Service Disruptions Not Caused by the unWired Network.<\/span> If unWired responds to a service call initiated by Customer, and unWired reasonably determines that the cause of the problem is: (i) not due to the unWired Network; or (ii) is on Customer\u2019s side of the Demarcation Point, Customer must compensate unWired for the service call at unWired\u2019s then prevailing hourly rates for labor posted at www.getunwired.com and the cost of any materials. <\/li>\n <\/ul>\n
<\/li>\n
<\/ul>\n
VIII. GOVERNMENT REGULATIONS: CHANGES<\/strong><\/pee> <\/p>\n <\/p>\n- A. Applicable Law.<\/strong> Each Party must comply with all Applicable Laws in performing its obligations hereunder. To the extent any provision in this Agreement conflicts with any Applicable Law, the Applicable Law will supersede the conflicting provision.<\/li>\n
<\/p>\n
- B. Regulatory Requirements.<\/strong> unWired may discontinue or impose additional requirements to the provision of Service, upon ten (10) business days written notice, if necessary to meet regulatory requirements or if such requirements have a material, adverse impact on the economic feasibility of unWired providing the Services. Customer is not responsible for notice requirements or Early Termination Fees set forth in Sec. 7 below if unWired discontinues the Services under this subsection. <\/li>\n
<\/ul>\n
IX. TERMINATION BY UNWIRED:<\/strong><\/pee> <\/p>\n <\/p>\n- A. Termination With Advance Notice.<\/strong> unWired may disconnect all Service(s) associated with a delinquent account upon ten (10) business days written notice for Customer\u2019s failure to pay amounts due under this Agreement which remain uncured at the end of the notice period; (i) Customer\u2019s insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver; and\/or (ii) any governmental prohibition or required alteration of the Services. <\/li>\n
<\/p>\n
- B. Termination Without Advance Notice.<\/strong> unWired may terminate or suspend Services without advance notice if: (i) necessary to protect the unWired Network; (ii) unWired has reasonable evidence or belief of Customer\u2019s illegal, improper or unauthorized use of Services or any violation of this Agreement or AUP, including non-payment; or (iii) required by duly authorized legal or regulatory authority. <\/li>\n
<\/p>\n
- C. Post Termination.<\/strong> Any termination or disconnection shall not relieve Customer of any liability incurred prior to such termination or disconnection, or for payment of unaffected Services. unWired retains the right to pursue all available legal remedies if it terminates this Agreement or disconnects Service(s) in accordance with this Agreement. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of any other Services. <\/li>\n
<\/p>\n
- D. Restoration of Terminated Services.<\/strong> If unWired terminates a Service in accordance with this Agreement, and Customer wants to restore such Service, Customer must first pay all past due charges, all Late Fees, a \u201cService Reinstatement Fee\u201d as detailed in the Service Contract and a deposit equal to two (2) months\u2019 Monthly Recurring Fees. All requests for disconnection will be processed by unWired in thirty (30) calendar days or less. Customer must pay for Services until such disconnection actually occurs. <\/li>\n
<\/ul>\n
X. TERMINATION BY CUSTOMER<\/strong><\/pee> <\/p>\n <\/p>\n- A. Termination for Cause.<\/strong> In addition to the Service Level Standards in Section 4 herein, any Customer may terminate this Agreement and\/or any Service Contract hereunder upon thirty (30) calendar days\u2019 prior written notice, without incurring termination liability, for unWired\u2019s (i) material breach of any material provision of this Agreement, or violation any Applicable Law that affects Customer\u2019s use of Service, which remains uncured at the end of the termination notice period and\/or (ii) unWired\u2019s insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver of similar event.<\/li>\n
<\/p>\n
- B. Termination without Cause.<\/strong> Customer understands, acknowledges and agrees that the Early Termination Fee will first be deducted from a Security Deposit.\n
<\/p>\n- i. Standard Internet Service.<\/span> A Customer that terminates the Service Contract prior to the end of an Initial Term must do so with advance written notice as set forth in the Terms Section herein and shall pay an Early Termination Fee of twenty dollars ($20.00 US) for each of the remaining months on the Service Contract. Written notice of termination during a month-to-month Renewal Term is also thirty (30) calendar days but no ETF will be assessed. <\/li>\n
<\/p>\n
- ii. Tier 5 Premium Internet Service.<\/span> Requirements to terminate the Services and the ETF are set forth in the Tier 5 Premium Internet Service Contract. <\/li>\n
<\/p>\n
- iii. Enterprise Internet Service.<\/span> Requirements to terminate the Services and the ETF are set forth in the Enterprise Service Contract. <\/li>\n
<\/p>\n
- iv. Specialized Internet Services.<\/span> Requirements to terminate the Services and the ETF are set forth in the Specialized Service Contract. <\/li>\n
<\/ul>\n
<\/li>\n
<\/p>\n
- C. Early Termination Fee.<\/strong> Customer understands, acknowledges and agrees that the Customer received benefits, including without limitation, reduced installation charges, and that any ETF represents a reasonable approximation of unWired\u2019s damages for early termination and is not a penalty or forfeiture. <\/li>\n
<\/p>\n
- D. Termination Liability:<\/strong> If unWired or Customer terminates this Agreement or any Service Contract(s) pursuant to Sections 6 or 7 above, as applicable, all Monthly Recurring Fees associated with Services rendered shall become immediately due and payable. <\/li>\n
<\/ul>\n
XI. ASSIGNMENT:<\/strong><\/pee> Neither Party may assign this Agreement without the prior written consent of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (a) unWired may assign its rights and\/or obligations hereunder (i) to its parent, affiliates or subsidiaries; (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; or (iii) for purposes of financing. (b) Customer may assign its rights and\/or obligations hereunder (i) to its parent, affiliates or subsidiaries, (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (A) the proposed assignee satisfies unWired\u2019s credit and deposit standards; (B) Customer has fully paid for all Services through the date of assignment; and (C) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.<\/pee> XII. COLLECTIONS:<\/strong><\/pee> In the event any legal action, court proceeding or arbitration to construe or enforce any provision of this Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, shall be commenced and maintained in an appropriate court or other forum in Fresno County, California. If any legal action, including arbitration is brought to enforce or interpret the provisions of the Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, the prevailing Party shall be entitled to recover reasonable attorney\u2019s fees and costs, from the other Party. These fees and costs are in addition to any other relief to which the prevailing Party may be entitled. <\/pee> XIII. BINDING ARBITRATION AND DISPUTE RESOLUTION AGREEMENT<\/strong><\/pee> <\/p>\n <\/p>\n- A. THIS BINDING ARBITRATION PROVISION SAYS THAT CUSTOMER AND UNWIRED AGREE TO RESOLVE SPECIFIC CLAIMS AND DISPUTES THROUGH ARBITRATION THAT CANNOT BE RESOLVED BETWEEN UNWIRED AND CUSTOMER. PLEASE READ THIS SECTION CAREFULLY TO UNDERSTAND THIS BINDING ARBITRATION AGREEMENT AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. <\/li>\n
<\/p>\n
- B. This agreement between Customer and unWired to arbitrate all disputes and claims between them is intended to be broadly interpreted. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, except those involving non-payment of Monthly Recurring Fees or amounts due for the Services which may be adjudicated in court, shall be settled by arbitration administered by the American Arbitration Association (\u201cAAA\u201d) and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, \u201cAAA Rules\u201d), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or by written request to unWired. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction in Fresno County, California. The Parties understand that the arbitration process is final and binding and waives the right have a dispute adjudicated in court; provided, however, that nothing herein shall prevent a Party from seeking injunctive or provisional relief in court, or from filing an action to seek payment for the Services.\n
<\/p>\n- i. A Party who intends to seek arbitration must first send to the other Party, by certified mail, a written notice (\u201cArbitration Notice\u201d). An Arbitration Notice to unWired must be addressed to unWired at the address set forth in this Agreement for notices. An Arbitration Notice to Customer must be addressed to Customer at Customer\u2019s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and unWired do not reach an agreement to resolve the claim within sixty (60) calendar days after the Arbitration Notice is received, Customer or unWired may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by unWired or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or unWired is entitled. <\/li>\n
<\/p>\n
- i. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The Party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both Parties including, without limitation, legal fees and expenses. <\/li>\n
<\/p>\n
- ii. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party\u2019s individual claim. CUSTOMER AND UNWIRED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and unWired agree otherwise, the arbitrator may not consolidate more than one person\u2019s claims, and may not otherwise preside over any form of a representative or class proceeding. <\/li>\n
<\/p>\n
- iii. Notwithstanding any provision in this Agreement to the contrary, Customer and unWired agree that if unWired makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending unWired written notice within thirty (30) calendar days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and unWired in accordance with the language of this provision. <\/li>\n
<\/ul>\n
<\/li>\n
<\/p>\n
- C. Early Termination Fee.<\/strong> Customer understands, acknowledges and agrees that the Customer received benefits, including without limitation, reduced installation charges, and that any ETF represents a reasonable approximation of unWired\u2019s damages for early termination and is not a penalty or forfeiture. <\/li>\n
<\/p>\n
- D. Termination Liability:<\/strong> If unWired or Customer terminates this Agreement or any Service Contract(s) pursuant to Sections 6 or 7 above, as applicable, all Monthly Recurring Fees associated with Services rendered shall become immediately due and payable. <\/li>\n
<\/ul>\n
XI. ASSIGNMENT:<\/strong><\/pee> Neither Party may assign this Agreement without the prior written consent of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (a) unWired may assign its rights and\/or obligations hereunder (i) to its parent, affiliates or subsidiaries; (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; or (iii) for purposes of financing. (b) Customer may assign its rights and\/or obligations hereunder (i) to its parent, affiliates or subsidiaries, (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (A) the proposed assignee satisfies unWired\u2019s credit and deposit standards; (B) Customer has fully paid for all Services through the date of assignment; and (C) the proposed assignee agrees in writing to be bound by all provisions of this Agreement. <\/pee> XII. COLLECTIONS:<\/strong><\/pee> In the event any legal action, court proceeding or arbitration to construe or enforce any provision of this Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, shall be commenced and maintained in an appropriate court or other forum in Fresno County, California. If any legal action, including arbitration is brought to enforce or interpret the provisions of the Agreement, including collection of amounts alleged to be due and owing under the Agreement and the services rendered pursuant to the Agreement, the prevailing Party shall be entitled to recover reasonable attorney\u2019s fees and costs, from the other Party. These fees and costs are in addition to any other relief to which the prevailing Party may be entitled. <\/pee> XIII. BINDING ARBITRATION AND DISPUTE RESOLUTION AGREEMENT<\/strong><\/pee> <\/p>\n <\/p>\n- A. THIS BINDING ARBITRATION PROVISION SAYS THAT CUSTOMER AND UNWIRED AGREE TO RESOLVE SPECIFIC CLAIMS AND DISPUTES THROUGH ARBITRATION THAT CANNOT BE RESOLVED BETWEEN UNWIRED AND CUSTOMER. PLEASE READ THIS SECTION CAREFULLY TO UNDERSTAND THIS BINDING ARBITRATION AGREEMENT AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. <\/li>\n
<\/p>\n
- B. This agreement between Customer and unWired to arbitrate all disputes and claims between them is intended to be broadly interpreted. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, except those involving non-payment of Monthly Recurring Fees or amounts due for the Services which may be adjudicated in court, shall be settled by arbitration administered by the American Arbitration Association (\u201cAAA\u201d) and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, \u201cAAA Rules\u201d), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or by written request to unWired. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction in Fresno County, California. The Parties understand that the arbitration process is final and binding and waives the right have a dispute adjudicated in court; provided, however, that nothing herein shall prevent a Party from seeking injunctive or provisional relief in court, or from filing an action to seek payment for the Services.\n
<\/p>\n- i. A Party who intends to seek arbitration must first send to the other Party, by certified mail, a written notice (\u201cArbitration Notice\u201d). An Arbitration Notice to unWired must be addressed to unWired at the address set forth in this Agreement for notices. An Arbitration Notice to Customer must be addressed to Customer at Customer\u2019s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and unWired do not reach an agreement to resolve the claim within sixty (60) calendar days after the Arbitration Notice is received, Customer or unWired may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by unWired or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or unWired is entitled. <\/li>\n
<\/p>\n
- i. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The Party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both Parties including, without limitation, legal fees and expenses. <\/li>\n
<\/p>\n
- ii. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party\u2019s individual claim. CUSTOMER AND UNWIRED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and unWired agree otherwise, the arbitrator may not consolidate more than one person\u2019s claims, and may not otherwise preside over any form of a representative or class proceeding. <\/li>\n
<\/p>\n
- iii. Notwithstanding any provision in this Agreement to the contrary, Customer and unWired agree that if unWired makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending unWired written notice within thirty (30) calendar days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and unWired in accordance with the language of this provision. <\/li>\n
<\/ul>\n
<\/li>\n
<\/ul>\n
XIV. ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS:<\/strong><\/pee> This Agreement, together with the Service Contract and other documents referenced herein, and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties. Either Party\u2019s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement. <\/pee> XV. GOVERNING LAW AND VENUE:<\/strong><\/pee> This Agreement and any interpretation of the rights and duties of the Parties and any claim, controversy or dispute arising under or related to this Agreement not subject to the arbitration agreement between the Parties shall be governed by the laws of the State of California excluding its principles of conflicts of law. The Parties understand, acknowledge and agree that the state and federal courts of Fresno County, California alone shall have jurisdiction over all disputes arising under this Agreement not subject to arbitration. Customer consents to the personal jurisdiction of such courts and mediation venue.<\/pee> XVI. HEADINGS:<\/strong><\/pee> Headings herein are for the convenience only and are not intended to have substantive significance in interpreting this Agreement.<\/pee> XVII. NOTICES<\/strong><\/pee> Any notice required under this Agreement must be delivered to the receiving Party at the address listed below (a) in person, (b) by certified mail with return receipt requested, or (c) by overnight courier. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the Party or its representative executes the delivery receipt, if delivered via courier. unWired must provide such notice to Customer\u2019s billing address, and Customer must provide such notice to unWired at 215 W Fallbrook Ste. 203, Fresno CA 93711, except that if Customer wishes to terminate the Services for any reason, it must deliver notice to unWired either by facsimile to 559-432-2315; via email to billing@getunwired.com; or verbally via phone to (559) 261-4444. Notice by facsimile, email, or telephone is deemed given when received by unWired. <\/pee> XVIII. PUBLIC RELEASES, USE OF NAME<\/strong><\/pee> Neither Party may issue a news release, public announcement, advertisement, tweet or any other social media announcement or other form of publicity regarding this Agreement or the Services provided hereunder without the prior written consent of the other Party. Customer may not use unWired\u2019s name, logo or trademark or service mark without unWired\u2019s prior written consent. Customer understands, acknowledges and agrees that unWired may use Customer\u2019s name, logo and other trademarks in materials presented to analysts and investors.<\/pee> XIX. REPRESENTATIONS AND WARRANTIES:<\/strong><\/pee> <\/p>\n <\/p>\n- A. Mutual.<\/strong> Each Party represents and warrants that it, and the person signing on its behalf, is of the age of majority and fully authorized to enter into this Agreement.<\/li>\n
<\/p>\n
- B. Customers.<\/strong>\n
<\/p>\n- i. All Customers.<\/span> Customer represents and warrants that: (A) Customer will not assign, transfer, resell or sublicense Customer\u2019s rights under this Agreement unless specifically permitted by the terms of this Agreement; (B) Customer will not redistribute or share the Services with any other person or transmit the Service over a wireless or other network that is not secured; (C) Customer is solely responsible and liable for breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Agreement, whether such breach results from Customer\u2019s use of the Services or by another person using the Services via Customer Equipment or unWired Equipment; and (D) when Customer transmits, uploads, posts, or submits any \u201cCustomer Material\u201d (as defined herein) using the Service, Customer has the legal right to do so, and that Customer\u2019s use of such Customer Material does not violate any copyright or trademark laws or any other third-party rights. Customer Material collectively includes without limitation any lawful or unlawful software, computer programs, applications, data, photographs, video and\/or audio content, text, files, and other information, including emails, address book and web storage content \u2013 anything installed by Customer on unWired\u2019s servers not provided by unWired. <\/li>\n
<\/p>\n
- ii. Residential Customers.<\/span> Customer represents and warrants that the Services and the unwired Equipment shall be used only by Customer, by members of Customer\u2019s immediate household living with Customer at the same address, and Customer\u2019s visitors, or guests. <\/li>\n
<\/p>\n
- iii. Commercial Customers.<\/span> Customer represents and warrants that the Service and the unWired Equipment shall be used only by Customer and by Customer\u2019s authorized employees, patrons, visitors, or contractors and service providers located at the Customer\u2019s service address. <\/li>\n
<\/ul>\n
<\/li>\n
<\/p>\n
- C. UnWired. unWired represents and warrants that installation, maintenance and delivery of the Services will be performed by qualified and trained personnel. <\/li>\n
<\/ul>\n
XX. DISCLAIMER OF WARRANTIES:<\/strong><\/pee> CUSTOMER EXPRESSLY AGREES THAT CUSTOMER USES THE SERVICES AND THE UNWIRED EQUIPMENT AT CUSTOMER\u2019S SOLE RISK. THE SERVICES AND UNWIRED EQUIPMENT ARE PROVIDED ON AN \u201cAS-IS\u201d AND \u201cAS AVAILABLE\u201d BASIS. EXCEPT FOR THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN SECTIONS 4 \u201cSERVICE LEVEL AGREEMENT, PERFORMANCE GUARANTEE AND SERVICE OUTAGE CREDIT\u201d AND 18(c) \u201cUNWIRED REPRESENTATIONS AND WARRANTIES\u201d HEREIN, THE SERVICES AND THE UNWIRED EQUIPMENT ARE WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER UNWIRED OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD-PARTY SUPPLIERS OR LICENSORS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, \u201cUNWIRED-RELATED ENTITIES\u201d) WARRANT: (A) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICES; (B) THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS; AND (C) THAT THE SERVICES WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS OR OTHER MALWARE. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.<\/pee> XXI. LIMITATION OF LIABILITY<\/strong><\/pee> <\/p>\n <\/p>\n- A. STATUTE OF LIMITATIONS. CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.<\/li>\n
<\/p>\n
- B. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL UNWIRED OR UNWIRED-RELATED ENTITIES BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY FORCE MAJEURE EVENT, OR CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMER. CUSTOMER UNDERSTANDS, ACKNOWLEGES AND AGREES THAT IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL AGGREGATE LIABILITY OF HIT UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US). <\/li>\n
<\/p>\n
- C. ADDITIONALLY, UNWIRED WILL HAVE NO LIABILITY FOR THE FOLLOWING: (i) FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES; (ii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iii) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iv) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER\u2019S FAILURE TO BACK-UP ANY EQUIPMENT AS REQUIRED IN SECTION 1(g) HEREIN; (v) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE; (vi) FOR ANY MATTER BEYOND UNWIRED\u2019S REASONABLE CONTROL; OR (vii) CUSTOMER\u2019S USE OF THE SERVICES FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS AGREEMENT. <\/li>\n
<\/ul>\n
XXII. INDEMNIFICATION<\/strong><\/pee> Customer agrees to indemnify, defend and hold harmless unWired and UnWired-Related Entities (collectively, the \u201cunWired Indemnitees\u201d) from and against all losses, expenses, damages and costs, (including reasonable attorneys\u2019 fees) and other claims brought against any unWired Indemnitee(s) related to Customer\u2019s use of the Service or any violation of this Agreements and all other documents incorporated herein by reference) including, but not limited to, claims that Customer\u2019s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party, Customer\u2019s violation of any law or the rights of another and claims resulting from Customer\u2019s negligence. Customer agrees to pay any attorneys\u2019 fees incurred by unWired and\/or any other unWired Indemnitee in connection with the defense, investigation and response to any government investigation or inquiry related to such third-party claims. unWired reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with unWired in asserting any available defenses. If litigation is commenced to enforce this Agreement, the prevailing Party is entitled to reimbursement of its costs and attorneys\u2019 fees from the other Party.<\/pee> XXIII. SEVERABILITY:<\/strong><\/pee> If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portion of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties\u2019 original intent.<\/pee> XXIV. SURVIVAL:<\/strong><\/pee> The terms and conditions of this Agreement will survive the expiration or termination of this Agreement to the extent necessary for their enforcement and for the realization of the benefit thereof by the Party to whose favor they operate.<\/pee> XXV. FORCE MAJEURE EVENT.<\/strong><\/pee> <\/p>\n <\/p>\n- A. unWired shall not be liable for any failure to perform its obligations hereunder where such failure results from mechanical, electronic or communications failure or degradation (including \u201cline-noise\u201d interference), or any \u201cForce Majeure\u201d event.<\/li>\n
<\/p>\n
- B. A Force Majeure Event includes without limitation: (i) act of God; (ii) act of local, county, state, federal or other government in its sovereign or contractual capacity; (iii) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (iv) flood or adverse weather conditions, including solar flare or sun outage; (v) pandemic, epidemic or quarantine; (vi) labor strike, lock-out or other labor disturbance; (vii) fire, explosion, power failure or blackout; (viii) damage, degradation or destruction of equipment, transmission lines or the unWired Network; (ix) unavailability of right-of-way, equipment or materials; or (x) any other cause beyond a Party\u2019s reasonable control. <\/li>\n
<\/p>\n
- C. When unWired is not able to provide the Service under a Force Majeure Event, the Customer shall be excused from payment for future Services directly affected by the Force Majeure Event. <\/li>\n
<\/ul>\n
XXVI. RELATIONSHIP OF PARTIES; NO THIRD-PARTY BENEFICIARIES:<\/strong><\/pee> The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of unWired, Customer, and permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.<\/pee> XXVII. Confidentiality:<\/strong><\/pee> Each Party may disclose confidential information to the other Party in connection with the Agreement. Confidential information includes this Agreement, Service Contracts, SLAs, all pricing information and any other information that is marked confidential or bears a marking of like import, or that the Party disclosing such information states is confidential and then confirms such confidentiality in writing within ten (10) business days (\u201cConfidential Information\u201d). Confidential Information may only be used in connection with performance under this Agreement. Confidential Information may not be disclosed except to those employees or affiliates of the receiving Party who have a need to know, or to consultants or subcontractors of the receiving Party who agree to be bound by this Section. Confidential Information does not include information that is generally available to the public through no wrongful act of the receiving Party or is independently developed by the receiving Party. Upon termination or expiration of this Agreement, the receiving Party will return the Confidential Information or destroy it. The obligations of this provision will survive for five (5) years after the termination or expiration of this Agreement. <\/pee> <\/div>\n<\/div>\n
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