For HughesNet services ordered between January 4, 2011 and October 31, 2012 with the Upfront Purchase option
Thank you for choosing HughesNet®! PLEASE READ THIS SUBSCRIBER AGREEMENT CAREFULLY, AS IT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND HUGHES NETWORK SYSTEMS, LLC (“HUGHES”). BY APPLYING FOR OR ESTABLISHING AN ACCOUNT WITH HUGHES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Subscriber Agreement Organization
This Subscriber Agreement is organized into six “Parts:”
Part I – Key Provisions;
Part II – The Service, Your Subscription, and This Subscriber Agreement;
Part III – Payment;
Part IV – Permitted Use and Restrictions on Use;
Part V – Grant of Important Rights by You to Us, and Important Disclaimers, Acknowledgments, and Obligations;
Part VI – General (Note: Although located at the end of this Subscriber Agreement, these terms are important.)
PART I – KEY PROVISIONS.
1.1 SPEED CLAIMS AND DISCLAIMERS.
HughesNet service is available in the contiguous U.S. with an unobstructed view of the southern sky, and its usage is subject to the Fair Access Policy. When you connect to the Internet using HughesNet, the upload and download speeds you experience will vary based on a variety of factors including the configuration of your computer, the number of concurrent users, network or Internet congestion, the speed of the Websites you are accessing, and other factors. Stated speeds and uninterrupted use of service are not guaranteed. Actual upload and download speeds may be lower than maximum advertised speeds, particularly during peak periods.
You specifically agree that any Equipment provided to you may be new or refurbished as new. Any refurbished Equipment will have the same warranty as new Equipment.
1.3 SERVICE COMMITMENT AND EARLY TERMINATION FEES.
All Service Plans require a commitment of twenty-four (24) months. If you have subscribed to any of the Business plans and you terminate service prior to the expiration of the commitment, you will owe, and your credit or debit card will be charged, the early Termination Fees described below.
Early Termination: Purchase Option (Equipment and standard installation purchased upfront)
If you cancel your order before installation, you will not be charged.
If you cancel within 30 days of activation, no service termination fees will be charged, but you will not receive any refund for installation charges or other fees. You may return your HughesNet modem, power supply, and radio for a $200 refund. All equipment must be received in good condition within 45 days of termination in order to receive this refund.
If you cancel after 30 days of activation but before the end of your 24-month term commitment, you will be charged a Service Termination Fee of up to $400. The exact amount of the Service Termination Fee will be $400 for the first three (3) months after activation of the HughesNet Service. Thereafter, the amount of the Service Termination Fee will decrease by $15 per month for each month of active Service.
For customers eligible or required to return equipment, Hughes will provide instructions on how to de-install and return the required equipment.
Early Termination due to breach by Subscriber
If your account is terminated by Hughes for non-payment or any other reason, the Early Termination Fee will be charged immediately upon cancellation.
PART II – THE SERVICE, SUBSCRIBERSHIP, AND THIS SUBSCRIBER AGREEMENT.
2. THE SERVICE.
Hughes provides a two-way, satellite-based Internet access solution that carries information between the Internet and your personal computer (the “Service”).
2.1. COMPOSITION OF THE TERMS OF SERVICE.
3. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION.
3.1. MODIFICATION OF THIS SUBSCRIBER AGREEMENT; NOTICES.
Hughes may revise this Subscriber Agreement (the “Agreement”) at any time by posting the modified version to http://subagree.hughesnet.com. Although Hughes may choose to provide you with individual notice of material modifications to the Agreement, it has no obligation to do so. In the event you do not agree to such revisions, you must cancel your subscription and stop using the Service prior to the effective date of such modifications or, if no effective date is provided, within thirty (30) days after such modifications are first posted on the Hughes Website at www.Hughesnet.com (the “Website”). Otherwise, except as provided in Section 19.5 below, your continued use of the Service after the effective date of such modifications constitutes your full acceptance of such modifications.
3.2. MODIFICATION OF THE SERVICE.
Hughes may discontinue, add to, or revise any or all aspects of the Service in Hughes’ sole discretion, with or without notice, including without limitation access to support services, publications, and any other products or services ancillary to the Service. For purposes of illustration and not limitation, Hughes may: (1) establish and enforce limitations concerning use of the Service, e.g., the maximum number and/or size of email messages that may be sent from or received by an account on the Service, and the maximum amount of bandwidth that may be used by a single user or a single account; (2) take any action that Hughes deems appropriate to prevent and/or delete bulk email; (3) delete old email messages from any account; (4) quarantine or delete messages or content suspected of containing viruses or other malware; (5) refuse to process email or instant messages that fit criteria defined by us; or (6) modify any user setting. In the event that Hughes makes any changes to the Service or its availability, Hughes may, but is not required to, notify you.
3.3 PRICING REVISIONS; NOTICES.
Hughes may revise pricing for any Service Plans at any time by providing notice of any price change to you over the HughesNet Service as well as written notice to your address. Hughes will endeavor to provide at least 30 days’ notice of any such change to you. In the event you do not agree to such price revisions, you may terminate your subscription (as provided herein) and stop using the Service before the later of either the effective date of the price change or thirty (30) days after such notice is delivered, in which event you will not be bound by such changes. Otherwise, except as provided in Section 19.5 below, your continued use of the Service after such time constitutes your full acceptance of such pricing revisions.
3.4. TERMINATION BY SUBSCRIBER.
In the event that Hughes modifies this Agreement, the Service, or related pricing or billing terms, you may immediately terminate your account and this Agreement. Subject to your payment of the termination charges herein described, you may also do so at any other time and for any reason on written notice to Hughes. You must terminate this Agreement in accordance with the terms and conditions specified herein; failure to do so may delay or prevent us from knowing that termination was intended. Failure to terminate in accordance with this Agreement may result in your continued liability for all fees and charges associated with your Service account until such time as the Agreement has been properly terminated or Hughes has acknowledged such termination in writing. In the event you cancel your subscription to the Service prior to the expiration of the minimum commitment period specified for your applicable service plan, you may be subject to a service termination fee of up to $400. The exact amount of termination charges which will apply is specified in Section 1.3 above.
3.5. TERMINATION OR SUSPENSION BY HUGHES.
Hughes reserves the right to terminate or suspend your account and this Agreement at any time, with or without notice, in whole or in part, for any reason or no reason.
3.6. CONTINUATION OF OBLIGATIONS.
Notwithstanding any cancellation or termination of this Agreement or your account, or any suspension or termination of access to or use of the Service, you will remain responsible for any obligations accrued up to the date of such action, including payment of any charges that may be due as a result of or in connection with such action(s).
4. WHO MAY USE THE SERVICE? – RESPONSIBILITY AND SUPERVISION.
4.1. AGE AND ACCOUNT SETUP.
You represent that you are at least 18 years of age and have the right and ability to enter into this Agreement. You agree that you are responsible for installing, establishing, and setting up, and for verifying and maintaining, the account, options, settings, and other parameters under which the Service is used, including, without limitation, all related passwords and user identification information. These account functions may be performed only by a person at least 18 years of age, without exception.
4.2. MULTIPLE USE OF ACCOUNT.
Multiple members of your business may share a single ID number and account, if authorized by you to use the account. In addition, multiple users at the same site may access the Service at any given time through the same ID number or account; however, performance may be degraded.
4.3. INSTALLATION OF SUBSCRIBER EQUIPMENT.
You acknowledge and agree that Hughes or its designated service provider may be required to access your premises and/or computer system in order to install and maintain the components necessary for you to access the Service (the “Subscriber Equipment”). This may include opening your computer to install, repair, or replace equipment, or to install software on your computer at your location. By accepting this Agreement and scheduling a service or installation visit, you hereby authorize Hughes or its service provider to access your computer for the purpose of installing, repairing, or replacing Subscriber Equipment for the purpose of facilitating your access to the Service. NEITHER HUGHES NOR ITS SERVICE PROVIDER SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES RESULTING FROM INSTALLATION, REPAIR, OR OTHER SERVICES, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR PREMISES OR COMPUTER, OR LOSS OF SOFTWARE, DATA, OR OTHER INFORMATION FROM YOUR COMPUTER. Hughes may check the version of the HughesNet software on your computer and, without any additional notice to you, may download and install on your computer updates to the HughesNet software. In addition, Hughes may check the health and status of your computer to ensure that your configuration is optimized for use with the Service.
4.4. SUBSCRIBER RESPONSIBILITY.
You shall be responsible for all access to and use of the Service through your account or password(s) and for any fees incurred for goods or services purchased thereon, or any other expenses incurred as a result of any use of your account. You promise to pay the amounts billed for any such goods or services, along with any related fees, taxes, and charges. Use of your account is limited to users using the service at your permanent location or place of business. You acknowledge that you are aware that areas accessible on or through the Service may contain material that is unsuitable for minors (persons under 18 years of age). You agree to supervise usage of the Service by minors who use the Service through your account. You hereby ratify and confirm any obligations a minor using your account enters into or assumes and any promises or permissions such minor makes or gives. You agree to: (1) provide us with true, accurate, current, and complete information about yourself; and (2) promptly update this information to keep it true, accurate, current, and complete.
PART III – PAYMENT.
5. FEES AND PAYMENT.
5.1. FEES, TAXES AND OTHER CHARGES.
You agree to pay, in advance, and in accordance with the provisions of the billing option you selected, any registration, activation, and/or monthly fees, ISP service charges, minimum charges, and other amounts charged to or incurred by you, or by users of your account, at the rates in effect for the billing period in which those amounts are charged or incurred. You agree to pay all applicable taxes and Universal Service assessments related to your use of the Service or the use of the Service by users of your account. Information on charges and surcharges (if any) that are to be paid to us and are incurred by you or by users of your account will be made available to you on the Website, and you agree that this is sufficient notice for all purposes as to charges incurred and paid or to be paid to us. Hughes reserves the right to increase fees, surcharges, or monthly subscription fees, or to institute new fees at any time upon thirty (30) days' prior notice. You understand and acknowledge that you may not receive a bill in the mail for your Service. Additional terms relating to pricing, billing, and payment are set forth and available on the Website.
Hughes accepts invoice billing for business customers. Hughes may perform a business credit check that may help determine whether Hughes will extend credit to a customer. Hughes reserves the right, at its sole discretion, to not extend credit to a customer for any reason whatsoever. In such case, Hughes may, at its option, request that any amounts owing or to be charged be paid by a credit card, or alternatively, request a personal financial guarantee from one or more of the principals of the applicable business customer.
Except where additional methods of payment are specifically required or permitted under applicable law or regulation or where Hughes explicitly and in advance permits another method of payment, you agree that you will provide a major credit or charge card (i.e., MasterCard, Visa, American Express, or Discover) that Hughes may charge for all Service fees or other amounts payable under this Agreement. Additionally, you agree that Hughes may pre-charge your monthly Service fee to the credit or charge card supplied by you during activation or subscription. You hereby authorize automatic credit or charge card billing by Hughes for all such charges. You further agree that the charges described above will be billed to the credit or charge card that you provided when you applied for the Service. YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION IN ORDER TO KEEP YOUR ACCOUNT CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). CHANGES TO SUCH INFORMATION CAN BE MADE AT www.myHughesNet.com. IF YOU FAIL TO PROVIDE US WITH ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT HUGHES MAY CONTINUE CHARGING YOU FOR ANY SERVICE PROVIDED UNDER YOUR ACCOUNT, AND THAT YOU WILL BE RESPONSIBLE FOR ANY LATE FEES ASSOCIATED WITH HUGHES’ INABILITY TO OBTAIN PAYMENT BASED ON BILLING INFORMATION YOU HAVE PROVIDED. You agree that all charges are considered valid unless disputed in writing within fifteen (15) days after the date you receive your credit or charge card bill. You agree that Hughes will not be responsible for any expenses that you may incur resulting from overdrawing your bank account or exceeding your credit limit as a result of an automatic charge made under this Agreement.
In the event that you used a debit card to activate your subscription, you authorize Hughes to initiate debit entries to your checking or savings account, as the case may be, for payment of the monthly charge for the Service. Hughes, pursuant to this authorization, will debit the monthly service charge for the Service from your account each month. In addition, Hughes will deduct from your account any and all early termination charges arising from termination of your Service prior to its required minimum term. Hughes will not be responsible for any overdraft or other third-party fees or penalties resulting from Hughes' debiting from your account any amount authorized by this Agreement or any other agreement between you and Hughes. Hughes will charge a return fee for each debit that is declined by your bank. The return fee will vary from state to state and will be the maximum amount allowed in each state.
You acknowledge that the recurring debit authorized hereunder will purchase the Service and that Hughes will continue to debit monies from your account until you revoke this authorization by going online to www.myHughesNet.com to change payment method or by mailing a written request to:
HughesNet Customer Service
11717 Exploration Lane
Germantown, MD 20876
Credit card payment is not required for residents of states where payment by credit cards may not be made mandatory. Further, in the event that checks submitted by you are returned for insufficient funds, or if your account is suspended for non-payment, and you wish to restore Services, in addition to other charges which may be applicable, you may be liable for an additional administrative charge of up to $25. If you think a charge is incorrect or you need more information, you should contact our billing department. You must contact us within sixty (60) days after receiving the statement on which the error or problem appeared. Hughes will make available to you a statement for each billing cycle showing payments, credit purchases, and other charges. Payment of the outstanding balance is due in full each month, and may be billed in advance or pre-charged as set forth above. If your payment is not received by us before the next statement is issued, you may be charged interest on the delinquent balance at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, prorated on a daily basis. Hughes may, but is not required to, accept partial payments from you. If partial payments are made, they will be applied to statements starting with the oldest outstanding statement. If you send us checks or money orders marked "payment in full" or otherwise labeled with restrictive endorsements, Hughes can, but is not required to, accept them, without losing any of Hughes’ rights to collect all amounts owed by you under this Agreement. In the case of late payment or non-payment, you understand and agree that Hughes may report such late payment or non-payment to the appropriate credit reporting agencies. If Hughes chooses to use any collection agency or attorney to collect money that you owe us or to assert any other right which we may have against you, you agree to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable attorneys’ fees, and court costs, as provided by applicable law.
5.3. COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP FEES.
You acknowledge that a monthly subscription fee will apply for each and every month (or portion thereof) that you subscribe to the Service. Once you subscribe, your account and payment obligations will continue until terminated as set forth herein.
PART IV – PERMITTED USE AND RESTRICTIONS ON USE.
6. SOFTWARE LICENSE.
To facilitate your use of the Service, Hughes may provide you with software and written materials including documentation (the “Software”). Subject to the terms of this Agreement, Hughes grants you a limited personal, non-exclusive, non-sublicenseable, and non-transferable license to use and display the Software on any machine(s) on which you are the primary user or which you authorize for use. Unauthorized copying of any portion of the Software, including software that has been modified or updated, or merged or included with the Software, as well as the documentation provided, is expressly forbidden. You may not sublicense, assign, or transfer this license or the Software except as expressly permitted by Hughes. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations under this license is void. You agree that you shall not, nor shall you permit others to, copy, duplicate, reverse engineer, decompile, or create derivative works from the Software, in whole or in part, including any written materials provided in conjunction with the Software. Hughes will occasionally provide automatic software and technology upgrades to improve the Service, such as virus and spam screening technologies, although these upgrades may not be consistent across all platforms and devices. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related services.
7. SPECIFIC RESTRICTIONS ON USE OF THE SERVICE.
7.1. PROHIBITED CONDUCT.
You agree to comply with the terms of the Hughes Acceptable Use Policy. Violations of the Acceptable Use Policy may result in suspension or termination of Service.
7.2. HUGHES' FAIR ACCESS POLICY.
To ensure fair Internet access for all HughesNet subscribers, Hughes maintains a Fair Access Policy. This policy establishes an equitable balance in Internet access for all HughesNet subscribers. Hughes assigns a download threshold to each service plan that limits the amount of data that may be continuously downloaded. The small percentage of subscribers who exceed this limit will experience a temporary reduction of speed. Hughes’ Fair Access Policy may be revised by Hughes at any time. More information about the current Fair Access Policy is available at legal.hughesnet.com.
7.3. COMPLIANCE WITH LAWS.
You agree to comply with all applicable laws, rules, and regulations in connection with the Service, your use of the Service, and this Agreement.
7.4. NO RESALE.
You agree not to reproduce, resell, transfer, trade, sublicense, or exploit for any commercial purposes your subscription to the Service, any portion thereof, or any capabilities or applications enabled by the Service (e.g., Voice over Internet Protocol service).
7.5. ASSUMPTION OF RISK.
Hughes may, but shall not have any obligation to, screen content transmitted through and stored on the Service for objectionable material and material that violates any law or regulation, the terms of this Agreement, or the Acceptable Use Policy (collectively, “Objectionable Content”). Hughes may, but shall not have any obligation to, remove from the Service or refuse to store or transmit any Objectionable Content. You agree to bear all risks associated with any and all content you use, transmit, or receive on or through the Service, and agree that you will not rely on any such content.
PART V – GRANT OF IMPORTANT RIGHTS BY YOU TO US, AND IMPORTANT DISCLAIMERS, ACKNOWLEDGMENTS, AND OBLIGATIONS.
8. IP ADDRESSES.
In the event you are acquiring the use of one or more private IP Addresses through your HughesNet Subscription, the following conditions will apply. Hughes may, but shall not have any obligation regarding the following:
- "Static IP" addresses are primarily for the use for customers who need to access other networks through firewalls or VPNs that require an IP address from the source of the connection to remain the same over long periods of time.
- IP addresses cannot be guaranteed in perpetuity. Hughes retains the right to change the IP addresses allocated for HughesNet systems. Should it become necessary to change a static IP, Hughes will attempt to contact the customer with sufficient notice advance of the change.
- Hughes will not support any attempts to run Web pages, hosting servers, or SMTP relays behind a HughesNet terminal or any other server as described in the Hughes Acceptable Use Policy. This includes removing a static IP address from SMTP “Blacklists” or “Dynamic IP address lists,” or creating custom reverse DNS entries for the IP addresses allocated to a HughesNet terminal, such that a customer domain name purchased by another vendor can be associated with a HughesNet system for the purposes of operating a Web page or SMTP service.
- Hughes will not register IP addresses granted to a HughesNet customer as separate domains or DNS/MX Record domains customized for an individual subscriber.
- All IP addresses allocated to a HughesNet system are the sole property of Hughes. Title, ownership, and registration of IP addresses granted to a HughesNet terminal will remain the property and under the administrative authority of Hughes.
9. COPYRIGHT AND LICENSES.
Hughes reserves all copyrights and other rights in and to any content available through the Service which is identified as, claimed by us as, or known by you to be, proprietary to Hughes or its licensors (collectively, “Proprietary Content”). The Proprietary Content is protected under U.S. and international copyright laws, including as a collective work. All copying, modification, distribution, publication, or other use by you, or by any user of your account, of any such content or other works is prohibited, except as expressly permitted by Hughes.
10. NO ENDORSEMENT.
Hughes does not endorse or in any way vouch for the accuracy, completeness, truthfulness, or reliability of any service, opinion, advice, communication, information, or other content on or made available through the Service. Such content does not necessarily constitute or reflect the views or approval of Hughes or any of its subsidiaries or affiliates.
YOU ACKNOWLEDGE THAT INTERNET SITES, AND USE OF THE INTERNET, MIGHT CONSIST OF, INCLUDE AND/OR PROVIDE ACCESS TO IMAGES, SOUND, MESSAGES, TEXT, SERVICES, OR OTHER CONTENT AND MATERIAL THAT MAY BE UNSUITABLE FOR MINORS AND THAT MAY BE OBJECTIONABLE TO MANY ADULTS. YOU ACKNOWLEDGE THAT HUGHES IS NOT RESPONSIBLE FOR ANY SUCH CONTENT OR MATERIAL AND THAT ACCESS TO SUCH CONTENT AND MATERIAL THROUGH THE SERVICE IS AT YOUR SOLE RISK.
12. LIMITED WARRANTY ON EQUIPMENT.
Hughes warrants to the original buyer that under normal use and wear the equipment used to access the Service (the “Equipment”), which includes the Indoor Unit (satellite modem), Power Supply, and the Outdoor Unit (Antenna and Radio Assembly), will be free from defects in material and workmanship for a standard limited warranty term of twenty-four (24) months from the date of activation. Any Equipment replaced or repaired under this warranty will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This warranty is not transferable.
If under normal use and wear, the Equipment becomes defective in materials or workmanship during the warranty period set forth above, Hughes shall at its option and expense, perform one of the following:
- We will repair or replace the defective Equipment within thirty (30) days of the date the defective Equipment was returned to Hughes’ designated address at your expense, to cause it to comply with the terms of this Limited Warranty. Reconditioned replacement components, parts, units, or materials may be used if the Equipment is repaired or replaced.
- If repair or replacement is not commercially practicable, we will return the original price paid by you for the defective Equipment. If service to the Outdoor Unit (satellite antenna and transmitter) is required, Hughes will, at its expense, repair or replace it pursuant to the limited warranty for the first six months after installation. From six months to the end of your limited warranty period, Hughes will cover the cost of the replacement equipment, but the cost of the onsite service technician visit, if necessary, will be paid by you. You may request a price estimate prior to the work, based on the type of the replacement. If your satellite antenna needs to be re-pointed after the first six (6) months of service, a standard onsite visit fee will be charged to you. Reconditioned replacement components, parts, units, or materials may be used if the Equipment is repaired or replaced.
- We may upgrade the Equipment to a later-generation product that performs the same function and complies with the terms of this Limited Warranty.
THESE ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR DEFECTS DURING THE WARRANTY PERIOD IN ANY EQUIPMENT COVERED BY THE LIMITED WARRANTY. To request Limited Warranty service you must contact Hughes Customer Service, toll-free, at 1-866-347-3292 within the Limited Warranty period.
This Limited Warranty will be void in its entirety if the Equipment is serviced by anyone other than Hughes or a Hughes-Authorized Service Center. Hughes neither assumes nor authorizes any Authorized Service Center or any other person or entity to assume any other obligation or liability beyond that which is provided for in this Limited Warranty.
This Limited Warranty does not cover damage or affected operation of the above-referenced Equipment resulting from:
- Non-professional installation; re-pointing of the Antenna; removal, repair, or disassembly of Equipment by anyone other than a Hughes-Authorized Service Technician;
- Failure to follow instructions;
- Fire, flood, wind, lightning, earthquake, or other acts of God;
- Spills of food or liquids;
- Problems with electrical power;
- Misuse, abuse, accident, vandalism, alteration, or neglect;
- Use in combination with other external devices not manufactured or provided by Hughes.
This Limited Warranty does not cover items in the following categories:
- Software provided by any party other than Hughes;
- External devices not manufactured or provided by Hughes;
- Any payments for labor or service to representatives or service centers not authorized by Hughes.
EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE EQUIPMENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, HUGHES DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE EQUIPMENT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE EQUIPMENT IS ASSUMED BY YOU.
No oral or written information or advice given by Hughes, its dealers, distributors, agents, or employees, shall create a warranty, or in any way increase the scope of this warranty, and you may not rely on any such information or advice. This warranty gives you specific legal rights. You may have other rights, which vary from state to state.
All liability and obligations of Hughes under this Limited Warranty shall terminate upon expiration of the applicable warranty period provided herein. This Limited Warranty sets forth the entire responsibility of Hughes with respect to the Equipment. Hughes shall have no further liability to you or to any third party arising from the sale of the products whether based on warranty, contract, negligence, or other theories of liability. HUGHES SHALL HAVE NO LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF HUGHES’ BREACH OF THIS LIMITED WARRANTY, WHETHER SUCH DAMAGES AROSE IN CONTRACT OR TORT, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. In no event shall Hughes' liability exceed the amount paid by you for the Equipment.
Hughes may, at its option, elect to ship replacement equipment in advance of receiving a failed item from you. If you do not return such failed item to the address specified by Hughes within 20 days of Hughes’ shipping your replacement item, you agree to pay, and Hughes will automatically charge your account an unreturned equipment fee equal to $125.00 for each item of equipment not returned. This fee will be collected in addition to your monthly service charge via your standard payment method (your credit/debit card on file or via invoice).
13. DISCLAIMER OF WARRANTIES ON THE SERVICE AND EXCLUSION OF LIABILITY.
13.1. WARRANTY DISCLAIMER.
HUGHES DOES NOT OFFER ANY WARRANTY IN CONNECTION WITH THE SERVICE OR THE SUBSCRIBER EQUIPMENT. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HUGHES EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED, OR WILL OPERATE AT ANY MINIMUM SPEED. YOU AGREE THAT YOUR USE OF THE SERVICE AND THE SUBSCRIBER EQUIPMENT, AND SUCH USE BY ANYONE USING YOUR ACCOUNT, IS AT YOUR SOLE RISK. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY HUGHES, ITS EMPLOYEES, DEALERS, OR THE LIKE SHALL CREATE A WARRANTY.
13.2. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER HUGHES NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE WITHOUT LIMITING THE FOREGOING. IF FOR ANY REASON ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT THE MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY OF HUGHES, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES, OR THIRD-PARTY CONTENT PROVIDERS, IF ANY, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO HUGHES BY YOU FOR SERVICES FURNISHED UNDER THIS AGREEMENT FOR THE PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF SUCH ERROR, DEFECT, OR FAILURE, AND CEASING UPON THE DISCOVERY AND RECTIFICATION OF SUCH, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE TWELVE- (12-) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH ERROR, DEFECT, OR FAILURE IS FIRST DISCOVERED IN WHOLE OR IN PART.
Without limiting the foregoing, Hughes shall not be responsible for (1) any failure to transmit or store, or for any deletion of, any communication, message, email, or content transmitted through, sent to, or received by the Service or Hughes’ servers; or (2) any modification, suspension, interruption, or discontinuance of the Service.
13.3. FULL APPLICABILITY.
THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF HUGHES OR OTHERS ARE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
You agree to indemnify and hold harmless Hughes against all claims, liability, damages, costs, and expenses, including but not limited to reasonable attorney's fees, arising out of or related to this Agreement, any and all uses of your account, and your use of the Service. This includes, without limitation, responsibility for all such consequences resulting from actions by you or any user of your account in violation of this Agreement, the Acceptable Use Policy, or any law or regulation.
15. LIABILITY FOR UNAUTHORIZED USE.
You agree to notify us immediately after you sell, give away, or otherwise transfer your Equipment to anyone else. You are considered the registered recipient of the Service until Hughes receives such notice, and you will be liable for any charges or fees incurred by the use of your Equipment by anyone else up to the time that Hughes receives your notice, unless otherwise provided by State law. You may not assign or transfer your service without Hughes’ written consent. If you do, Hughes may inactivate your service. If your Equipment is stolen or otherwise removed from your premises without your authorization, you must notify HughesNet Customer Care Center immediately, or else you may be liable for payment for unauthorized use of your Equipment system. You will not be liable for unauthorized use after Hughes has received your notification.
16. PROPRIETARY RIGHTS.
All copyright or other proprietary rights notices contained in or associated with the content available through the service must be preserved on any copies made of such material; provided, however, that no copies shall be made in violation of Section 7 or any other provision of this Agreement. The placement of copyrighted material in any public posting area, or any software library, without the consent of the copyright owner is prohibited. Nothing in this Agreement may be construed to convey to you any interest, title, or license in the user ID, email address, Universal Resource Locator (“URL”), IP address, or domain name used by you in conjunction with the Service.
PART VI – GENERAL.
17. LIMITS ON TRANSFERS; NO RIGHT OF SURVIVORSHIP.
Unless otherwise agreed in writing, your right to use the Service, or to designate other users of your account, is not transferable and is subject to any limits established by Hughes. Your right to use your user ID, email address, and other unique identifiers assigned to you by Hughes shall terminate upon the termination of this Agreement. This Agreement will terminate immediately upon your death.
18. CHOICE OF LAW.
This Agreement is made in the State of Maryland. This Agreement and all of the parties’ respective rights and duties in connection herewith, including, without limitation, claims for violation of state consumer protection laws, unfair competition laws, and any claims in tort shall be governed by and construed in accordance with the laws of the State of Maryland, in the United States, excluding its conflicts of laws provisions.
19. DISPUTE RESOLUTION AND BINDING ARBITRATION.
EXCEPT AS OTHERWISE PROVIDED HEREIN, ANY AND ALL DISPUTES, CONTROVERSIES, OR CLAIMS BETWEEN YOU AND HUGHES, BASED ON, ARISING OUT OF, INVOLVING, OR RELATING IN ANY WAY TO THIS SUBSCRIBER AGREEMENT, THE HUGHESNET SERVICE, ANY OTHER ASPECT OF OUR RELATIONSHIP, OR ANY RELATED PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION CLAIMS BASED ON CONSUMER PROTECTION LAWS, UNFAIR COMPETITION LAWS, OTHER STATUTES, CONTRACT, TORT, MISREPRESENTATION, FRAUD, OR ANY OTHER LEGAL THEORY, SHALL BE SETTLED BY BINDING ARBITRATION AS SET FORTH HEREIN. ANY QUESTIONS AS TO THE ENFORCEABILITY OF THIS ARBITRATION AGREEMENT OR AS TO THE ARBITRABILITY OF ANY DISPUTE SHALL BE DECIDED BY THE ARBITRATOR, EXCEPT THAT ANY QUESTIONS AS TO THE APPLICABILITY OR ENFORCEABILITY OF THE PROHIBITION ON CLASS PROCEEDINGS IN SECTION 19.3 BELOW SHALL ONLY BE DECIDED BY A COURT. THIS AGREEMENT TO ARBITRATE IS SUBJECT TO THE FEDERAL ARBITRATION ACT.
Arbitration means that any dispute will be decided by an independent arbitrator, and will not be decided in court by a judge or jury. The applicable procedures may be different from procedures followed in court. In an arbitration, there is no right to a jury trial, discovery may be limited, and the grounds for seeking appeal or judicial review of the arbitrator’s award are limited.
An arbitrator must honor the terms and conditions of this Agreement to the same extent that any court would. Except as otherwise expressly provided herein, the same claims, legal theories, damages, and other relief that would be otherwise available in court, including any right you may have to recover attorney’s fees and/or litigation costs, shall also be available in an arbitration commenced pursuant to this clause. This agreement to arbitrate shall survive termination of this Subscriber Agreement and will apply to any claims brought or disputes arising before or after termination of this Subscriber Agreement.
This Dispute Resolution and Binding Arbitration provision (including all subparts of this Section 19) shall, to the extent permitted by law, apply to all pending and future claims, disputes, arbitrations, and litigation, including those involving former subscribers whose agreements terminated prior to the adoption of this provision. Any former subscriber whose agreement terminated prior to the adoption of this provision shall be entitled to proceed under the terms of this Dispute Resolution and Binding Arbitration provision with respect to any disputes, controversies, or claims within the scope of this Section 19.1.
19.2 DISPUTE RESOLUTION AND ARBITRATION PROCEDURES.
Notice of Dispute. Prior to filing any claim against the other, you and Hughes agree that you will first send the other a written Notice of Dispute. Any Notice of Dispute to Hughes should be sent to: HughesNet Customer Service, 11717 Exploration Lane, Germantown, MD 20876 (the “Notice Address”). Any Notice of Dispute to you will be sent to your billing address. The Notice of Dispute should describe the nature of the problem or dispute and set forth the specific relief sought, including the amount of any monetary damages sought. If the party receiving the Notice of Dispute agrees within thirty (30) days to provide the specific relief requested in the Notice of Dispute, no formal claim may be filed with respect to the subject of the Notice of Dispute. If we are unable to reach an agreement to resolve the dispute within thirty (30) days after the Notice of Dispute is delivered, either you or Hughes may commence an arbitration.
Arbitration Proceedings. Any arbitration between you and Hughes shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes, as supplemented and modified by the terms of this Agreement. In the event of any conflict between this Dispute Resolution and Binding Arbitration clause and the applicable AAA rules, this clause shall govern. The AAA Commercial Arbitration Rules and its Supplementary Procedures for Consumer-Related Disputes may be obtained online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
If the arbitrator enters an award in your favor, you shall be entitled to an award of any reasonable attorney’s fees or other reasonable costs and expenses you incur in the arbitration; provided that, if the settlement or award in your favor is equal to or less than the amount of a written settlement offer made by Hughes prior to selection of the arbitrator(s), you shall only be entitled to an award of reasonable attorney’s fees or other reasonable costs and expenses you incurred up to the date of that written settlement offer. The foregoing right to an award of fees, costs, and expenses is in addition to, and does not limit, any such right you may have under the applicable law governing your claim.
Unless you and Hughes agree otherwise, any arbitration hearing will take place at a location convenient to you which is in or nearest to the county where you reside when the arbitration is commenced. If your claim is for $10,000 or less, you may choose to have the arbitration conducted in person or by phone, or you may choose to have the arbitration decided solely on the basis of documents submitted to the arbitrator without a hearing. If your claim exceeds $10,000, the right to a hearing will be determined by the applicable AAA Rules.
Arbitration Costs and Fees. Payment of a filing fee is required to commence an arbitration. If you commence an arbitration against Hughes pursuant to this Binding Arbitration clause, and the claim seeks $10,000 or less, Hughes will, at your written request, pay the filing fee directly to the AAA or, if you have already paid it, promptly reimburse you for the amount of the filing fee. In addition, for any arbitration initiated in accordance with this Binding Arbitration provision which does not exceed $10,000, Hughes will also pay all other arbitration fees and expenses imposed by the AAA, including administration and arbitrator fees. However, if the arbitrator finds your claim is frivolous or brought for an improper purpose, then Hughes may seek reimbursement of any AAA fees and expenses it has paid in your behalf. For any arbitration involving claim(s) for more than $10,000, payment of fees and costs shall be governed by the applicable AAA rules.
19.3 PROHIBITION ON CLASS ARBITRATION.
YOU AND HUGHES AGREE THAT NO DISPUTE OR CLAIM MAY BE BROUGHT OR MAINTAINED AS PART OF A CLASS ARBITRATION OR OTHER REPRESENTATIVE ARBITRATION, REGARDLESS OF WHETHER THE APPLICABLE ARBITRATION RULES WOULD OTHERWISE PERMIT CLASS OR REPRESENTATIVE PROCEEDINGS. ACCORDINGLY, YOU AND HUGHES MAY ONLY PURSUE A CLAIM AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY, AND MAY NOT PURSUE A CLAIM AGAINST THE OTHER ON BEHALF OF ANY OTHER PERSON, AND NO OTHER PERSON MAY PURSUE A CLAIM ON BEHALF OF YOU OR HUGHES AGAINST THE OTHER. AN ARBITRATOR MAY ENTER AN AWARD 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.
19.4 LIMITATIONS ON ARBITRATION PROVISION.
Notwithstanding Sections 19.1 and 19.2 above, but subject to Section 19.3 above, you or Hughes may bring an individual action against the other in small claims court, and arbitration shall not be required as to any dispute relating to the validity or enforcement of either party’s patents, copyrights, or other intellectual property.
19.5 RIGHT TO OPT OUT; FUTURE CHANGES.
IF YOU DO NOT WISH TO BE BOUND BY THIS DISPUTE RESOLUTION AND BINDING ARBITRATION CLAUSE, YOU MAY OPT OUT OF THIS CLAUSE. TO DO SO, YOU MUST NOTIFY HUGHES IN WRITING TO THE ABOVE NOTICE ADDRESS WITHIN 30 DAYS AFTER YOU FIRST RECEIVE NOTICE OF THIS CLAUSE. YOUR WRITTEN NOTICE MUST INCLUDE YOUR NAME, ADDRESS, HUGHES ACCOUNT NUMBER, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH HUGHES THROUGH ARBITRATION. FAILURE TO PROVIDE SUCH NOTICE WITHIN 30 DAYS CONSTITUTES AGREEMENT TO THE TERMS OF THIS DISPUTE RESOLUTION AND BINDING ARBITRATION CLAUSE. YOUR DECISION TO OPT OUT OF THIS CLAUSE WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH HUGHES OR THE DELIVERY OF SERVICES TO YOU BY HUGHES.
In addition, if Hughes makes any future change to this Dispute Resolution and Binding Arbitration provision, you may reject any such change by sending Hughes written notice within 30 days of receiving notice of the change. In that case, any dispute arising between you and Hughes will be governed by the Dispute Resolution and Binding Arbitration provision, or any equivalent provision, in effect as of the date you received notice of the change.
19.6 EXCEPTION TO SEVERABILITY.
Notwithstanding Section 22.1 below, if for any reason the prohibition on class proceedings set forth in Section 19.3 above is not enforced as written with respect to any dispute, then Section 19.1 above also will not apply to that dispute.
20. ELECTRONIC DELIVERY POLICY AND YOUR CONSENT.
By applying for or using the Service, you consent to receive all agreements, disclosures, policies, notices, and other information (collectively, “Notices”) provided by Hughes or its affiliates via paper, aural, and/or electronic delivery at Hughes’ sole and absolute discretion. For purposes of example and not limitation, Hughes may deliver or display Notices to you by email or pop-up window, or by posting a message on the Service or the Hughes Website. You agree that certain supplemental or enhanced services made available to subscribers may also have their own procedures for providing Notices.
21. CONSTRUCTION AND DELEGATION.
Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. Hughes may authorize or allow its contractors and other third parties to provide services necessary or related to making the Service available and to perform obligations and exercise Hughes’ rights under this Agreement, and Hughes may collect payment on their behalf, if applicable. The provisions of any Sections of this Agreement, which by their nature should continue, shall survive any termination of this Agreement.
22.1. NOTICE; SEVERABILITY.
Where notification by Hughes is contemplated by or related to this Agreement, notice may be made by any reasonable means, including without limitation email or publication over the Service. If any term of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, it shall be construed in such a way as to eliminate the offending aspects while still giving as much effect as possible to the intentions of such term. Where an entire provision is invalid, illegal, or unenforceable and cannot be so repaired, then the term shall be considered to be stricken from this Agreement as if it had not been included. In any such case, the balance of this Agreement shall remain in effect in accordance with its remaining terms notwithstanding such invalid, illegal, or unenforceable term.
22.2. NO WAIVER.
Hughes may enforce or decline to enforce any or all of the terms of this Agreement in its sole discretion without waiving its rights to enforce such provisions in the future. In no event shall Hughes be required to explain, comment on, suffer liability for, or forfeit any right based on its enforcement, non-enforcement, or consistency of enforcement of these terms.
Captions used in this document are for convenience only and shall not be considered a part of this Agreement or be used to construe its terms or meaning.
22.4. STATUTE OF LIMITATIONS.
You agree that, regardless of any statute to the contrary, any claim or cause of action arising from or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
23. ASSIGNMENT OF ACCOUNT.
Hughes may sell, assign, or transfer your account to a third party without notice to you.
24. ENTIRE AGREEMENT.
This Agreement, as published over the Service and available on the Website, as well as the additional online documents specifically referred to herein as being a part of this Agreement (e.g., the Acceptable Use Policy), constitute the entire and only agreement with respect to the subject matter hereof between you and Hughes. This Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements, and other communications with respect to the subject matter hereof except as expressly set forth in this document. By applying for or using the Service, you agree to the terms and conditions of this Agreement. This Agreement can be amended only in the manner expressly provided for herein.