Thank you for choosing FreeAir.tv Device and our service!
FreeAir.tv is happy to answer any questions you may have (including questions regarding billing, installation, equipment and service) and to provide you with technical and other customer support. You may contact us 24 hours a day, any day of the year online from your account page.
For purposes of this FreeAir.tv Devices and Service Agreement (the “Agreement”) and any customer agreement(s) applicable to the service plans(s) under which you are receiving Services and/or equipment from FreeAir.tv (each, a “Service Agreement”):
(i) “you” and “your” refer to you, the FreeAir.tv subscriber; and
(ii) (ii) “FreeAir.tv,” “FreeAir,” “we,” “us” or “our” refer to FreeAir, Inc. or, where applicable under the particular circumstances, third-party billing agents.
“FreeAir.tv” is a registered trademark of FreeAir.tv, Inc.
THIS AGREEMENT, TOGETHER WITH ANY APPLICABLE SERVICE PLAN AGREEMENT, SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH FREEAIR WILL PROVIDE ITS SERVICES AND EQUIPMENT TO YOU. THIS AGREEMENT IS EFFECTIVE UNTIL WE CHANGE OR REPLACE IT. IF YOU ARE A NEW FREEAIR. CUSTOMER, YOUR ACTIVATION OF A FREEAIR ACCOUNT AND RECEIPT OF FREEAIR SERVICES OR EQUIPMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE AN EXISTING FREEAIR CUSTOMER, WE WILL NOTIFY YOU OF ANY CHANGES TO, OR REPLACEMENT OF, THIS AGREEMENT, AND YOUR CONTINUED RECEIPT OF FREEAIR SERVICES OR EQUIPMENT FOLLOWING RECEIPT OF SUCH NOTICE SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGED OR REPLACED AGREEMENT. IF YOU ARE AN EXISTING CUSTOMER AND DO NOT WISH TO ACCEPT ANY CHANGED OR REPLACED AGREEMENT, YOU MUST NOTIFY US IMMEDIATELY AND WE WILL, AT OUR OPTION, EITHER CANCEL YOUR SERVICE OR ALLOW YOU TO CONTINUE TO RECEIVE YOUR SERVICES UNDER THE PREVIOUS VERSION OF THIS AGREEMENT.
This user agreement governs your purchase and use of products and services offered by FreeAir.tv Inc. (including FreeAir Devices, mobile and device apps, and websites). By clicking on an “I agree” or similar button you acknowledge that you have read, understood, and agreed to this agreement, including the parts about arbitrating any disputes, waiving any right to a jury trial and giving up the right to bring or participate in a class action.
1. THE FREEAIR SERVICE
A. Services Defined. “Services” shall mean all video, audio, data, interactive and other programming services and all other services that are currently available from FREEAIR (whether subscription, pay-per-view or otherwise) and that we may provide to customers in the future.
B. Minimum Service Levels. We sometimes offer discounted rates for FreeAir products and/or FreeAir service subscriptions, when you agree to subscribe to the FreeAir service for a minimum commitment term (such as 1 year). If you cancel your subscription to the FreeAir service before the end of your minimum commitment term, you agree to pay us the applicable early termination fee of $75 (unless you cancel during our money-back guarantee period).
C. Programming Availability. Certain Services, including without limitation, some subscription Services, sporting events and broadcast network Services, may be blacked out in your viewing area; if you circumvent or attempt to circumvent any of these blackouts, you may be subject to legal action. If the location at which you are receiving Services is a wagering location, you are not eligible to receive certain channels, including without limitation, Racetrack TV. You must be at least 18 years of age, or the applicable age of majority where you reside, to order or receive adult-oriented programming services.
D. Changing Your Service Selection. Unless otherwise specified in this Agreement or any applicable Service Plan Agreement(s), you may change your service selection online in your account page.
E. Multi-Month Subscriptions. For multi-month subscriptions, you may downgrade your Services only when you renew. You may not downgrade your Services during the term of a multi-month subscription.
F. Ordering Pay-Per-View. You may use your device and on-screen program guide to order pay-per-view Services through your FreeAir application.
G. Accessing the Internet Through Your Devices. Some of our Devices can be used to access websites and information on the Internet. FreeAir does not have any control over such websites and information, and we do not make any representations, warranties or guarantees as to the availability or content of such websites and information, including without limitation: (i) the accuracy, availability, sequence, completeness, timeliness, copyright compliance, legality, content, validity, or quality of any such websites or information; or (ii) whether using the software contained in such Devices may result in accessing unintended, inappropriate or objectionable content. We may change, limit, suspend, disable and/or remove your ability to access the Internet using your Devices at any time without notice. We may also limit or restrict the websites and information that you may access on the Internet using your Devices at any time without notice.
H. Private Viewing Only. FreeAir provides Services to you solely for viewing, use and enjoyment in your private space. You agree that no Services provided to you will be viewed in any areas open to the public, commercial establishments or other residential locations. Services may not be rebroadcast or performed, and admission may not be charged for listening to or viewing any Services. If your Services are viewed in an area open to the public, a commercial establishment or another residential location, we may disconnect your Services and, in addition to all other applicable fees, you must pay us the difference between the price actually paid for Services and the full applicable rate for such Services, regardless of whether we have the right to distribute such Services in such other location.
I. Changes in Services Offered. We may add, delete, rearrange and/or change any and all Services that we offer, as well as the prices and fees related to such Services, at any time, including without limitation, during any term commitment period to which you have agreed. If a change affects you, we will notify you of such change and its effective date. In the event that we delete, rearrange or change any Services, we have no obligation to replace or supplement such Services. You are not entitled to any refund because of a deletion, rearrangement or change of any Services.
J. Promotional Offers and Items. If a third party, such as an independent FreeAir retailer, integrator or private distributor, offered you a promotional offer or item in connection with your subscription to the Services, such third party is wholly responsible for fulfilling such promotional offer or providing such promotional item, and FreeAir is not in any way responsible for such fulfillment unless the promotional offer or item was offered with FreeAir’s prior authorization, approval, permission or knowledge.
2. BILLING POLICIES; PAYMENTS FOR SERVICES; FEES
A. Payments. You agree to pay all amounts billed for Services, as well as all taxes, fees and other charges, if any, that are now or may in the future be assessed in connection with any Services you receive from us, and any other charges due and owing to us. State and local taxes or reimbursement charges for gross earnings taxes imposed on providers for transmission of programming in some states may apply. Unless you prepay for a multi-month subscription to Services or prepay for all Services as required by your participation in a Pre-Pay Promotion, we will bill you monthly in advance for most Services and in arrears for other Services such as pay-per-view ordered by you or anyone who uses your Equipment, whether with or without your permission, until you cancel your Services. Multi-month subscription customers and Pre-Pay Promotion customers will be billed based on your pre-pay period (multi-month subscriptions) or monthly (Pre-Pay Promotion customers), and must make all payments in advance of the due date on your bill in order to continue receiving your Services; you must also pre-pay for all other Services, such as pay-per-view, ordered by you or anyone who uses your Equipment, whether with or without your permission.
B. Restarting your Services. If you do not pay your bill in full by its due date, or you at any time otherwise fail, neglect or refuse to make timely payment for your Services, we may disconnect your Services, and in such event we will be wholly relieved from any and all of our duties and obligations under this Agreement. If your Services are disconnected for non-payment or any other reason, FreeAir may require that you pay, and you agree to pay, before we reconnect your Services, all past due charges, a deposit equal to a minimum of one month of service charges, and all outstanding balances accrued through the date of such disconnection. If your Services are disconnected for non-payment or any other reason, you will no longer be eligible, even if you pay to restart your Service, to receive any remaining credits or promotional pricing that you would have been eligible to receive had your Services not been disconnected. Unless required by applicable law, deposits will not be held segregated from other funds and will not earn or accrue interest. Promotional pricing is valid only at the time of installation.
C. Attorneys’ Fees/Collections. If we use an attorney or a collection agency to collect any money you owe us or to assert any other right that we may have against you, including without limitation, any breach of any agreement you may have with FreeAir or one of our affiliates, you agree to pay the reasonable costs of such collection or other action. These costs may include, without limitation, the costs of a collection agency, reasonable attorneys’ fees and court costs. If you believe you have been billed in error or you would like to make any other requests for a billing statement credit, you must contact our customer service center by telephone or in writing within twenty (20) days after the date you receive the bill for which you are seeking correction. Failure to timely notify us of a dispute will constitute your acceptance of the corresponding bill. You must pay undisputed portions of any billing statement before the next billing statement is issued or you must pay a Late Payment Fee. All payments for Services must be made directly by you to us, unless we authorize otherwise; for example, FreeAir shall have no obligation to provide Services for which payment is made by you to a third party or payment is made by a third party on your behalf.
D. Early Termination Fees. Depending on your specific Service Agreement, you may incur fees for disconnecting your service before the expiration of a commitment period or downgrading your service below any applicable minimum service requirement during a commitment period (each an “Early Termination Fee”). Early Termination Fee is calculated based on the remaining term of your agreement multiplied by monthly payment, for example, if your monthly payment is $1.99 and remaining term is 10 month, you will pay $10.99.
3. 30-day MONEY-BACK GUARANTEE
Watch More. Pay Less. Be Happy with FreeAir. We offer a 30-day money-back guarantee on all CloudAntenna leases and purchases from and on all newly-activated FreeAir service subscriptions. Return any item you lease or purchase within 30 days of the order shipment date and we will give you a full refund (with no early termination fee). To start the return or cancellation process login into account page.
Please note about our 30-day money-back guarantee:
A. Shipping and handling charges are non-refundable.
B. You will be responsible for all return shipping costs.
C. Only initial activations of the FreeAir service are eligible for this offer (so renewals, payment plan changes, and hardware replacements are not eligible).
D. We will charge your credit card on file the full retail price (plus tax) fee for returns missing any documentation, accessories or packaging.
E. We will refuse returns of damaged merchandise or items that show wear and tear.
F. We will charge your credit card on file the MSRP (plus tax) for returned items we do not receive within 15 days of the date your return is processed (less the amount you already paid).
4. RETURNS
After 30 days, we do not accept any returns for refunds. Only items that have been purchased from us can be returned to us. FreeAir products purchased through third-party retailers must be returned to the third party in accordance with their respective returns and refunds policy.
5. CANCELLATION OF SERVICE
A. Continuation of Services. Your subscription to Services will automatically renew until you cancel your Services or we otherwise disconnect your Services, in each case as provided herein or in any applicable Service Agreement.
B. Cancellation Policies. You may cancel your Services for any reason at any time by going online in your account. Please be aware that certain Service Agreements have an optional or mandatory term commitment period and if you cancel your Services prior to the expiration of an applicable optional or mandatory term commitment period, certain early termination or cancellation fees may apply.
C. Disconnection of Services. In addition to all other rights that FreeAir may have to disconnect your Services, FreeAir may disconnect your Services if: (i) you fail to pay any bill in full when it is due; (ii) we receive confirmation that you have received Services, or any part of the Services, without paying for them; (iii) you otherwise violate the terms and conditions of this Agreement or any applicable Service Agreement; (iv) you transfer, encumber or relocate any leased Equipment (unless you relocate such Equipment as part of a residential move into an area within which you can permissibly continue to receive such Services); (v) you assign or attempt to assign any of your rights, duties or obligations under this Agreement or any applicable Service Agreement; (vi) you commence any act or filing of bankruptcy or bankruptcy proceedings are commenced against you.
D. No Credits. If your Services are cancelled or disconnected for any reason, you still must pay all outstanding balances accrued, including without limitation, any applicable fees. Except in certain limited circumstances, charges for Services, once charged to your account, are non-refundable, and no refunds or credits will be provided in connection with the cancellation of Services. If you received a discounted price due to a promotion, and you cancel prior to any applicable expiration of that promotion, you are not entitled to any refund or credit for the unused portions of such discounted price. If you received a discounted price in exchange for your agreement to pay for your Services on a multi-month basis, and you cancel your Services prior to the expiration of your multi-month subscription, you are not entitled to any refund or credit for the unused portions of your multi-month subscription.
6. EQUIPMENT
A. Equipment. In order to receive Services you must purchase or lease certain reception equipment consisting primarily of a FreeAir compatible TV or Device(s) and applicable TV or Satellite antenna (collectively, “Equipment”).
B. Additional Devices. We may choose to allow you to place additional Devices on your account. If we allow you to do so, each additional Devices will be authorized to receive the same Services as your initial Devices. All of your Devices must be located at the same residence and continuously connected to the broadband home network. If you wish to receive Services at two different residential locations, you must open a separate account for each location, unless otherwise specifically authorized by FreeAir. You may not directly or indirectly use a single account for the purpose of
authorizing Services for multiple FreeAir Devices that are not all located in the same residential location and connected to the same broadband home network. If we later determine that you did, we may disconnect your Services and, in addition to all other applicable fees, you agree to pay us the difference between the amounts actually received by us and the full retail price for the Services authorized for each FreeAir Device on your account.
D. Cloud DVR. FreeAir’s Cloud-based digital video recorder (“Cloud DVR”) service allow you to record programming in digital format. Total available recording time varies depending on your service and the nature of the programs being recorded. FreeAir does not guarantee access to or recording of any particular programming or that any such programming will not be deleted from your Cloud DVR service. Most programming is the copyrighted material of the third party that supplies it; is protected by copyright and other applicable laws; and may not be reproduced, published, broadcast, rewritten, or redistributed without the written permission of the third party that supplied it (except as permitted by the “fair use” provisions of the U.S. copyright laws).
E. Broadband Connection. To optimize the operation of your Equipment, you must continuously connect each FreeAir Devices on your account to the same land-based broadband network. Failure to connect each Device to the same broadband network may result in interruption or disconnection of Services.
F. Devices Alterations. FreeAir may, through periodic downloads, alter the software, features and/or functionality in your FreeAir Devices; provide data and content to Cloud DVR services; store and remove data and content of Cloud DVR services; and send electronic counter-measures to your FreeAir Devices. FreeAir will use commercially reasonable efforts to schedule these downloads to minimize interference with or interruption to your Services, but shall have no liability to you for any interruptions in Services arising out of or related to such downloads. FreeAir may from time to time cease supporting one or more FreeAir Device models.
G. Proprietary Components and Software. FreeAir Devices contain components and software that are proprietary to FreeAir and its licensors. You agree that you will not try to reverse-engineer, decompile or disassemble, nor will you tamper with or modify, any software or hardware contained within any Devices. Such actions are strictly prohibited and may result in the termination of this Agreement, disconnection of your Services and/or legal action.
H. Software License. You are licensed to use the software provided in your FreeAir Device(s), as updated by FreeAir, its licensors and/or its suppliers from time to time, solely in executable code form, solely in conjunction with lawful operation of the FreeAir Device(s) that you purchased or leased, and solely for the purposes permitted under this Agreement. You may not copy, modify or transfer any software provided in your FreeAir Device(s), or any copy of such software, in whole or in part. You may not reverse engineer, disassemble, decompile or translate such software, or otherwise attempt to derive its source code, except to the extent allowed under any applicable laws. You may not rent, lease, load, resell for profit or distribute any software provided in your FreeAir Device(s), or any part thereof. Such software is licensed, not sold, to you for use only under the terms and conditions of this license, and FreeAir, its licensors and its suppliers reserve all rights not expressly granted to you. Except as stated above, this license does not grant to you any intellectual property rights in the software provided in your FreeAir Device(s). Any attempt to transfer any of the rights, duties or obligations of this license is null and void. If you breach any term or condition of this license, this license will automatically terminate.
I. Stolen Equipment. If any of your Equipment is stolen or otherwise removed from your premises without your authorization, you must notify our customer service center from your account page in writing immediately, but in any event not later than three (3) business days after such removal, to avoid liability for payment for unauthorized use of your Equipment. You will not be liable for unauthorized use that occurs after we have received your notification.
7. LEASED EQUIPMENT
A. Lease Terms. We may choose to lease certain Equipment to subscribers. Unless otherwise specified in an applicable Service Agreement(s), such Equipment (including without limitation, the TV or satellite antenna), shall at all times remain the sole and exclusive property of FreeAir, and we may provide or replace leased Equipment with new or reconditioned Equipment at any time, and upon cancellation or disconnection of your Services, remove or require the return of such Equipment. No leased Equipment provided to you by FreeAir shall be deemed fixtures or part of your real property. We may make such filings and recordings that we may consider necessary to evidence our ownership rights in such Equipment, and you agree to execute any and all documents that we may consider necessary for us to make such filings. Our ownership of such Equipment may be displayed by notice contained on it. You have no right at any time to pledge, sell, mortgage, otherwise encumber, give away, remove, relocate, alter or tamper with such Equipment, or to tamper with or alter any notice of our ownership on such Equipment. Any reinstallation, return, or change in the location of such Equipment must be performed by FreeAir at our then-current service rates. You shall not attach any electrical or other devices to, or in any way alter, any such Equipment without our prior written consent. You are responsible for preventing the loss or destruction of leased Equipment and we recommend that such Equipment be covered by your homeowners, renters or other insurance policy.
B. Return of Leased Equipment. It is your responsibility to return all leased Equipment within thirty (30) days following cancellation or disconnection of your Services. You must login into your Account page to receive a return authorization number and instructions regarding acceptable methods for returning the Equipment. Options to return your Equipment include, but are not limited to, the use of a shipping label and empty box provided by FreeAir by paying a Box Return Fee ($20) (which price is subject to change at any time). Equipment will not be deemed returned until received by FreeAir. If you do not return such Equipment undamaged and in working order, normal wear and tear excepted, and in accordance with the procedures set forth herein, then you are responsible and must pay us ("Device Charge"). Device Charges is calculated based on the remaining term of your agreement multiplied by monthly payment, for example, if your monthly payment is $1.99 and remaining term is 10 month, you will pay $10.99.
C. Defects and Damages. You must notify us immediately of any defect in, damage to, or accident involving your leased Equipment. All maintenance and repair of such Equipment must be performed by us or our designee(s). FreeAir may charge you for any repairs that are necessitated by any damage to, or misuse of, such Equipment.
8. TRANSFER OF ACCOUNT, SERVICES OR EQUIPMENT
You may not assign or transfer your Services without our written consent, which will not be unreasonably withheld. Provided however, if you lease Equipment or your account has an outstanding balance, then the withholding of consent to assign or transfer your Services shall not be deemed unreasonable.
9. 1-YEAR LIMITED WARRANTY
A. Warranty Service. FreeAir warrants a Device hardware product to be free from defects in material and workmanship for a period of 1 year from date of initial lease or purchase. We will, at our option, repair or replace a defective product. The limited warranty does not cover any losses or damage that occur as a result of:
(i) Improper installation
(ii) Misuse or neglect or operation with faulty equipment, including damage due to lightning
(iii) Repair or modification by anyone other than FreeAir or an authorized repair agent
In order to send in a defective Device for warranty service, you MUST go to your account page and obtain a Return Material Authorization number (RMA). To obtain an RMA, please go to account page. Proof of purchase would be required and must fall within the warranty period of 2 years from the purchase date. Once an RMA# is obtained, you will be given instructions on how to ship the product to FreeAir for service/replacement. All returns must be shipped in a box to avoid damage during shipment, and must have the RMA# assigned to your return clearly marked on the outside of the box. The cost to ship the product back to FreeAir is your responsibility. Products lost or damaged during transit are not the responsibility of FreeAir. We recommend shipping returns with a trackable shipping method only.
B. Out of Warranty Service. A product that falls out of the warranty period and requires service may be sent in for repair. An RMA# must first be obtained by going to your account page. Out of warranty products will incur a repair charge of $35 plus parts plus shipping costs.
10. LIMITATION OF OUR LIABILITY
A. INTERRUPTIONS AND DELAYS. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS, NOR ANY OF OUR OR THEIR AFFILIATES, WILL BE LIABLE FOR ANY INTERRUPTION IN ANY SERVICE OR FOR ANY DELAY OR FAILURE TO PERFORM, INCLUDING WITHOUT LIMITATION: IF SUCH INTERRUPTION, DELAY OR FAILURE TO PERFORM ARISES IN CONNECTION WITH THE TERMINATION OR SUSPENSION OF FREEAIR’S ACCESS TO ALL OR ANY PORTION OF SERVICES; A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT; ANY SOFTWARE OR OTHER DOWNLOADS INITIATED BY US; OR ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, ANTENNA, SATELLITE OR UPLINK FAILURE, ACTS OF ANY GOVERNMENTAL BODY OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.
B. ALTERATIONS TO EQUIPMENT. NONE OF FREEAIR OR OUR THIRD-PARTY BILLING AGENTS, OR ANY OF OUR OR THEIR AFFILIATES, WILL BE LIABLE FOR ANY ALTERATION TO ANY EQUIPMENT, INCLUDING WITHOUT LIMITATION, REMOVING OR DISABLING FEATURES (SUCH AS THE ABILITY TO ACCESS THE INTERNET VIA A DEVICE).
C. LOSS OF RECORDED MATERIAL. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS NOR ANY OF OUR OR THEIR AFFILIATES WILL BE LIABLE FOR ANY DAMAGE RESULTING FROM LOSS OF RECORDED MATERIAL OR THE PREVENTION OF RECORDING, INCLUDING WITHOUT LIMITATION, ANY LOSS OR PREVENTION OF RECORDING DUE TO ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT.
D. NO WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY BY APPLICABLE STATE LAW, NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS, NOR ANY OF OUR OR THEIR AFFILIATES, MAKE ANY WARRANTY, EITHER EXPRESSED OR IMPLIED, REGARDING YOUR FREEAIR EQUIPMENT OR ANY OTHER EQUIPMENT OR ANY SERVICES FURNISHED TO YOU. ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
E. CONTENT RESTRICTIONS. IT IS YOUR RESPONSIBILITY TO IMPOSE ANY PROGRAMMING, INTERNET OR OTHER CONTENT RESTRICTIONS ON YOURSELF, MEMBERS OF YOUR FAMILY AND HOUSEHOLD, AND GUESTS, AS YOU DEEM APPROPRIATE. NONE OF FREEAIR, OUR THIRD-PARTY BILLING AGENTS, OR OUR AND THEIR AFFILIATES SHALL HAVE ANY LIABILITY TO ANYONE DUE TO, OR BASED UPON, ANY CONTENT (INCLUDING WITHOUT LIMITATION, ANY INACCURACIES, ERRORS IN OR OMISSIONS FROM SUCH CONTENT): (i) CONTAINED IN ANY OF THE SERVICES FURNISHED TO YOU; OR (ii) ACCESSED USING THE SERVICES OR EQUIPMENT FURNISHED TO YOU.
F. DAMAGES LIMITATION. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS, NOR ANY OF OUR OR THEIR AFFILIATES, SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO: FREEAIR EQUIPMENT OR ANY OTHER EQUIPMENT; OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU; OR ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT FURNISHED TO YOU.
11. DISPUTE RESOLUTION
If you have an issue with a FreeAir product or service, contact customer service from your account page. If you are not satisfied with the result and wish to seek further action, this dispute resolution provision provides for all disputes between us to be resolved in binding arbitration or small claims court.
We have designed this dispute resolution provision to make the process as convenient and inexpensive for our customers (and us) as possible. The arbitration process can be a faster, simpler, less formal, and less expensive route than filing a lawsuit and going to court. In arbitration you are still entitled to a fair hearing, but a neutral arbitrator (and not a judge or jury) will determine your rights. Arbitrator decisions are final, as enforceable as any court order, and subject only to very limited review by a court. If you would prefer not to arbitrate, you can still choose to bring a dispute in small claims court.
A. Mandatory arbitration. We each agree to resolve any dispute arising out of or related in any way to this agreement (or FreeAir products or services) exclusively by individual binding arbitration (with “dispute” to be given the broadest possible meaning), and give up the right to have a dispute decided by a jury. We each retain the right to bring an individual action in small claims court and to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent (1) the actual or threatened infringement or other misuse of intellectual property rights, and (2) unauthorized use, piracy or theft.
B. Class action waiver. We each agree that any dispute resolution proceedings will be conducted only on an individual basis (and not in a class, consolidated, or representative action). Unless we each agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
C. Informal dispute resolution. We each must try in good faith for 15 days to informally resolve any dispute before starting arbitration. A party who intends to seek arbitration must first send the other an email with (1) “Notice of Dispute” in the subject line of the email, and (2) a reasonably detailed description of the nature and basis of the dispute as well as the relief sought in the body of the email. Only emails that comply with the foregoing will trigger the start of the 15-day informal dispute resolution process. Send your notice to disputenotice@freeair.tv, and we will send ours to the email address associated with your account. A FreeAir representative will contact you to try to informally resolve the dispute. If we do not reach an agreement to resolve the dispute within 15 days after the date the notice was sent, then either of us may start arbitration in the manner described below.
D. Arbitration process. The American Arbitration Association (AAA) will administer the arbitration, using the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes. Those rules and information about how to start arbitration are available at adr.org or by calling 1-800-778-7879. The AAA provides a form Demand for Arbitration and a separate form for California residents. Unless we each agree otherwise, the arbitration will be conducted in the county where you reside. If the relief sought is $10,000 or less, the hearing will be conducted by telephone or videoconference or by a submission of documents (unless the arbitrator requires a face-to-face hearing).
E. Arbitrator’s decision. The arbitrator must provide us with a brief written explanation of the basis for the award. In making the award, the arbitrator must apply any identified, pertinent contract terms, statutes and legal precedents (including the “Limitation of Liability” section above). The arbitrator’s award will be final and binding, but subject to review in accordance with applicable statutes governing arbitration awards. Judgment on the arbitrator’s award may be entered in any court with jurisdiction.
F. Arbitration fees. If you initiate an arbitration seeking more than $75,000 in damages, the payment of fees will be governed by the AAA’s rules. Otherwise, we will pay all AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the demand for arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you agree to reimburse us for amounts we paid on your behalf under the AAA’s rules.
G. Prevailing party. If you prevail in arbitration and the arbitrator issues you an award that is greater than the value of our last written settlement offer, we will pay you either the amount of the award or $200, whichever is greater. If we prevail in arbitration, we will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and costs.
H. Opt-out. You may opt-out of this dispute resolution provision by notifying FreeAir within 30 days of the date on which you purchase your initial FreeAir product. You must do so by writing to FreeAir.tv Inc., attn.: Arbitration Opt-Out, and including your name, address, account number (if you have one), and a clear statement that you do not wish to resolve disputes with FreeAir through arbitration.
I. Judicial forum. If (1) you opt-out of this dispute resolution provision, or (2) an arbitrator or court finds the class action waiver in this section to be invalid or unenforceable, then you agree to resolve any dispute you have with FreeAir exclusively in a state or federal court located in San Diego County, California, and to submit to the exclusive personal and subject matter jurisdiction and exclusive venue of such courts for the purpose of litigating such dispute. We each waive any right to a jury trial in any such dispute.
J. Time limit for disputes. We each agree (regardless of any statute or law to the contrary) that any dispute must be filed within 1 year after such dispute arose or else will be forever barred.
12. GOVERNING LAW
This agreement is to be governed in all respects by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to any conflict of law provisions. This agreement and the rights and obligations of the parties hereunder will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
13. GENERAL
A. Notice. Any notice required or permitted to be given by us under this Agreement may be provided via the email from your Account page.
B. Physical Address/Change of Address. When setting up your FreeAir account, you must provide us with the physical address where your Equipment will be located and your Services will be provided. A post office box does not meet this requirement. You must give us immediate notice of any change of name, mailing address, telephone number, or physical address where your Equipment is located. You may do this by notifying our customer service center by in writing from your account page.
C. Online Account Information. You have an online account with us, you are responsible for maintaining the confidentiality of your account username and password and for all activities that occur under your account username and/or password. You must: (i) keep your account username and password confidential and not share them with anyone else; and (ii) immediately notify us of any unauthorized use of your password and/or account username or other breach of security.
D. Third-Party Billing Agents. We may enter into relationships with third parties to provide billing and other services on our behalf, in which case the terms and conditions of this Agreement shall apply to such third parties as applicable under the circumstances. Additional terms and conditions imposed by our third-party billing agents may apply. For example and without limitation: (i) late fees imposed by our third-party billing agents may be administered according to our third-party billing agent's billing procedures and applicable state tariffs and regulations; (ii) our third-party billing agents may require that you pay all past due charges for Services, a restart fee, and/or a prepayment before we reconnect your Services; and (iii) other services provided by our third-party billing agents, including without limitation, local telephone service, may need to be restored before FreeAir Services can be restored, and a restoral fee and/or deposit may be required to restore third-party billing agent services. Partial payments on third-party billing agent bills may be applied first to the balance due for other services billed on your third-party billing agent bill, including without limitation, local telephone service, according to the third-party billing agent's billing procedures and applicable state statutes and regulations. Please contact your third-party billing agent for details. Failure to pay all or any part of your third-party billing agent bill may result in disconnection of Services. If your account is assigned to a third-party billing agent we will provide you notice of such assignment.
E. Credit Checks. If and only when required, you authorize FreeAir to investigate your financial responsibility and creditworthiness, including without limitation, acquiring credit reports and histories, and to report any payment defaults to credit reporting agencies. Such credit checks may require you to provide FreeAir with your social security number. Under the Fair Credit Reporting Act, you have the right to notify FreeAir if you believe we have reported inaccurate information about your account to any credit reporting agency. Please include in any such notice the specific item of dispute and why you believe the information reported is in error.
F. Applicable Law. This Agreement, including without limitation, all matters relating to its validity, construction, performance and enforcement, and any claim, complaint or dispute arising out of or related to this Agreement, the Services or the Equipment shall be governed by the laws and regulations of the State of Colorado without giving effect to its conflict of law provisions. This Agreement is subject to amendment, modification or termination if required by such laws or regulations. If any provision in this Agreement is declared to be illegal or in conflict with any law or regulation, that provision will be considered modified to the minimum extent necessary to make such provision legal and no longer in conflict with such law or regulation, without affecting the validity of any other provisions.
G. Remedies Cumulative. The rights and remedies provided under this Agreement to FreeAir in case of your default or breach of this Agreement are cumulative and without prejudice to any other rights and remedies that FreeAir may have by reason of such default or breach at law, in equity, under contract or otherwise (all of which are expressly reserved).
H. Other. No salesperson, installer, customer service representative, authorized retailer, or other similarly situated individual is authorized to change or override this Agreement. FreeAir may, however, change this Agreement at any time and will notify you if that occurs. The terms and conditions of this Agreement that either are expressly stated to survive or by their nature would logically be expected to survive its expiration or termination will continue thereafter. This Agreement is in addition to any other written agreement(s), if any, between you and FreeAir, including without limitation, any applicable Service Agreement, and except as provided to the contrary herein, all such written agreements shall remain in full force and effect. Except as expressly set forth in this Agreement to the contrary, this Agreement replaces and supersedes any and all prior FreeAir Device and Service Agreements in their entirety, and such prior FreeAir Device and Service Agreements shall be of no further force or effect whatsoever. In the event of any ambiguity between this Agreement and any applicable Service Agreement, FreeAir shall have the sole and exclusive authority to interpret and/or make a final determination concerning any issue arising from such ambiguity.
14. CHANGES
We reserve the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. If you do not agree with them, you must stop using the Service and contact customer support to retrieve your Content. Your continued use of the Service will be deemed acceptance of such modifications and additional terms and conditions.
15. ELECTRONIC CONTRACTING
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically.
YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Last Updated: December 16, 2016