The subscriber agreement below is for new customers who have signed an agreement after November 1st, 2007, but prior to February 17, 2009. If you signed up on or after August 15, 2005 but prior to November 1st, 2007, your original Subscriber Agreement can be found here. If you signed up prior to August 15, 2005, your original Subscriber Agreement can be found here.
This Subscriber Agreement (the “Agreement”) sets forth the terms and conditions which apply to the use of the Services (as hereinafter defined) provided by Skycasters, LLC, an Ohio limited liability company (“Skycasters”), to Subscriber. An online version of this Agreement may be accessed at https://www.skycasters.com/subscriber-agreement/.
2.1. Skycasters will make available to Subscriber, subject to the terms, conditions and obligations contained herein, one or more of the following, based upon the selections made by Subscriber in the Customer Order Form (the “Order Form”): two-way satellite broadcast/receive data services system which may include: a firewall; VPN; and various other services which may be made available from time to time by Skycasters (collectively, the “Services”).
2.2. Subscriber will also be bound by the terms of the Order Form and any additional terms or policies that may appear on the web site (www.skycasters.com) (the “Web Site”) from time to time, which are incorporated herein by reference.
2.3. Term. Unless otherwise stated, Skycasters will provide the Services to Subscriber for a period of two years (the “Initial Term”). After the Initial Term, Skycasters will provide the Services to Subscriber on a month-to-month basis, unless earlier terminated in accordance with the terms of this Agreement.
3. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION.
3.1. Modification of this Agreement. Upon 30 days prior notice, Skycasters may add, modify or delete any provision of this Agreement, any exhibit attached hereto and the Website including, without limitation, those related to pricing. Neither the course of conduct between the parties nor trade practices shall act to modify the provisions of this Agreement, the Order Form, or the Website.
3.2. Modification of the Services. Upon 30 days prior notice, Skycasters may upgrade, change, discontinue, augment, or revise any aspect or feature of the Services including, without limitation, content, access to support services, publications, equipment, system requirements and any other products or services ancillary to the Services or Subscriber’s subscription to the Services.
3.3. Termination by Subscriber. Subscriber may cancel this Agreement at any time upon 30 days prior written notice. If Subscriber does not terminate the Agreement in accordance with the terms and conditions specified herein, Subscriber will continue to be liable under this Agreement for all fees and charges until such time as the Agreement has been properly terminated pursuant to the terms of this Agreement, and Skycasters has acknowledged the termination in writing. In the event of termination by either party, Subscriber shall immediately pay Skycasters all fees and charges and shall fulfill all of its duties and obligations under this Agreement.
3.4. Termination or Suspension by Skycasters. Skycasters, in its sole discretion, has the right to immediately suspend or terminate the Subscriber’s account and/or the Agreement if Subscriber breaches any provision of the Agreement, any exhibit hereto, the Order Form, or the Website. Skycasters also has the right, in its sole discretion, to suspend and/or terminate Subscriber’s account and/or the Agreement upon 30 days prior written notice to Subscriber. Skycasters shall not be liable to Subscriber for compensation, reimbursement or any other fees or damages sustained by Subscriber as the result of Skycasters’ termination of this Agreement, in whole or in part, or the suspension of Subscriber’s account.
3.5. Continuation of Obligations. Notwithstanding any suspension, cancellation or termination of the Agreement or Subscriber’s account or access to the Services, Subscriber will remain responsible for any obligations accrued to the date of such suspension, cancellation or termination, including payment of any charges that may be due as a result of, or in connection with, such suspension, cancellation or termination. If Subscriber’s access to, or use of, the Services is partially or totally suspended, cancelled or terminated as a result of any actual, threatened, or alleged violation of this Agreement, any exhibit hereto, the Order Form or the Website, or any law or legal obligation, by Subscriber or any user of Subscriber’s account, Subscriber’s payment and other obligations under the Agreement will continue in full force and effect notwithstanding such suspension, cancellation or termination.
4. AUTHORIZATION TO USE THE SERVICES; RESPONSIBILITY AND SUPERVISION.
4.1. Account Setup. Subscriber represents and warrants to Skycasters that Subscriber is a properly organized educational or government entity or business and that the party executing the Order Form is at least 18 years old and is authorized to execute the same on behalf of Subscriber. Notwithstanding any acknowledgment of a Subscriber’s purchase order by Skycasters, the parties agree that any provision or condition in any purchase order, voucher, or other memorandum drafted by Subscriber which is inconsistent with this Agreement, an exhibit hereto, the Order Form, or the Website is invalid.
4.2. Multiple Uses of Account, Access Policy. Except as otherwise stated in this Agreement, any exhibit hereto, the Order Form, or the Website, Subscriber and its employees are permitted to use the Services 24 hours a day, 7 days a week, from the Subscriber’s installation address. Notwithstanding, Subscriber must not sell, resell, rent, lease or otherwise share the Services with any third party without the prior written consent of Skycasters. Subscriber must not attach the Services to any “open” or public wireless or other public connection-sharing technology. The Services are not to be used as a back-haul for any ISP type of use. The Skycasters bandwidth is provided on a shared, as available, basis and the Skycasters network is configured to provide an acceptable business-grade level of service to all customers. Skycasters will not allow a small fraction of its users to monopolize the network to the detriment of other users. The following rights are in addition to any rights Skycasters may have to limit throughput in the Customer Order Form. Skycasters reserves the right to limit the available speed or amount of throughput available to any customer, including Subscriber, who exceeds a 90% utilization threshold. Skycasters reserves the right to limit, when necessary, the use of the network and/or Services by the users who are in the highest 10% of network bandwidth consumption in order to keep their usage patterns from negatively affecting other users. There is no set daily, weekly or monthly throughput allowance other than as described above.
4.3. Subscriber Responsibility. Subscriber shall be responsible for all access to the Services through Subscriber’s account or password(s), whether or not authorized by Subscriber, and for any and all fees and expenses incurred for the Services. Subscriber will limit use of its account to its employees. Subscriber acknowledges that areas accessible on or through the Services may contain material that is unsuitable for minors (persons under 18 years old) and agrees to supervise minors’ use of the Services through Subscriber’s account. Subscriber hereby ratifies and confirms any actions taken, obligations incurred, or any promises or permissions made by a minor using Subscriber’s account.
5. FEES AND PAYMENT.
5.1. Fees, Taxes and Other Charges. Subscriber will pay to Skycasters, in accordance with the provisions of the Order Form and its associated price schedules, any registration or monthly fees, support fees, software or hardware upgrades, connect time charges, ISP service charges, minimum charges, termination fees, all applicable taxes and other amounts charged to or incurred by Subscriber, or users of Subscriber’s account, whether authorized or unauthorized, at the rates in effect for the billing period in which those amounts are charged or incurred. Additional terms relating to pricing, billing, and payment and which are incorporated into this Agreement are set forth in Skycasters’ Order Form and on the Website.
5.3. Billing Correspondence. Upon commencement of the Services, Subscriber will designate an E-MAIL Correspondence address, which is the address to which Skycasters will send billing or other important notifications. Such designation must be made by submitting the appropriate e-mail address to firstname.lastname@example.org. Until such time as Subscriber designates such address, Subscriber will be responsible for checking its account online for billing or other information. Subscriber can access its online account through the Customer Support section of the Website.
5.4. Commencement and Duration of Subscription Fees. Subscriber acknowledges and agrees that a monthly subscription fee (the “Fee”) will be charged to Subscriber for each and every month, or any part thereof, in which Subscriber is a subscriber to the Services, irrespective of whether the Subscriber has access to the Services due to any suspension for non-payment and irrespective of whether Subscriber has installed, or had someone else install, the equipment necessary to receive the Services. The Fee will be charged to Subscriber’s account each month until Subscriber terminates its subscription in accordance with the terms of this Agreement and/or the Order Form.
5.5. Termination Fee. If the Services are terminated for any reason within the first twenty-four (24) months after commencement, Subscriber agrees to pay to Skycasters the following Termination Fee:
If terminated within Termination Fee
12 months $2,000
24 months $1,000
Notwithstanding the above, Subscriber may return the modem and radio to Skycasters (collectively, the “Modem”) that are part of the satellite equipment previously acquired from Skycasters for a credit of up to $500 towards the above-referenced Termination Fee, except if termination occurs within the first year in which case the credit will be up to $600. The credit described herein for the returned Modem will only be available if the returned Modem is in normal working order, and Subscriber must pay the shipping expense. If Subscriber elects to return the Modem to Skycasters for a credit during the first year, Subscriber must pay the remaining Termination Fee to Skycasters within 10 days. Subscriber acknowledges and agrees that the Modem credit provisions described herein represent the anticipated fair market value of such property at the time of termination. The Termination Fee is in addition to any other fees which may be due Skycasters.
5.6. Collection Costs; Credit Reporting Agency. If Skycasters uses a collection agency or attorney to collect money owed to Skycasters by Subscriber under the Agreement, or in the event Skycasters uses an attorney to enforce any provision of this Agreement against Subscriber, Subscriber will pay the
reasonable costs associated with the enforcement of this Agreement by Skycasters against Subscriber including, without limitation, any and all collection costs, court costs and attorney fees. In the event that a court of competent jurisdiction holds that Subscriber has not breached the Agreement, this Section 5.6 will not apply. If Subscriber makes a late payment or fails to pay any Skycasters online, email or paper invoice, Subscriber understands and agrees that Skycasters may, in its sole discretion, report such late payment or nonpayment to the appropriate credit reporting agencies.
5.7. Reactivation. If Skycasters deactivates a Subscriber’s access to the Services for Subscriber’s failure to make timely payment, or for any other reason, Skycasters reserves the right to require a deposit or advance payment before reactivating the Services, in addition to Skycasters’ current reactivation fee. In addition, Skycasters will not reactivate the Services until Subscriber has paid to Skycasters any and all outstanding balances.
5.8. Ancillary Equipment, Services. Subscriber will obtain, maintain, and operate suitable and fully compatible terminal equipment and communication devices to access the Services, as stipulated by Skycasters on the Web Site, or otherwise, from time to time including, without limitation, the Modem. Subscriber is responsible for all telephone charges incurred in connection with using the Services. SUBSCRIBER ACKNOWLEDGES THAT CERTAIN SUBSCRIBER EQUIPMENT MAY HAVE BEEN ACQUIRED SEPARATE AND APART FROM THIS AGREEMENT EITHER FROM SKYCASTERS OR A THIRD PARTY. SUBSCRIBER IS SOLELY RESPONSIBLE FOR MAINTAINING SUCH EQUIPMENT. SKYCASTERS MAKES NO REPRESENTATIONS OR WARRANTIES PURSUANT TO THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, REGARDING SUCH EQUIPMENT INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AND INTEGRATION AND SPECIFICALLY DISCLAIMS SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED.
6. SOFTWARE LICENSE.
Subject to the terms of this Agreement, any exhibit hereto, the Order Form, and the Website, Skycasters grants to Subscriber a personal, non-exclusive, non-assignable, and non-transferable license (the “License”) to use and display the software, including the software key, provided by or on behalf of Skycasters for the sole purpose of accessing the Services (the “Software”) on any machine(s) of which Subscriber, or its employees, are the primary users including, without limitation, the iDirect® modem, software/firmware and/or keys associated therewith. Subscriber must not sublicense the Software to any third party. Subscriber represents and warrants to Skycasters that Subscriber will comply with, and be bound by, the iDirect® End User Agreement attached hereto as Exhibit A, and incorporated herein by reference. Unauthorized copying of the Software, including copying software that has been modified, merged or included with the Software, or the written materials associated therewith, is expressly forbidden. Subscriber must not modify, translate, create derivative works of or based on the Software. Subscriber must not, either directly or indirectly, copy, duplicate, or permit anyone else to copy or duplicate any part of the Software. Subscriber must not create, attempt to create, permit others to create or permit others to attempt to create, by reverse engineering or otherwise, the source programs or any part thereof from the object programs or from other information made available under this Agreement. Subscriber must not use the iDirect® software on any equipment not provided by iDirect®. Subscriber agrees to order all firewall, router or related software upgrades through Skycasters, and to not alter, de-install, remove or replace the Software. Subscriber agrees not to change the administrative configuration or administrative passwords without informing Skycasters in writing of the new password.
7. RESTRICTIONS ON USE OF THE SERVICE.
7.1. General Prohibited Conduct. Subscriber must not upload, post, or otherwise publish on, through or over the Services, and must not seek on, through or over the Services, any software, file, information, communication, or other content which:
(a) violates or infringes upon the rights of Skycasters or any third party;
(b) adversely affects the performance or availability of the Services or Skycasters’ resources; or
(c) contains any virus, worm, cancelbot, harmful component, or corrupted data.
Skycasters must have access to Subscriber’s router at all times. Subscriber must not block or in any way interfere with Skycasters’ access to the router and must immediately notify Skycasters of any password changes related to the router. Subscriber acknowledges that other Skycasters products and services may have additional terms and conditions which may also apply, and agrees to comply with the same.
7.2. Email Conduct. Subscriber must not use the email component of the Services for any illegal purposes or for the transmission of material that is abusive, threatening, unlawful, harassing, libelous, invasive of another’s privacy, harmful, vulgar, obscene, tortuous, otherwise objectionable, or in violation of this Agreement, any exhibit hereto, the Order Form or the Website. Subscriber must not use the Services for any purpose that infringes or may infringe upon the intellectual property or other rights of another. Subscriber must not use Skycasters e-mail for the transmission of “junk mail”, “Spam”, “chain letters”, or unsolicited mass distribution of email otherwise objectionable to a person of reasonable sensibilities and must not send mail with an incorrect return address or forged header information. Subscriber agrees that there will be no “open relay” on any mail server operated by customer on the service. Subscriber agrees that in order to maintain system operations Skycasters may filter Spam or mass mail at the server, if applicable, and that Skycasters will incur no liability for any lost messages. Subscriber further acknowledges and agrees that Skycasters reserves the right, in its sole discretion, to make all determinations concerning e-mail content, under this Agreement. Skycasters has the right to immediately suspend Services to Subscriber in the event that Subscriber is using, or has used, the Service in violation of this Agreement, any exhibit hereto, the Order Form, and/or the Web Site.
7.3. Web Hosting Conduct.
(a) Subscriber may only use the Services including, without limitation, the Web Hosting component of the Services, for lawful purposes. Transmission, storage or presentation of any information, data or material in violation of any United States’ federal, state, or local law, or in violation of this Agreement, any exhibit hereto, the Order Form, and/or the Web Site is prohibited. This includes, without limitation: copyrighted material, material protected by trade secret and other statute or material determined by Skycasters, in its sole discretion, to be threatening or obscene. Subscriber’s content must not contain
(i) pornographic or other unacceptable adult-themed material, tobacco or alcohol material, get rich quick schemes, products or services involving deceptive marketing practices, or gambling,
(ii) any viruses, trap doors, hidden sequences, hot keys or time bombs,
(iii) content or links to third party content which may result in a third party claim against or civil or criminal liability to Skycasters, its officers, managers, members, employees, affiliates, suppliers, partners, representatives, distributors or its agents,
(iv) content that is inconsistent with Skycasters’ or its suppliers’ public image, goodwill and reputation, applicable law or the terms of this Agreement, or
(v) content that, in the reasonable opinion of Skycasters, may constitute libel, defamation, infringement or otherwise violate the privacy, publicity or other rights of a third party (collectively, (i), (ii), (iii), (iv) and (v) shall constitute “Unacceptable Content”).
While Skycasters does not intend, and does not undertake, to monitor Subscriber’s content, if Skycasters at any time during the term of this Agreement
(i) becomes aware of a breach or inaccuracy of any representation or warranty set forth in this Section, or
(ii) determines, in its sole discretion, that any Subscriber content constitutes Unacceptable Content, Skycasters shall have the right, but not the obligation, to immediately cease transmitting such content, until such time as Subscriber shall have demonstrated, to Skycasters’ satisfaction, that such breach or inaccuracy has been cured, or the content creating the likelihood of a claim or liability removed. Subscriber shall cooperate reasonably with Skycasters with respect to the foregoing, which cooperation may include deleting or removing particular content upon Skycasters’ request.
7.4. Illegal or Anticompetitive Purposes. Subscriber must not use the Services or any of its elements, related facilities or capabilities to conduct any business or activity, or to solicit the performance of any activity, which is prohibited by or would violate any applicable law, rule, regulation, or legal obligation. Subscriber must not use test results or other data received or made available to the Subscriber through the use of the Services for any purpose competitive to Skycasters.
7.5. Compliance with Laws. Subscriber must comply with any and all applicable federal, state and local laws, rules and regulations in connection with the Services, its use of the Services, and this Agreement.
8. COPYRIGHT AND LICENSES.
Skycasters reserves all copyrights and other rights in and to any content which:
(1) is available through the Services; and
(2) is identified as, claimed by Skycasters as, or known by Subscriber to be, proprietary to Skycasters or its licensors (the “Proprietary Content”). The Proprietary Content is copyrighted and all rights to the Proprietary Content are reserved by the owner of such content. The Proprietary Content relating to the Services is protected under applicable copyright law, and is also protected under applicable copyright law as a collective work. All copying, modification, distribution, publication, or other use by Subscriber, or by any user of Subscriber’s account, of part or all of the Proprietary Content or other works is prohibited, absent the prior written consent of Skycasters.
9. NO ENDORSEMENT.
Subscriber acknowledges and agrees that Skycasters is not responsible for any content transmitted or received by Subscriber or for any content originated on or obtained from the internet through the Services. Skycasters does not endorse or in any way warrant the accuracy, completeness, truthfulness, or reliability of any information, service, opinion, advice, communication, information, or other content on or made available through the Services. Content, not created by Skycasters, does not constitute or reflect the views or opinions of Skycasters and has not been approved by Skycasters. Skycasters does not recommend that such content be relied upon in making decisions or conclusions without appropriate verification by the Subscriber or user and, as appropriate, professional advice. Subscriber acknowledges and agrees that it relies on such content at its own risk.
SUBSCRIBER ACKNOWLEDGES THAT INTERNET SITES NOT CREATED, CONTROLLED OR MAINTAINED BY SKYCASTERS MIGHT CONTAIN OR PROVIDE ACCESS TO IMAGES, SOUND, MESSAGES, TEXT, SERVICES, OR OTHER CONTENT THAT MAY BE UNSUITABLE FOR MINORS AND THAT MAY BE OBJECTIONABLE TO MANY ADULTS. SUBSCRIBER ACKNOWLEDGES THAT SKYCASTERS IS NOT RESPONSIBLE FOR SUCH CONTENT OR MATERIAL AND AGREES THAT ACCESS TO SAME THROUGH USE OF THE SERVICES OCCURS AT SUBSCRIBER’S SOLE RISK. Subscriber acknowledges that the reliability, availability, legality, performance, and other aspects of resources accessed through the Internet are beyond Skycasters’ reasonable control and are not in any way warranted or supported by Skycasters, its affiliates or its third-party contractors. Subscriber acknowledges that such Internet sites and the content contained therein do not always contain safeguards relative to copyright, ownership, appropriateness, reliability, legality, and integrity of content. Subscriber represents and warrants to Skycasters that Subscriber assumes all risk and liability of any use of the Internet through Subscriber’s account, including Subscriber’s continuous compliance with the Agreement.
11. USE AND CONTROL OF INFORMATION; MEMBER COMMUNICATION; ADS; PUBLICITY.
Skycasters will not distribute, loan, sell, or otherwise share with other persons or entities any customer or user lists. However, Skycasters makes no representation as to the care, custody or disposition of such information when obtained and held by Skycasters’ suppliers and licensors in the course of business dealings with Skycasters. Skycasters may, however, use or dispose of “aggregate information” for these purposes.
“Aggregate information” includes information constituting or descriptive of demographic information, habits, usage patterns, preferences, survey data, or other descriptive or related data which do not rely on providing to recipients the identity of any particular user of the Services.
Information generated by or in connection with Skycasters’ administration of the Services is the exclusive property of Skycasters. Skycasters may also from time to time, reasonably and in good faith, provide online, telefax, telephone, e-mail, mail, and other communications to its Subscribers and users on matters pertaining to the Services, its features, its sponsors or third party product offerings without compensation to them or reimbursement of costs for doing so. Subscriber acknowledges that communications with Skycasters, its employees, suppliers, licensors and agents may be monitored, recorded or reviewed for quality control and other reasonable business purposes. Subscriber also acknowledges that advertising and promotion may occur through the Services and also that neither Subscriber nor any user shall in any event have any claim with respect to any proceeds from such activities.
Notwithstanding the above, Subscriber acknowledges that Skycasters reserves the right to identify its existing or former customers for marketing purposes. Skycasters may provide on its website or other marketing materials, the logo of the customer, which may or may not include a link to the customers website. Skycasters will not publish any information regarding the nature of the customer relationship or configuration of the service, and will not imply any endorsement by the subscriber of the services provided. Skycasters will not provide the specific contact information of the Subscriber in any such publication without the permission of the Subscriber.
Subscriber agrees that Skycasters may announce through press release or other means, that the Subscriber has chosen Skycasters service. Any such information released by Skycasters shall be without any details as to the service configuration or intended use, or terms, unless Subscriber approves such release in advance. If Subscriber writes to Skycasters expressing opinions on the service, Skycasters reserves the right to publish in a contextually correct fashion, all or part of the communication, however Skycasters will not publish the name of the Subscriber without permission from the Subscriber.
12. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY.
12.1. Disclaimer of Warranties, Liability and Responsibility. SUBSCRIBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES OCCURS AT SUBSCRIBER’S SOLE RISK. NEITHER SKYCASTERS, NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS, WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES SKYCASTERS OR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES, AND EQUIPMENT ASSOCIATED THEREWITH, ARE DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AND/OR INTEGRATION. SKYCASTERS FURTHER SPECIFICALLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FORGOING, SKYCASTERS SPECIFICALLY DISCLAIMS LIABILITY FOR ANY ERRORS, OMISSIONS, OR INACCURACIES RELATING TO THE SERVICES, THE SOFTWARE AND ANY INFORMATION AND/OR CONTENT ACCESSED VIA THE SERVICES. SUBSCRIBER ALONE ASSUMES THE CONSEQUENCES RESULTING FROM ITS RELIANCE ON SUCH CONTENT. SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SKYCASTERS, ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS DOES NOT CREATE ANY WARRANTY IN OR TO THE SERVICES OR THE CONTENT PROVIDED PURSUANT TO THE SERVICES. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT IT CANNOT RELY ON ANY SUCH INFORMATION OR ADVICE.
12.3. Applicability of Provisions to Circumstances Involving Others. CONSISTENT WITH SECTION 13 OF THIS AGREEMENT, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE TERMS OF THIS SECTION 12 ALSO APPLY TO ANY CLAIMS RELATING TO “ACQUIRED MATERIAL” AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES.
12.4 Full Applicability. THE PARTIES AGREE THAT THE FOREGOING EXCLUSIONS AND/OR LIMITATIONS OF LIABILITY APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). THIS LIMITATION OF LIABILITY ALSO APPLIES IF SKYCASTERS OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
Subscriber must indemnify and hold harmless Skycasters, and its officers, managers, members, employees, affiliates, suppliers, partners, representatives, distributors, and agents, from and against any and all losses, claims, liability, damages, costs, and expenses including, without limitation, reasonable attorneys’ fees, court costs, amounts finally awarded in a settlement or by a court, and to the extent permitted by law, any fines and penalties, based upon any claims:
(a) arising out of, resulting from, or in connection with the Services or any failure to provide Services, or for any use of Subscriber’s account; or
(b) that any information or other content delivered to, or received from, any other party by Subscriber
(i) infringes any patent, copyright, trademark or trade secret right of a third party,
(ii) contains any viruses, trap doors, hidden sequences, hot keys or time bombs, or
(iii) violates any applicable law or regulation, and third party’s right of privacy or publicity, or
(iv) contains any libelous, defamatory, obscene or indecent content or materials otherwise objectionable to a person with reasonable sensibilities.
14. ASSIGNMENT OF AGREEMENT; LIABILITY FOR UNAUTHORIZED USE.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. Subscriber must not assign or transfer this Agreement or the Services provided hereunder, without Skycasters’ prior written consent. If Subscriber assigns or transfers the Services without Skycasters prior written consent, or attempts or offers to do the same, Skycasters may deactivate the Services and remove any equipment used by Subscriber and owned by Skycasters. Subscriber must notify the Skycasters Customer Care Center immediately if Subscriber’s Skycasters equipment is stolen or otherwise removed from Subscriber’s premises without authorization. Subscriber must also immediately notify Skycasters in writing if it sells, gives away, or otherwise transfers Skycasters equipment from Subscriber’s possession. Subscriber is considered the registered recipient of the Services until Skycasters receives such written notice, and Subscriber will be liable for any charges or fees incurred by the use of Skycasters equipment by anyone else up to the time that such notice is received by Skycasters, unless otherwise provided by state law.
15. PROPRIETARY RIGHTS.
All copyrightable content distributed over the Web Site or through the Services by Skycasters is copyrighted by Skycasters or a third-party content provider. Skycasters or such third-party content providers own all right, title and interest to such content and Subscriber may not copy, distribute, transmit, or publish, in any form, including printed, electronic, digitized, audio, or otherwise, or modify all or any portion of such content without the prior written consent of the copyright owner; provided, however, that Subscriber may store one copy of the content on Subscriber’s personal computer for personal use for a period not to exceed 30 calendar days. All copyright or other proprietary rights or notices contained in or associated with the content or contained therein must be preserved in, or on, any copies made of such material. The placement of copyrighted material in any public posting area or software library, whether of Skycasters or not, without the written consent of the copyright owner, is in violation of this Agreement.
16. CHOICE OF LAW; LIMITATIONS ON ACTION.
This Agreement is deemed to be made in the State of Ohio. This Agreement, and any exhibits hereto, the Order Form and the Website and all of the parties’ respective rights and duties in connection herewith will be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflict of laws provisions. With respect to any dispute arising out of or related to this Agreement, any exhibit attached hereto, the Order Form, the Website and/or the Services, Subscriber and Skycasters agree to submit to the exclusive jurisdiction of the courts of Summit County, Ohio or any federal court located within the Northern District of Ohio, and Subscriber waives any objection based on forum non conveniens or venue with respect to such jurisdiction in Ohio. Subscriber agrees that any claim or cause of action against Skycasters arising out of, or related to, Subscriber’s account, the Services or this Agreement, any exhibit attached hereto, the Order Form, and/or the Website must be instituted within one year after the claim or cause of action arose; otherwise, such cause of action is permanently barred. Neither the Uniform Commercial Code nor The United Nations Convention on Contracts for the International Sale of Goods apply to this Agreement and it is acknowledged that this is a service contract and not a contract for the sale of goods.
17. CONSTRUCTION AND DELEGATION.
Skycasters may authorize or allow its independent contractors and other third parties to provide to Skycasters and/or to Subscriber services necessary or related to making the Services available and to perform obligations and exercise rights of Skycasters under this Agreement, and may collect payment on their behalf, if applicable. The provisions of Sections 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, and all other provisions hereof which by their nature should continue, shall survive any termination of this Agreement.
18. ASSIGNMENT OF ACCOUNT.
Skycasters may sell, assign, or transfer Subscriber’s account to a third party without notice. In the absence of a notice of such sale or transfer, Subscriber must continue to make all required payments to Skycasters in accordance with Subscriber’s billing statement.
19. ENTIRE AGREEMENT.
This Agreement, as published in the Website, the Order Form, and the additional documents contained in the Website which are referred to herein, constitute the entire and only agreement with respect to the subject matter hereof between Skycasters and Subscriber, applicable also to all users of Subscriber’s account. This Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements, and other communications with respect to the subject matter hereof except as expressly set forth in this document. By executing this document online, in person, via fax or e-mail or through any Skycasters automated sign-up procedure, Subscriber agrees to the terms and conditions of this Agreement. This Agreement can be amended only in the manner expressly provided for in this Agreement.
Subscriber acknowledges and agrees that iDirect® is a third party beneficiary to this Agreement. Where notification by Skycasters is contemplated by or related to this Agreement, notice may be made by any reasonable means, including, but not limited to, e-mail or publication on the Web Site. If any term of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, it will be construed in such a way as to eliminate the offending aspects while still giving as much effect as possible to the intentions of such term. If this cannot be done and the entire term is invalid, illegal, or unenforceable and cannot be so repaired, then the term will be considered to be stricken from this Agreement as if it had not been included from the beginning. In any such case, the balance of this Agreement will remain in effect in accordance with its remaining terms notwithstanding such invalid, illegal, or unenforceable term. Skycasters may enforce or decline to enforce any or all of the terms of this Subscriber Agreement in its sole discretion. Skycasters’ election not to enforce a particular provision of this Agreement will not be considered a waiver and will not impair Skycasters’ ability to enforce any other provision of this Agreement. In no event will Skycasters be required to explain, comment on, suffer liability for, or forfeit any right or discretion based on its enforcement, non-enforcement, or consistency of enforcement of these terms. Captions used in this Agreement are for convenience only and will not be considered a part of this Agreement or be used to construe its terms or meaning. Subscriber agrees that this Subscriber Agreement is set forth in the English language for the mutual convenience and benefit of the parties. In the event that the Agreement is translated into any language other than English, the parties agree that the English language version will control over any translation.
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