October 1, 2024 Version
WeLink Home Broadband Installation and Service Agreement
This WeLink Home Broadband Installation and Service Agreement, together with the Order Form and policies and terms identified below (together the “Agreement”), are entered into between the Customer identified in the Order Form (“Customer” or “you”) and WeLink Communications, Inc. (“WeLink” or “we” or “us”) and sets forth the terms and conditions applicable to the goods and or services provided by WeLink and or its affiliates. Customer and WeLink are each a “Party” to this Agreement and together the “Parties.” Your acceptance of this Agreement occurs by and upon the earliest of: (a) submission of your Order Form, (b) your acceptance of the Agreement electronically or in the course of installing the Software, or (c) your use of the Service.
PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING THE ORDER FORM AND ALL OF THE POLICIES AND TERMS INCORPORATED HEREIN BY REFERENCE.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IT REQUIRES THAT ALL DISPUTES BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN CLASS-ACTION LAWSUITS OR JURY TRIALS.
THE CUSTOMER ORDER FORM MAY INCLUDE A SERVICE PLAN WITH A STATED TERM. CUSTOMERS WITH SUCH PLANS WILL BE SUBJECT TO PAY AN EARLY TERMINATION FEE IF THE CUSTOMER TERMINATES THIS AGREEMENT BEFORE THE EXPIRATION OF SUCH TERM. SEE SECTION 3.1 FOR ADDITIONAL DETAILS.
1. ACCEPTANCE OF AGREEMENT; ORDER FORM; POLICIES AND TERMS; CONSENT TO ELECTRONIC SIGNATURES
- Order Form. Customer has completed and executed the WeLink order form referenced in this Section below, and that incorporates (and is hereby incorporated by) this Agreement (the “Order Form”). The Order Form sets forth the Customer’s Services, Initial Term, Total Monthly Fee, and other applicable terms and conditions. This Agreement includes, and hereby incorporates by reference, the Order Form and each of the following terms and policies:
Additional posted terms and policies may apply to the Services of which we will inform you. We reserve the right to provide notice of new websites or locations for additional terms and policies.
Consent to Electronic Signatures. Customer consents to electronic signatures in connection with this Agreement, including the Order Form, and to receive all notices and copies of documents, including those legally required to be delivered to Customer, in accordance with the E-SIGN Act Disclosure and Consent.
2. SERVICES; SYSTEM; EQUIPMENT; INITIAL TERM; FEES;
2.1 Services. “Services” means internet or other services provided to Customer by WeLink as set forth in and in accordance with the Customer’s Order Form. WeLink currently markets the Services under the names “Leaf”, “Super Anchor”, “Anchor”, and “Seed” (the “Plans”). The Plan is designated on the Order Form and selected by WeLink depending on how the Premises is used in our network infrastructure. In this Agreement, we refer to Leaf Customers as “Non-Infrastructure Customers” and Super Anchors, Anchor and Seed Customers as “Infrastructure Customers” The names of Plans and Plans that are offered are subject to change, addition and removal depending on WeLink’s names.
2.2 The System; Equipment. Services are provided to Customer through a System installed by WeLink on Customer’s Premises. The “Premises” are the building identified in the Order Form that is owned (or, in limited cases, rented by) the Customer. “System” generally refers to the Equipment and installation provided by WeLink at a given Customer’s Premises to provide the Services, including, for example, rooftop mounts and assembly, network receiver(s), modem, router(s), and battery backup. “Equipment” refers to all, or any of, the equipment installed as part of a System and any other equipment that WeLink otherwise provides to Customer. Equipment is further addressed in Article 5. Customer may elect to rent additional Equipment that is offered by WeLink and be charged an applicable monthly rate for the rented equipment.
2.3 Initial Term; Automatic Renewal; Month-to-Month. Services are provided for the initial term, if any, set forth in the Order Form (the “Initial Term”). If the Order Form does not set forth a specified Initial Term, then this Agreement will be in effect on a month-to-month basis. The Initial Term starts on the day WeLink activates the Services for the Customer. After the Initial Term, if any, this Agreement will automatically renew on a year-to-year basis (for Infrastructure Customers) and on a month-to-month basis (for Non-Infrastructure Customers) unless Customer provides notice to WeLink of at least 90 days (for Infrastructure Customers) and 30 days (for Non-Infrastructure Customers) prior to the end of the Initial Term of its intention not to renew by emailing us support@welink.com or by calling us at 1-844-285-9434. The Initial Term, together with any additional time that this Agreement is in effect, shall be referred to as the “Term.”
2.4 Total Monthly Fee; Monthly Statements; Payment. The “Total Monthly Fee” is the monthly amount due for Services, as set forth in the Order Form or as otherwise agreed between the Customer and WeLink, including taxes and fees, if any, except in the circumstances described in Section 2.5. The Total Monthly Fee will include any rented Equipment by the Customer. WeLink shall provide Customer a monthly statement of the Total Monthly Fee and any other amounts due for such month. The Total Monthly Fee, and all other amounts in the monthly statement, are due and payable in advance each month on the due date set forth in such statement. Customer’s monthly statement shall be provided to Customer via Customer’s email address on file unless Customer opts out of such paperless billing in accordance with Section 10.5. Customer shall pay such monthly statements. Such payment methods may include auto-payment in accordance with the terms of Section 2.10. The first Total Monthly Fee is due on the date WeLink activates Services for the Customer, and on every monthly anniversary thereafter. However, if the Customer has Trial Period, then the first Total Monthly Fee is due on the date that Trial Period ends. Any credit due to the Customer account shall be set forth in the Customer’s monthly statement and shall be applied to reduce the Total Monthly Fee. Customer may dispute any invoices or charges to the Customer payment method in writing within 10 days of the invoice date by emailing support@welink.com.
2.5 Taxes, Other Fees. The Total Monthly Fee is inclusive of all taxes, license, permits, costs, fees, or charges assessed by any utility or federal, state, or local governmental body or agency relating to Services that are levied as of the effective date of this Agreement. However, in certain circumstances described below the Customer shall be solely responsible for the payment of any additional taxes, license, permits, costs, fees, or charges assessed by any utility or federal, state, or local governmental body or agency relating to Services, including the installation of the System, that a not already included in the Customer’s Total Monthly Fee. These circumstances are if an applicable government authority levies additional taxes and fees relating to the Services after the effective date of this Agreement. The Customer shall be responsible for the additional amount only. WeLink will generally add any such amounts to the Customer’s monthly statement. The Customer shall pay any such amounts at the same time the Total Monthly Fee is due and payable.
2.6 Price Promise. If Customer’s Order Form provides that Customer is entitled to a Price Promise, then the provisions of this Section 2.6 shall apply. Once a Total Monthly Fee becomes due and payable for a Customer, WeLink will not thereafter increase such Total Monthly Fee during the Initial Term. For any Term after the Initial Term, WeLink will not increase such Customer’s Total Monthly Fee above the rate that other WeLink customers with plans like Customer’s in the applicable market pay for Services. The Customer must continuously maintain the Services and timely pays the Total Monthly Fee and any and all other amounts due (the “Price Promise”). In the event of any interruption in Service by Customer, the Price Promise will no longer apply. This Price Promise applies to the Total Monthly Fee before applying any credits, promotions, or discounts. The forgoing Price Promise shall not limit Customer’s obligation to pay taxes and other amounts under Section 2.5. The Price Promise only applies to the base internet service offer does not extend to rented equipment, service fees, additional services or changes in speed tiers.
2.7 Loyalty Discount. If Customer’s Order Form provides that Customer is entitled to a Loyalty Discount, then the provisions of this Section 2.7 shall apply. Once the Customer has had 24 months of continuous Service subject to the Customer’s Monthly Service Fee and has timely paid all such Total Monthly Fee, then Customer’s Total Monthly Fee shall be reduced by the amount of the Loyalty Discount as set forth in the Order Form. The Loyalty Discount does not extend to rented equipment, service fees, additional services or changes in speed tiers.
2.8 Trial. The Customer’s Order Form may provide the Services to Customer on a trial basis (the “Trial”). In such case, the Services will be provided to Customer at no cost for the trial period that is set forth in the Order Form (the “Trial Period”). The Trial Period will commence when the Services are activated. A Trial Customer may, at any time before the end of the Trial Period, terminate the Trial and the Services, and any future payment obligation under this Agreement, by providing WeLink notice of cancellation by emailing us support@welink.com or by calling us at 1-844-285-9434. In the event of such cancellation, the Termination provisions of Sections 3.2, 3.3, and 3.4 shall apply. If Customer does not provide WeLink notice of cancellation before the end of the Trial Period, then this Agreement shall continue in full force and effect in accordance with its terms and the terms set forth in the Order Form, including the Initial Term, Services, and Total Monthly Fee. In such case, the Initial Term shall be deemed to have commenced when the Services were activated.
2.9 Service fees.
(a) WeLink will provide the initial installation of the System as a part of the Services at no charge to Customer.
(b) After the initial installation, WeLink will not charge a service fee to a Customer for sending a WeLink representative to the Premises to address Service issues arising from a defect in WeLink’s Equipment or installation or an issue that the Customer did not create through the Customers actions or inactions and, in each case, WeLink believes it is necessary for a WeLink representatives to visit the Premises to resolve the Service issue.
(c) WeLink, in its sole discretion, will charge a $95 fee to Customer for sending a WeLink representative to the Premises to address Service issues that WeLink determines:
(i) arose from Customer’s actions or inactions;
(ii) not arose from a defect in WeLink Equipment or installation such as issues arising from Other Devices. “Other Devices” means devices a Customer may use with the Services which are not classified as Equipment. By way of example, “Other Devices” includes but is not limited to monitors, televisions, gaming consoles, keyboards, laptops, CPUs, IoT devices, remote controls, mobile devices, equipment supporting Over The Top (“OTT”) or streaming video devices (examples like Apple TV boxes, Roku devices, Verizon Stream TV devices, or Amazon Firestick or FireCube), virtual assistant devices, power supply and related cords and cables for connectivity; or
(iii) does not arise from the circumstances described in Section 2.9(b) or (d).
(d) Customer qualifies for a no-cost removal and reinstallation of any WeLink Equipment on the Premises’ exterior one time every five years (in the case of Infrastructure Customers) or two years (for Non-Infrastructure Customers), if the Customer gives WeLink at least 30 days prior notice to WeLink and Customer and WeLink work together in good faith to select a time and date mutually agreeable to remove and reinstall such Equipment.
2.10 AutoPay. If you enroll in an automatic credit card billing, automatic payment, or electronic funds transfer plan with us (“AutoPay”), you authorize us or our agent to charge or place holds on the credit or debit card or financial institution account number you provide to us, without requiring a signed receipt. You certify you are the owner of the payment method, authorize us to store this information, and authorize us to automatically charge the amount of your monthly bill(s) each month on the date indicated on your monthly bill, and to charge any amounts outstanding if you the Service is terminated or canceled, which amounts can include without limitation any applicable Early Termination Fees or other cancellation fees and equipment non-return fees, which could be substantial. Closing, canceling or terminating the Service does not cancel or terminate this authorization for remaining amounts due. You agree to provide us with updated credit or debit card or bank account information when needed by calling us at 1-844-285-9434. You acknowledge that, if your card-issuing bank participates in a card updater program and unless you opt out of this service, your bank may provide us with updated card numbers and expiration dates, and we will update our files with this information and continue to charge your card. You agree that WeLink is not responsible for any insufficient funds or other charges you might incur as a result of any attempts to charge or place holds on your credit or debit card or to transfer funds. When payment is made by credit or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer. If charges cannot be processed through your credit or debit card, or if your bank draft or electronic funds transfer is returned for insufficient funds, we may charge you an additional fee. Your enrollment in AutoPay will remain in effect until revoked by you, your financial institution or WeLink and WeLink has reasonable time to process the revocation.
You can cancel your authorization for Autopay by calling us at 1-844-285-9434. If you do so, you may lose certain promotions, credits, or discounts or may be charged additional amounts that may increase your Total Monthly Fee. You also should contact your card issuer or financial institution to advise that you have canceled your enrollment.
3. Termination of Agreement
3.1 Termination By Customer in its Discretion. Customer may terminate this Agreement at its discretion at any time by emailing us at support@welink.com or by calling us at 1-844-285-9434 and state the desired effective date of the termination. Customers with an initial term longer than month to month may incur an early termination fee as described in this Section 3.1 (“Early Termination Fee”). The Early Termination Fee for an Infrastructure Customer is $5 per month for every month remaining in the initial term, and the Early Termination Fee for a Non-Infrastructure Customers is $10 per month for every month remaining in the initial term. The Early Termination Fee will not be charged when the Customer moved to a location where WeLink cannot provide service. Solely for Infrastructure Customers, the Early Termination Fee will not be charged if the Customer has provided at least 90 days’ notice to WeLink before the termination date or allows WeLink to continue to have Equipment and System remain installed on the Premises and such Equipment and System continues to receive electrical power.
3.2 Termination, Modification, or Suspension by WeLink.
(a) WeLink shall have the right, at WeLink’s discretion, to terminate this Agreement in its entirety, or to modify, discontinue or suspend any feature of the function of the Service. No Early Termination Fee shall apply to such termination by WeLink.
(b) WeLink shall also have the right to terminate this Agreement and/or terminate, suspend, or throttle speeds of the Service immediately, without prior notice: (i) in the event of any loss or material impairment, for any reason (including physical, legal, or practically), of WeLink’s ongoing and unfettered Access Rights in accordance with Article 6; (ii) to comply with any law, regulation or order of a state or federal agency, court, or arbitrator; (iii) in the event of any Misconduct (as defined below); (iv) in the event of a Force Majeure Event (as defined below); or (v) if Customer becomes a debtor in a bankruptcy proceeding.
(c) “Misconduct” shall mean any material misconduct by Customer or any Authorized User related to WeLink, this Agreement, or the Services, including but not limited to any of the following:
(i) any conduct that WeLink determines violates this Agreement or WeLink’s Terms of Use;
(ii) any conduct that involves the use of abusive, threatening, or unreasonable conduct toward any WeLink employees or representatives or its equipment, whether in person, over the phone, or in writing;
(iii) any abusive, fraudulent, or unlawful use of the Services;
(iv) providing WeLink with false or misleading information about Customer, any Authorized User, Unauthorized User, or Representative or the use of the Services by Customer or such users, including inaccurate information related to Customer’s creditworthiness;
(v) any use of the Services in a manner that: negatively affects WeLink’s network, other customers, or operations; infringes anyone’s intellectual property rights or violates their privacy rights; generates spam or abusive messaging or calling; or results in the publication of threatening, offensive, or illegal materials;
(vi) any reselling, unauthorized use, or grant of access to the Services; or
(vii) any failure to make all required payments when due.
3.3 Effect of Termination. In the event of the termination of this Agreement for any reason, including by Customer or by WeLink, the following shall apply:
(a) unless otherwise provided by applicable law, Customer shall be responsible for any amounts due to WeLink as set forth in a final statement provided to Customer as provided in Section 2.4; such amounts shall be collected by WeLink automatically (if Customer is enrolled in WeLink’s automatic payments as provided in Section 2.10) or shall be paid by Customer immediately following such statement;
(b) Customer shall not be entitled to proration or refund of the Total Monthly Fee even if the Services are terminated in the middle of a billing cycle;
(c) any credit, prepaid service, Customer balance, or unused portion of the Service will not be refunded or credited back to Customer;
(d) any and all Customer licenses, if any, to use any software associated with the Service shall be terminated;
(e) notwithstanding the termination of the Services, WeLink may elect, in its discretion, and Customer hereby authorizes WeLink, to for the duration of the Post-Termination Access Period (defined below): (i) continue to have the Equipment and System remain installed in the Premises, activated and in use on behalf of WeLink and its other customers; and/or (ii) may remotely disconnect the Customer’s System without notice at such time as WeLink may determine in its discretion;
(f) Customer shall perform all Customer obligations related to the Equipment as set forth in Section 3.4;
(g) The Price Promise, Loyalty Discount, and any other promotions or discounts that had been applicable shall cease and shall not apply in the event of any future Services provided to Customer; and
(h) WeLink shall have the right, at its discretion. to delete any data, files, or other information related to Customer, Customer’s Account, or the Services on the System or otherwise in WeLink’s possession.
3.4 Equipment Following Termination. Customer acknowledges that the Equipment is valuable and may be used by WeLink for other customers or uses the following termination, that WeLink may choose in its discretion to leave the Equipment installed on the Premises for the next owner or occupant of the Premises, and that WeLink may also choose in its discretion to leave Equipment installed in the Premises for a period following the termination of this Agreement for the benefit of other WeLink customers. Customer understands and agrees that the Equipment should only be removed by, or at the direction of, WeLink representatives. Therefore, in the event of the termination of this Agreement for any reason, Customer:
(a) shall continue to provide WeLink unfettered Access Rights to the Equipment until the earlier of: (i) 120 days following the effective date of the termination of this Agreement; or (ii) the date Customer no longer has the legal right to access the Premises (the “Post-Termination Access Period”)
(b) shall cooperate with WeLink and its employees or representatives for the removal of the Equipment;
(c) shall provide WeLink notice of any change of its possession of the Premises by emailing support@welink.com; and
(d) shall not seek to move, change, alter, remove, disconnect, adjust, or otherwise access the Equipment except at the express authorization and direction of WeLink or its authorized representatives.
If WeLink cannot remove any of the Equipment, or continue to use the Equipment on behalf of WeLink or other customers during the Post-Termination Access Period, or in the event any Equipment is damaged or missing, then Customer shall pay WeLink, at WeLink’s sole discretion, as liquidated damages for any such loss or impairment, which amount may be substantial. Such amount shall be in addition to any applicable Early Termination Fee.
3.5 Infrastructure Ineligibility. Customer understands that participation as an Infrastructure Customer is based on a number of factors that may not all be known at the time the Order Form and Agreement are entered into. If WeLink later determines prior to the installation of the System that Customer is ineligible to be an infrastructure Customer, upon informing the Customer of such ineligibility, this Agreement shall be terminated and Customer shall not be required to pay any applicable Early Termination. Customer acknowledges that the Customer must sign another order form in the event such Customer subsequently becomes a Customer, which may be on different terms than any prior arrangement.
4. CUSTOMER ACCOUNT; AUTHORIZED USERS; CUSTOMER REPRESENTATIVES; CUSTOMER SECURITY.
4.1 Customer Account. Customer shall have a single account for the use of the Services at the Premises (“Account”). Customer is responsible for any activity that occurs in connection with Customer’s Account.
4.2 Customer Security. WeLink does not guarantee the security of the System, the Equipment, the Services, Customer’s Account(s), Customer’s information or data on the internet, or any third party-services related thereto. See also Article 7 (Disclaimer of Warranties). Customer is solely responsible for the security of the foregoing, including ensuring that Customer’s credentials for accessing or using Customer’s Accounts, such as Customer’s passwords, personal identification numbers, and any additional personal information, are secure. If Customer learns of or has reason to suspect any unauthorized use of any Account or of the Service, please notify WeLink immediately.
4.3 Authorized Users; Unauthorized Users. Within the WeLink System, Customer may designate certain qualified individuals as “Authorized Users.” Customer hereby authorizes any such individual so designated to use the Services in accordance with the terms of this Agreement. Customer shall be responsible for all acts or omissions of all Authorized Users. Customer shall also be responsible for all acts or omissions of any other individual (even if not an Authorized User) who accesses the System or Services through Customer’s Account (“Unauthorized Users”). All Authorized Users and Unauthorized Users shall be subject to the same terms and conditions of this Agreement that apply to Customer, including its arbitration provision and privacy policy. Customer shall provide a copy of all relevant provisions of this Agreement to all Authorized Users and inform them of their obligations under it.
4.4 Customer Representatives. Customer acknowledges that with respect to Access Rights, WeLink, including WeLink representatives, may interact with any individual over 18 years of age who is present at the Premises when Customer is not present or available, or who answers a WeLink call placed to an authorized Customer contact number provided (“Customer Representatives”). Customer expressly authorizes Customer Representatives, whether or not an Authorized User, to act on Customer’s behalf with respect to Access Rights, and WeLink and its representatives to rely on any such Customer Representative as the duly authorized agent of Customer with respect to Access Rights and to rely on information related to Access Rights provided by any such Customer Representative.
5. EQUIPMENT, PREMISES, POWER
5.1 Equipment. Customer acknowledges that WeLink exclusively owns all rights and title to the Equipment and that WeLink has the sole right to take, reclaim or transfer possession of any or all of the Equipment at any time for any purpose as determined by WeLink in its sole discretion, without prior notice (except to the extent, if any, that notice is required for Access Rights under Section 6). Customer agrees that no Equipment shall be deemed a fixture. Customer agrees that Customer is not entitled to any compensation or reimbursement as a result of any repossession or transfer of the Equipment. Customer agrees that Customer, Authorized Users, and anyone accessing the Services through Customer’s Account shall use the Equipment exclusively for its intended purpose, in accordance with the terms of this Agreement, and solely to receive the Services. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE WELINK EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE PREMISES OR OTHERWISE EXPRESSLY AUTHORIZED BY US, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than us or our agents to service the WeLink Equipment. We have no responsibility for the installation, operation, support, maintenance or repair of any Other Devices that you choose to use in connection with the Services.
5.2 Ownership of Premises/Owner Permission. Customer represents and warrants to WeLink that Customer is the owner of the Premises or, if a tenant of the Premises, that the Customer has the right to enter into this Agreement and perform Customer’s obligations under this Agreement, including granting Access Rights to WeLink for the sole purposes of performing WeLink’s obligations under this Agreement, including installing the Equipment and to allow WeLink and its subcontractors to install the System and to take the necessary or appropriate steps to do so, which may include drilling holes in exterior and interior walls, placing screws in the roof, mounting or installing antennae masts on the roof, and/or attaching equipment or elements of the System to structural parts of the Premises. Customer agrees to indemnify, defend and hold harmless, WeLink, its employees, agents, subcontractors, and affiliates against any claim related to the installation of the System, including that WeLink was not authorized by the Premises owner to enter the Premises, install the Equipment, and/or provide the Services.
5.3 Change of Ownership or Occupancy of Premises. If at any time Customer is no longer the owner of the Premises or has the right to grant access and use of the Premises in accordance with this Agreement, Customer warrants to take reasonable steps to assign this Agreement to the subsequent owner and will use reasonable efforts to cause the subsequent owner to grant WeLink the rights set forth in this Agreement and comply with this Agreement. Customer agrees to notify WeLink 90 days prior (for Infrastructure Customers) and 60 days (for Non-Infrastructure Customers), or as soon as reasonably practicable, that the Customer is moving from the Premises as a result of a transfer of ownership of or property rights to the Premises. All provisions of this Agreement that relate to WeLink’s rights and Customer’s obligations with regard to the Equipment and Premises shall survive any termination or expiration of this Agreement or the Services.
5.4 Additional Customer Representations and Warranties. Customer also represents and warrants to WeLink that: (a) the Services shall be utilized by Customer and Customers’ Authorized Users solely at the Premises; (b) Customer has the right and authority to grant WeLink the rights set forth in this Agreement (including Access Rights to the Premises); (c) Customer shall, and has the right and authority to, comply with this Agreement, and (d) Customer occupies and resides in the Premises and shall provide WeLink prompt written notice pursuant to Section 5.3 of any anticipated change in ownership or possession. Customer shall provide WeLink immediate written notice if any of the warranties set forth in Section 5.2 or this Section 5.4 cease, or are likely to cease, to be accurate in full.
5.5 Electric Power. Customer agrees to maintain continuous and reliable electric power to the Premises and to each component of the System sufficient to enable the System and each of its components to remain in continuous operation, subject to normal power company outages. As part of this obligation, Customer shall maintain electric power service to the Premises at all times, shall remain current in the payment of its electric bills, and shall ensure adequate, continuous, and reliable internal electric wiring to each component of the System. If the Customer terminates Service, the Customer must maintain power to the System so long as the equipment remains on the Premises in accordance with Section 3.4. In the event of any interruption of power to the Premises, or any component of the System, Customer shall use its reasonable best efforts to restore power as soon as possible. Customer acknowledges that its fee for the Services reflects a reduction in the cost of such electric power and that Customer is not entitled to reimbursement for any such costs, and the System will not be reimbursed for this power.
CALIFORNIA RESIDENTS: IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY CLAIM OF LIABILITY AGAINST WELINK UNDER CALIFORNIA CIVIL CODE, CHAPTER 2 §1940.9.
NEW YORK RESIDENTS: IF YOU ARE A RESIDENT OF NEW YORK, YOU HEREBY WAIVE ANY CLAIM OF LIABILITY AGAINST WELINK UNDER NEW YORK SHARED METER LAW, N.Y. PUB. SERV. LAW § 52(1)(B).
6. ACCESS RIGHTS; INSTALLATION; DUTY TO NOTIFY.
6.1 Access Rights. Customer shall ensure that WeLink shall have prompt access to the Premises as WeLink determines to be necessary or convenient under this Agreement, including (but not limited to) for WeLink to install, maintain, repair, service, check, relocate within the Premises, replace or reclaim the System or any items of the Equipment (“Access Rights”). For the purposes of Access Rights, “WeLink” shall include WeLink contractors or subcontractors. Customer shall provide Access Rights so long as this Agreement remains in effect. Access Rights shall also survive the termination of this Agreement for the Post-Termination Access Period as provided Section 3.4. WeLink shall provide Customer notice pursuant to Article 10 before accessing the Premises unless the Customer has opted out of receiving such notifications or it is impractical to do so; provided, however, Customer confirmation of receipt of such notice shall not be necessary for WeLink to access the external Premises, including the roof. In each instance, Customer shall provide WeLink uninterrupted access to the Premises. Customer understands that more than one visit may be necessary for the work to be completed and that WeLink may need to access the external Premises multiple times as the Premises may be part of WeLink’s larger infrastructure to service its other customers. In the case of a network disruption, WeLink may need to access the external premises outside of normal business hours.
6.2 Installation and Maintenance of the System and Infrastructure. Customer will enable and grant WeLink and/or its representatives uninterrupted access to the Premises as necessary or appropriate to install, maintain, repair, service, check, relocate within the Premises, replace or reclaim the System or any items of the Equipment with respect to the Customer or as necessary or convenient for WeLink’s larger infrastructure for other customers. Customer acknowledges that multiple visits may be required to complete such activities. Customer shall fully inform WeLink, before WeLink begins such activities, of any Pre-Existing Conditions (defined below). Based on such disclosure, WeLink will identify the location(s) in the Premises where the Equipment will be installed, subject to the Customer’s approval, which shall not be unreasonably withheld. If asbestos or other hazardous material or conditions are encountered during installation (or otherwise), WeLink will cease work until Customer has, at Customer’s sole expense, obtained a written certification from a licensed asbestos abatement or hazardous material contractor that continuation of work will not pose any danger to Customer or WeLink’s personnel. In no case shall WeLink be liable for any cost, damage, personal injury, or liability related to asbestos or other hazardous material or condition at the Premises. Customer will have the right to review and inspect all Equipment after WeLink completes the installation of such Equipment.
6.3 Consent to Modifications of Premises. Customer hereby consents to WeLink modifying the Premises as necessary or convenient to install (or repair, replace, service, or reclaim) the System, including but not limited to drilling holes in exterior and interior walls, placing screws in the roof, mounting or installing antennae masts on the roof, and/or attaching Equipment or elements of the System to elements of the Premises.
6.4 Customer Representatives. WeLink shall only access the inside of the Premises if the Customer or a Customer Representative is present. WeLink may rely on such Customer Representative in accordance with Section 4.4. Customer shall use its reasonable best efforts to grant and enable WeLink representatives prompt access to the internal Premises. WeLink may access the outside of the Premises even if the Customer or Customer Representative is not present, including the roof.
6.5 Customer Duty to Inform – Pre-Existing Conditions. Customer has the affirmative duty fully inform WeLink (or ensure that any Customer Representative shall) on each occasion before WeLink accesses any portion of the Premises for any reason (including installation or otherwise) of each and any locations in the Premises containing obstructions, impediments, hazardous materials or potentially hazardous conditions (for example, pipes, wires, asbestos, pets, animals or construction), structural issues or existing damage (e.g., damaged siding or fascia), whether apparent or concealed, that might cause any risk to WeLink personnel, damage the Equipment or impact the appropriate location(s) in the Premises to install the Equipment (“Pre-Existing Conditions”).
6.6 Customer Duty to Inform – Damage, Malfunctioning, Etc. Customer shall immediately notify WeLink of any damage, abnormality, or malfunctioning of the System or performance issues with the Service. Provided that any such damage, abnormality, malfunctioning, or performance issue was not caused by the Customer’s negligence or violation of its obligations under this Agreement, WeLink will repair, service, or replace the necessary Equipment at no charge to the Customer. Any such notice shall be in accordance with Article 10 of this Agreement and provide WeLink with a detailed description of the System issue. WeLink can service or repair the System in any commercially reasonable manner within its sole discretion and may keep all replaced parts.
7. DISCLAIMER OF WARRANTIES
7.1 The Services (which, for the purposes of this Section, shall include the System and all Equipment) are provided on an “as is” and “as available” basis, without warranties or guarantees of any kind. To the greatest extent permitted by law, WeLink and its parents, subsidiaries, and affiliates, and their past, present, and future officers, employees, agents, partners, licensors, successors, and assigns, expressly disclaim all warranties of any kind, whether oral, express, implied, or statutory, including but not limited to the implied warranties of title, merchantability, fitness for a particular purpose, non-infringement, and any warranties implied by a course of performance, course of dealing, or usage of trade. No one is authorized to make warranties on WeLink’s behalf. WeLink does not represent, warrant or guarantee that the Services will meet Customer’s requirements, be of a particular quality or speed, or will be uninterrupted, accurate, secure, maintained, and kept free from viruses or other harmful components. WeLink makes no warranty of any kind, express or implied, regarding the quality, accuracy, or validity of any data or information available on, residing on, or passing through WeLink’s networks or the System. WeLink cannot and does not represent, warrant, or guarantee the privacy or security of any Customer information or of Customer’s account, including that an unauthorized person will obtain access to Customer’s information or Customer’s Account. Nor does WeLink represent, warrant or guarantee that the Services are suitable for use in any situation in which absolutely accurate data transmission or security is required, or that could result in personal injury, property damage, or financial loss. WeLink does not represent, warrant, or guarantee that the Services will be interoperable or compatible with Customer’s hardware or software or that any such incompatibility will not lead to damage or loss of data. Customer shall be solely responsible for the backup of any information or data on WeLink’s System. Customer agrees that it is using the Services at Customer’s own risk.
7.2 Customer should expect to see internet speeds as set forth in the Order Form. However, WeLink does not guarantee any particular speed because there are many factors which may impact the speed experienced by any particular internet user at any particular time. Internet service delivered over wireless networks may be interrupted, delayed, or otherwise limited for a variety of reasons, including environmental conditions, unavailability of radio frequency channels, congestion from other users, system capacity, network management, power outages, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, equipment or infrastructure damages or modifications and repairs, proximity of antennas and/or cell towers, the location and rotation of antennas, cell tower outage or site outage, maintenance work at a cell tower or antennae site, blockage of or interference with the signal between the end user premises and the cell tower or antennae, problems with the facilities of interconnecting carriers and/or power outages. In addition, speed can be impacted the technology with the Premises (e.g. the inside wiring, local Wi-Fi, home network and/or local access network) and the number of subscribers simultaneously using the network; specific characteristics of the location from which you are accessing the internet; specific characteristics of your intended destination on the internet; overall traffic on the internet; Wi-Fi connectivity; the capacity or performance of your network devices, routers, gateways or modems; the servers with which you must communicate with in order to reach your intended destination and/or access the content you are trying to access; internal and external network management factors.
7.3 The Services are not available in all areas and may not be available at certain speed tiers (or at all) at your location, even if our initial testing, a third party website and/or any sales representative or other personnel associated with WeLink indicated that your location qualified for a particular speed tier.
8. LIMITATIONS OF LIABILITY
8.1 General. CUSTOMER UNDERSTANDS AND ACCEPTS THAT WELINK HAS NO CONTROL OVER THE ACTS AND CONDUCT OF THIRD PARTIES AND THAT CUSTOMER IS IN THE BEST POSITION TO SAFEGUARD AND PROTECT CUSTOMER’S PERSONAL INFORMATION AND ACCOUNT FROM UNAUTHORIZED ACCESS. CUSTOMER AGREES THAT WELINK IS NOT RESPONSIBLE FOR LOSSES INCURRED AS A RESULT OF CUSTOMER’S OR A THIRD PARTY’S USE OF CUSTOMER’S SERVICE AS A SOURCE OF AUTHENTICATION OR VERIFICATION IN CONNECTION WITH ANY SOCIAL MEDIA, EMAIL, FINANCIAL, CRYPTOCURRENCY, OR OTHER ACCOUNTS. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT WELINK HAS THE RIGHT, TO THE GREATEST EXTENT PROVIDED BY APPLICABLE LAW, TO LIMIT THE SCOPE AND EXTENT OF ITS POTENTIAL LIABILITY TO CUSTOMER AND ANYONE CLAIMING THROUGH CUSTOMER AND THAT WELINK’S ABILITY TO CONTRACTUALLY LIMIT ITS POTENTIAL LIABILITY TO ITS CUSTOMERS PERMITS IT TO OFFER AND PROVIDE ITS PRODUCTS AND SERVICES AT FAIR AND REASONABLE PRICES.
8.2 Exclusion of Consequential Damages. ACCORDINGLY, TO THE GREATEST EXTENT PERMITTED BY LAW, WELINK AND ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THEIR PAST, PRESENT, AND FUTURE OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, SUCCESSORS, AND ASSIGNS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES TO CUSTOMER, ANY AUTHORIZED USER, ANY CUSTOMER REPRESENTATIVE, ANY UNAUTHORIZED USER OR BENEFICIARY OF WELINK PRODUCTS AND SERVICES OR ANY PERSON CLAIMING THROUGH CUSTOMER (COLLECTIVELY “CLAIMING PARTIES”), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, PUNITIVE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT ARE LIMITED TO, DAMAGES FOR PERSONAL INJURY; PROPERTY DAMAGE; OR LOSS OF REVENUE, PROFITS, BUSINESS, GOODWILL, USE, DATA, OR OTHER TANGIBLE OR INTANGIBLE LOSSES (EVEN IF WELINK HAS BEEN INFORMED OF THE POSSIBILITY OF THOSE DAMAGES). SUCH EXCLUDED DAMAGES INCLUDE, FOR EXAMPLE, ANY RESULTING FROM: (A) USE OF WELINK PRODUCTS AND SERVICES (WHICH INCLUDES EQUIPMENT, SOFTWARE, AND INSIDE OR OUTSIDE WIRING); (B) THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES; (C) THE ACTIONS OR INACTION OF WELINK OR ITS AGENTS CONCERNING THE SERVICES, THE SYSTEM, THE EQUIPMENT, ACCESS RIGHTS OR CUSTOMER’S ACCOUNT; (D) ANY ACTION OF A THIRD PARTY, SUCH AS UNAUTHORIZED ACCESS TO CUSTOMER’S ACCOUNT OR SERVICES (INCLUDING THE USE OF CUSTOMER’S ACCOUNT OR SERVICES TO ACCESS A THIRD-PARTY ACCOUNT); OR (E) ANY ALLEGED ACTIONS OR REPRESENTATIONS, STATEMENTS, PROMISES, OR AGREEMENTS BY WELINK OR ITS AGENTS THAT ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT INCLUDING RELATING TO THE USE, PERFORMANCE, SUITABILITY, SAFETY, RELIABILITY, SECURITY, OR ANY OTHER ASPECT OR ATTRIBUTE OF SERVICES.
8.3 Disclaimer of Liability. IN ADDITION, TO THE GREATEST EXTENT PERMITTED BY LAW, AND EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH IN SECTION 8.4, WELINK AND ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THEIR PAST, PRESENT, AND FUTURE OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, SUCCESSORS, AND ASSIGNEES SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER CLAIMING PARTY FOR ANY DAMAGES, PERSONAL INJURY OR LIABILITY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, RESULTING IN ANY WAY FROM: (A) THE INSTALLATION, MAINTENANCE, REMOVAL, REPLACEMENT OR TECHNICAL SUPPORT OF THE SYSTEM, THE EQUIPMENT OR THE SERVICES, OR THE EXERCISE OF ANY OTHER ACCESS RIGHTS, EVEN IF RESULTING FROM THE NEGLIGENCE OF WELINK OR ITS INSTALLER OR OTHER REPRESENTATIVE; (B) ANY UNAUTHORIZED ACCESS TO CUSTOMER’S ACCOUNT, INFORMATION OR SERVICES (INCLUDING THE USE OF CUSTOMER’S ACCOUNT OR SERVICES TO ACCESS A THIRD-PARTY ACCOUNT), EVEN IF THE UNAUTHORIZED ACCESS WAS THE RESULT OF THE NEGLIGENCE BY A WELINK EMPLOYEE, REPRESENTATIVE, AGENT, OR ANY PERSON OR ENTITY PURPORTING TO ACT ON WELINK’S BEHALF; (C) ANY INABILITY TO REACH 911 OR OTHER EMERGENCY SERVICES, ANY ALLEGED INTERFERENCE WITH ALARM OR MEDICAL MONITORING SIGNALS, OR ANY FAILURE OF ALARM OR MEDICAL MONITORING SIGNALS TO REACH THEIR INTENDED MONITORING STATIONS; (D) THE USE, INABILITY TO USE, OR THE LACK OF INTEROPERABILITY BETWEEN THE SERVICES AND ANY THIRD-PARTY HARDWARE, SOFTWARE, OR SERVICE, EVEN IF CHARGES FOR THE THIRD-PARTY HARDWARE, SOFTWARE, OR SERVICE APPEAR ON CUSTOMER’S WELINK BILL; (E) THE LOSS OF CUSTOMER’S INFORMATION, SUCH AS MISSED OR DELETED VOICEMAILS, TEXT MESSAGES, EMAILS, PICTURES, OR FILES; OR (F) ANY INTERRUPTION, ERROR, LIMITATION, DELAY IN ANY SERVICE, OR ANY OTHER PROBLEM CAUSED, IN WHOLE OR IN PART, BY CUSTOMER OR SOMETHING OUTSIDE OF WELINK’S CONTROL, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL CONDITIONS, EMERGENCY CONDITIONS, POWER OR NETWORK OUTAGES, TRANSMISSION ERRORS, EQUIPMENT DAMAGE OR REPAIRS, LIMITS IN SYSTEM CAPACITY, UNAVAILABILITY OF RADIO FREQUENCY CHANNELS, GOVERNMENTAL ACTIONS, LABOR DISPUTES, RIOTS, TERRORISM, OR THE ACTS OF THIRD PARTIES.
8.4 Exclusive Remedy. Customer’s sole and exclusive remedy for any damage, abnormality, or malfunctioning of the System or performance issues with the Service, is for Customer to terminate the Services or for WeLink to obtain the replacement or repair of any defective Equipment provided by us subject to the terms of Section 6.6.
8.5 Cap; Time for Bringing Legal Action. In addition, unless prohibited by law, WeLink’s total liability to Customer or any Claiming Party (under any legal theory) is a credit or refund that shall not exceed the total amount of charges Customer paid us for the applicable WeLink Service during the shorter of (i) the preceding 24-month period or (ii) the period in which Customer experienced the issue giving rise to Customer’s claims. Moreover, unless prohibited by law, Customer or any Claiming Party must commence any legal action, including filing a demand for arbitration, within two years of the date of the event or facts giving rise to such action or shall waive the right to pursue that claim.
8.6 Claims Against Third Parties; Severability. Each of the foregoing limitations set forth in this Article 8 will apply to any claim that Customer or any Claiming Party makes or brings against any third party to the extent that WeLink would be required to indemnify that third party. If applicable law restricts or prohibits applying any provision of this Article 8, all other limitations set forth in Article 8 or elsewhere in this Agreement will apply to the greatest extent permitted by law.
9. INDEMNIFICATION
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, CUSTOMER AGREES TO RELEASE, HOLD HARMLESS, INDEMNIFY, AND DEFEND WELINK AND ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND THEIR PAST, PRESENT, AND FUTURE OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS OF ANY PERSON OR ENTITY, INCLUDING ANY CLAIMING PARTY, FOR DAMAGES, LOSSES, COSTS, FINES, PENALTIES, OR EXPENSES, INCLUDING ATTORNEY’S FEES, OF ANY NATURE ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY: (1) CUSTOMER’S OR ANY CLAIMING PARTY’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE, ANY SERVICE; (2) CUSTOMER’S OR ANY CLAIMING PARTY’S VIOLATION OF THIS AGREEMENT; (3) CUSTOMER’S OR ANY CLAIMING PARTY’S VIOLATION OF LAW; (4) CUSTOMER’S OR ANY CLAIMING PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT; (5) INFRINGEMENT OF ANYONE’S INTELLECTUAL PROPERTY RIGHTS; OR (6) ANY OTHER CLAIM, DEMAND, ACTION, OR COMPLAINT BY ANY PERSON OR ENTITY CLAIMING BY OR THROUGH CUSTOMER, ANY AUTHORIZED USER OR ANY CLAIMING PARTY THAT IN ANY WAY ARISES OUT OF OR RELATES TO THIS AGREEMENT, THE SERVICES OR THE SYSTEM.
10. COMMUNICATIONS; NOTICES; DISCLOSURES; CUSTOMER CONSENT
10.1 General. Any reference in this Agreement to a party providing “notice” to the other party shall mean notice per this Section 10. Customer hereby expressly consents to the notice and other provisions of this Section 10, except as otherwise required by law. Customer agrees that any communication to Customer using any of the communication methods in this Section 10 shall constitute “notice” to Customer under this Agreement and are sufficient to be deemed to be received by Customer.
10.2 Types of Communications by WeLink. There are a variety of types of communications WeLink may make to Customer pursuant to this Agreement, including, for example, monthly statements, notices relating to the terms of this Agreement, pass-through costs, matters related to the Service, including updates, equipment upgrades, maintenance, installations, outages, and other matters, regulatory matters and marketing materials including, for example, promotional materials for the products or services of WeLink or third-party partners.
10.3 Customer-Provided Contacts. Customer, in one or more forms, including the Order Form, has provided WeLink one or more phone numbers, e-mail addresses, mailing addresses, and or other communication methods (and may in the future provide WeLink additional and or alternative such communication methods) for WeLink to use to communicate with Customer (“Customer-Provided Contacts”). The Customer Provided Contacts may include one or more Customer personal mobile phone numbers.
10.4 Customer Consent to WeLink Communications. Customer hereby agrees that WeLink and its current and future affiliates, assignees, successors, agents, and outside collection agencies (“WeLink Representatives”) may contact Customer using any contact information that Customer provides to WeLink or any WeLink Representative, such as a phone number, mailing address, and email address, as well as by including messages on or inserts with any bill for Customer’s Services. The Customer consents to receive calls, text messages, emails, and other communications using such contact information or any Customer Provided Contacts to the extent permitted by applicable law. Customer may revoke its consent to be contacted by WeLink by emailing a request to support@welink.com unless the contact is required to effectuate the Customer’s Services in which case such consent cannot be revoked. This is the Customer’s exclusive means to revoke its consent to be contacted by WeLink.
10.5 Paperless billing. WeLink’s default option is to provide Customer notice of invoice and balance electronically (“Paperless Statement”) as part of a WeLink monthly statement to Customer as set forth in Section 2.4. Customer will be deemed to have received any notice included in Customer’s Paperless Statement when such statement is made available by WeLink via email. Customer can opt-out of receiving Paperless Statements and receive such statements in paper through the mail in accordance with our E-SIGN Act Disclosure and Consent. Customer will be deemed to have received any notice included in a monthly statement three days after WeLink mails such statement to Customer. Customer may lose credits, promotions, or discounts if Customer opts out of receiving Paperless Statements.
11. SOFTWARE; END USER LICENSE AGREEMENT
If Customer connects to the Services by using, downloading, or installing an application or other software that WeLink made available, either directly or through vendors (the “Software”), Customer’s use of the Software is subject to this Agreement and any End User License Agreement (“EULA”) for the Software.
11.1 Definition of Software. The term “Software” means the following: (a) any application related to the Services or this Agreement, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation, and other components; (b) any updates, modifications, or enhancements to it; and (c) any specific WeLink or vendor website to which the Software directs Customer via any browser.
11.2 License Grant. WeLink (or for vendors’ Software, the vendor) remain the owner of the Software, which isn’t being sold to Customer. So long as Customer complies with the terms of this Agreement and any EULA provided with the Software, WeLink grants Customer a revocable, nonexclusive, nontransferable, limited right to install and/or use the Software on a single computer or device that Customer owns and controls and to access and use the Software on such device. WeLink is not responsible for any material or content that Customer transmits, stores, deletes, records, or plays using the Software.
11.3 Restrictions on Use. Customer may use the Software only in strict adherence to the terms of this Agreement, the EULA, and the terms of any other WeLink agreements associated with Customer’s device. Customer may not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of or decrypt the Software; (b) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Software; (c) violate any applicable laws, rules, or regulations in connection with Customer’s access or use of the Software; (d) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of WeLink or its affiliates, partners, assignees, successors, suppliers or the licensors of the Software; (e) other than resale by an WeLink-authorized reseller, use the Software for any revenue-generating endeavor or commercial enterprise other than the use of this Software to participate in our Services; (f) use the Software for creating a product, Service, or software that is, directly or indirectly, competitive with or in any way a substitute for any Services, product, or software offered by WeLink; (g) use the Software to send automated queries to any web site or to send any unsolicited commercial email; or (h) use any proprietary information or interfaces of WeLink or other intellectual property of WeLink in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Software.
11.4 Export Limits. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. The Software and any underlying technology may not be exported outside the United States or to any foreign entity or “foreign person” as defined by U.S. government regulations, including without limitation, anyone who is not a citizen, national, or lawful permanent resident of the United States.
12. ASSIGNMENT; SUBCONTRACTORS
You may not assign your right to use the Services without our authorization. You may not assign your rights and obligations under this Agreement. WeLink may freely assign this Agreement, in whole or in party, any of our rights and obligations, or any debt you owe us, without notifying you.
WeLink shall have the right to use subcontractors for the Services, including the installation. This Agreement shall apply to such subcontractors and the work or services they provide and protect them to the same extent it protects WeLink.
13. ACCESS BY MINORS
WeLink is concerned about the safety and privacy of all its users, particularly children. For this reason, children under the age of thirteen should not be permitted access to the Service unless allowed by an Authorized User, their legal guardian. Customer understands that by permitting a child to access the Service, Customer is providing the child access to email, message boards, clubs, instant messages, the internet, and a broad range of third-party content. Please remember that the Services are designed to appeal to a broad audience. It is Customer’s responsibility to determine whether the Service is appropriate for a minor.
WeLink provides that Customer may take advantage of the access controls of the Service that allow Customer to block access to certain types of content Customer may feel are inappropriate for minors. However, WeLink strongly recommends that Customer remain diligent in the supervision of any minors in their use of the Service and the internet. Access controls provided through WeLink Services are intended as a guide only. Neither WeLink nor its licensors can be responsible for any content accessed by Customer or minors, whether or not Customer takes advantage of the access controls we provide. In addition, neither WeLink nor its licensors guarantee the accuracy of such access controls. Customer agrees that Customer will not hold WeLink liable for any loss or damage resulting from using such access controls.
14. PIRACY
It is a violation of several U.S. federal and state laws to receive the Service, or any portion of the Service, without paying for them. The penalties for violating such laws can range from imprisonment to civil damage awards.
15. COMMUNICATION ASSISTANCE FOR LAW ENFORCEMENT ACT
Customer understands that WeLink, as an internet service provider, is subject to the Communications Assistance for Law Enforcement Act (“CALEA”), CALEA requires that WeLink provide certain information about Customer upon government request, including a subpoena, warrant, or court order. In response to such government request, WeLink may be required to disclose, including to law enforcement agencies, Customer records and/or their content, including, with respect to, telephone calls, emails messages (including attachments), and internet usage data. WeLink is not required to provide notice to Customer of any such government request or any disclosure made by WeLink related thereto.
16. WELINK INTELLECTUAL PROPERTY; THIRD-PARTY SOFTWARE; WELINK MARKS
16.1 WeLink Intellectual Property. Customer agrees that the Services, the Equipment, the System, the Website, the firmware or software used to provide or in conjunction with the Services or as part of the Equipment or System and the WeLink Marks (together “WeLink Intellectual Property”) are exclusively owned by WeLink, are proprietary and confidential and may be and/or are protected by trademark, copyright, patent and/or intellectual property laws. Nothing in this Agreement grants Customer any right or license to use (including by implication, estoppel, or other legal theory), any WeLink Intellectual Property, except the limited, revocable, and non-transferable right to use WeLink’s Intellectual Property solely as required to use the Services in accordance with and subject to the terms of this Agreement. Any and all rights of WeLink, including to WeLink Intellectual Property, that are not expressly granted in this Agreement are hereby reserved and retained by WeLink. Nor does Customer have any intellectual or other property rights in any information that WeLink provides or uses to deliver the Services, such as any account, phone number, or email addresses provided to Customer.
16.2 Third-Party Software. WeLink’s Service, Equipment or System may utilize or include third-party software that is subject to open source and/or third-party license terms (“Third-Party Software”). Customer acknowledges and agrees that Customer’s right to use such Third-Party Software as part of the Services is subject to and is governed by the terms and conditions of the open source and/or third-party licenses applicable to such Third-Party Software, including, without limitation, any applicable acknowledgments, license terms, and disclaimers contained therein and any changes, amendments or updates thereto (“Third-Party Software Terms”). In the event of a conflict between the terms of this Agreement and any Third-Party Software Terms, the terms of the Third-Party Software Terms will control Customer’s use of the relevant Third-Party Software. In no event will any WeLink Intellectual Property, or any part thereof, be deemed to be “open source” or “publicly available” software. Customer agrees that Customer’s use of the Service, and the WeLink Intellectual Property is subject to all Third-Party Software Terms.
16.3 WeLink Marks. Customer understands and agrees that the company name “WeLink” and the name of any affiliate of WeLink, and any logos, product or service names, design marks, and slogans related thereto are trademarks and/or service marks owned by and used under license from WeLink (the “WeLink Marks”). Customer shall not use any WeLink Mark in any advertising, publicity, or in any other commercial manner without the prior written consent of WeLink, which may be withheld for any or no reason.
16.4 Copyright Infringement and Digital Millennium Copyright Act. WeLink respects the intellectual property rights of others. If Customer believes that any Customer information has been copied in connection with the Services and posted, stored, or transmitted in a way that constitutes copyright infringement, in accordance with the Digital Millennium Copyright Act (“DMCA”), please notify WeLink by emailing support@welink.com.
17. ARBITRATION
THE FOLLOWING ARBITRATION PROVISIONS ARE IMPORTANT. CUSTOMER SHOULD READ CAREFULLY TO ENSURE THAT CUSTOMER UNDERSTANDS THESE PROVISIONS.
THIS AGREEMENT REQUIRES ARBITRATION TO RESOLVE DISPUTES AND LIMITS THE REMEDIES THAT WOULD OTHERWISE BE AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE. SUBJECT TO THE “EXCLUSIONS” PARAGRAPH BELOW, WELINK AND CUSTOMER AGREE TO ARBITRATE ANY DISPUTES AND CLAIMS ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, THE SERVICES, OR MARKETING OF THE SERVICES. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING AN INDIVIDUAL ACTION ON ANY MATTER OR SUBJECT IN SMALL CLAIMS COURT.
THIS AGREEMENT MEMORIALIZES A TRANSACTION IN INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS. A PARTY WHO INTENDS TO SEEK ARBITRATION MUST FIRST SEND TO THE OTHER A WRITTEN NOTICE OF INTENT TO ARBITRATE, ENTITLED “NOTICE OF INTENT TO ARBITRATE” (“NOTICE”). THE NOTICE TO WELINK SHOULD BE ADDRESSED TO ATTN: LEGAL DEPARTMENT 3301 N THANKSGIVING WAY SUITE #100, LEHI, UT 84043 . THE NOTICE MUST DESCRIBE THE BASIS OF THE CLAIM OR DISPUTE AND THE SPECIFIC RELIEF SOUGHT. IF THE PARTIES DO NOT REACH AN AGREEMENT WITHIN THIRTY (30) DAYS AFTER THE NOTICE IS RECEIVED, THEY MAY COMMENCE AN ARBITRATION PROCEEDING. THE ARBITRATION SHALL BE GOVERNED BY THE CONSUMER ARBITRATION RULES, AS MODIFIED BY THIS AGREEMENT, (COLLECTIVELY, “AAA RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE PARTIES SHALL SHARE THE COST OF AAA AND OF THE ARBITRATOR EQUALLY. EACH PARTY SHALL BEAR ITS OWN COSTS IN CONNECTION WITH ANY ARBITRATION. THIS MEANS THAT CUSTOMER IS RESPONSIBLE FOR ANY AND ALL COSTS THAT CUSTOMER INCURS IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS UNLESS OTHERWISE REQUIRED UNDER APPLICABLE LAW. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND WELINK ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY.
RIGHT TO OPT-OUT. IF CUSTOMER DOES NOT WISH TO BE BOUND BY THESE ARBITRATION PROVISIONS, CUSTOMER MUST NOTIFY WELINK IN WRITING WITHIN THIRTY (30) DAYS FOLLOWING THE DATE THAT WELINK FIRST GIVES CUSTOMER NOTICE OF CUSTOMER’S RIGHT TO OPT OUT. CUSTOMER MAY OPT OUT BY MAIL TO THE ARBITRATION NOTICE ADDRESS PROVIDED ABOVE. SUCH WRITTEN NOTICE MUST INCLUDE CUSTOMER’S NAME, ADDRESS, AND WELINK ACCOUNT NUMBER, AS WELL AS A CLEAR STATEMENT THAT CUSTOMER DOES NOT WISH TO RESOLVE DISPUTES WITH WELINK THROUGH ARBITRATION.
EXCLUSIONS.
CUSTOMER AND WELINK AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION: 1. ANY INDIVIDUAL ACTION BROUGHT BY CUSTOMER OR WELINK ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; 2. ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; 3. ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICES.
THE FOREGOING ARBITRATION PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. IF ANY ARBITRATION CLAUSE IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THAT SPECIFIC CLAUSE WILL BE SEVERED FROM THIS ARBITRATION PROVISION, AND THE REMAINDER OF THE ARBITRATION PROVISIONS WILL BE GIVEN FULL FORCE AND EFFECT.
18. WAIVER OF CLASS ACTION RIGHTS AND OR CLAIMS
NEITHER CUSTOMER NOR WELINK SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS, OR ARBITRATE CLAIMS IN A REPRESENTATIVE CAPACITY, INCLUDING WITHOUT LIMITATION AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, IN CONNECTION WITH ANY DISPUTE. UNLESS BOTH CUSTOMER AND WELINK AGREE, NO ARBITRATOR OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE CLASS PROCEEDING.
19. MISCELLANEOUS
19.1 Entire Agreement. This Agreement, including all policies and terms incorporated by reference, any other documents for which a hyperlink is included, and any additional terms related to the Services constitutes the entire and only agreement between the Parties and supersedes and replaces any prior or contemporaneous oral or written understanding, representation, or agreement between the Parties or any statement made or promise made in any marketing materials or by any WeLink employees or agents.
19.2 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19.3 Governing Law. This Agreement, including all matters relating to its validity, construction, performance, and enforcement, shall be governed by applicable federal law, including the rules and regulations of the Federal Communications Commission, and the laws and regulations of the State of Delaware, except to the extent the laws of the state in which the Premises are located requires otherwise.
19.4 Operational Limits; Force Majeure. WeLink’s ability to provide the Services is subject to the equipment’s and associated facilities’ availability and operational limitations, including third-party networks that WeLink does not control. Customer understands and agrees that temporary interruptions or delays of the Services may occur and that WeLink is not liable for them. In addition, WeLink shall not be liable or responsible to Customer, nor be deemed to have defaulted 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 or results from acts or circumstances beyond the reasonable control of WeLink including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or telecommunication breakdown or power outage (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give notice in writing to WeLink to terminate this Agreement.
19.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under the law, that provision will be deemed null and void, and the remaining provisions of this Agreement will remain in full force and effect.
19.6 Third Party Beneficiaries. Except as may be expressly stated otherwise in this Agreement, any third party who uses or benefits from the Services shall not be a third-party beneficiary of this Agreement and shall not have the right to enforce this Agreement against Customer, WeLink (including its parents, subsidiaries, and affiliates, and their past, present, and future officers, employees, agents, partners, licensors, successors, and assigns), or anyone else.
19.7 Customer Ability to Contract. By proceeding to activate, use, or pay for the Service, Customer represents and confirms that Customer is over the age of majority and has the capacity to enter into binding contracts. In addition, if you’re using WeLink Services on behalf of any entity, such as a corporation or other organization, you’re accepting this Agreement on that entity’s behalf. If that entity has separately entered into a business agreement with WeLink, those business terms control.
19.8 Changes to Agreement. WeLink may add, modify, or delete any terms, conditions, rates, or fees for any Service at any time, including to the Order Form, this Agreement and any documents incorporated in this Agreement. WeLink will provide Customer with notice of all changes that are materially adverse to Customer (this does not include changes in fees or surcharges imposed by the government and passed onto Customer or changes to rates, fees, or surcharges within limits set forth in this Agreement or any documents incorporated herein) by email, bill insert or message, text or another message, posting on the website for Customer WeLink Service, or another practicable method. WeLink may provide Customer with notice of non-material changes at its sole discretion. Customer’s continued use or payment for WeLink Services after the effective date of the change means Customer has accepted the change.
19.9 Conflicting Terms. This Agreement supersedes any prior agreement regarding WeLink Services. In the event of a conflict between this Agreement and an applicable EULA, this Agreement controls unless the EULA specifically states otherwise. The English version of this Agreement is the original one. The English version controls if there is a conflict between it and any translated version.
19.10 Survival. Notwithstanding the termination or expiration of this Agreement for any reason, the following provisions of this Agreement shall survive such termination: Return of Equipment (Section 3.4), Access Rights (Article 6), Disclaimer of Warranties (Article 7), Limitations of Liability (Article 8), Indemnification (Article 9), Governing Law (Section 19.3), and any other provision that by their sense and context continues to apply after termination, including if they relate to the period before termination.
19.11 Territory Specific Terms.
The following provisions apply if you are a resident of Washington, D.C.:
BUYERS RIGHT TO CANCEL
If this Agreement was solicited at or near your residence and you do not want the goods or services, you may cancel this Agreement by mailing a notice to WeLink. The notice must say that you do not want the goods or services and must be mailed before midnight of the third business day after you signed this Agreement. The notice must be mailed to: WeLink Communications, Inc., 3301 N Thanksgiving Way Suite #100, Lehi, UT 84043. You can also call us at 1-844-285-9434 or email us at support@welink.com. If you cancel, WeLink may not keep any of your cash down payment if any was given
