The subscriber agreement below is for new customers who have signed an agreement prior to August 15, 2005.
This Subscriber Agreement is organized as follows:
Part I The Services, Subscribers, the Subscription and the Subscriber Agreement;
Part II Payment;
Part III Permitted Uses and Restrictions on Use;
Part IV Grant of Rights by Subscriber to Skycasters, and Disclaimers, Acknowledgments, and statement of Subscriber’s Obligations; and
Part V Miscellaneous.
Please note that equal attention should be paid to all Subscriber Agreement terms, regardless of their placement or order.
THE SERVICE, SUBSCRIBERS, THE SUBSCRIPTION AND THE SUBSCRIBER AGREEMENT
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. Skycasters and Subscriber agree that no representation, warranty, term or condition, other than those specifically set forth in this Agreement, will be specifically binding on Skycasters.
An online version of this Agreement may be accessed at Subscriber Agreement.
2. THE SERVICES.
(a) 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 Service Order: a satellite two-way broadcast/receive data services system, along with various services and products which may include: Internet access, email, web hosting, messaging services, firewall, VPN, digital package delivery, IP Multicasting, TV channel IP streaming and various other services which may be made available in the future (collectively, the “Services”).
(b) Subscriber understands that the prices, terms and conditions for the Services are subject to such additional terms as may be spelled out on Skycasters’ web site, www.skycasters.com (the “Web Site”) or in the Customer Service Order (the “Service Order”).
(c) Subscriber also agrees that for the purposes of this Agreement, all use of Subscriber’s account, whether or not authorized by Subscriber, is deemed to be Subscriber’s use.
3. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION
3.1 MODIFICATION OF THIS AGREEMENT.
(b) Subscriber’s continued use of the Services, following any notice of a change will constitute Subscriber’s acceptance of such change. If Subscriber does not agree to any change, Subscriber must immediately stop using the Services and notify Skycasters that it is terminating its subscription to the Services.
3.2 MODIFICATION TO THE SERVICES.
Skycasters has the right to change, discontinue, augment, or revise any aspect or feature of the Services, in its sole discretion and without notice, including but not limited to 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. Skycasters specifically reserves the right, in its sole discretion, to change, supplement, delete, discontinue, or remove any software, file, publications, information, communication, or other content relating to or transmitted through use of the Services.
3.3 TERMINATION BY SUBSCRIBER.
(a) Subscriber may cancel this Agreement at any time with 30 days’ prior written notice, except if Subscriber has signed a Service Order providing for a definite term, in which case the terms of the Service Order and any termination provisions within the Service Order will control over this Agreement. However, Subscriber remains responsible for any termination fee subject to Section 4.3 of this Agreement.
(b) 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 or the Service Order, or Skycasters has acknowledged such termination in writing.
(c) Subscriber agrees that any attempt to terminate the Agreement before the expiration of the term stated within the Service Order or Section 5.3 of this Agreement will subject Subscriber to a cancellation charge or other similar service charge, as set forth in Section 5.3 of this Agreement.
3.4 TERMINATION OR SUSPENSION BY SKYCASTERS.
(b) Skycasters additionally reserves the right, in its sole discretion, to suspend or terminate the Subscriber’s account and the Agreement at any time, with or without notice, or terminate or suspend Subscriber’s access to or use of the Services, in whole or in part (and/or with respect to any user of Subscriber’s account) with 30 days prior written notice to Subscriber.
3.5 CONTINUATION OF OBLIGATIONS.
(a) 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.
4. WHO MAY USE THE SERVICE – RESPONSIBILITY AND SUPERVISION.
4.1 ACCOUNT SETUP.
Subscriber represents that Subscriber is a properly organized business, educational or government entity, and that the signer is at least 18 years old and is authorized to execute this Agreement on behalf of the Subscriber. Subscriber agrees that Subscriber is responsible for installing, establishing, and setting up, and for verifying and maintaining, the account, options, settings, and other parameters under which the Service is used, including (without limitation) all related passwords and user identification information and configuration information. 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 conflicts with, or adds to Skycasters’ obligations under the this Agreement is invalid.
4.2 MULTIPLE USES OF ACCOUNT.
The Services permit a certain number of connected workstations based on the customer order or any subsequent modifications thereof. No additional workstations can be connected unless Subscriber pays an additional fee for such additional connected workstations as required by Skycasters.
4.3. SUBSCRIBER RESPONSIBILITY.
(b) Subscriber will limit use of its account to its employees.
(c) 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.
(d) 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.
(a) All fees, charges and payment obligations of Subscriber are due and payable to Skycasters only in U.S. dollars. Subscriber will pay to Skycasters, in accordance with the provisions of the Service Order and its associated price schedules, any registration or monthly fees, support fees, software or hardware upgrades, connect time charges, ISP service charges, minimum charges, all applicable taxes and other amounts charged to or incurred by Subscriber, or by users of Subscriber’s account, at the rates in effect for the billing period in which those amounts are charged or incurred.
(b) Skycasters will make information on charges and surcharges (if any), incurred by Subscriber or by users of Subscriber’s account, which are payable to Skycasters available to Subscriber on the Web Site, or via email. Subscriber agrees that online or email access to changes and surcharged payable to Skycasters, by Subscriber, is sufficient notice for all purposes. Additional terms relating to pricing, billing, and payment and which are incorporated into this Agreement are set forth in Skycasters’ Service Order and on the Web Site.
(a) Skycasters will make available to Subscriber an email and online statement for each billing cycle showing payments, credit purchases, and other charges.
(b) Payment for the Services is “in advance”, and due in full on or before the first day of the subsequent 30 day billing period (the “Due Date”). Failure to deliver payment by the Due Date is a breach of this Agreement. Subscriber understands that if payment is not received by Skycasters by the Due Date, Skycasters will charge a late fee of $15.00 plus interest on the delinquent balance at the rate of one and one-half percent (1.5%) per month, prorated on a daily basis. Skycasters also reserves the right to suspend or inactivate Subscriber’s access to the Services for non-payment.
(c) Subscriber agrees to 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 email@example.com. 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 Web Site.
(d) Subscriber consents to any service fees charged by Skycasters for all returned checks and bank card and charge card charge backs. The current fee is $25.00 per returned check or charge back. Any changes to this fee will be posted on the Web Site. If Subscriber’s check is returned to Skycasters, or a bank card or credit card charge charged back, Subscriber agrees to submit to Skycasters a money order or cashiers check in the amount of the returned check or charge back, plus the $25.00 service fee.
5.3 COMMENCEMENT AND DURATION OF SUBSCRIPTION FEES.
(a) Subscriber acknowledges that (subject to any exceptions granted by Skycasters) 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 service irrespective of whether the Subscriber has access to the Services due to any suspension for non-payment. The Fee will be charged to Subscriber’s account each month until Subscriber cancels its subscription in accordance with the terms of this Agreement or the Service Order.
(b) Consistent with Section 3.3 of this Agreement, Subscriber may cancel his or her account at any time, subject to a cancellation fee, if applicable. Unless otherwise stated, the Services are provided for a period of one year (the “Initial Term”). After the Initial Term, the Services will be provided on a monthly basis. If Subscriber cancels the Agreement during the Initial Term, the cancellation fee will be equal to the monthly charges multiplied by the number of months remaining in the Initial Term, or US$500, whichever is less, except as otherwise provided for in the Service Order.
(c) Subscriber will not be charged the Fee for subsequent months after the billing month in which Subscriber cancels or terminates his or her account in accordance with the terms and conditions stated herein.
(d) In its sole discretion, Skycasters may, but is not required to, accept partial payments from Subscribers. If Subscriber makes partial payments, after Skycasters has consented to such payment in writing, the partial payments will be applied to Subscriber’s account starting with the oldest outstanding statement. Late fees will be assessed monthly, as permitted by applicable law, until Subscriber’s total outstanding account balance, including late fees and all other charges, is paid in full.
(e) Subscriber agrees that Skycasters may, but is not required to, accept, endorse and present for payment any check or money order marked “payment in full” or any similar terms, without being deemed to have entered into an accord and satisfaction and without surrendering any of its rights to collect all amounts owed to Skycasters by a Subscriber under this Agreement.
(f) 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.
(g) If Skycasters chooses to use any collection agency or attorney to collect money that is owed Skycasters or to assert any other right which Skycasters may have, Subscriber agrees to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable attorney’s fees, and court costs, as provided by applicable law.
(h) Subscriber understands and agrees that any equipment rental, lease, installment or other financial agreement with any third party is not affected by any cancellation, suspension or discontinuance of the Services by Skycasters.
If Skycasters deactivates a Subscriber’s access to the Services for Subscriber’s failure to make timely payment or for any other reason, in addition to payment of past due amounts, Skycasters reserves the right to require a deposit or advance payment before reactivating the Services. If the Services are inactivated for any reason, including at the request of the Subscriber or because of failure to pay past due amounts, and a Subscriber wants to reactivate the service, Subscriber agrees to pay a reactivation fee in accordance with Skycasters’ then current rates. In addition, any outstanding balance, fees and charges must be paid by Subscriber before Skycasters will reactivate the Subscriber’s access to the Services.
5.5 ANCILLARY EQUIPMENT, SERVICES.
Subscriber will obtain, maintain, and operate suitable and fully compatible terminal equipment and communication devices to access the Service, as stipulated by Skycasters on the Web Site, or otherwise, from time to time. Subscriber is responsible for all telephone charges incurred in connection with using the Service.
SUBSCRIBER ACKNOWLEDGES THAT CERTAIN EQUIPMENT HELD BY SUBSCRIBER MAY HAVE BEEN ACQUIRED SEPARATE AND APART FROM THIS AGREEMENT EITHER FROM SKYCASTERS OR A THIRD PARTY. SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR MAINTAINING SUCH EQUIPMENT. SKYCASTERS MAKES NO REPRESENTATIONS OR WARRANTIES PURSUANT TO THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, REGARDING SUCH EQUIPMENT, AND SPECIFICALLY DISCLAIMS SUCH WARRANTIES. HOWEVER, SKYCASTERS ACKNOWLEDGES THAT BINDING SERVICE OR MAINTENANCE AGREEMENTS OR LIMITED WARRANTIES MAY EXIST UNDER A SERVICE ORDER OR SEPARATE PURCHASE AGREEMENT WITH SKYCASTERS.
PERMITTED USES AND RESTRICTIONS ON USE
6. SOFTWARE LICENSE.
(a) Subject to the terms of this Agreement, Skycasters grants to Subscriber a personal, non-exclusive, non-assignable, and nontransferable license (the “License”) to use and display the software provided by or on behalf of Skycasters for the sole purpose of accessing the Services (the “Software”) on any machine(s) of which Subscriber is the primary user or which Subscriber authorizes to access the Services.
(b) 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 may not sublicense, assign or transfer this License or the Software except as permitted by Skycasters. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this License is void.
(c) Subscriber agrees to refrain from copying, duplicating, or permitting anyone else to copy or duplicate any part of the Software. Subscriber further agrees not to 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.
(d) Subscriber agrees to order all firewall, router or related software upgrades through Skycasters, and to not 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.
8. SPECIFIC RESTRICTIONS ON USE OF THE SERVICE.
8.1 PROHIBITED CONDUCT.
(a) Subscriber agrees not to upload, post, or otherwise publish on, through or over the Services, and not to seek on, through or over the Services, any software, file, information, communication, or other content: (a) which violates or infringes upon the rights of any one else; (b) which adversely affects the performance or availability of the Services or Skycasters’ resources; (c) which contains any virus, worm, cancelbot, harmful component, or corrupted data.
(b) Specific products, features and other services offered by Skycasters have additional terms and conditions which also apply.
(c) Skycasters must have access to Subscriber’s router at all times. Subscriber agrees not to block, or in any way interfere with, Skycasters’ access to the router, and agrees to inform Skycasters immediately of any password changes related to the router.
8.1.1 EMAIL CONDUCT.
Subscriber agrees not to use the e-mail 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 the Acceptable Use Policy. Subscriber agrees not to use the Services for any purpose that infringes or may infringe upon the intellectual property or other rights of another. Subscriber agrees not to use Skycasters e-mail for the transmission of “junk mail”, “Spam”, “chain letters”, or unsolicited mass distribution of email and agrees to not send mail with an incorrect return address or forged header information. Subscriber agrees that in order to maintain system operations Skycasters may filter Spam or mass mail at the server. Subscriber further acknowledges that Skycasters reserves the right, in its sole discretion, to make all determinations concerning e-mail content, under the Acceptable Use Policy and this Agreement.
8.1.2 WEB HOSTING CONDUCT.
(a) The Services, including the Web Hosting component of the Services, provided by Skycasters may only be used for lawful purposes only. 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 the Acceptable Use Policy, is prohibited. This includes, but is not limited to: copyrighted material, material protected by trade secret and other statute or material determined by Skycasters, in its sole discretion, to be threatening or obscene.
(b) Subscriber agrees to indemnify and hold harmless Skycasters from any claims resulting from the use of the Services which damages the Subscriber or any other party.
(c) Subscriber is prohibited from placing any pornographic content, sex-related merchandising, or other content proscribed by the Acceptable Use Policy on any of Skycasters’ web servers, even if such content does not violate United States’ federal, state or local law. This prohibition extends to content placed on an Internet site that infers sexual content or link to adult content contained on another Internet site. In addition, Internet sites containing profanity or vulgar language are also prohibited from being hosted on Skycasters’ web servers or linked to from a Internet site hosted on Skycasters’ web servers.
(d) Skycasters’ web hosting services are subject to additional terms and conditions which are located in the “Web Hosting” section of the Skycasters’ website and within the Acceptable Use Policy.
8.2 ILLEGAL OR ANTICOMPETITIVE PURPOSES.
Subscriber agrees not to 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.
8.3 COMPLIANCE WITH LAWS.
Subscriber agrees to comply with all applicable laws, rules and regulations in connection with the Services, its use of the Services, and this Agreement.
GRANT OF IMPORTANT RIGHTS BY SUBSCRIBER TO SKYCASTERS, AND IMPORTANT DISCLAIMERS TO, ACKNOWLEDGMENTS BY, AND OBLIGATIONS OF SUBSCRIBER
9. COPYRIGHT AND LICENSES.
9.1 RESERVATION OF RIGHTS BY SKYCASTERS.
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, except as expressly consented to by Skycasters.
10. NO ENDORSEMENT.
Skycasters does not endorse or in any way warrant the accuracy, completeness, truthfulness, or reliability of any service, opinion, advice, communication, information, or other content on or made available through the Services unless created by Skycasters. 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 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.
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 confirms 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.
12. USE AND CONTROL OF INFORMATION; MEMBER COMMUNICATION; ADS; PUBLICITY
Skycasters will not distribute, loan, sell, or otherwise share with other persons or entities user lists, however Skycasters makes no representation as to the care, custody or disposition of such information when obtained and held by Skycasters’ suppliers in the course of business dealings with 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 representatives, and its contractors 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.
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.
13. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY.
13.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY.
SUBSCRIBER EXPRESSLY 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, 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, INDEPENDENT CONTRACTORS, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICES ARE DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS REQUIRED BY LAW. SKYCASTERS FURTHER SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, TO THE EXTENT PERMITTED BY LAW.
BECAUSE SKYCASTERS MAY PROVIDE ITS SUBSCRIBERS WITH ELECTRONIC ACCESS TO CONTENT AVAILABLE ON THE Internet, CREATED OR DISTRIBUTED BY PUBLISHERS OR PROVIDERS, OTHER THAN SKYCASTERS, AND WHICH IS NOT AUGMENTED BY SKYCASTERS, SKYCASTERS DOES NOT WARRANT THE ACCURACY OF ANY CONTENT CREATED OR DISTRIBUTED BY SUCH PUBLISHERS OR PROVIDERS, OTHER THAN SKYCASTERS. SKYCASTERS SPECIFICALLY DISCLAIMS LIABILITY FOR ANY ERRORS, OMISSIONS, OR INACCURACIES RELATING TO SUCH CONTENT. SUBSCRIBER ALONE, ASSUMES THE CONSEQUENCES RESULTING FROM ITS RELIANCE ON SUCH CONTENT.
ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SKYCASTERS, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, OR ANY THIRD-PARTY CONTENT PROVIDER, DOES NOT CREATE ANY WARRANTY IN OR TO THE SERVICES OR THE CONTENT PROVIDED PURSUANT TO THE SERVICES. SUBSCRIBER ACKNOWLEDGES THAT IT CANNOT RELY ON ANY SUCH INFORMATION OR ADVICE.
SKYCASTERS ONLY WARRANTS THE ACCURACY AND COMPLETENESS OF ITS PRODUCT AND PRICING INFORMATION, TERMS OF SERVICE AND RELATED POLICIES TO ITS SUBSCRIBERS TO THE EXTENT THAT SKYCASTERS OWNS, CONTROLS AND CREATED THE INFORMATION OR POLICIES AT ISSUE. THIS WARRANTY GIVES SUBSCRIBER SPECIFIC LEGAL RIGHTS. ADDITIONALLY, SUBSCRIBER MAY HAVE OTHER RIGHTS, BASED ON STATE OR LOCAL LAWS.
13.2 LIMITATION OF LIABILITY.
NEITHER SKYCASTERS, NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, INDEPENDENT CONTRACTORS, OR AGENTS, IS RESPONSIBLE FOR ANY CLAIMS OR LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, THE WEB SITE OR ANY LINKED Internet SITE, EVEN IF SKYCASTERS IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY.
13.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS.
CONSISTENT WITH SECTION 14 OF THIS AGREEMENT, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE TERMS OF THIS SECTION 13 ALSO APPLY TO ANY CLAIMS RELATING TO “ACQUIRED MATERIAL” AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. SUBSCRIBER AGREES TO HOLD SKYCASTERS HARMLESS FOR THE SELECTION OR RETENTION, OR ACTS OR OMISSIONS OF THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM SKYCASTERS CONTRACTS TO OPERATE VARIOUS AREAS ON OR FEATURES OF THE SERVICE).
13.4 FULL APPLICABILITY.
THE FOREGOING EXCLUSIONS 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.
13.5 POSSIBLE EXCEPTIONS.
THIS LIMITATION OF LIABILITY MAY BE LIMITED TO THE EXTENT THAT STATE OR LOCAL LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF SUCH DAMAGES. IF ANY PART OF THIS LIMITATION OF LIABILITY IT HELD TO BE INVALID OR UNENFORCEABLE, THE REMAINING PROVISIONS WILL CONTINUE IN FULL FORCE AND EFFECT.
Subscriber agrees to indemnify and hold harmless Skycasters against all claims, liability, damages, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, arising out of or related to the use of Subscriber’s account. This includes, without limitation, responsibility for all consequences of Subscriber’s violation of this Agreement or Subscriber’s placement on or over, or retrieve from or through, the Services of any software, file, information, communication, or other content.
15. THIRD-PARTY BENEFICIARIES.
The provisions of Sections 12 and 13 are for the benefit of Skycasters and its respective contractors, information or content providers, service providers, licensors, employees, independent contractors, and agents; and each shall have the right to assert and enforce such provisions directly on its own behalf.
16. LIABILITY FOR UNAUTHORIZED USE.
(a) Subscriber may not assign or transfer the Services without Skycasters’ written consent. If Subscriber assigns or transfers the Services without Skycasters’ written consent, Skycasters may deactivate the Services and remove any equipment used by Subscriber and owned by Skycasters.
(b) If Subscriber’s Skycasters equipment is stolen or otherwise removed from his or her premises without authorization, Subscriber must notify Skycasters Customer Care Center immediately, or Subscriber may be liable for payment to Skycasters for unauthorized use of his or her Skycasters system. Subscriber will not be liable for unauthorized use after Skycasters has received such notification.
(c) Subscriber also agrees to immediately notify Skycasters in writing after he or she 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.
17. PROPRIETARY RIGHTS.
Consistent with Section 9 of this Agreement, except for material held in the public domain, 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.
18. LIMITS ON TRANSFERS; OTHER LIMITS.
Unless otherwise agreed in writing, Subscriber’s right to use the Service, or to designate other users of its account, is not transferable and is subject to any limits established by Skycasters, or by Subscriber’s credit card company or other billing institution, as applicable.
19. CHOICE OF LAW.
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, must be instituted within one year after the claim or cause of action arose; otherwise, such cause of action is permanently barred.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Subscriber Agreement and it is acknowledged that this is a service contract and not a contract for the sale of goods.
20. CONSTRUCTION AND DELEGATION.
Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. 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 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, and all other provisions hereof which by their nature should continue, shall survive any termination of 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.
22. 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.
23. ENTIRE AGREEMENT.
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