Smartwire, LLC
General Terms and Conditions of Service
You, individually (“You” or “Subscriber”), and You, on behalf of every member of your household, current and future, every visitor to or guest in your household, and any other person who uses the Services (together with Subscriber, the “Subscriber Group”), agree to be bound by these General Terms and Conditions of Service (“Terms of Service”). For purposes of these Terms of Service, all references to “Smartwire” mean Smartwire, LLC and any of its affiliates or subsidiaries providing Subscriber the Services (including third parties Smartwire may retain to provide the Services).
Subscriber’s signature on the work order presented upon installation of Services, the Subscriber Group’s use of Services, and/or any other form of signature or action indicating intention to use (e.g., online acceptance, e-signature or breaking the seal on the box of a self-installation kit, activation of service) are evidence of Subscriber Group’s agreement to these Terms of Service. Smartwire may change its prices, fees, the Services, and/or the Terms of Service. The Subscriber Group’s continued use of the Services after notice of the change shall be considered Subscriber’s acknowledgement and acceptance of the changes, and the most-recent version of these Terms of Service controls Subscriber’s relationship with Smartwire and Smartwire’s provision of Services to Subscriber. Subscriber may not modify these Terms of Service by making any typed, handwritten, or any other changes to it for any purpose. This is a binding legal document. In the event that a portion of the Services is terminated, or any aspect of it is changed, any remaining Service or replacement Service will continue to be governed by these Terms of Service.
THESE TERMS OF SERVICE CONTAIN (1) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF YOUR RIGHT TO BRING CLAIMS AS CLASS ACTIONS; (2) A LIMITATION ON YOUR RIGHT TO BRING CLAIMS AGAINST SMARTWIRE MORE THAN ONE (1) YEAR AFTER THE RELEVANT EVENTS OCCURRED; AND (3) THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS. THESE PROVISIONS AFFECT SUBSCRIBER’S RIGHTS UNDER THESE TERMS OF SERVICE WITH RESPECT TO ALL SERVICES. SEE SECTION 29 FOR DETAILS ON THESE PROVISIONS.
Section I: Payment/Fees
1. Billing. Subscriber will be billed monthly, in advance, for Services to be received, plus pro-rata charges, if any, for periods not previously billed. Billing may commence on or after the earlier to occur of (a) the activation of any Service, or (b) confirmed delivery of service Equipment. Subscriber shall pay all monthly charges and all applicable fees and taxes by the due date as listed on the Smartwire monthly bill(s), which may be sent by multiple, separate invoices and/or exclusively delivered online. Payment methods, including Credit Card, Debit Cards and Checks will be stored for future use by the Subscriber. It shall be Subscriber’s obligation to review bills as presented on line.
2. Advance Payment: Advance payment may be required under certain circumstances including without limitation when Subscribers are unable or unwilling to provide information to establish credit worthiness or have an unsatisfactory credit rating. The advance payment will be equal to the applicable installation charge and one month of recurring charges, excluding taxes, fees and surcharges. The advance payment will appear as a credit and be applied to the first monthly bill. Smartwire reserves the right to refuse Service if the Subscriber fails to fulfill standard credit requirements. After Service has been established, the Subscriber will be responsible for the payment of all applicable charges, including taxes, fees and surcharges to avoid discontinuance of Service.
3. Right to Make Credit Inquiries: Subscriber authorizes Smartwire to make inquiries and to receive information about Subscriber’s credit experiences, including Subscriber’s credit report, from others, to enter this information in Subscriber’s file, and to disclose this information concerning Subscriber to appropriate third parties for reasonable business purposes.
4. Disputes. Subscriber shall notify Smartwire of disputed charges or items within sixty (60) days of invoice receipt or online posting, or longer as required by applicable law. Failure to pay charges billed when due (including checks returned for insufficient funds) may result in discontinuance of all Services, the removal of all Equipment (as defined in Section 7 below) and/or imposition of a late payment or service charge. Should Subscriber wish to resume after termination of Service, Smartwire may charge fees for installation, service calls and/or activation. These fees are in addition to all past due charges and other fees. In the event collection activities are required, additional collection charges may be imposed.
5. Late and Missed Payments: Smartwire will send email notification of a failed payment/charge immediately upon the failed payment and at intervals,
thereafter, as described below. If a missed payment occurs, Subscriber is responsible for making a manual payment using their Smartwire account to avoid disruption
in service. Subscriber is also responsible for updating credit card information, if and as necessary.
Subscriber’s service will be disconnected upon missing two (2) payments. Late payment notifications will occur on the following schedule:
| Point in Time | Action by Smartwire | Description |
|---|---|---|
| Upon 1st payment failure | Send 1st email notification. | Subscriber is notified of failed charge and is requested that Subscriber make a manual payment through Subscriber’s online account |
| At 7 days past Subscriber’s billing day | Send 2nd email notification | Subscriber is prompted to make manual payment and informed that service will be disconnected if service remains unpaid after next billing day. |
| At 14 days past Subscriber’s billing day | Send 3rd email notification | Subscriber is prompted to make manual payment and informed that service will be disconnected if service remains unpaid after next billing day. |
| 3 days prior to Subscriber’s next billing day | Send 4th and final email notification | Subscriber is prompted to make a manual payment and is provided with a disconnect notice if bill remains unpaid past the next billing day |
| Upon 2nd payment failure | Send a 5th email notification |
Subscriber's service is disconnected.
Email advises that their service has been disconnected, with information on how to re-active. |
6. Customer Service Charges . Charges may apply for service visits when Smartwire-owned equipment is not the cause of any service degradation, outage, or other problem with your service.
7. Electronic Payment Terms : The following Electronic Payment Terms apply to any electronic auto pay or one-time payment services (“Electronic Payment Services”) that Subscriber may elect to receive:
a. By participating in Electronic Payment Services, Subscriber is (i) representing that Subscriber is the authorized user of the debit card, credit card, or banking account used to make payment to Smartwire, and (ii) authorizing Smartwire to store such account number for future use of such services. Smartwire reserves the right to terminate Subscriber’s continued participation in the Electronic Payment Services for any reason, including without limitation late payment, non-payment, or fraudulent payment of Subscriber’s bill.
b. By electing to enroll in any auto pay services, Subscriber has authorized Smartwire to obtain payment of Subscriber’s then-current statement balance each month by direct transfer of funds from Subscriber’s selected financial institution or credit card account. Smartwire will send Subscriber’s monthly bill statement or notice of online posting of such statement to Subscriber prior to Subscriber’s payment due date. The balance shown as due on Subscriber’s statement will be deducted on or around the payment due date. Subscriber has the right to revoke any recurring auto pay arrangement with Smartwire at any time. Any such revocation will not take effect until after receipt by Smartwire, and will result in the discontinuance of auto pay bill payment(s). After cancellation of auto pay services, Subscriber will be responsible for taking appropriate action each month to pay the Smartwire bill.
c. Subscriber is solely responsible for ensuring that contact information, such as email address, and financial information, such as credit card, checking or savings account numbers, are current and accurate at all times.
d. By electing to use Electronic Payment Services, Subscriber agrees that Smartwire may provide You legal notices regarding any relevant information or records attributable to transactions Subscriber makes using the Electronic Payment Services, in electronic form only.
e. It is Subscriber’s responsibility to protect the confidentiality of any user name or password used in connection with Electronic Payment Services. If Subscriber believes Subscriber’s password or other means to access the Smartwire account has been lost, stolen, or otherwise compromised, Subscriber must notify Smartwire immediately at support@smart-wire.net.
f. Without limitation, Smartwire shall have no liability or responsibility for its inability to process or receive payments Subscriber makes or attempts to make using the Electronic Payment Services in the event circumstances beyond Smartwire’s control prevent Smartwire from doing so or otherwise affect Smartwire’s ability to do so.
g. Subscriber is responsible for all fees and costs related to maintaining a valid payment method including processing charges or annual costs.
h. SMARTWIRE’S SOLE AND ENTIRE LIABILITY AND SUBSRIBER'S EXCLUSIVE REMEDY FOR THE PROCESSING OR DEDUCTION OF AN INCORRECT TRANSFER OF FUNDS HEREUNDER SHALL BE THE RETURN TO YOU OF THE IMPROPERLY TRANSFERRED FUNDS.
8. Payment by Check. If Subscriber makes payment by check, Subscriber authorizes Smartwire to collect such payment electronically.
9. Third Party Processing: Subscriber shall be responsible for any payment processing fees incurred when using a third party to process Subscriber’s payments to Smartwire.
Section II: Equipment
1. Smartwire Property: All Smartwire-provided equipment distributed to and/or installed for use in the Subscriber’s service location(s) by or on behalf of Smartwire (“Equipment”) remains the property of Smartwire,. Equipment installed at the Subscriber’s Service location are intended to remain at the specific Service location and must not be used or relocated off such premises without Smartwire authorization. Subscriber must return all Equipment upon substitution of use or termination of Service. Failure to do so will result in a charge to be determined in accordance with Smartwire's then current schedule of charges for non-returned Equipment, which amount shall be due immediately. Subscriber agrees to pay such charge whether the Equipment is lost (through theft or otherwise), damaged or destroyed.
2. Repair/Replacement: Smartwire will repair and/or replace damaged or defective Equipment, if any, as long as such damage or defect was not caused by misuse or other improper operations or handling by Subscriber. Smartwire shall have the right to presume misuse or other improper operations or handling by Subscriber in the event Subscriber requests repair or replacement more than twice in any twelve (12) month period, or more than three times in any twenty-four (24) month period, and shall have no obligation to fulfill any such repair or replacement. Smartwire is not responsible for the maintenance or repair of Subscriber-provided equipment, including but not limited to connected devices, mobile devices, home telephones, computers, modems, televisions, or any other related Subscriber-provided equipment. A service charge may be imposed upon the dispatch of a technician if there is damage to Equipment due to negligent use or abuse or if no fault is discovered in Smartwire’s system or Equipment. Smartwire makes no warranties, with respect to Equipment or Service provided by Smartwire or with respect to the compatibility of the Service or the Equipment with any Subscriber-provided equipment.
3. WARRANTY DISCLAIMERS. ALL EQUIPMENT IS PROVIDED “AS IS”, AND SMARTWIRE HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A SPECIFIC PURPOSE.
4. LIMITATION OF LIABILITY. SMARTWIRE SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING FROM THE USE, DEPLOYMENT, AND/OR FUNCTIONALITY OF ITS EQUIPMENT, WIRING, SUBSCIBER PURCHASED DEVICES, OR CONVEYED DEVICES. SMARTWIRE HEREBY DISCLAIMS ANY AND ALL CLAIMS ARISING FROM OR ASSOCIATED WITH THE FAILURE, OPERABILITY, PERFORMANCE, DEFECTS OR LOSS, LIABILITY OR DAMAGES ARISING FROM USE OF SUBSCRIBER PURCHASED DEVICES OR CONVEYED DEVICES, ANY OF WHICH SHALL REMAIN MATTERS EXCLUSIVELY BETWEEN THE SUBSCRIBER AND THE MANUFACTURER OF SUCH DEVICES.
5. Sole Remedy. Smartwire’s sole obligation and Subscriber’s sole remedy with respect to any liability or damage caused by Subscriber’s use or deployment of Equipment shall be a refund of fees paid by Subscriber for such Equipment for the previous billing month/cycle.
6. Subscriber Property: Smartwire assumes no responsibility and shall have no responsibility for the condition or repair of any Subscriber-provided equipment/software. Subscriber is responsible for the repair and maintenance of any Subscriber-provided equipment/software. Smartwire is not responsible or liable for any loss or impairment of Smartwire’s Service due in whole or in part to a malfunction, defect or otherwise caused by Subscriber-provided equipment/software.
7. Taxes/Fees: Subscriber agrees to pay any local, state or federal taxes and fees imposed or levied on or with respect to the Services, the Equipment, or installation or service charges incurred with respect to the same.
With respect to fees and taxes imposed by applicable government and regulatory authorities, Smartwire will review the amount it collects in such fees and taxes on a quarterly and annual basis. In the event Smartwire determines that it has collected any fees and/or taxes in excess of sums due to governmental and regulatory authorities, Smartwire will begin refunding such excess fees and taxes to current subscribers within 15 months of the end of each calendar year.
8. Care of Smartwire Property and Service: Subscriber agrees that neither Subscriber nor any other person (except Smartwire’s authorized personnel) will: (A) open, tamper with, service, or make any alterations to the Equipment; nor (B) remove or relocate any Equipment from the service address of initial installation. Any alteration, tampering, removal, or the use of Equipment which permits the receipt of Services without authorization or the receipt of Services to an unauthorized number of outlets, or to unauthorized locations, constitutes theft of Service and is prohibited. Notwithstanding the foregoing, upon receipt of a request by Subscriber, Smartwire shall relocate the Equipment for Subscriber within Subscriber’s residential unit at a time mutually agreed to by Smartwire and Subscriber.
9. Access to Subscriber Premises: Subscriber authorizes Smartwire and its employees, agents, contractors and representatives to access and otherwise enter the Subscriber’s premises to install, inspect, maintain and/or repair the Equipment and, upon the termination of Service, to remove the Equipment from the premises. Smartwire’s failure to remove its Equipment shall not be deemed abandonment thereof.
Section III: Communication
1. Recording of Communications. Subscriber acknowledges and agrees that all communications between Subscriber and Smartwire or employees, agents, contracts, or representatives of Smartwire may be recorded or monitored by Smartwire for quality assurance or other purposes subject to applicable law.
2. Consent to Phone Calls and other Means of Communication. Smartwire may call or text Subscriber or authorize others to call or text Subscriber on its behalf including but not limited to at any number Subscriber provides to Smartwire (or that Smartwire issues to Subscriber ) for any purpose, including marketing Smartwire’s services. Subscriber may not revoke Subscriber’s consent to receive collection-related communications or any other non-marketing communication/notice pertaining to Subscriber’s Service account (e.g., default, service message, etc.), including via calls, messages, texts, or any other means. Subscriber is responsible for charges for incoming text messages on Subscriber’s wireless phone(s).
3. Right to Communication Survives Termination. Smartwire’s right to contact Subscriber as described in this Section survives the termination of these Terms of Service.
4. Notices. Except as otherwise provided in these Terms of Service, Subscriber authorizes Smartwire to provide other notices to Subscriber using any method Smartwire determines appropriate, including by electronic means (for example, email or online posting). Upon Smartwire’s request, Subscriber shall provide Smartwire with a current email address for notifications and communications.
5. Consents. Except as otherwise provided in these Terms of Service, Smartwire may ask Subscriber to provide other consents or authorizations, including by electronic means or email, and Smartwire is entitled to assume that any consent or authorization Smartwire receives in response to such requests has been authorized by Subscriber.
Section V: Security & Privacy
1. Security Requirements. Without abrogating or otherwise limiting Subscriber’s separate obligations to secure Subscriber’s account and equipment under the Terms of Service, Smartwire shall have the right to implement reasonable measures necessary to track, manage, and/or ensure the security of its facilities and/or Internet signals Smartwire transmits or receives, and the connection between any device or application used by Subscriber, members of Subscriber’s household, Subscriber’s guests, or any third parties and Smartwire’s Equipment, system, or other network facilities (whether by physical, WiFi, wireless, software, or other means of connection), including without limitation authentication, access security, or other processes and means.
2. Security Concerns. Without limiting any other rights Smartwire may have under the Terms of Service, Smartwire shall have the right to suspend, freeze, or otherwise cease Service in the event and to the extent necessary to address any security concern that may arise with regard to activity on or through, conditions arising from or caused by the use, availability of, or access enabled at or through Subscriber’s Service, Service location, equipment, or account.
3. Privacy. Subscriber assumes sole responsibility for all privacy, security and other risks associated with providing personally identifiable information to third parties via the Service. To the extent that Smartwire is expressly required to do so by applicable law, Smartwire will provide notice to Subscriber of a breach of the security of certain personally identifiable information about Subscriber. Subscriber agrees that Smartwire may collect and disclose information concerning Subscriber and Subscriber’s use of Service in the manner and for the purposes set forth herein. In order to protect the privacy of Subscriber’s account information, Smartwire may require that Subscriber use a security code or other method, in addition to the user name and password, to confirm Subscriber’s identity when requesting or otherwise accessing account information or making changes to Subscriber’s Service through Smartwire’s customer service representatives. Subscriber may also choose to designate an authorized user of Subscriber’s account (an “Authorized User”), who will be able to access Subscriber’s account information and make changes to Subscriber’s account. Once established, an Authorized User may be required to authenticate his/her identity in the same manner according to Smartwire’s policies.
Section VI: Term and Termination
1. Termination by Subscriber . Unless otherwise terminated, these Terms of Service automatically renew on a month-to-month basis. Subscriber acknowledges that upon such renewal all pricing is subject to change. To terminate any recurring Service, Subscribers must call terminate their service using the Smartwire application, or provide written notice of termination to Smartwire delivered to support@smart-wire.net, and in any event, any such Subscriber-requested termination shall not be effective before the date Smartwire receives such request.
2. Termination by Smartwire.
a. Bankruptcy: Smartwire shall have the right to terminate these Terms of Service immediately in the event that Subscriber makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against Subscriber under any law having for its purpose the adjudication of Subscriber as a bankrupt or the reorganization of Subscriber.
b. Breach: In the event of any breach of the Terms of Service by Subscriber, the failure of Subscriber to abide by the rates, rules and regulations of Smartwire, the failure of Subscriber to provide and maintain accurate registration information, or any illegal activity by the Subscriber using any Service, these Terms of Service may, at Smartwire’s option, be terminated and the Equipment removed. Failure of Smartwire to remove such Equipment shall not be deemed abandonment thereof. Subscriber shall pay reasonable collection and/or attorney’s fees to Smartwire in the event that Smartwire shall, in its discretion, find it necessary to enforce collection or to preserve and protect its rights under these Terms of Service. Smartwire may terminate these Terms of Service or Smartwire may reject an application or block access to or use of any component of any Service for any reason including, but not limited to, if:
i. Subscriber violated these Terms of Service;
ii. The information required in the application process is or becomes incorrect, absent or incomplete;
iii. Subscriber threatened or harassed any Smartwire employee, agent, contractor or representative (e.g., by abusive language, physical threats, etc.);
iv. Subscriber’s credit card issuer refuses a charge or any other payment method fails to compensate Smartwire;
v. There is a violation of the Terms of Service or other agreements with respect to any Service, as determined in the sole discretion of Smartwire; or
vi. The amount of technical support required to be provided to Subscriber is excessive as determined in the sole discretion of Smartwire.
Subscriber further agrees that in the event of termination pursuant to subsections (b) or (c), Smartwire shall have no liability to Subscriber.
3. Obligations Upon Termination: The Subscriber agrees that upon termination of the Terms of Service:
a. Subscriber will pay Smartwire in full for Subscriber’s use of the Equipment and the Services, as applicable, up to the later of the effective date of termination of the Terms of Service, the date on which the Service has been disconnected, or the date on which the Equipment is returned to Smartwire;
b. Subscriber will promptly return all Equipment to Smartwire. In the event that Subscriber fails to return any Equipment within ten (10) days of the termination of the Terms of Service in addition to Equipment charges contemplated hereunder, Subscriber shall be liable to Smartwire in accordance with Smartwire’s then current schedule of charges for non-returned Equipment.
4. Renewal after Cancellation or Termination: Subscriber acknowledges and agrees that in the event of renewal after cancellation or termination of a Service, Subscriber shall be subject to the pricing, warranties, and Terms of Service as are effective at the time of such renewal.
Section VII: Indemnification, Limitation of Liability, and Warranties
1. Smartwire’s Right to Pursue Remedies and Subscriber’s Indemnification Obligations . If Subscriber breaches the Terms of Service, Smartwire has the right to seek compensation from Subscriber for such breach. Additionally, if any person or entity brings a claim against Smartwire that arises out of Subscriber’s relationship with Smartwire, the Services provided to Subscriber, the Terms of Service, or Subscriber’s breach thereof or failure to comply therewith, Subscriber will indemnify, defend (at Smartwire’s exclusive election), and release Smartwire from and against liability and reimburse Smartwire for any losses that Smartwire may incur, including reasonable attorneys’ fees and costs, resulting from such claim. Subscriber’s responsibilities under this Section cover any dispute, whether arising under contract, tort (for example, a negligence or product liability claim), violation of law or regulation or any other legal theory.
2. Disclaimer: Smartwire assumes no liability for any program, services, content or information distributed on or through the Services and Smartwire expressly disclaims any responsibility or liability for Subscriber’s use thereof. Further, Smartwire shall not be responsible for any products, merchandise or prizes promoted or purchased through the use of the Services.
3. Indemnification: In requesting and accepting Smartwire Services, Subscriber agrees to defend, indemnify, and hold Smartwire, including its officers, directors, employees, affiliates, subsidiaries, and authorized agents (individually and collectively, “Smartwire Indemnitees”) harmless from and against any and all demands, claims, suits, judgments, expenses (including without limitation reasonable attorney or witness fees), loss, damages to, or destruction of personal, real, or intellectual property, bodily injury or death of any person, and other liabilities arising from:
a. The installation, operation, provision, or other use of Smartwire Services and/or Equipment;
b. Any violation of Smartwire’s Terms of Service or other published policies or requirements;
c. The negligence, willful misconduct, violation of a third party’s rights, or failure to comply with applicable law by (i) Subscriber, (ii) members of Subscriber’s household, or (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber;
d. Libel or slander resulting from any use of the Services by (i) Subscriber, (ii) members of Subscriber’s household, (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber;
e. Infringement or misappropriation of any patent, copyright, trademark, trade name, service mark, trade secret, or other intellectual property rights (whether by transmission or material or otherwise) by (i) Subscriber, (ii) members of Subscriber’s household, (iii) Subscriber’s guests, or (iv) any other person using the Services provided to Subscriber, including that effected through combination of Subscriber’s use of the respective Service(s) with facilities, equipment, or services provided or used by Subscriber or obtained from third parties; and
f. Any unauthorized, unlawful, or fraudulent use of or access to the Services, except as otherwise provided by applicable law.
The foregoing defense and indemnity obligations exclude damages to the extent caused by the gross negligence or willful misconduct of the Smartwire Indemnitees. Subscriber agrees that Smartwire Indemnitees are not liable for any damages or liability resulting from the loss of Services (whether Internet, VoIP, or other Services), nor will Subscriber make any claims or undertake any actions against Smartwire Indemnitees for loss of Service. Subscriber shall be solely responsible for any damage to or loss of Smartwire Equipment, unless such damage or loss is caused solely by the negligence or willful misconduct of Smartwire Indemnitees.
4. LIMITATION OF LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION APPLY TO ANY ACTS, OMISSIONS AND NEGLIGENCE OF SMARTWIRE AND ITS THIRD PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND EACH OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES).
UNDER NO CIRCUMSTANCES SHALL SMARTWIRE BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH, INCLUDING ANY ACTS OR OMISSIONS BY THIRD PARTY SERVICE PROVIDERS, AGENTS OR SUBCONTRACTORS OF SMARTWIRE, OR RELATING TO ANY SERVICES FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS. SMARTWIRE’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY SMARTWIRE OF ANY OBLIGATION SMARTWIRE MAY HAVE UNDER THESE TERMS OF SERVICE OR APPLICABLE LAW, SHALL BE SUBSCRIBER’S ABILITY TO TERMINATE THE SERVICE OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE EQUIPMENT PROVIDED BY SMARTWIRE. IN NO EVENT SHALL SMARTWIRE’S LIABILITY TO SUBSCRIBER FOR ANY CLAIM ARISING OUT OF THESE TERMS OF SERVICE EXCEED THE AMOUNT PAID BY SUBSCRIBER DURING THE PRECEDING THIRTY (30) DAY PERIOD.
SUBSCRIBER ALSO AGREES THAT IT SHALL NOT BE PERMITTED TO BRING ANY CLAIM WHATSOEVER AGAINST SMARTWIRE THAT RESULTS IN WHOLE OR IN PART FROM SUBSCRIBER’S FAILURE TO COMPLY WITH THESE TERMS OF SERVICE.
THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE GENERAL TERMS.
Section VIII. Miscellaneous.
1. Assignment. Subscriber may not assign these Terms of Service without Smartwire’s consent.
2. Content and Services. All Services are subject to change in accordance with applicable law.
3. Rates. All rates are subject to change in accordance with applicable law.
4. Smartwire’s Reservation of Rights. Smartwire reserves the right to refuse, suspend or terminate Service to any person at any time for any reason not prohibited by law. When practical, Smartwire will provide notice that is reasonable under the circumstances before suspending or terminating Service to an existing Subscriber, and Smartwire will provide any prior notice of suspension or termination that is required by law.
5. Arbitration. At Smartwire’s sole discretion, it may require You to submit any disputes arising from these Terms of Service or use of the Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Ohio state law.
6. Force Majeure: Smartwire shall not be liable for any failure of performance or equipment of any kind (including Smartwire Equipment) due to causes beyond its control, including but not limited to: acts of God, epidemics and pandemics, fire, flood, or other catastrophes; loss of electrical power; any law, order, regulation, direction, action, or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over Smartwire, or of any department agency, commission, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments, or of any civil or military authority; national emergencies; insurrection; riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties.
7. Survival of Terms. In addition to the terms that are specifically noted in these Terms of Service as surviving termination of these Terms of Service, all representations, warranties, indemnifications, and limitations of liability shall survive these Terms of Service. Smartwire’s right to contact Subscriber shall also survive these Terms of Service. All other obligations of Subscriber and Smartwire under these Terms of Service also survive termination if they relate to the period before termination or, if by their terms, they would be expected to survive such termination.
8. Entire Agreement: These Terms of Service and any work or purchase order submitted by Subscriber and accepted by Smartwire constitute the entire agreement between the Subscriber and Smartwire. No undertaking, representation or warranty made by an agent or representative of Smartwire in connection with the sale, installation, maintenance or removal of Smartwire’s Services or Equipment shall be binding on Smartwire except as expressly included herein. Subscriber agrees that, if any portion of these Terms of Service is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and if severed or rendered null and void thereby, the remaining portions will remain in full force and effect. If Smartwire fails to insist upon or enforce strict performance of any provision of these Terms of Service, it does not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms of Service.
