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(1) RELOCATION OF YOUR VOIP EQUIPMENT: IF YOU RELOCATE THE EQUIPMENT THAT YOU USE TO ACCESS BluWyre’S VOIP SERVICE, YOU MUST UPDATE YOUR REGISTERED LOCATION. IF YOU DO NOT UPDATE YOUR REGISTERED LOCATION, ANY 911 CALL YOU MAKE USING BluWyre’S VOIP SERVICE WILL BE ROUTED BASED ON YOUR PREVIOUSLY PROVIDED REGISTERED LOCATION AND THEREFORE MAY NOT BE ROUTED TO THE APPROPRIATE PUBLIC SAFETY ANSWERING POINT FOR YOUR CURRENT LOCATION. ONCE YOU NOTIFY BluWyre OF A CHANGE IN YOUR REGISTERED LOCATION, THERE MAY BE A DELAY IN MAKING THE NEW REGISTERED LOCATION AVAILABLE TO PROPERLY ROUTE 911 CALLS AND TO ADVISE EMERGENCY PERSONNEL OF YOUR REGISTERED LOCATION.
(2) RE-REGISTRATION REQUIRED IF YOU CHANGE YOUR NUMBER OR ADD OR PORT NEW NUMBERS: YOUR BluWyre VOIP 911 SERVICE WILL NOT FUNCTION IF YOU CHANGE YOUR PHONE NUMBER OR IF YOU ADD OR PORT NEW PHONE NUMBERS TO YOUR ACCOUNT, UNLESS AND UNTIL YOU SUCCESSFULLY REGISTER YOUR LOCATION OF USE FOR EACH CHANGED, NEWLY ADDED OR NEWLY PORTED PHONE NUMBER AND RECEIVE CONFIRMATION FROM BluWyre.
(3) INTERNET CONNECTION FAILURE: IF THERE IS AN INTERRUPTION OF YOUR BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE, YOU WILL NOT HAVE ACCESS TO BluWyre’S VOIP SERVICE DURING THAT INTERRUPTION AND THEREFORE WILL NOT HAVE ACCESS TO 911 SERVICE DURING THAT INTERRUPTION. IN ADDITION, SINCE THE SERVICE IS DEPENDENT ON THE BROADBAND CONNECTION, THE AVAILABILITY OF AN ADEQUATE POWER SUPPLY AND CORRECT EQUIPMENT CONFIGURATION, BluWyre DOES NOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOUS OR ERROR-FREE. BluWyre WILL NOT OFFER CREDITS FOR SERVICE FAILURES DUE TO POWER OUTAGES OR DISRUPTIONS IN YOUR BROADBAND CONNECTION.
(4) EQUIPMENT FAILURE AND MISCONFIGURATION
BluWyre’S VOIP SERVICE WILL NOT FUNCTION IF THE EQUIPMENT ON YOUR PREMISES OR ANY EQUIPMENT INCLUDING SOFTWARE, NETWORK ETC. IN OUR LOCATIONS (OFFICES, DATA CENTERS) FAILS FOR ANY REASON INCLUDING BUT NOT LIMITED TO HARDWARE OR SOFTWARE FAILURES OR MISCONFIGURATION EITHER BY BluWyre, THE CUSTOMER AND/OR ANY OF OUR VENDORS.
BluWyre DOES NOT AND CANNOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOUS OR ERROR-FREE. YOU ACKNOWLEDGE AND UNDERSTAND THAT A FAILURE OF EQUIPMENT CAN OCCUR AND IT IS YOUR SOLE RESPONSIBILITY TO RETAIN ALTERNATIVE MEANS OF COMMUNICATION.
(5) LOSS OF ELECTRICAL POWER: BluWyre’S VOIP SERVICE WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER AND YOU WILL NOT HAVE PHONE SERVICE OR 911 SERVICE DURING ANY POWER OUTAGE.
(6) NON-VOICE SYSTEMS: BluWyre’S VOIP SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS AND MEDICAL MONITORING EQUIPMENT. BY SIGNING UP FOR BluWyre’S VOIP SERVICE YOU WAIVE ALL CLAIMS AGAINST BluWyre FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY BluWyre’S VOIP SERVICE.
(7) CALLS OUTSIDE THE U.S.: IF YOU MOVE YOUR BluWyre VOIP SERVICE EQUIPMENT OUTSIDE OF THE UNITED STATES, YOUR 911 SERVICE WILL NOT WORK. CHECK THE EMERGENCY CALLING PROCEDURES FOR THE COUNTRY WHERE YOU ARE LOCATED TO DETERMINE THE CORRECT EMERGENCY CALLING PROCEDURES.
(8) TERMINATION OF SERVICE: 911 SERVICE WILL NOT BE AVAILABLE IF YOUR SERVICE HAS BEEN CANCELLED OR TERMINATED BY YOU OR BY BluWyre. You acknowledge and understand that a service outage due to suspension of your account as a result of billing issues or any other reason, including, but not limited to those reasons described elsewhere in this Agreement, will prevent ALL Service, including the limited emergency response service.
(9) FREE VERSION LIMITATIONS: You acknowledge and understand that if you are utilizing a free version of BluWyre software that does not contain any voice usage features or functionalities, you will be unable to make any calls, including using the 911 service. If you are using a free version of BluWyre software that does include voice usage and you have exhausted the voice calling minutes included with your free version or your phone number has been removed from your account for non-use, you acknowledge and understand that you will also be unable to make any calls, including using the 911 service.
(10) NETWORK CONGESTION AND/OR REDUCED SPEED FOR ROUTING EMERGENCY CALLS: You acknowledge and understand that calls made using the limited emergency response service of BluWyre may be subject to network congestion and/or reduced routing speed and the call may fail.
(11) OTHER LIMITATIONS: THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING BluWyre VOIP SERVICE’S E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE BluWyre VOIP SERVICE E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE BluWyre NETWORK, THERE IS A POSSIBILITY THAT A BluWyre 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL TELEPHONE NETWORKS. IN ADDITION, A LOCAL OR NATIONAL DISASTER AND SUBSEQUENT SPIKE IN THE NUMBER OF CALLS MAY RESULT IN LONG CONNECTION TIMES, BUSY SIGNALS OR FAILURES TO CONNECT.
No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial- around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
Incompatibility with Other Services.
Use Outside of the United States. As previously noted there are limitations with the Service’s access to 911. BluWyre’s Service does not provide access to emergency services in any country outside of the United States. BluWyre disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
Substitution and Discontinuation of Services. BluWyre may, in its sole discretion, discontinue or substitute any service, feature or functionality without your prior approval. If BluWyre discontinues a service, feature or functionality, or fails to substitute a service, feature or functionality with an equivalent service, feature or functionality, then upon your written request, BluWyre will reduce the fees assessed to your account by the amount that you specifically pay for any such discontinued or substituted service, feature or functionality. Notwithstanding the foregoing, BluWyre may include with or add to your account certain services, features and/or functionalities on a trial, temporary or otherwise limited basis. BluWyre reserves the right to discontinue any such services, features and/or functionalities without notice and without compensation to you, and/or to charge you a fee as a condition of your continued use of any such services, features and/or functionalities.
Free Software Offering. From time to time, BluWyre may make a free, feature-limited version of the Software (a “Free Version”) available to You.
1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”). It is not the day you receive the Device you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
2. Automatic Renewal. The Service will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional months or initial or renewal term extensions, unless you cancel your Service by providing BluWyre with notice as provided in Section 8.5 of this Agreement at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to your account during the initial term and any renewal terms will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not timely made by the issuer of your credit card, without further notice BluWyre reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.
3. Our right to disconnect. You understand and agree that BluWyre has the right to suspend, terminate or disconnect any part of Your Service generally at any time if:
4. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
5. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at billingcenter@BluWyre.com or by calling 1-800-745-9973 at least thirty (30) days prior to the expiration of the current service term. Please refer to the BluWyre Cancellation Policy posted on our Web site at https://www.BluWyre.com/cancellationpolicy. If you provide notice of termination less than thirty (30) days prior to the end of your then-current term, your Agreement will renew as provided herein, and the termination of your Services will be effective at the end of that renewal term.
1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Minimum Commitment Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30 day money back guarantee period will not be accepted. Refer to the Cancellation policy for more information.
2. Rented Devices. For the purposes of this section “Rented Devices” means any Device leased to Customer by BluWyre or BluWyre agents or any other third-party with or without a separate charge or fee in connection with the Services.
3. Section 9.1 above will not apply to Rented Devices.
Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to BluWyre. Customer will be responsible for (i) any damage to the Rented Devices as assessed by BluWyre upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs.
Customer agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by BluWyre in obtaining or attempting to obtain possession of any Rented Devices.
4. Promotional Devices. Devices included in a service offering at a discount or at no charge may be previously used, refurbished or reconditioned equipment. Unless otherwise provided in a Minimum Commitment Contract, discounted and free Devices not returned upon cancellation of the Service will be charged to the customer. See Cancellation policy for details.
5. Replacement of a Defective Device. Devices purchased from BluWyre will be covered by their respective factory warranties, if any, only. BluWyre does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact BluWyre at support@BluWyre.com so that BluWyre may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by BluWyre in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then BluWyre will charge you for the second device or for the missing parts.
6. Receipt of damaged Devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at support@BluWyre.com for return instruction.
7. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
8. Prohibited Devices. You are prohibited from using the Services with any devices other than BluWyre-approved devices received from retailers or from us.
9. All Headset Sales Are Final. Headsets, earpieces, in-ear monitors, microphones and similar devices are not eligible for return or refund unless otherwise required by law. All purchases of these types of products are final and non-refundable.
1. Fees and Charges. Your fees and charges may change from time to time, with or without notice (except pricing will not change during the initial term of a Minimum Commitment Contract). Any pricing adjustment will be reflected in an invoice provided to you at the time of the pricing adjustment for your account. We may introduce or otherwise make available new and/or existing products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change, reduce, or discontinue introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, are subject to change from time to time and such changes are applicable to ALL Customers regardless of a Minimum Commitment Contract.
2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide BluWyre with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date BluWyre receives such certificate.
4. Charges for Directory Calls (411). We will charge you $1.25 for each call you make to BluWyre directory assistance.
5. Charges for Calls from Public Payphones. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.
6. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
7. Regulatory Recovery Fee. A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by BluWyre in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply to every phone number assigned, including toll free and virtual numbers.
8. Reinstatement Fee. Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
9. Returned Check Fee. BluWyre may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
1. Billing. We will charge you in advance for each term of service. If you have selected a free trial offering, we will commence charging you for that Service at the expiration of the free trial period, unless you terminate the free trial offering prior to the expiration of the trial period. If not terminated prior to the end of the trial period, this Service will be added to your account for the remainder of your term, and any subsequent removal of the Service will be subject to BluWyre’s Cancellation Policy, as well as any and all applicable early termination fees. In the event that you do terminate a free trial offering prior to the expiration of the trial period, BluWyre may, without prior notice to you, immediately terminate your access to the free trial offering. Any failure by BluWyre to immediately terminate your access to the free trial offering shall not be considered a waiver of the right to do so later. You further agree that you will not access or attempt to gain access to any free trial offering after the termination of your free trial period. When you subscribe to that Service, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees (“ETF”), reinstatement fees, and returned check fees. We reserve the right to charge all fees to your payment method. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. BluWyre’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way BluWyre’s rights to collect any amount due. BluWyre may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
3. Collection. If we disconnect the Service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
5. Billing Disputes. You must notify BluWyre in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any BluWyre charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billingcenter@BluWyre.com. BluWyre will charge a late fee as described in Section 11.1 for a disputed amount if (1) it was not paid by the due date and (2) BluWyre determines that you disputed the charge in bad faith.
6. Prepaid Services. All prepaid fees being provided to you as described in any quote or order form and other payments by you under this Agreement are non-refundable and non-creditable.
1. Prices and Fees. BluWyre fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Device charges, shipping and handling and other nonrecurring charges will be charged to your payment method on file. Recurring charges will be billed and automatically charged to your payment method on file on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 8.1.
2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD (IF APPLICABLE) FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. If you are paying with a credit card, you agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card (if applicable). If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full.
3. Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll free charges, Directory Assistance calls and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time by contacting our Customer Care Department at 1-800-745-9973 or by email to support@BluWyre.com. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the payment method on file.
4. Credit Terms. All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by BluWyre. You will provide such credit information or assurance as is requested by BluWyre at any time. BluWyre, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
5. Discontinuation of Service for Nonpayment. The Service to you may be denied or discontinued without notice at any time in the event you fail to make payment, your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your payment method fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide BluWyre your payment method, including credit card information if applicable. If the payment method is not resolved within 48 hours, BluWyre will deactivate the Service. If your new payment method is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right to modify the per minute calling plan at any time. You agree to pay all charges owed to BluWyre, including but not limited to the reinstatement fee for reactivated services. In the event BluWyre utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys’ fees.
6. Promotions and Discounts. BluWyre may limit the number of promotions and/or discounts you may be eligible for in a given period. Promotions and discounts may be cancelled or modified, and discounts may be reduced or eliminated, by BluWyre at any time, with or without notice (except with respect to discounted pricing during the initial term of a Minimum Commitment Contract).
7. Cancellation Policy.BluWyre cancellation policies are outlined in the Cancellation Policy posted at our Web site at www.BluWyre.com/legal and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to billingcenter@BluWyre.com or by calling our Customer Care Department at 1-800-745-9973 and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective the day following posting to our Web site.
You agree to comply with the BluWyre Acceptable Use Policy (“AUP”), which is posted on our Web site at www.BluWyre.com/legal and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer and telephone and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Service and to operate your computer. BluWyre will only provide technical assistance with respect to your BluWyre-provided Adapter.
2. Monitoring of Network Performance. BluWyre automatically measures and monitors network performance. We also will access and record information about your computer’s profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to BluWyre’s monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
3. Storage of User Information. BluWyre is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that BluWyre has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that BluWyre may establish limits as to the size of communications that BluWyre transmits or stores and the duration for which BluWyre stores any communications.
1. WARRANTIES
1. Governing Law. This Agreement and the relationship between you and BluWyre shall be governed by the laws of California without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of California and venue for any such claim shall be proper in the appropriate state or federal court located in Los Angeles County, California.
2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. BluWyre reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by BluWyre under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
3. No Third Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
4. Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of BluWyre’s websites constitute the entire agreement between you and BluWyre and govern your use of the Service, superseding any prior agreements between you and BluWyre and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or unenforceability will not invalidate or render unenforceable any other portion of this agreement.
2. Arbitration. BluWyre and you agree to arbitrate any and all disputes and claims between you and BluWyre except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and BluWyre, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “BluWyre,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and BluWyre.
3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the BluWyre Customer Care Department at (800) 745-9973 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim.. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to BluWyre must be sent to BluWyre, attention “General Counsel,” by certified mail addressed to 15068 Rosecrans Ave #310, La Mirada CA 90638.
1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and BluWyre do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or BluWyre may commence an arbitration proceeding. The amount of any settlement offer made by you or BluWyre shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or BluWyre is entitled.
5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at AAAUniversity@adr.org, or by mail at 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016. The arbitration shall be governed by the AAA’s Commercial Arbitration Rules then in effect (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.
6. Waiver of Judge or Jury Trial. You and BluWyre agree that, by entering into this agreement, you and BluWyre are waiving the right to a trial by judge or jury.
7. Waiver of Class Actions. You and BluWyre agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and BluWyre agree that you and BluWyre may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and BluWyre agree that, unless you and BluWyre agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or BluWyre, pending the completion of arbitration.
10. Modification of Arbitration. If BluWyre makes any substantive change to this arbitration provision, you may reject any such change and require BluWyre to adhere to the language in this provision.
11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.