Terms and Conditions
Last Updated: 3-8-2013
USING THE APPLE-METRO HOTSPOT SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS
AND CONDITIONS ("T&Cs"). PLEASE READ THESE T&Cs CAREFULLY. They affect your legal rights by, among other things, requiring MANDATORY ARBITRATION OF DISPUTES (SEE SEC. 2), AND LIMITING OUR LIABILITY (SEE SEC. 7). IF YOU DO NOT AGREE TO THESE T&Cs, DO NOT USE THE SERVICE.
This is an agreement between you and APPLE-METRO, INC. and its affiliates ("we" or "us") for wireless local area network communications services
and related services and features (including use of a non-APPLE-METRO network, e.g., roaming) (collectively referred to as the "Service") and any wireless local area network compatible equipment purchased from us for
use with the Service. These T&Cs, any APPLE-METRO HotSpot Service Agreement you have agreed to (collectively referred to as the "Agreement"), govern the use of the Service. We reserve the right to modify these T&Cs by posting new versions. Your continued use of the Service following such changes constitutes your acceptance of those changes.
You acknowledge that no employee, dealer or other agent is authorized to make any representation or warranty (other than as described in this Agreement) with respect to this Agreement, or to waive or modify any terms or provisions of this Agreement. APPLE-METRO reserves the right to designate its vendors and venue, roaming and other partners as intended third party beneficiaries of the Agreement.
1. Acceptance of Agreement by Use/Activation:
Your electronic acceptance on our web site, your activation or use of the Service or your signature below constitutes your acceptance of the Agreement. Your electronic acceptance of the Agreement shall have the same force and effect as if you had actually signed the Agreement.
2. MANDATORY ARBITRATION TO RESOLVE DISPUTES/ CLASS ACTION WAIVER/JURY TRIAL WAIVER: ARBITRATION. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, YOU AND WE WILL ARBITRATE OUR DISPUTES. ANY
CLAIM OR DISPUTE BETWEEN YOU AND US IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OR THE PROVISION OF SERVICES, SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"):
This agreement to arbitrate also requires you to arbitrate claims against other parties relating to Services or Devices provided, including suppliers of Services and Devices, if you also assert Claims against us in the same proceeding. You and we acknowledge that this Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite the choice of law provision in Sec. 11). BEFORE INSTITUTING ARBITRATION, YOU AGREE TO PROVIDE US WITH AN OPPORTUNITY TO RESOLVE YOUR CLAIM BY SENDING A WRITTEN DESCRIPTION OF YOUR CLAIM TO US AT APPLE-METRO CUSTOMER RELATIONS, 550 MAMARONECK AVE., HARRISON, NY 10528 AND NEGOTIATING WITH US IN GOOD FAITH REGARDING YOUR CLAIM. IF WE ARE NOT ABLE TO RESOLVE YOUR CLAIM WITHIN 30 DAYS OF RECEIPT OF YOUR NOTICE, THEN YOU OR WE, INSTEAD OF SUING IN COURT, MAY INITIATE ARBITRATION PROCEEDINGS WITH THE AAA. YOU MUST SERVE OUR REGISTERED AGENT (SEE SEC. 18) IN ORDER TO BEGIN AN ARBITRATION. ARBITRATION WILL BE CONDUCTED UNDER THE AAA PUBLISHED WIRELESS INDUSTRY ARBITRATION RULES AND SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org.
The AAA has a fee schedule for arbitrations. You will pay your share of the arbitrator's fees and administrative expenses ("Fees and Expenses")except that:
(a) for claims less than $25, we will pay all Fees and Expenses; and
(b) for claims between $25 and $1,000, you will pay only $25 in Fees and Expenses, or any lesser amount as provided under AAA Supplemental
Procedures for Consumer-Related Disputes.
You and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts and witnesses. An arbitrator may only award as much and the type of relief as a court with jurisdiction in the place of arbitration that is consistent with law and the Agreement.
An arbitrator may issue injunctive or declaratory relief but only applying to you and us and not to any other customer or third party. As a limited exception to the agreement to arbitrate, you and we agree that:
(a) you may take claims to small claims court, if your claims qualify for hearing by such court; and
(b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement.
CLASS ACTION WAIVER: WHETHER IN COURT, SMALL CLAIMS COURT OR ARBITRATION,
YOU AND WE MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. NOTWITHSTANDING SEC. 11, IF A COURT OR ARBITRATOR
DETERMINES IN A CLAIM BETWEEN YOU AND US THAT YOUR WAIVER OF ANY ABILITY TO PARTICIPATE IN CLASS OR REPRESENTATIVE ACTIONS IS UNENFORCEABLE UNDER APPLICABLE LAW, THE ARBITRATION AGREEMENT WILL NOT APPLY, AND YOU AND WE AGREE THAT SUCH CLAIMS WILL BE RESOLVED BY A COURT OF APPROPRIATE JURISDICTION, OTHER THAN A SMALL CLAIMS COURT.
JURY TRIAL WAIVER. WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT (AS PROVIDED IN THIS SEC. 2) YOU AND WE WAIVE ANY RIGHT TO JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN YOU AND US.
3. Service Availability:
A wireless local area network compatible device (a "Device") is required in order to use the Service. You are not required to buy a Device from us. You must ensure that your Device is compatible with the Service. Availability and performance of the Service is subject to all memory, storage and other limitations in the Device. Service is only available at designated HotSpot locations, and unless otherwise stated by us on our website or in writing, is unavailable outside the U.S. Service is available to your Device only when it is within the operating range of our system. HotSpot locations and maps are subject to change at any time without notice. Actual Service coverage, speeds, locations and quality may vary. Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed. We are not responsible for data, messages or pages lost, undelivered, delayed or misdirected because of interruptions or performance issues with the Service or communications services or networks (e.g., T-1 lines or the Internet).
We may impose credit, usage or Service limits, suspend Service, or block certain kinds of usage in our sole discretion to protect users, our network or our business. Network speed is an estimate and is no indication of the speed at which your Device or the Service sends or receives data. Actual network speed will vary based on Device configuration, compression, distance, network congestion, interference and other factors. The accuracy and timeliness of data received is not guaranteed; delays or omissions may occur. We may, but do not have to, change or improve the Service by, among other things, changing or upgrading the 802.11b/g standard.
4. Use of Service:
Unless otherwise set forth by us in writing, you are receiving a guest user account solely for your use of the Service through one Device per login session. You agree not to resell or attempt to resell any aspect of the Service, whether for profit or otherwise, share your IP address or ISP Internet connection with anyone, access the Service simultaneously through multiple units or to authorize any other individual or entity to use the Service. You agree that sharing the Service with another party breaches the Agreement and may constitute fraud or theft, for which we reserve all rights and remedies. You have no proprietary or ownership rights to a specific IP or other address, log-in name, or password that you use on our network. We may change your address, log-in name or password at any time. We will assign you an IP address each time you access the Service, and it will vary. You shall not program any other IP address into your Device. You may not assign your IP address to any other person or Device. You agree that we may access your Device and information stored on it (such as drivers, software, etc.) to troubleshoot issues related to the Device or network; enable, operate and update the Service and software; investigate activity that may be in violation of the Agreement; or to comply with law. You agree not to use or attempt to use the Service, our network or website, or your Device for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities or to any person. Improper uses include, but are not limited to: (a) Violating any applicable law or regulation; (b) Posting or transmitting content you do not have the right to post or transmit; (c) Posting or transmitting content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy or other right; (d) Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in our sole discretion; (e) Attempting to intercept, collect or store data about third parties without their knowledge or consent; (f) Deleting, tampering with or revising any material posted by any other person or entity; (g) Accessing, tampering with or using non-public areas of the Service,our computer systems and network or any of our websites; (h) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (i) Attempting to access or search the Service, our network or any our websites with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by us or other generally available third party web browser; (j) Sending or attempting to send unsolicited messages, including without limitation, promotions or advertisements for products or services, "spam", "chain mail" or "junk mail"; (k) Using or attempting to use the Service, our network or any of our websites to send altered, deceptive or false source-identifying information; (l) Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Service, our network or any of our websites; (m) Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a "virus" to the Service, our network or any of our websites, overloading, "flooding," "spamming," "crashing," or "mailbombing" the Service, our network or any of our websites; (n) Impersonating or misrepresenting your affiliation with any person or entity; (o) Using the Service to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as "pyramid schemes", "Ponzi schemes", unregistered sales of securities or securities fraud; or (p) Excessively high volume data transfers or bandwidth consumption, hosting of a web server, internet relay chat server or any other server, and non-traditional end user activities. If we suspect violations of any of the above, we may: (i) Institute legal action, (ii) Immediately, without prior notice to you terminate the Agreement and the Service, (iii) Terminate any other agreements between us and you and our service provided under those agreements, and (iv) Cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to reasonably cooperate with us in investigating suspected violations. We reserve the right to install, implement, manage and/or operate one or more software, monitor or other solutions designed to assist us in identifying and/or tracking activities that we consider to be illegal or violations of these T&Cs, including but not limited to any of the activities described in this Sec. 4. We may, but are not obligated to, in our sole discretion, and without notice, remove, block, filter or restrict by any means any materials or information (including but not limited to emails) that we consider to be actual or potential violations of the restrictions set forth in these T&Cs, including but not limited to those activities described in this Sec. 4 and any other activities that may subject us or our customers to harm or liability. We disclaim any and all liability for any failure on its part to prevent such materials or information from being transmitted over the Service and/or into your Device.
5. Content Disclaimer Cautions and Restrictions:
We do not control, nor are we responsible or liable for, data, content, services, or products (including software) that you access, download, receive or buy via the Service. The Internet may provide access to content you consider harmful or obsene, or otherwise offensive or inappropriate. If you wish to limit access to such content, there are a number of commercially available products that can help you do so. We may, but do not have to, block information, transmissions or access to certain information, services, products or domains to protect us, our network, the public or our users. Therefore, messages and other content may be deleted before delivery. The Internet contains unedited materials, some of which may be offensive to you. We are not a publisher of third party content accessed through the Service and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service. You are responsible for paying all fees and charges of third party vendors whose sites, products or services you access, buy or use via the Service. If you choose to use the Service to access web sites, services or content, or purchase products from third parties, your personal information may be available to the third-party provider and may not be secure as such information is transmitted over the Service. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies (if any) and not ours. We have no responsibility for third party provider policies, or their compliance with them. If you elect to download into your Device or otherwise enable any software, including any "client" designed to facilitate your access of the Service, you shall be solely responsible for, and shall be deemed to have reviewed and, to the extent applicable, acknowledged, accepted or waived, any disclosures, notices or options otherwise made available to you for viewing as part of the log-in process for the Service. If any of your personal information is compromised while you are using the Service, whether or not you are accessing a third party’s service, we are not responsible for such compromise and shall have no liability with respect thereto. You hereby agree to release us from any such liability.
6. Disclaimer of Warranties:
EXCEPT AS TO ANY WRITTEN LIMITED WARRANTY THAT MAY BE PROVIDED WITH A DEVICE YOU PURCHASE FROM US, THE SERVICE IS PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. ANY STATEMENTS MADE IN PACKAGING, MANUALS OR OTHER DOCUMENTS OR BY ANY OF OUR AGENTS (EXCEPT AS TO ANY WRITTEN LIMITED WARRANTY THAT MAY BE PROVIDED WITH A DEVICE YOU PURCHASE FROM US), ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY US OF ANY KIND. NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DEALERS, SUPPLIERS, PARENTS, SUBSIDIARIES OR AFFILIATES ("AFFILIATES") WARRANT THAT THE INFORMATION, PRODUCTS, PROCESSES, AND/OR SERVICES AVAILABLE THROUGH THE SERVICE WILL BE UNINTERRUPTED, ALWAYS AVAILABLE, ACCURATE, COMPLETE, USEFUL, FUNCTIONAL OR ERROR FREE. IF YOU RECEIVED A WRITTEN "APPLE-METRO LIMITED WARRANTY" WITH A DEVICE THAT YOU PURCHASED FROM US, IT IS THE ONLY WARRANTY MADE BY US WITH RESPECT TO THE DEVICE. IF APPLICABLE STATE LAW DOES NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, THE RELEVANT PORTIONS OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation of Liability:
We shall not be liable for any deficiency in performance caused in whole or in part by the act or omission of an underlying carrier or service provider, dealer, equipment or facility failure, network problems, interference, lack of coverage or network capacity, acts of God, strikes, fire, war, terrorism, riot, emergency, government actions or any other cause beyond our control. EVEN IF WE OR ANY OF THE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, NEITHER WE NOR THEY WILL BE LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, AGENTS, CUSTOMERS OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING FROM USE OF THE SERVICE OR ANY DEVICE, INCLUDING WITHOUT LIMITATION: PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PRIVACY OR SECURITY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES; OR ANY DAMAGES WHATSOEVER RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS DUE TO UNAUTHORIZED ACCESS OR DUE TO VIRUSES OR OTHER HARMFUL COMPONENTS, COST OF REPLACEMENT PRODUCTS AND SERVICES, THE INABILITY TO USE THE SERVICE, THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY YOUR DEVICE, ACCESS TO THE WORLD WIDE WEB, THE INTERCEPTION OR LOSS OF ANY DATA OR TRANSMISSION, OR LOSSES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR MESSAGES OR DATA RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART. OUR MAXIMUM AGGREGATE LIABILITY AND ANY AFFILIATES TO YOU, AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THE AGREEMENT FOR ANY AND ALL DAMAGES, INJURY, LOSSES ARISING FROM ANY AND ALL CLAIMS AND/OR CAUSES OF ACTION RELATED TO THE SERVICE OR DEVICE, SHALL BE TO RECOVER THE PRORATED MONTHLY OR OTHER CHARGES TO YOU FOR THE APPLICABLE SERVICE. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THE AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL ALSO APPLY TO ANY VENUE PARTNER WHERE THE SERVICE IS USED AND ANY THIRD PARTY NETWORK PROVIDER FROM WHICH ROAMING SERVICES ARE PROVIDED OR MADE AVAILABLE TO YOU AS PART OF THE SERVICE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN TWO YEARS OF THE DATE THE CLAIM ARISES.
You agree to defend, indemnify and hold us, any underlying carrier or network provider, and any Affiliates harmless from and against any and all claims, demands, actions, liabilities, costs or damages arising out of your use of the Service or a Device or your violation of the Agreement. You further agree to pay our reasonable attorney and expert witness fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this section.
9. Privacy and Security:
18. Notices and Communication:
Written notices to you shall be considered given and received by you on the third day after the date deposited in the U.S. Mail addressed to you at your address in our billing records or immediately upon delivery using electronic means such as e-mail. Written notice to us shall be considered given when received by our registered agent Corporation Services Company, 1010 Union Ave. SE, Olympia, WA 98501. You agree that we may contact you through the Service or your Device to notify you of changes to or information about your account, the Service, additional services or the Agreement.
All terms and provisions of these T&Cs are independent of each other. If any term or provision of these T&Cs is held to be inapplicable or unenforceable, including without limitation any terms or provisions in Secs. 2, 12 or 7, then: (a) such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, (b) the Agreement will not fail its essential purpose and (c) the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the Agreement.
20. Entire Agreement/Applicable Law/Venue/Miscellaneous. The Agreement represents the final and entire agreement between you and us regarding the Service and any Device purchased from us. Electronic images of the Agreement will be considered originals. You acknowledge that you have not relied on any other representations not specifically included in the Agreement. If we don't enforce our rights under any of the provisions of the Agreement, we may still require strict compliance in the future. You represent that you are of legal age and have the legal capacity to enter into the Agreement. If you are contracting on behalf of a company, you represent that you are authorized to enter into the Agreement and agree to be personally liable for all accounts if you are not so authorized. You acknowledge that you are responsible for (a) all charges incurred by any person you authorize to access your account, or to use your Device or the Service and (b) ensuring that any person you authorize to access your account complies with the Agreement. The Agreement
is governed by the Federal Arbitration Agreement, applicable federal law and the laws of the state of New York. Foreign laws do not apply. Arbitration proceedings or any actions to enforce an arbitration award must be in New York.
21. Survival. The following provisions, and any other provisions which may reasonably be construed as surviving, and the rights and obligations of the parties thereunder, shall survive any termination of the Agreement for any reason: Secs 2, 4, 5, 6, 7, 9, 10, 11, 12,13, 14,15, 17, 18, 19, 20, 21, and 22 and the terms and conditions related to your use of other APPLE-METRO services.