MIME-Version: 1.0 Date: Friday, 19-Dec-97 01:53:45 GMT Server: NaviServer/2.0 AOLserver/2.11 Content-Type: text/html Content-Length: 19552 Last-Modified: Saturday, 01-Nov-97 00:11:16 GMT Version: Saturday, 01-Nov-97 00:11:16 GMT Aerial Store | Terms & Conditions

Welcome to Aerial

Aerial Communications Terms and Conditions of Service

The following Terms and Conditions apply to the provision of Service by Aerial Communications to you, our customer. This Agreement is effective from the time that we accept your request to activate Service to your AerialTM Phone and Smart Card. When you activate your new Aerial Phone and Smart Card with us, you are accepting some obligations to us, just as we are accepting some obligations to you.

For instance, by activating your new Aerial Phone, you are agreeing that we may perform credit verification with respect to you and possibly refuse activation, impose a credit limit, or request prepayment as we deem necessary, in accordance with our stated policy as indicated in the Billing and Payment of Charges section of this Agreement. If you exceed a credit limit, your Service may be suspended until we receive a payment from you that lowers your outstanding balance below the credit limit.

The following are additional obligations we are making to each other. Please read them carefully and make sure, before activating your new Aerial Phone, that you are willing to fulfill your end of the bargain.

If you believe you can’t meet your obligations listed in this Agreement, you may return your Phone, together with the complete contents of the box and purchase receipt, to where you bought it for a full refund -- your satisfaction is our highest priority. We may, from time to time, change our prices and/or these Terms and Conditions of Service. We will give you at least ten (10) days notice of any changes before they become effective. Continuing to use your Aerial Phone or Smart Card after receiving this notice means that you agree to the changes. If you do not agree to accept the changes, please call 1-888-2AERIAL (1-888-223-7425) to cancel Service. You should keep these Terms and Conditions of Service for as long as you are a subscriber to Aerial Service.

If you have any questions about this document, please call the Aerial Customer Care Center at 1-888-2AERIAL (1-888-223-7425).

Your End of the Bargain

You Agree To:

  1. Not use the Service for any improper, unlawful or abusive purpose.

  2. Not act in a way that could jeopardize or impair the operation of our Personal Communications Service (PCS).

  3. Comply with any reasonable requests we make of you with regard to our PCS.

  4. Inform us immediately (but in any event within 24 hours) if your Aerial Phone or Smart Card is lost or stolen.

  5. The service is for your personal use and any unlawful use or any use that unreasonably burdens the network is prohibited.

In addition, you remain liable for all Service charges made by or through your Aerial Phone or Smart Card until you notify us of its loss or theft. We will replace your Smart Card (if it is what is lost, damaged, or stolen) as soon as possible but may charge you for this service if the loss, theft, or damage is your fault or if there is more than one request for replacement in any 12-month period.

If You Cancel Your Service
It is very important that you call us immediately if you wish to terminate Service. This call will allow us to terminate your Service. You are responsible for payment of all outstanding charges until such time as you call us to terminate Service.

If We Cancel Your Service
We may suspend or terminate your Service, without incurring any liability to you, if you violate the terms and conditions detailed in this Agreement. For instance, if you fail to pay your bill within the payment terms outlined in the Billing and Payment of Charges section of this Agreement, we may suspend or terminate your Service until your payments are current. We may suspend or terminate your Service without notice if you use the Service in a way that adversely affects our system or Service to other users, or if we suspect fraudulent use. If we restore Service, a reactivation charge may apply.

The Deal with the Smart Card
The Smart Card remains the property of Aerial Communications at all times. Any Smart Card found to be defective due to faulty workmanship or design will be replaced free of charge. If we determine that you are responsible for damage to any Smart Card, causing it to be replaced, you may be required to pay for it. Your Smart Card holds all your account information and is the heart of your new Aerial Phone. If you give your Smart Card to someone else who uses it in a different wireless telephone, it is still your account being used and you are still responsible for paying for the calls made or received by that phone while your Smart Card was in it.

Your Aerial Phone will only operate with a Smart Card provided by us. If you move to another part of the country that provides the same type of PCS service (called GSM service), please call us for instructions on how to make your Phone compatible with the Smart Card provided by another GSM carrier. If you change to another operator's network during your first year of Service, a fee may apply.

The Deal with the Phone Number
We will assign a 10-digit telephone number to your Aerial Phone. You have no property or ownership rights in this phone number, and we reserve the right to change this number on giving you a minimum of 10 days notice prior to making such a change. You may not, without our consent, assign the number to any equipment other than that authorized by us, or modify the number programmed by us into your Aerial Phone.

Billing and Payment of Charges
You are responsible for payment of all charges for services furnished, including usage charges, calling plan charges, local toll and long distance charges, and all taxes which may be levied upon any service or equipment provided by us to you. If you do not pay your bills within the specified payment terms, you are responsible for all costs and expenses we incur in trying to collect from you, including attorneys' fees and costs (if permitted by law in your state). All charges are due and payable within 20 days after the billing date or as otherwise specified by us from time to time. If you have authorized us to apply charges to a credit card or bank account, no additional notice or consent will be required for billing to that credit card or bank account.

Late Payment Charges
Any balance you owe that remains outstanding on the next bill generation date may be assessed a late charge, at the rate of 1.5% per month (or the maximum lawful rate in your state, whichever is less) on the past due Service balance, for the period of time that the balance remains unpaid. Our acceptance of late or partial payments will not waive our rights to collect the balance or late charges. In the event that any payment is not made when due, we have the right to demand immediate payment of your overdue bill from the issuer of any credit card or bank account if you have provided the card or account number to us for that purpose. If you present a check to us which is returned by your bank, we may charge you a returned check fee of $25 (or the maximum charge, whichever is less) in addition to any other fees charged in accordance with this Agreement.

Handling Disputed Charges
In case of errors or questions about your bill, you must contact us within 20 days (or within any longer period required by law) from the date on the bill on which the error or question is listed. After that, you will be deemed to have accepted the bill and waive your right to contest the bill. Notice of any dispute may be made by calling the Aerial Customer Care Center. You agree to settle any continuing dispute between us by arbitration administered by the American Arbitration Association under its Wireless Industry Rules. We both: 1) agree to waive our rights to a jury trial, 2) agree that the arbitrator may not vary these Aerial Terms and Conditions of Service, 3) agree that the arbitrator shall have authority to award only direct, out-of-pocket expenses, 4) agree that the arbitrator shall have no authority to award punitive or consequential damages, and 5) understand that arbitration is final and binding on the parties and subject only to limited review by a court.


Our End of the Bargain

Price Changes and Alteration of Service We reserve the right to increase or decrease prices for Service as we deem appropriate. We will give you at least 10 days notice of any price changes that affect you. Our acceptance of advance payments from you does not waive our right to change the prices charged nor does it relieve you of the obligation to pay for Service rendered to you. We may, at any one time, have multiple calling plans available to you and you may change your calling plan by calling us. Any changes you make will normally go into effect at the start of the next full billing cycle, unless we specify a different date at the time you contact us.

Coverage
Our coverage will continually be improved, but coverage and quality of PCS can be affected by atmospheric, topographical and other conditions. Although we strive to provide continuous, high quality PCS to you throughout our coverage area, we cannot guarantee that there will be no Service interruptions or that every call you place will be completed.

Interruption of Service
In the unlikely event of the Aerial Network incurring a loss of Service which exceeds a period of 24 hours due to our negligence or breach of this Agreement, we will credit your account for each additional 24 hour period that you are without Service. The credit will be equal to 1/30 of your normal monthly Service charge for every additional 24 hour period of Service interruption. Interruptions are measured from the time they are reported to us by you. Interruptions caused by your negligence, your willful action, failure of equipment or service not provided by us, or by acts of God do not qualify for a credit. We reserve the right to suspend and/or deny Service with no liability to you when fraudulent or other unlawful activity has been detected or is suspected on your account. It is also our policy to provide you with an airtime credit of one minute for a call that is disconnected due to transmission limitations caused by atmospheric or topographical conditions, that requires you to redial within one minute of disconnection.

You must notify one of our Customer Service Advisors by dialing 1-888-2AERIAL in order to receive appropriate credit for any of the above instances.

30-Day Money Back Guarantee
Your Phone may be returned within the first 30 days from the date of purchase for a full refund of the purchase price. All we ask is that you return the complete contents of the box in good condition, that you pay for the calls made with your Smart Card and you return it to the place of purchase along with your receipt. Do not return a Phone to us without first speaking to an Aerial Service Advisor.

Our Service Warranty
Subject to the Terms and Conditions of Service in this agreement, we will use our best efforts to provide PCS to you within our Service area for as long as you are a subscriber to our Service.

THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Manufacturer's Phone Warranty
The warranty associated with your new Aerial Handset is provided by the manufacturer of that Handset and can be found in a separate document in the box. We do not make any warranty, express or implied including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, with respect to your Handset.

Limitation of Liability
OUR SOLE LIABILITY TO YOU FOR ANY LOSS OR DAMAGE ARISING OUT OF MISTAKES, OMISSIONS OR DEFECTS IN SERVICE DURING ANY BILLING PERIOD SHALL NOT EXCEED OUR CHARGES TO YOU FOR THAT PERIOD. WE ASSUME NO LIABILITY FOR SERVICE INTERRUPTIONS OF 24 HOURS OR LESS. WE ASSUME NO LIABILITY FOR ANY ACT OR OMISSION BY ANYONE OTHER THAN OURSELVES. WE ASSUME NO LIABILITY FOR LOSS OR DAMAGE ARISING IN WHOLE OR IN PART OUT OF NEGLIGENCE OR MISCONDUCT OF ANYONE OTHER THAN OURSELVES. WE ASSUME NO LIABILITY FOR DAMAGES ARISING OUT OF ANY DIRECTORY LISTING, OR FOR ERRORS, DEFECTS, OR FAILURES CAUSED BY ANY EVENT BEYOND OUR REASONABLE CONTROL INCLUDING ANY ORDER OF A GOVERNMENTAL AUTHORITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR ANY OTHER INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER EVEN IF WE WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. WE ARE NOT LIABLE FOR INJURIES TO PERSONAL PROPERTY ARISING FROM USE OF ANY EQUIPMENT OR SERVICE PROVIDED BY US OR FROM THE INSTALLATION OR REPAIR OF ANY EQUIPMENT BY PARTIES WHO ARE NOT OUR EMPLOYEES. YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL CLAIMS MADE BY ANY PERSON ARISING OUT OF YOUR USE OF THE SERVICE PROVIDED BY US TO YOU.

YOU SPECIFICALLY AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM, OR IN CONNECTION WITH, ANY INTERRUPTION OR FAILURE OF 911, E911 OR ANY SIMILAR EMERGENCY SERVICE, OR IDENTIFICATION OF THE TELEPHONE NUMBER, ADDRESS, LOCATION, OR NAME ASSOCIATED WITH ANY PERSON ACCESSING OR ATTEMPTING TO ACCESS SUCH EMERGENCY SERVICES FROM YOUR HANDSET, OR WITH YOUR SMART CARD.

Local Service Area and Roaming
Your Aerial Phone is specifically designed and engineered to provide Service only within Aerial Communications local Service areas and within other PCS operators' systems when a roaming agreement is in place between Aerial and another operator. If you operate your Aerial Phone as a "roamer" in any other PCS operator's system pursuant to a roaming service agreement entered into by us and another operator, you are liable for all charges of the other operator (which may be different from our charges for similar calls) and may be subject to the other operator's terms and conditions for roaming service.

Miscellaneous
The provision of PCS is regulated by the FCC and may be regulated by state or local authority. We reserve the right to make changes to this Agreement and to the provision of PCS that are necessary to comply with statutes, rules, orders or regulations governing the provision of PCS. We may assign all or any part of this Agreement by giving you written notice and you agree to make all subsequent payments as instructed in such notice. You may not assign your rights or obligations hereunder without the prior, written approval of Aerial Communications. Failure by us to require strict compliance with any provision in this Agreement is not a waiver of our right to require strict compliance in the future. If any terms stated herein are invalid or unenforceable, the remaining terms shall remain in effect.




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