Welcome WIFI RAIL. BY ACTIVATING OR USING WIFI RAIL SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS ("T&C's"). PLEASE READ THESE T&C 's CAREFULLY. They affect your legal rights by, among other things, requiring MANDATORY ARBITRATION OF DISPUTES (SEE SEC. 2), charging an EARLY CANCELLATION FEE FOR CERTAIN SUBSCRIPTIONS (SEE SEC. 3), AND LIMITING OUR LIABILITY (SEE SEC. 12 & 13). IF YOU DO NOT AGREE TO THESE T&C's, DO NOT ACTIVATE OR USE THE SERVICE.
This is an agreement between you and WiFi Rail for wireless local area network communications services (known as the "Service"). These T&C's, any WiFi Rail Service Agreement you have agreed to, and the specific rate plan information that applies to your account (see http://www.wifirail) (collectively referred to as the "Agreement"), govern the use of the Service and any equipment purchased from us for use with the Service. These T&C's supersede all earlier versions. You acknowledge that no employee, dealer or other agent is authorized to make any representation or warranty (other than as described in the Agreement or our current materials) with respect to the Agreement, the Service or equipment purchased from us for use with the Service or to waive or modify any terms or provisions of the Agreement. WiFi Rail 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 THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO YOU, INCLUDING ANY BILLING DISPUTES ("CLAIM"), 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 or billed to you, including suppliers of Services and Devices and our retail dealers, if you also assert Claims against us in the same proceeding. You and we acknowledge that the 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. 20).
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 WIFI RRAIL CUSTOMER RELATIONS, 2222 MICHELSON DRIVE, SUITE 600, IRVINE, CA 92612 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'S 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's 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. 20, 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. Changes to the Agreement or Charges. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IF WE (A) INCREASE THE CHARGES FOR A SERVICE AND YOU WOULD BE CHARGED A TERMINATION OR OTHER FEE TO CANCEL THAT SERVICE, OR (B) MODIFY A MATERIAL TERM OF OUR AGREEMENT WITH YOU AND THE MODIFICATION WOULD BE MATERIALLY ADVERSE TO YOU, WE WILL NOTIFY YOU OF THE INCREASE OR MODIFICATION (AS PROVIDED IN SEC. 18) AND YOU CAN CANCEL THE AFFECTED SERVICE WITHOUT PAYING THE TERMINATION OR OTHER FEE (WHICH IS YOUR ONLY REMEDY) BY FOLLOWING THE CANCELLATION INSTRUCTIONS IN THE NOTICE. IF YOU DO NOT CANCEL THE SERVICE BY FOLLOWING THE INSTRUCTIONS IN THE NOTICE, THEN YOU AGREE TO THE INCREASE OR MODIFICATION, EVEN IF YOU PAID FOR SERVICE IN ADVANCE. IF THE NOTICE DOES NOT SAY HOW LONG YOU HAVE TO CANCEL, THEN IT IS WITHIN 14 DAYS AFTER THE DATE OF THE NOTICE, UNLESS A LONGER PERIOD IS REQUIRED BY LAW. IF WE INCREASE CHARGES FOR SERVICE TO WHICH NO TERMINATION OR OTHER FEE TO CANCEL SERVICE APPLIES, WE WILL NOTIFY YOU OF THE INCREASE, BUT YOU WILL STILL BE RESPONSIBLE FOR ANY TERMINATION FEE APPLICABLE TO ANY SERVICES YOU MAY HAVE IF YOU CANCEL SERVICE.
4. 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 WIFI RAIL locations, and unless otherwise stated by us on our website or in writing, is not available outside the U.S. Service is available to your Device only when it is within the operating range of our system. WIFI RAIL 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, not delivered, 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.
5. Use of Service. Unless otherwise set forth by us in writing, you are receiving a single 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 log-in name, password or 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, WIRI RAIL 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, tortuous, 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, WIRI RAIL’S computer systems and network or any WIFI RAIL website; (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, WIFI RAIL network or any WIFI RAIL website 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, the WIFI RAIL network or any WIFI RAIL website 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, WIFI RAIL network or any WIFI RAIL website; (m) Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a "virus" to the Service, the WIFI RAIL network or any WIFI RAIL website, overloading, "flooding," "spamming," "crashing," or "mailbombing" the Service, the WIFI RAIL network or any WIFI RAIL website; (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, and 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 WIFI RAIL agreements between us and you and the WIFI RAIL 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.
WIFI RAIL reserves 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&C's, including but not limited to any of the activities described in this Sec. 5. 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&C's, including but not limited to those activities described in this Sec. 5 and any other activities that may subject WIFI RAIL or its customers to harm or liability. WIFI RAIL disclaims 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.
6. 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 to minors, 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. 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.
7. Term; Termination of Service. The Agreement begins on the date Service is activated or used (or is otherwise deemed to have been accepted as provided in Sec.1) and will continue until terminated by you or us in the manner provided in the Agreement. You understand that if at any time you are not current in paying amounts owed to us, or if your credit or debit card ("Card") expires, does not process payment or is otherwise rejected, we may terminate the Service immediately in our discretion without notice. Despite termination you will be liable for payment of any amounts due or other obligations incurred before or upon termination, whether the Agreement is ended by you or us. If you select a subscription plan with a fixed term longer than 31 days (such as an annual plan), the term of Service shall be a minimum of 12 months from the date of your plan commencement, after any applicable promotion periods have expired (the "Fixed Term"). After the applicable Fixed Term expires, if you do not renew your Fixed Term subscription you become a month-to-month customer but are still subject to the Agreement, as modified. If you select any other subscription plan, the plan will commence after any applicable promotion periods have expired. YOU MAY TERMINATE SERVICE FOR PLANS WITHOUT A FIXED TERM BY PROVIDING US WITH 30 DAYS NOTICE. CANCELLATION WILL TAKE EFFECT ON OR BEFORE THE BEGINNING OF THE NEXT BILLING CYCLE AFTER THE NOTICE PERIOD, BUT IF YOU CANCEL SERVICE PRIOR TO THE END OF YOUR FIXED TERM (AND HAVE NOT MET THE REQUIREMENTS OF SEC. 16) OR BREACH THE AGREEMENT BEFORE YOUR FIXED TERM ENDS, YOU AGREE THAT THE RESULTING HARM TO US IS IMPRACTICABLE OR EXTREMELY DIFFICULT TO MEASURE AND YOU AGREE TO PAY US IN ADDITION TO AMOUNTS OWED AN EARLY TERMINATION FEE FOR EACH FIXED TERM SUBSCRIPTION, AS A REASONABLE ESTIMATE OF OUR HARM, THE LESSER OF $200 OR THE REMAINING MONTHLY RECURRING FEES OWING TO THE END OF THE FIXED TERM (WHICH YOU AGREE MAY BE DEDUCTED FROM ANY DEPOSIT, OR AUTOMATICALLY BILLED TO YOUR ACCOUNT OR CARD) In addition, we may keep any amounts prepaid by you sufficient to cover any accrued charges and fees related to the Service you have used. If you terminate the Service before the end of your billing cycle, (1) you will be charged for the entire monthly bill cycle without prorating, and (2) you will not receive a credit or refund for any unused minutes or megabytes (or portions thereof). We may terminate Service for any reason upon 3 days notice (unless a longer period is required by law). If you breach the Agreement, we may suspend or terminate your Service immediately without prior notice (except to the extent prohibited by law). You breach the Agreement by: (a) failing to pay any sum when due; (b) failing to comply with any provision in the Agreement or any other agreement between us; (c) becoming the subject of any proceedings under the Bankruptcy Code; (d) becoming insolvent; or (e) your financial institution dishonoring or returning for insufficient funds your check or credit card. In the event of cancellation, you are responsible for payment of all charges (including any cancellation fee) due to us under the Agreement, which charges will be immediately due and payable. If we reinstate Service to you after discontinuing Service, you may be subject to a credit check and agree to pay reactivation charges or deposits. Our remedies hereunder are not exclusive but are in addition to all other remedies provided by law.
8. Your Account. Unless you have selected a special promotional rate plan or accepted promotional pricing, you may, upon notice to us and payment of any transfer fee we assess, change to another rate plan. Any Fixed Term will remain unchanged by any modification to your account, unless we require a new Fixed Term as part of such modification. If we allow you to temporarily suspend your account, the Fixed Term will be extended by the length of the temporary suspension.
9. Billing and Payment of Charges. You agree to provide us with accurate and complete billing information including legal name, address, telephone number and Card/billing information, and to report all changes to this information within 30 days of the change. You represent that the address you have provided to us for billing purposes is either your residential or business street address. You authorize us to verify your creditworthiness with credit-reporting agencies from time to time. You agree to timely pay in full all charges for Service under the Agreement, including regular monthly Service and other charges billed to your account. Charges may include, without limitation, monthly recurring charges for Service and, if applicable, excess usage charges, airport and other surcharges, roaming fees, usage when you are outside a designated local area, and additional features or services you have or use. You will be charged for Service and other features on a monthly billing cycle basis. Except as otherwise provided in your rate plan, monthly recurring charges are invoiced one billing cycle in advance and any portion of a monthly billing cycle is not prorated, but billed as a whole cycle. We may change your billing cycle at any time. You may be charged for data sent or received by any Device you use (including, without limitation, "free" software downloads, messaging, unsolicited information and advertisements), regardless of whether the data is requested, actually or completely delivered, received or stored. In some cases data packets will be resent to ensure complete delivery; you may be billed for these resent packets. You understand that Service connection (and billing) starts at the time you log on to the Service and does not end until you properly log off and the network terminates the connection (after log off). If you (a) do not properly log off, (b) leave the coverage area during a session or (c) lose your connection for any reason, then billing will not terminate until at least several minutes after you lose your connection and you will be charged for this period. Some Devices, such as personal data assistants and other handheld devices, may require you to remove your wireless card and turn off your Device in order to properly terminate your connection. You should do so to ensure your connection is terminated. You understand that if you exceed any applicable allotment of minutes or megabytes ("Mb") under your rate plan, you will pay the per-minute and/or per-Mb overage fees applicable to your WIFI RAIL rate plan. UNUSED MINUTES, MB'S, OR OTHER ALLOCATED SERVICES FROM ANY RATE PLANS OR FEATURES DO NOT CARRY OVER TO SUBSEQUENT BILLING CYCLES. ALL MINUTES OF USE ARE BILLED IN FULL MINUTE INCREMENTS; ALL MB'S OF USE ARE BILLED IN FULL MB INCREMENTS; ANY FRACTION OF A MINUTE OR MB OF USAGE IS ROUNDED UP AND CHARGED, OR DEDUCTED FROM ANY ALLOCATED MINUTES OR MB'S, AS A FULL MINUTE OR MEGABYTE ON A PER SESSION BASIS. ANY TAXES, ASSESSMENTS, FEES, COSTS OR CHARGES IMPOSED ON US OR YOU AS A RESULT OF PROVIDING THE SERVICE WILL BE ADDED TO YOUR CHARGES AND ARE SUBJECT TO CHANGE OR INCREASE AT ANY TIME WITHOUT NOTICE. IF WE HAVE AGREED THAT YOU MAY PAY FOR CHARGES WITH A CARD, WE WILL RETAIN THE CARD INFORMATION IN OUR RECORDS AND WILL CHARGE THE CARD, WHEN WE BILL FOR THE CHARGES, FOR ALL AMOUNTS OR OTHER OBLIGATIONS INCURRED BEFORE TERMINATION. YOU AGREE THAT YOUR CARD WILL AUTOMATICALLY BE BILLED BY US EACH MONTH FOR THE DURATION OF YOUR SERVICE UNTIL THE AGREEMENT IS TERMINATED AS PROVIDED HEREIN. You also authorize us to charge your Card at or after termination of Service to pay what you then owe (including, but not limited to, payment of any early termination fee). If you revoke authorization to charge your Card, or if for any reason your Card issuer does not pay us, we must receive payment from you on or before the due date, or you will be in default. Except as prohibited by law, charges, less disputed amounts, must be paid by the due date. You agree that (a) time is of the essence; (b) it would be impractical to fix the exact amount of our damages if you fail to pay promptly; and (c) in the event we do not receive payment by the due date, your payment is past due and you shall pay us default interest at the lower of 1.5% per month (or any portion thereof) of any past due amount until paid, or the highest amount permitted by law. Except to the extent prohibited by law, this late fee may be charged regardless of any disputes you may have raised regarding your invoiced charges.
Incorrect Charges. If you believe you have been incorrectly charged, you must notify us of such disputed charges within sixty (60) days from the date the disputed charges are first billed or you waive your right to dispute those charges. Please contact WIFI RAIL Customer Care at (877) 822-SPOT (7768) so that we can review your account (Add-On Service Plan customers call (800) 937-8997).If you accept a credit to resolve an issue, you agree that the issue has been resolved. We may require you to describe the dispute in writing. Any written communications concerning disputed amounts owed must be sent to: WIFI RAILUSA, P.O. Box 863957, Plano, TX 75086-3957 (Add-On Service Plan customers see Sec. 24). If it is determined that you owe any amount in dispute, that amount will be added to any current charges and must be paid by the due date. If we accept late or partial payments or payments marked "Paid in Full" or similar notations, it will not waive any of our rights hereunder to collect all amounts that you owe us nor will it constitute an accord and satisfaction. We may charge you a fee of $20 or such amount as may be permitted by law for any Card amount rejected or check returned for insufficient funds.
10. Digital Millennium Copyright Act ("DMCA") Notice. In operating the Service, we may act as a "services provider" (as defined in the DMCA) and offer services as an online provider of materials and links to third party web sites. As a result, third party materials that are not owned or controlled by us may be transmitted, stored, accessed or otherwise made available using the Service. If you believe any material available via the Service infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. Our designated agent (the proper party for notice) to whom you should address infringement notices under the DMCA is Corporation Services Company, 1010 Union Ave. SE, Olympia, WA 98501. We will respond expeditiously to remove or disable access to material we determine may be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the party who has allegedly infringed.
11. 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 OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE 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 ("WIFI RAILAFFILIATES") 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 "WIFI RAILLIMITED 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.
12. 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 WIFI RAILOR ANY OF THE WIFI RAILAFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THEY WILL NOT 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.
THE MAXIMUM AGGREGATE LIABILITY OF WIFI RAIL AND ANY WIFI RAILAFFILIATES 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 2 YEARS OF THE DATE THE CLAIM ARISES.
13. Indemnification. You agree to defend, indemnify and hold us, any underlying carrier or network provider (including any carrier or network provider from which roaming services are provided or made available to you as part of the Service), and any WIFI RAIL 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 attorneys' and expert witnesses' fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this section.
15. Cancellation and Return Policy. You may cancel Service without paying any applicable early termination fee if within 30 calendar days from plan commencement ("Return Period") you contact us to cancel. Even if you cancel Service as provided herein, you must pay all Service and usage charges incurred prior to cancellation or return and any subsequent penalties or assessments.
16. Assignment. We may assign in whole or in part our rights or duties under the Agreement without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign the Agreement only with our prior written consent. Subject to this restriction, the Agreement shall inure to the benefit of and be binding upon the heirs successors, subcontractors, and assigns of the respective parties.
17. 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, 2222 Michelson Drive, Suite 600, Irvine, CA 92612. 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.
18. Severability. All terms and provisions of these T&C's are independent of each other. If any term or provision of these T&C's is held to be inapplicable or unenforceable, including without limitation any terms or provisions in Secs. 2, 11 or 12, 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.
19. 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 in which your billing address in our records is located. Foreign laws do not apply. Arbitration proceedings or any actions to enforce an arbitration award must be in the state where your Service is principally provided, but not outside the U.S.
20. 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, 22, and 23, and the terms and conditions related to your use of other WIFI RAIL services.
21. Monthly/Annual Service. (a) If you purchase prepaid Service of any kind (except for the DayPass product, which is described in subsection (b) below), the Agreement and the following apply to you. When purchasing prepaid Service, you are responsible for prepaying all charges for using the Service. The balance in your prepaid account is reduced by the charges attributable to your use of the Service. You must keep a positive balance in your prepaid account to continue using the Service. The prepaid Service may be subject to a minimum user session, which will be charged against your account balance. The prepaid Service you purchase is non-cancelable and will expire within a certain time period. The minimum user session, expiration period and other details concerning the prepaid Service will be disclosed in the rate plan information you receive at the time of your purchase of prepaid Service. If you have any questions about your prepaid Service please contact WIFI RAIL Customer Care. Prior to expiration, you may extend the expiration period by purchasing additional prepaid Service. You will not receive a monthly invoice or activity record for use of prepaid Service. Prepaid Service is non-refundable, and no reimbursement will be given for lost or stolen prepaid cards or coupons. Unused prepaid account balances become our property upon expiration or termination of the Service purchased, and will not be refunded, notwithstanding a modification as provided under Sec. 3.
(b) If you purchase the DayPass product, the Agreement and the following apply to you. When purchasing the DayPass, you are responsible for prepaying all charges for using the Service. The DayPass may only be used within the first 24 continuous hours immediately after initial login. The prepaid Service you purchase in the form of a DayPass is non-cancelable and will expire within a certain time period. The expiration period and other details concerning the DayPass will be disclosed in the rate plan information you receive at the time of your purchase of the DayPass. If you have any questions about your DayPass, please contact WIFI RAIL Customer Care. You will not receive a monthly invoice or activity record for use of your DayPass. The DayPass is non-refundable, and no reimbursement will be given for lost or stolen DayPasses. Unused DayPass account balances become our property upon expiration or termination of the Service purchased, and will not be refunded, notwithstanding a modification as provided under Sec. 3.
23. Other Agreements or Warranties. Other WIFI RAIL services (such as voice or data telecommunication services) or products may come with separate written terms or conditions, and warranties that govern their use or purchase. Please see those other agreements or warranties for your rights and duties regarding their use, if applicable.