external wiring, and any related electronic equipment provided and/or installed by Skynet.
(b) Customer warrants that Customer is the owner of, or a tenant in, the Premises, and that Customer has the authority to enter into this Agreement. If Customer is not the owner of the Premises, upon request, Customer will supply Skynet with the owner's name and address, evidence that Customer is authorized to grant access to the Premises on the owner's behalf and (if requested by Skynet) written consent from the owner of the Premises.
(c) Skynet Equipment. The Skynet Equipment will at all times remain the property of Skynet or its designee. Customer acknowledges that the Skynet Equipment is merely a means through which the Service is provided by Skynet and may be removed or changed by Skynet as it deems appropriate, including through "downloads" to Customer's computer(s) or otherwise. Customer agrees not to use the Skynet Equipment for any purpose other than to use the Service pursuant to this Agreement. Customer shall not sell, transfer, lease, encumber or assign all or part of the Skynet Equipment to any third party. Customer will not relocate the Skynet Equipment. Upon receipt of a request by Customer, Skynet may, at an additional charge, relocate the Skynet Equipment within the Premises at a time agreed to with Customer. If Customer changes premises, Customer will contact Skynet for additional information concerning the possibility, costs and procedures for transferring the Skynet Equipment and Service to Customer's new premise. Customer shall pay to Skynet the full manufacturer's suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Skynet Equipment or part thereof, together with any incidental costs incurred by Skynet relating to the replacement of the Skynet Equipment or part thereof. Customer agrees not to modify, augment, or update the Skynet Equipment except at the direction of Skynet. Such modifications may violate Federal Laws. If Customer modifies the Skynet equipment, it agrees to indemnify and hold harmless Skynet from any civil or other fees, fines, penalties, and/or judgements resulting from the modification.
(d) Customer Equipment. Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service. Skynet shall have no obligation to provide, maintain or service the Customer Equipment. The current minimum technical and other requirements for Customer Equipment (including without limitation required computer hardware) in connection with the Service are posted on the Skynet web site at http://www.SkynetBB.com or on another web site about which Customer has been notified. Such minimum requirements may be revised by Skynet from time to time. If Customer proceeds with the installation of or uses the Service utilizing Customer Equipment that does not meet the minimum requirements (a "Non-Recommended Configuration"), Customer agrees that (1) Customer will not be entitled to customer support relating to any issues other than the quality of the signal delivered to the antenna(e); (2) the following limitation of liability shall apply: NEITHER SKYNET NOR ANY OF ITS DESIGNEES WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICE. CUSTOMER ACKNOWLEDGES THAT ANY SUCH INSTALLATION, ACCESS, OPERATION OR USE COULD CAUSE DAMAGE TO CUSTOMER EQUIPMENT, INCLUDING WITHOUT LIMITATION CUSTOMER'S COMPUTER, PERIPHERALS, SOFTWARE OR DATA. NEITHER SKYNET NOR ANY OF ITS DESIGNEES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE; and (3) Section 2 of this Agreement is void. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
4. Intellectual Property Rights.
(a) End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed with the Service and the Skynet Equipment as such agreements may be amended from time to time. All such agreements are incorporated in this Agreement by reference. All end user licenses will terminate upon the termination of this Agreement, and, at such time, Customer shall destroy all versions and backup copies of all software received by it in connection with the Service.
(b) Ownership of Addresses. Customer acknowledges that use of the Service does not give Customer any ownership or other rights in any Internet/on-line addresses provided to Customer by Skynet including but not limited to Internet Protocol ("IP") addresses, e-mail addresses, and web addresses. Skynet may modify or change such addresses at any time and shall in no way be required to compensate Customer for such changes. Termination of this Agreement automatically means forfeiture of the aforementioned addresses.
(c) Indemnification. Skynet exercises no control over and specifically disclaims any knowledge of material that Customer publishes, transmits, views, or distributes using the Service. Customer agrees to indemnify, defend and hold harmless Skynet, its agents and affiliates for any harm resulting from such actions.
(d) Copyright in the Service. Title and intellectual property rights to the Service are owned by Skynet, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material and are protected by copyright laws and treaties. The copying, redistribution, reselling or publication of any part of the Service without express prior written consent from Skynet or other owner of such material is prohibited.
5. Payment Terms.
(a) Fees and Charges. Customer agrees to pay all charges and fees associated with the use of the Service, which charges may include, without limitation, monthly service fees, excess bandwidth fees, fees for add-on services, charges for the use of Skynet Equipment, installation charges, charges for service calls, and other charges. In addition, Customer agrees to pay all applicable federal, state and local fees and taxes. A copy of the fees and charges applicable on the date of installation of the Service were delivered to Customer at the time of installation. Customer acknowledges receipt of such price list. The current applicable schedule of fees and charges is available at Customer's request from Skynet. Monthly service, equipment and other fees shall be payable monthly in advance. Installation and other charges will be billed according to Skynet's then current billing policies.
(b) Credit Card or Direct Debit. If authorized by Customer, Skynet shall charge all amounts payable by Customer to Skynet pursuant to this Agreement to Customer's credit card in accordance with the credit card information provided by Customer or by Directly Debiting the Customer's checking account in accordance with the account information provided by Customer. By providing this information to Skynet, Customer authorizes Skynet to continue charging the credit card for all fees listed in 4(a) above and any other charges incurred by Customer and payable to Skynet pursuant to this Agreement. Recurring fees listed in 4(a) above may be charged up to a month in advance of the month for which the charges relate. Customer agrees to inform Skynet immediately of any change in credit card or checking account information. Customer's card issuer or bank agreement governs use of the credit card or bank account in connection with the Service, and Customer must refer to the appropriate credit card or bank agreement with respect to his or her rights and liabilities therein. If Skynet does not receive payment from Customer's credit card issuer or its agents or bank of its agents, Customer agrees to pay all amounts due upon demand by Skynet.
(c) Late Payments; Failure to Pay. Customer agrees to pay Skynet, as set forth in this Agreement, for any fees or charges due to Skynet, including any administrative late fee(s) and related fees, charges and assessments due to late payments or non-payments. If Skynet does not receive any required payment from Customer by the date on which the payment is due, Customer may be charged such fees, charges and assessments and the Service may be disconnected. If the Service is disconnected, in addition to the rights and remedies of Skynet under this Agreement or otherwise, Customer may be required to pay a reconnect fee in addition to all past due charges before the Service is reconnected. Any such administrative late fee(s) and related fees, charges and assessments due to late payment and nonpayment are not penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of Skynet's costs resulting from late payments or non-payments by Skynet's customers, which costs will not be readily ascertainable, and will be difficult to predict or calculate, at the time that such administrative late fee(s) and related charges are set because it would be difficult to know in advance: (1) whether Customer will pay for the Service on a timely basis, (2) if Customer does pay late, when Customer will actually pay, if ever, and (3) what costs Skynet will incur because of Customer's late payment or non-payment. Skynet will inform Customer of the amount of these fees and other separate or additional charges by posting notice of such charges on the Skynet web site at http://www.SkynetBB.com/terms-of-service.html prior to Skynet assessing any new or changed fees. Customer may avoid these fees and other separate or additional charges relating to late payment and non-payment by complying with the payment provisions of this Agreement and by complying with Skynet's current billing policies. If Customer fails to pay for the Service when due (because of a failure to comply with the payment provisions of this Agreement or for any other reason), Customer agrees to voluntarily pay such administrative late fee(s) and related fees, charges and assessments due to late payment and non-payment. Skynet does not anticipate that Customer will fail to pay for the Service on a timely basis. This Agreement does not represent an extension of credit to Customer so the administrative fee(s), related fees, charges and assessments are not interest, a credit service charge or a finance charge. Skynet's late fee practices may be revised to comply with applicable state or local laws, rules or regulations. If Skynet is required to use a collection agency or attorney to collect money owed by Customer or to assert any other right which Skynet may have against Customer, Customer agrees to pay the reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorneys' fees and arbitration or court costs. After a 5 day Grace period from the due date a fee of $10.00 will be charged to any deliquent accounts. A $25.00 reconnection fee will be applied to accounts that have been shut off for non-payment.
(d) Additional Charges. The Service will allow Customer to access the Internet, content providers, providers of services, on-line services and other information. Customer acknowledges that Customer may incur charges on account of such access or usage through the Service separate and apart from the amounts charged by Skynet. Customer agrees that all such charges payable to third parties, including all applicable taxes, are the sole responsibility of Customer.
(e) Credit Disclosure. Customer authorizes Skynet to disclose payment history and other information concerning Customer to appropriate third parties, including credit rating agencies, for reasonable business purposes.
(f) Billing Errors. Subject to applicable law, Customer must notify Skynet of any billing errors or other requests for refund within 90 days of the date on which the error occurred.
6. Customer Information and Privacy.
Customer Privacy. Customer's privacy interests, including Customer's ability to limit disclosure of certain information to third-parties, are safeguarded by, among other laws, the Electronic Communications Privacy Act. In addition, Skynet will not sell, rent, trade, share, or otherwise intentionally provide customer information to any third party except to facilitate the delivery of the Service and in connection with Credit Disclosures as in 5(e) above.
7. Acceptable Use.
(a) Customer shall not use the Skynet Equipment or the Service, directly or indirectly, to undertake or accomplish any unlawful purpose. It is Customer's responsibility to conform to all rules and laws and to keep up to date on same.
(b) The parties agree Skynet merely provides Customer the Service. Skynet has no ability to control who uses the Service, or the content of the material that is published on the Internet. Customer recognizes some material published on the Internet may be false, defamatory, fraudulent, offensive, or illegal. Customer assumes the sole risk to monitor its use of the Service and to take all precautions to protect itself, or anyone using the Services provided through Skynet, from harm arising out of the use of the Service.
(c) Customer further acknowledges that Skynet will not monitor its use of the Service except for billing or technical purposes. Skynet merely provides a portal for access and has no right to control Customer's use of the Internet. Customer agrees it is not authorized to use the Service for illegal, offensive, or tortious purposes. Customer will indemnify and hold Skynet harmless including reasonable attorney fees, from any claims or penalties, civil or criminal, arising out of its use of Services through Skynet.
(d) Skynet reserves the right to terminate or suspend Customer's use of the Service if Customer's use materially interferes with other customers' access or use of the Service. This includes, but is not limited to, the transmission of unsolicited bulk e-mail or activities that enable the transmission of unsolicited bulk e-mail.
(e) For Skynet customers with a fixed installation of Skynet Equipment, you are prohibited from making the service available to anyone outside your Premises. ("Premise" is defined as the physical boundary of the property lines where the Skynet Equipment is installed. If the property lines include multiple dwellings, you are prohibited from making the service available to anyone outside the single dwelling where you reside.)
(f) For Skynet customers using our Nomadic service, you are prohibited from making the service available beyond a single computer or device connected to the Service. Only one Nomadic device may be connected at a time per account. You may not run programs, equipment or servers which provide network content or any other services accessible beyond the single computer or device connected to the Service. Examples of prohibited programs and equipment include, but are not limited to, mail, ftp, http, file sharing, game, newsgroup, proxy, IRC servers, and multi-user interactive forums.
8. Representations and Warranties of Customer. Customer represents and warrants that:
(a) He or she is at least 18 years of age and has the authority to legally bind Customer to the terms in this Agreement.
(b) The Customer information that Customer has provided and will provide to Skynet during the term of this Agreement, including without limitation Customer's legal name, address, telephone number(s), the number of computers on which the Service is being accessed and payment data (including without limitation credit card numbers with current expiration dates and checking account information) is accurate, complete and current. Customer agrees to promptly notify Skynet, in accordance with the terms of this Agreement, if there is any change in the information that Customer has provided to Skynet. Failure to provide and maintain accurate information constitutes a breach of this Agreement.
(c) Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Skynet Equipment and/or Service by means of the Customer Equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible for and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of the Service and/or the Skynet Equipment by Customer or by any other user of the Customer Equipment. Customer agrees to indemnify, defend and hold harmless Skynet and its affiliates against all claims and expenses (including reasonable attorney fees) arising out of the use of the Service and/or the Skynet Equipment or the breach of this Agreement by Customer or any other user of the Customer Equipment.
(d) Customer will comply with all export and re-export control laws, including but not limited to the Export Administration Act, the Arms Export Control Act and their implementing regulations, and Customer will not transfer, by electronic transmission or otherwise, any portion of the Skynet Equipment to either a foreign national or a foreign destination without first obtaining any required government authorization.
(e) Customer acknowledges that any unauthorized receipt, resale, sharing, and/or retransmission of the Service constitutes theft of service, which is a violation of federal law and can result in both civil and criminal penalties. In addition, if the violations are willful and for commercial advantage or private financial gain, the penalties may be increased.
9. Limitation of Liability; No Warranties; Warnings
(a) Limited Warranty. THE SKYNET EQUIPMENT AND THE SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SKYNET NOR ITS AFFILIATES WARRANT THAT ANY CONNECTION TO, TRANSMISSION OVER, OR RESULTS OF USE OF THE SKYNET EQUIPMENT OR THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR WILL PROVIDE UNINTERRUPTED USE OR WILL OPERATE AS REQUIRED, UNINTERUPTED OR ERROR FREE. CUSTOMER'S SOLE REMEDY FOR SERVICE INTERRUPTION SHALL BE LIMITED ACCORDING TO THE SERVICE QUALITY AGREEMENT TERMS ELSEWHERE IN THIS AGREEMENT. SERVICE INTERRUPTIONS CAUSED BY WEATHER CONDITIONS, SOLAR CONDITIONS, VANDALISM, THEFT, FIRE, RIOT, WAR, TERRORIST ATTACK, FORCE MAJEURE, OR ACTS OF GOD DO NOT QUALIFY AS "TECHNICAL MALFUCTIONS" AND ARE EXCLUDED FROM EXPRESSED OR IMPLIED WARRANTIES AND THE SERVICE QUALITY AGREEMENT TERMS ELSEWHERE IN THIS AGREEMENT. NEITHER SKYNET NOR ITS AFFILIATES WARRANT THAT ANY DATA OR FILES SENT BY OR TO CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY EXCLUDED.
(b) Limitation of Liability. Except as specifically provided in this Agreement, in no circumstance and under no legal theory (including without limitation tort, contact, and otherwise), shall Skynet OR ITS AFFILIATES have any liability to Customer or to any person or entity for (1) any direct, indirect, incidental, special, TREBLE, punitive, EXEMPLARY or consequential losses or damages, including without limitation loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly out of, or otherwise arising in connection with, the INSTALLATION, MAINTENANCE, FAILURE, REMOVAL OR USE of the Service or the Skynet Equipment or Customer's reliance on or use of the Skynet Equipment or the Service, including without limitation any mistakes, omissions, interruptions, computer or other hardware or software failure or malfunction, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in transmission, or failure of performance of the Skynet Equipment or the Service; or (2) any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding based upon a contention that the use of the Skynet Equipment or the Service by Customer or any other person or entity infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party.
(c) No Liability For Viruses. It is Customer's sole responsibility to take appropriate precautions to protect any computer or other hardware of Customer from damage to its software, files or data as a result of any such virus or other harmful feature. NEITHER SKYNET NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
(d) Customer's Hardware and Software. The installation, use, inspection, maintenance, repair and removal of the Skynet Equipment and certain Customer Equipment used in connection with the Service may result in service outage or potential damage to Customer's computer(s) and other Customer Equipment. Except for gross negligence or willful misconduct by Skynet, neither Skynet nor any of its affiliates shall have any liability whatsoever for any damage, loss or destruction to the Customer Equipment (including without limitation Customer's computer(s) and peripherals). In the event of such gross negligence or willful misconduct by Skynet, Skynet shall pay for the repair or replacement of the damaged parts up to a maximum of $1,000 and such shall be Customer's sole remedy relating to such activity. In addition, as part of the installation process for the software and other components of the Service, system files on Customer's computer may be modified. Skynet does not represent, warrant or covenant that such modifications will not disrupt the normal operations of any Customer Equipment including without limitation Customer's computer(s), or cause the loss of files. FOR THESE AND OTHER REASONS, IT IS RECOMMENDED THAT CUSTOMER BACK-UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. CUSTOMER UNDERSTANDS AND ACCEPTS THE ASSOCIATED RISKS OF ANY DECISION BY CUSTOMER NOT TO DO SO. NEITHER SKYNET NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES OR DATA. In addition, the opening of Customer's computer may void warranties provided by the computer manufacturer or other parties relating to the computer's hardware or software. Customer understands that his or her computer may need to be opened, either by Customer or by Skynet or its agents, in connection with the installation or repair of the Service. NEITHER SKYNET NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
(e) Not Liable For Third Parties. Customer acknowledges that Skynet may use the services, equipment and infrastructure and content of others in providing the Service and those third parties may provide components of the Service. Skynet is not responsible for the performance (or non-performance) of such services, equipment, infrastructure or content of others whether or not they constitute components of the Service.
(f) Monitoring. Skynet shall have no obligation to monitor Customer's use of Service. However, Customer acknowledges and agrees that Skynet and its agents may monitor the flow of data to and from the Customer for purely technical reasons to insure integrity of service access for all customers and to detect use of the Service contrary to the terms of this Agreement.
(g) Eavesdropping. Skynet's facilities are used by numerous persons or entities including, without limitation, other subscribers to the Service. As a result, there is a risk that Customer could be subject to "eavesdropping." This means that other persons or entities may be able to access and/or monitor Customer's use of the Service. This risk of eavesdropping exists not only with Skynet's facilities, but also on the Internet and other services to which access is provided as a part of the Service. Any sensitive or confidential information posted, stored, transmitted or disseminated by Customer is done so at Customer's sole risk, and neither Skynet nor its affiliates shall have any liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by Customer. Customer is solely responsible for the security of the Customer Equipment or any other equipment Customer chooses to use in connection with the Service, including without limitation any data stored on such equipment.
(h) Sole Remedy. Customer's sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Some states do not allow the exclusion or limitation of implied warranties, and some states do not allow the limitations or exclusion of incidental or consequential damages, so certain of the above exclusions may not apply. In such states, the liability of Skynet and its affiliates is limited to the maximum extent permitted by law.
(a) Notice. Skynet may deliver any required or desired notice to Customer by sending notice via first class U.S. postal mail to Customer's address of record or the primary e-mail address on Skynet's account records. Customer agrees that any one of the foregoing will constitute sufficient notice. Because Skynet may from time to time notify Customer about important information regarding the Service and the Agreement by such methods, Customer agrees to regularly check his or her postal mail and primary e-mail account and bear the risk of failing to do so.
(b) Modifications. Skynet may, in its sole discretion, change, add to or remove portions of the Service (including without limitation content, functionality, hours of availability, equipment requirements, speed, cost of the Service, and upstream and downstream rate limitations) and make modifications to this Agreement at any time with thirty days Notice. Customer's use of the Service and/or the Skynet Equipment on the thirty-first day after Notice is sent constitutes Customer's affirmative agreement to the modifications. If Customer does not agree to the modifications, Customer must stop using the Service and/or the Skynet Equipment before the thirty-first day after Notice and notify Skynet in writing that Customer is terminating this Agreement. Customer may then be entitled to a refund according to the terms of 1(b) above.
(c) No Relationship. Nothing in this Agreement will create any joint venture, joint employer, franchisee-franchisor, employer-employee or principal-agent relationship between Skynet any content, backbone, network, circuit and other technology or communications providers, software and other licensors, hardware and equipment suppliers or other third party providers of elements of the Service, nor impose upon any such companies any obligations for any losses, debts or other obligations incurred by the other.
(d) Assignment. Skynet may assign its rights and obligations under this Agreement, without notice, to (1) any affiliate of Skynet, (2) to any party (or its affiliate) acquiring all or substantially all of the assets or stock, by merger or otherwise, of Skynet or any affiliate of Skynet, or (3) to any person or entity purchasing or otherwise acquiring the broadband distribution system serving the Premises. This Agreement may not be assigned or transferred by Customer without Skynet's prior consent. Any such transfer or assignment by Customer may be subject to additional charges.
(e) General. This Agreement and its exhibits constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersede and replace any and all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Skynet's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.