INTERNET SERVICE PROVIDER TERMS AND CONDITIONS
INTERNET SERVICE PROVIDER TERMS AND CONDITIONS
MAY 23, 2023
These Internet Service Provider Terms and Conditions shall be between CloudWyze, Inc., a North Carolina corporation (“CloudWyze”) and the person or entity (“Subscriber”) identified on a service order (“Service Order”). The Internet Service Provider Terms and Conditions and the Service Order(s) are collectively referred to as the “Agreement”. This Agreement applies to CloudWyze’s provision of high-speed broadband internet service and the capability for acquiring or retrieving information from; generating, storing, transforming, processing, or utilizing information on; or making available information to other Internet end points connected directly or indirectly to our network (collectively, the “Service”).
1. Access & Installation; Service.
a. Subscriber authorizes CloudWyze and its subcontractors with a right to enter Subscriber’s property and premises at any time in order to install, maintain, and repair the Service, retrieve CloudWyze leased equipment, fulfill its obligations or exercise its rights under this Agreement. CloudWyze shall provide Subscriber with reasonable advance notice of any such planned access, except when, in the reasonable opinion of CloudWyze, an emergency or other exigent circumstance exist that would require CloudWyze to immediately enter Subscriber’s property and premises. Subscriber understands and agrees that CloudWyze may drill, cut, and otherwise alter improvements on the premises (including walls, flooring, and/or other surfaces) in order to install, maintain, or repair the Service. Subscriber represents and warrants that it owns the property where the Services are to be performed or has obtained permission from any necessary party (e.g., owner, landlord, or building manager, etc.) to allow CloudWyze and its subcontractors reasonable access to install, maintain, and repair the Service and to make any alterations CloudWyze deems appropriate in connection with the foregoing. Subscriber understands, acknowledges and agrees that until a technician arrives at the Subscriber’s premises, the technician will not know whether the Subscriber’s installation, maintenance, and repair will require additional equipment, wiring, connection cable/lines, or other measures such as the removal of tree limbs. Subscriber further acknowledges that CloudWyze’s fees for additional measures to complete the installation process are disclosed in the Service Order and in our Open Internet Transparency Policy.
b. Subject to the terms of this Agreement, CloudWyze grants to Subscriber a limited, personal, non-transferable, and non-exclusive right to use the Service during the Term (as defined below). Subscriber’s use of the Services shall be in accordance with this Agreement and CloudWyze’s Acceptable Use Policy, which is made a part of this Agreement. Subscriber is responsible for providing and maintaining all equipment and software necessary to access the Service. Nothing in this Agreement grants or transfers to Subscriber any ownership rights in the Service, including the software and other intellectual property rights related to the Service.
2. Service Order; Payment. For access to and use of the Service, Subscriber will electronically approve a Service Order(s) which will (i) include accurate and complete billing information including legal name, address, telephone number, and credit card/billing, (ii) provide CloudWyze the authority to process payment via the selected payment methodology, and (iii) require that Subscriber report all changes to this information to CloudWyze as soon as practicable. Subscriber is responsible for all charges to Subscriber’s account. Unless otherwise provided on a Service Order, Subscriber will be billed each month for the Service and any additional usage or services. Subscriber is responsible for paying all charges billed to their account in the manner and method prescribed on the Service Order. CloudWyze is not responsible for any charges or expenses (e.g. returned checks from overdrawn accounts, chargebacks for exceeding credit card limits, etc.) resulting from charges billed by CloudWyze. Delinquent accounts may be subject to late fees, suspended or terminated at CloudWyze’s sole discretion; however, charges will continue to accrue until the account is terminated. CloudWyze may bill an additional charge to reinstate a suspended account. A monthly billing cycle shall commence on the anniversary date of the installation of the Service. Subscriber is responsible for any taxes, including personal property taxes or sales taxes resulting from Subscriber’s use of the Service. CloudWyze has the right to increase any monthly fee with advance written notice to Subscriber. Subscriber will have the option to accept the fee increase or to terminate the Service under the same advance notice requirements in Section 4(a) of this Agreement.
3. Software License. In the event Subscriber installs software distributed by CloudWyze (including software from third-party vendors), CloudWyze grants to Subscriber a limited, non-exclusive, non-transferable and non-assignable license or sublicense, as applicable, to install and use such software, together with its associated documentation, and any updates thereto (“Licensed Software”) in order to access and utilize the Service during the Term. Subscriber agrees to use the Licensed Software solely in conjunction with the Service and for no other purpose. CloudWyze may modify the Licensed Software at any time, for any reason, and without providing notice of such modification to Subscriber. The Licensed Software constitutes confidential and proprietary information of CloudWyze and/or its licensors and embodies trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Licensed Software, including associated intellectual property rights, are and shall remain with CloudWyze and, where applicable, its licensors. Subscriber shall not translate, decompile, reverse engineer, distribute, remarket or otherwise dispose of the Licensed Software or any part thereof. Subscriber may not download, use or otherwise export or re-export the Licensed Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Licensed Software, Subscriber represent and warrant that Subscriber is not located in, under the control of or a national or resident of any country on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
4. Term and Termination.
a. Term. The term of this Agreement shall commence on the effective date of the initial Service Order and continue as provided for in such Service Order or, if silent, one (1) year (“Initial Term”). This Agreement will automatically renew for additional successive terms of the same length unless (i) Subscriber gives CloudWyze written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”) or CloudWyze terminates this Agreement pursuant to Section 4(d).
b. Early Termination. In the event that Subscriber should terminate this Agreement prior to any agreed-upon term, in addition to any other rights that CloudWyze may have, and regardless of the cause of termination or suspension, Subscriber shall pay CloudWyze according to the provisions provided for herein: (i) all payments due through the date of termination, including, but not limited to payments due for equipment not returned as provided in subsection (c); (ii) all Services rendered and reimbursable travel expenses incurred in the performance of this Agreement, including work in progress or any portion of installation or Services completed or in progress up to and including the date at which termination or suspension of work takes effect, regardless of whether such installation has been completed; and (iii) seventy-five percent (75%) of the cumulative fees unpaid and outstanding through the then-current term. For avoidance of doubt, a pre-approved move to another area serviced by CloudWyze, and payment of all corresponding fees, by Subscriber from Subscriber’s existing location to a new location shall not be deemed an early termination for purposes of this Agreement.
c. Equipment Return; Equipment Value Return Protection Plan.
i. If Subscriber leases any equipment from CloudWyze, Subscriber shall return such equipment to CloudWyze no later than seventy-two (72) hours following the termination of this Agreement. Such equipment will be returned in working order and good condition, ordinary wear and tear excepted. In the event the equipment is not timely returned or is not returned in working order or good condition, Subscriber shall pay CloudWyze an amount equal to the then fair market value of such equipment, as reasonably determined by CloudWyze (“Equipment Value”). Any amounts owed or refunded to Subscriber under the terms of this Agreement will be processed as an account credit. Account credits will be applied against future payments owed by Subscriber. In the event an unused account credit exists as of the termination of this Agreement (after applying such credit to any additional amounts that may be owed by Subscriber following the termination), CloudWyze will remit a check in the amount of such account credit to Subscriber within 6 weeks of termination provided. Checks will be sent to the address where the Service was provided, unless Subscriber otherwise notifies CloudWyze at the time of termination that such check should be sent to an alternate address.
ii. Subscribers who elected to pay a monthly premium to avoid fees for failing to timely return equipment or reduce fees for returning equipment not in working order or good condition will have the cumulative value of the premiums paid (“Premiums Paid”) offset against the Equipment Value. If the Equipment Value exceeds Premiums Paid Subscriber will be charged pursuant to subsection (i). There is no refund if the Premiums Paid exceed the Equipment Value.
iii. Subscriber is not permitted to connect any harmful equipment or devices to the leased equipment. Subscriber understands, acknowledges and agrees that failure to comply with this restriction may cause damage to the CloudWyze network and subject Subscriber to liability for damages and/or other liability. Subscriber agrees to not service, alter, modify or tamper with the CloudWyze-leased equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by CloudWyze.
d. CloudWyze Suspension/Termination Rights. CloudWyze reserves the right, in its sole discretion, to suspend and/or terminate Subscriber’s account and use of the Service, with or without notice. Subscriber may terminate its account and this Agreement at any time and for any reason by providing notice of intent to terminate to CloudWyze. Upon the suspension or termination of Subscriber’s Service, CloudWyze shall not be responsible for the return of data stored on CloudWyze’s servers, including web and email servers. Subscriber understands, acknowledges, and agrees that CloudWyze has no obligation to visit Subscriber’s home or premises upon termination to reconfigure Subscriber’s computer(s) or for any other reason other than the return of CloudWyze equipment.
e. Subscriber Exclusive Remedy. If Subscriber is dissatisfied with the Service or any related terms, conditions, rules, policies, guidelines, or practices, Subscriber’s sole and exclusive remedy is to discontinue using the Service which, for avoidance of doubt, does not alter the obligations provided for in subsections (b) or (c).
5. Subscriber Equipment. To use the Service, Subscriber must have a personal computer(s) or other similar device(s) and other equipment such as a modem necessary to connect to the Service. Subscriber understands, acknowledges and agrees that CloudWyze has no responsibility for the operation or support, maintenance or repair of any Subscriber equipment, software or services that Subscriber elects to use in connection with the Service, nor is CloudWyze responsible for any damage that CloudWyze-leased equipment or Service may or will cause to Subscriber equipment.
6. No Resell. Subscriber’s use of the Service is limited to Subscriber’s household or business. Subscriber may not resell, and/or otherwise extend the Service via wires and/or wireless or other means to other users outside of the Subscriber’s immediate household or business. Rental units, whether or not attached to Subscriber’s principal residence or place of business, are considered separate users, and separate Service must be established with CloudWyze for each such rental unit. If Subscriber deploys a personal wireless network that is connected to the Service, Subscriber must secure such network so as to prevent others from accessing it. Subscriber may provide access to the wireless network to members of the Subscriber’s household, visiting friends and family, and Subscriber’s employees and agents, as applicable.
8. Disclaimer of Warranties. THE SERVICE IS PROVIDED AS-IS AND WITHOUT WARRANTY OF ANY KIND. CLOUDWYZE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NONINFRINGEMENT. CLOUDWYZE DOES NOT WARRANT THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERUPTED OR ERROR-FREE, OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE, OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. CLOUDWYZE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR ANY RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLOUDWYZE OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SUBSCRIBER IS ENTIRELY RESPONSIBLE FOR AND ASSUMES ALL RISK FOR THE USE OF THE SERVICE. SUBSCRIBER SHOULD NOT USE THE SERVICE IN HIGH-RISK ACTIVITIES WHERE SUBSTANTIAL DAMAGE COULD RESULT IF AN ERROR OCCURS. CLOUDWYZE DOES NOT WARRANT OR REPRESENT THAT IT’S SECURITY PROCEDURES WILL PREVENT THE LOSS OF OR IMPROPER ACCESS TO SUBSCRIBER’S DATA, FILES OR MATERIALS OR ANY PERSONAL INFORMATION OR NON-PERSONAL INFORMATION. CLOUDWYZE IS NOT RESPONSIBLE FOR TRANSMISSION ERRORS OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER OR THROUGH TELECOMMUNICATIONS LINES OR OTHER TELECOMMUNICATIONS TECHNOLOGY.
9. Limitation of Liability. IN NO EVENT SHALL CLOUDWYZE BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION. INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSSES OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE SERVICES, OR FOR ANY CLAIM BY ANY THIRD PARTY (INCLUDING FOR INTELLECTUAL PROPERTY INFRINGEMENT), EVEN IF CLOUDWYZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE TOTAL LIABILITY OF CLOUDWYZE TO SUBSCRIBER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES PAID BY SUBSCRIBER TO CLOUDWYZE IN THE THREE (3) MONTHS PRIOR TO THE EVENT CAUSING LIABILITY.
10. Uncensored Information. SUBSCRIBER UNDERSTANDS THAT CONTENT AND MATERIALS ON THE INTERNET ARE CREATED AND MAINTAINED BY THIRD PARTIES AND THAT PORTIONS OF SUCH MATERIALS MAY BE SEXUALLY EXPLICIT, OBSCENE, OFFENSIVE, OR ILLEGAL. IN NO EVENT SHALL CLOUDWYZE BE LIABLE TO ANY PERSON OR ENTITY, EITHER DIRECTLY OR INDIRECTLY, WITH RESPECT TO ANY MATERIALS FROM THIRD PARTIES ACCESSED THROUGH THE SERVICES. SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ITS USE OF THE SERVICES AND INTERNET GENERALLY. CLOUDWYZE DISCLAIMS ANY AND ALL RESPONSIBILITY FOR CONTENT CONTAINED IN ANY THIRD-PARTY MATERIAL ACCESSIBLE VIA THE SERVICE.
11. Subscriber Representation, Warranties and Responsibilities.
a. Subscriber represents and warrants that the CloudWyze Service and related equipment installed by CloudWyze shall be used only by Subscriber’s immediate household living with Subscriber at the same Service address, and their visitors.
b. If Subscriber is an individual, Subscriber represents and warrants that he or she is at least the age of majority in his/her state of residence and has legal authority to execute this Agreement. All Subscribers represent and warrant that there are no legal, contractual or similar restrictions on the installation of the CloudWyze equipment in the location(s) and in the manner authorized by Subscriber and agree that Subscriber is responsible for ensuring compliance with and payment of any fees, charges or fines related to applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Service.
c. Subscribers represent and warrant that the Service and CloudWyze equipment shall be used only by Subscriber and by members of Subscriber’s immediate household living with Subscriber at the same Service address, and their visitors.
d. Subscriber represents and warrants: (i) not to assign, transfer, resell or sublicense Subscriber’s rights under this Agreement unless specifically permitted by the terms of this Agreement; (ii) not to redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured; and (iii) to be solely responsible and liable for any and all breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Agreement, whether such breach results from Subscriber’s use of the Service or by another using Subscriber’s equipment or the CloudWyze equipment.
Subscriber represents and warrants that: Subscriber remains solely responsible for Subscriber’s use and any other persons’ use of the Service and any material or content transmitted, downloaded or uploaded, through or via the Service. Subscriber further represents and warrants that Subscriber possesses all rights necessary to transmit such material or content, and that Subscriber understands, acknowledges and agrees that Subscriber is also subject to CloudWyze’s DMCA Copyright Infringement Policy.
12. Exclusive Remedy. Subscriber’s sole right and remedy for breach of this Agreement by CloudWyze if Subscriber is dissatisfied for any reason with the Service is to terminate this Agreement as provided for in Section 4.
13. Indemnity. Subscriber shall indemnify and hold CloudWyze harmless against any and all liabilities, losses, damages, judgments, claims, causes of action, and costs (including attorney fees and disbursements) which CloudWyze may hereafter incur, suffer, or be required to pay, defend, settle (subject to any limitations set forth in this Agreement), or satisfy as a result of Subscriber’s use of the Service. CloudWyze reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber will cooperate with CloudWyze in asserting any available defenses.
14. No Breach or Default. In no event will CloudWyze be liable or responsible to Subscriber, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond CloudWyze’s reasonable control (each, a “Force Majeure Event”), including, without limitation, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 15 days or more.
a. Governing Law & Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the North Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the United States District Court for the Eastern District of North Carolina with respect to federal claims or the courts of the North Carolina in New Hanover County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
b. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
c. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
d. Survival. Section 2 (Service Order; Payment), Section 3 (Software License), Section 4(b) (Early Termination), Section 8 (Disclaimer of Warranties), Section 9 (Limitation of Liability), Section 13 (Indemnity); and Section 15 (General) survive termination or expiration of this Agreement.
e. Consent to Contact. Subscriber expressly authorizes, and specifically consents to allowing, CloudWyze and/or its affiliates, outside collection agencies, outside counsel, or any other agents acting by or on behalf of CloudWyze (collectively, the “CloudWyze Parties”) to contact Subscriber with informational messages regarding Subscriber’s account, including but not limited to contact in connection with any and all matters relating to unpaid past due charges billed by CloudWyze to Subscriber. Subscriber agrees that such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address including a number for a cellular phone or other wireless device or service (collectively, “Contact Information”) that Subscriber has provided, or may in the future provide, to CloudWyze or any CloudWyze Party, or which any CloudWyze Party otherwise identifies as Subscriber’s Contact Information, and to any and all telephone numbers, wireless devices or electronic addresses billed on Subscriber’s CloudWyze account. Subscriber expressly consents and agrees that such contact may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, text messages delivered by an automated system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system, regardless of whether Subscriber incurs charges as a result. Subscriber agrees to provide true, accurate, current and complete Contact Information to CloudWyze and its authorized agents and to promptly update Subscriber’s Contact Information to keep it true, accurate and complete.
g. No Waiver. The failure of CloudWyze to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
h. Additional Terms. Subscriber agrees that: (i) except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement; (ii) regardless of any statute of laws to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filled within one (1) year after such claim or cause of action arose or be forever barred; (iii) CloudWyze can assign all or part of CloudWyze rights or duties under this Agreement without notifying Subscriber; (iv) Subscriber may not assign this Agreement or the Services; (v) if any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable; and (vi) the section titles and paragraph headings in this Agreement are for convenience only and have no legal or contractual effect.
16. Acceptance. By subscribing for this Service online, Subscriber has agreed that the Service will be subject to the terms and conditions of this Agreement and has agreed to be bound hereby.
17. Various Fees: Additional fees for our Service may apply and will be provided upon request from CloudWyze.